IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 8664 of 2006 Jagdeo Ram, son of late Charitra Ram, resident of village – Maricha Ram, P S – Sarai, District – Vaishali (Hajipur) – At present posted as Deputy Director of Agriculture (General), Muzaffarpur - Petitioner Versus 1 The State of Bihar 2 Agriculture Production Commissioner, Government of Bihar, Patna 3 Commissioner –cum- Secretary, Department of Finance, Bihar, Patna 4 Under Secretary, Department of Agriculture, Government of Bihar, Patna - Respondents *** For the petitioner : M/s M K Thakur, Rajeev Kr, Advocates For the S t a t e : Mr S C 18 *** 2 29.11.2010 Petitioner has come to this Court claiming grant of Junior Selection Grade from the time his juniors were granted the same, there being nothing to disqualify him in that regard. Petitioner points out that his immediate senior Brahamdeo Ram was granted the Junior Selection Grade with effect from 11.03.1992 and his immediate junior Brahamdeo Mandal was granted the Junior Selection Grade also from the date 11.03.1992. It is, thus, submitted that the petitioner, not having been found unfit, must also be granted the junior Selection Grade from the same date. Petitioner points out that the matter was enquired into and ultimately it was found that overlooking the right of the petitioner and some others, some juniors were granted the Junior Selection Grade. Upon realisation of this, the Finance Department, for a limited period, created five shadow posts so that this unjust action could be nullified by granting promotions to four superseded persons. In the counter affidavit, it is now admitted that petitioner had been wrongly left out. Departmental 2 Promotion Committee (DPC) has considered the matter but once again a small error has been left. As noticed above, petitioner’s immediate senior and immediate junior have been granted Junior Selection Grade with effect from 11.03.1992, thus, entitling him to get it from the same day. The DPC has sanctioned the same with effect from 11.05.1992 which apparently appears to be a typographical error. It is, accordingly, held that the petitioner would be entitled to Junior Selection Grade with effect from 11.03.1992 and any order and/or notification to the contrary would be bad and unenforceable. The second dispute is that while granting Junior Selection Grade with retrospective effect, it has been ordered that financial benefits, if any, would accrue only from the date of order and not from the date when promotions were due. This is a very strange plea. What the Government is trying to say is that a person should have been granted promotion way back in the year 1992 but for some reason, as the Government slept over the matter and realised its mistake much later, while rectifying the mistake, it can deny the person benefit thereof. In my view, in a society governed by law and by Indian Constitution, this is not permissible. All I can say is what Chief Justice Chagla in the case of All India Groundnut Syndicate Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 said : “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that 3 definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” In that view of the matter, the counter affidavit, not disputing the entitlement of petitioner and grant of Junior Selection Grade to the petitioner, I direct that for all purposes, including financial benefits, petitioner would be deemed to have been granted Junior Selection Grade with effect from 11.03.1992 and with all consequential benefits. Any order or notification to the contrary would be bad and would have to be read in conformity with this order. The writ petition is, thus, allowed. This order shall be given effect to by the Agricultural production Commissioner (respondent No 2) within a period of one month from the date of production of a copy of this order before him. M.E.H./ (Navaniti Prasad Singh)