IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12951 of 2003 1. NAND KISHORE JHA, Son of Late Thakur Jha, resident of mohalla- tilka Manjhi Colony, P.S. Kotwali, District- Bhagalpur 2. Kailash Prasad Sah, Son of Late Govind Sah, resident of mohalla Gurhatta Chowk, Bhagalpur, P.S.- Mozahidpur, District- Bhagalpur 3. Pramod Kumar Jha, Son of Late Shobha Nand Jha, resident of mohalla- Babu Tola, P.S.- Banka, District- Banka ----------------Petitioners Versus 1. THE STATE OF BIHAR through the Secretary, Public Health Engineering Department, vishshewariya Bhawan, Bailey Road, Patna 2. Superintending Engineer, Public Health Engineering Circle, Public Health Engineering Department, Bhagalpur 3. Executive Engineer, Public Health Division, Bhagalpur (East), Public Health Engineering Department, Bhagalpur 4. Executive Engineer, Public Health Division, Banka, Public Health Engineering Department, Banka. -----------------Respondents. ----------- 4. 28.1.2010 Heard learned counsel for the petitioners and the State. The petitioners were given first time bound promotion with effect from 5.10.1988, 19.4.1989 and 8.9.1991 respectively. Passing of the Departmental Accounts Examination was a prerequisite for such time bound promotion. Their order of promotion therefore stated that it was provisional and could be cancelled in pursuance of which the impugned order dated 28.8.2003 then came to be passed canceling their first time bound promotion and ordering recovery on the ground that after they cleared the Departmental Accounts Examination, their cases for promotion may be considered appropriately. 2 It is submitted that petitioner no. 1, cleared Papers- Ist and IInd of the Accounts Examination. He was however unsuccessful in Paper-IIIrd when he filed an application for exemption in 1983. That remained pending and finally came to be allowed on 16.9.2005. The defence of the respondents placing reliance on their notification dated 9.11.1983, is that the exemption shall operate from the date of the grant, does not appeal to this Court. It shall amount to giving advantage to the respondents for their own laches. If they keep the application for exemption pending from 1983, this Court will read it down that the sanction shall operate from the date of the application as it was a beneficial provision provided to the employee which cannot be defeated because of laxity on part of the State. Once the petitioner has been granted exemption in Paper- IIIrd, he is deemed to cleared the departmental examination papers. In so far as petitioner no. 2 is concerned, he also cleared Paper- Ist and IInd and appeared at the IIIrd paper at the examination held in March, 2002 for which the results have been published on 26.5.2005 declaring him to have passed. The cancellation of his promotion becomes clearly non est. The delay in publication of the results is attributable to the respondents alone. Petitioner no. 3 has specifically asserted in 3 Paragraph-23, that though his papers were forwarded by the appropriate authority for appearing in Paper- IIIrd while he had cleared Papers- Ist and IInd earlier, he was not granted permission to appear. Dealing with the aforesaid averment in Paragraph-11 of the counter affidavit it is stated “the same are matters of record and the deponent does not want to make any comment at this stage.” The contention of petitioner no. 3, therefore, stands admitted. If he was deprived from appearing at Paper-IIIrd and could not do so without permission, he cannot be faulted with. There being a provision for exemption, in the facts of the case, this Court shall deem it that he has been exempted. In view of the aforesaid discussion, the impugned order dated 28.8.2003 become unsustainable and is accordingly set aside. If any amounts remained due and payable to the petitioners in pursuance of the present order and they represent, the authorities are required to pay the legitimate dues in accordance with law, within a maximum period of three months from the date of receipt/production of a copy of this order. The application stands allowed. P. Kumar (Navin Sinha, J.)