IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.613 of 2010 IN CIVIL WRIT JURISDICTION CASE No. 5823 of 2009 WITH INTERLOCUTORY APPLICATION No. 3100 of 2010 WITH INTERLOCUTORY APPLICATION No. 3101 of 2010 WITH INTERLOCUTORY APPLICATION No. 9684 of 2010 WITH INTERLOCUTORY APPLICATION No. 9685 of 2010 WITH INTERLOCUTORY APPLICATION No. 9686 of 2010 IN LETTERS PATENT APPEAL No.613 of 2010 ==================================================== 1. The State of Bihar through the Chief Secretary, Bihar, Patna 2. The Secretary cum Commissioner Water Resources Department (Irrigation), Old Secretariat, Sichai Bhawan, Bihar, Patna 3. The Engineer-in-Chief, Department of Irrigation Sichai Bhawan, Old Secretariat, Bihar, Patna 4. The Chief Engineer Irrigation Department, Dehri, Rohtas 5. The Superintending Engineer Water Wage Circle, Bhabhua (Kaimur) 6. The Superintending Engineer Department of Designing, Planning and Monitoring Circle, Dehri (Camp Indrapuri), Rohtas 7. Executive Engineer, Planning and Monitoring Division Dehri, Rohtas 8. The Executive Engineer Water Wage Division, Mohania (Bhabhua) 9. The Secretary, Department of Finance, Bihar, Patna 10. The Under Secretary Personnel Claims Fixation Cell (Finance Deptt.), Bihar, Patna 11. The D.M. Bettiah (West Champaran). …. …. Respondents/Appellants Versus 1. Suresh Paswan S/O Shri Saryug Paswan R/O Vill.- Turki, P.S.- Bhagwanpur, Distt.- Vaishali, at Present Posted as Assistant Engineer, Zila Sahakari Vikash Abhikaran, Bettiah (West Champaran). …. …. Petitioner/Respondent 2. The Accountant General, Bihar, Patna 3. The State of Jharkhand through Chief Secretary, Jharkhand, Ranchi 4. The Secretary cum Commissioner Department of Irrigation, Jharkhand 5. The Secretary cum Commissioner Rural Development (Special) Department, Jharkhand, Ranchi 6. The Engineer in Chief, Irrigation Department Jharkhand at Ranchi 7. The Engineer in Chief Rural Development (Special) Department, Jharkhand, Ranchi 8. The Chief Engineer Rural Development (Special) Range (National Rural Employment Programme), N.R.E.P. (Special, F.F.P. Bhawan, Dhurva, Ranchi (Jharkhand) 9. The Chief Engineer, Irrigation Department, Jharkhand, Ranchi 10. The Superintending Engineer Rural Development (Special) Circle, Daltonganj (Medni Nagar), Jharkhand - 2 - 11. The Executive Engineer Rural Development (Special) Division, Latehar (Jharkhand) 12. The Secretary, Department of Finance, Jharkhand, Ranchi 13. The Accountant General, Jharkhand, Ranchi ==================================================== Appearance : For the Appellant : Mr. Bajarangi Lal, A.C. to GA-8 For the Respondent No.1: Mr. Ratnesh Kumar Singh, Advocate For the State of Jharkhand: Mr. Dhrub Mukherjee, Advocate ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 5. 24.11.2010. Re. Interlocutory Application No. 3100 of 2010: - This application under Section 5 of the Limitation Act is made by the appellant State of Bihar and others for condonation of delay of 189 days occurred in filing the Letters Patent Appeal. It is the case of the appellants that the procedural requirements and the decision making process consumed more time. The appeal, therefore, could not be filed within the period of limitation. The application is contested by the learned Advocate Mr. Ratnesh Kumar Singh appearing on behalf of the respondent no.1, the writ petitioner. He has strenuously urged that the statements made in the application are false. In fact, the copy of the impugned judgment and order was received by the appellants on 28th August 2009, long before the alleged date of 11th September 2009. Mr. Singh has relied upon the counter affidavit and the documents annexed to the affidavit. He has submitted that the respondent no.1 had sent a copy of - 3 - the judgment which was received by the respondent on 28th August 2009. The statement that the copy was received on 11th September 2009 is manifestly wrong. We are not impressed. True, the respondent no.1 may have sent a copy on 24th August 2009, which was received in the concerned department on 28th August 2009. There is nothing on the record to suggest that the copy was received by the deponent Om Prakash Mochi, Deputy Secretary to the Government of Bihar, Water Resources Department on 28th August 2009. Receipt of the copy by the receiving clerk would not belie the statement made on oath. On the facts and in the circumstances of the case, the delay is condoned. Interlocutory Application stands disposed of. Letters Patent Appeal No. 613 of 2010, Interlocutory Application No. 3101 of 2010, Interlocutory Application No. 9684 of 2010, Interlocutory Application No. 9685 of 2010 and Interlocutory Application No. 9686 of 2010: - Feeling aggrieved by the order dated 10th August 2009 made by the learned single Judge in above C.W.J.C. No. 5823 of 2009 the State of Bihar and others have preferred this appeal under Clause 10 of the Letters Patent. The respondent no.1, the writ petitioner, is a Government servant, employed as a Junior Engineer in Water Resources Department. Under Government Notification dated 17th June 2005 the respondent no.1 was promoted to the post of Assistant Engineer with effect from 1st January 1998. The terms and conditions of - 4 - the promotion envisaged that the promotee would receive the monetary benefits from the date he assumes the charge of the promotional post and that the monetary benefits from the date of promotion can be granted with the permission of the Finance Department. As the petitioner was not given the monetary benefits from the date of promotion he filed the above C.W.J.C. No. 5823 of 2009 and prayed for grant of the monetary benefits with effect from 1st January 1998, the effective date of promotion. Though served the State Government did not file counter affidavit. The learned single Judge has allowed the writ petition and has directed the State Government to pay the arrears of salary to the respondent no.1 from the date of promotion. Therefore, the present Appeal. Learned Advocate Mr. Bajrangi Lal has appeared for the appellant State Government. He has submitted that as the respondent no.1 did not serve as an Assistant Engineer since 1st January 1998, he is not entitled to receive salary for that period. We are unable to comprehend the argument. At first stage the Government did not file counter affidavit to explain why the petitioner was not granted promotion on 1st January 1998 when it was due. In absence of any reply it is presumed that on 1st January 1998 the petitioner was eligible for such promotion, was suitable for promotion and the vacancy did exist. Even the order of the promotion envisages payment of salary from the effective date of promotion with the concurrence of the Finance Department. It is not the case - 5 - of the State Government that such concurrence was called for and was refused for valid reasons. In absence of any contest, we have no reason to interfere with the order of the learned single Judge. The appeal is dismissed. Ad interim stay stands vacated. Interlocutory Application No. 3101 of 2010, Interlocutory Application No. 9684 of 2010, Interlocutory Application No. 9685 of 2010 and Interlocutory Application No. 9686 of 2010 stand disposed of. Any salary due to the respondent no.1 will be paid without delay. Pawan/- (R.M. Doshit, CJ) (Jyoti Saran, J)