IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3535 of 2000 RAMPRITI SHARMA Versus THE STATE OF BIHAR & ORS ----------- 2. 2.7.2009 Heard Mr. Dharmeshwar Mishra, counsel for the petitioner and the counsel for the State. In this writ application the petitioner has made prayer to the following effect: “i) For issuance of appropriate writ in the nature of mandamus and such other order/orders and direction commanding the respondents to dispose of the pending representation vide Annexure 11 and decide the matter of 2nd time bound promotion and accordingly to revise the monthly pay scale of Late American Sharma (father of the petitioner) who was under the employment of respondent no.1 and working under the administrative control of respondent no.5 as Asst. Carpenter till the date of his retirement from the Govt. service on 31.7.1997. ii) For issuance of appropriate writ in the nature of mandamus commanding the respondents to revise and fix the monthly pay scale of American Sharma contained 2 in Annexure 12 after deciding the matter of his 2nd time bound promotion which is pending before respondent no.5 since 21.2.1996. iii) For issuance of appropriate writ commanding the respondents for making payment of the balance amount of the monthly salary for which late American Sharma was entitled to get after his 2nd time bound promotion as per rules during his service tenure till the date of his retirement on 31.7.1997 and accordingly for revising, fixing and making payment of the balance amount of his monthly pension and other retirement benefits including the family pension payable to his wife after his demise on 21.11.1997. iv) For order/orders and declaration that the action of respondent no. 5 not disposing of the written representation of American Sharma dated 21.2.1996 and sitting tight over the matter without assigning any reason thereof till the service tenure of American Sharma and even after his retirement and even after demise is unjust improper discriminatory, arbitrary and violative of Govt. rules in this regard. v) For order and declaration that the action of the respondents not 3 fixing and making payment of monthly pension to American Sharma after his retirement and after his demise on 21.11.1997 the family pension to his widow Badho Devi without calculating and fixing the same even on his monthly pay scale Rs. 1240/- per month vide Annexure 12 is unjust improper arbitrary and discriminatory and also in violation of pension Rules. vi) For order and declaration that the action of respondents after retirement of American Sharma from the service on 31.7.1997 fixing Rs. 487/- as his provisional monthly pension and making payment of the same to him and after his demise on 21.11.1997 fixation and payment of family pension to his widow Budho Devi at the rates of Rs. 496/- per month is inappropriate inadequate, unjust, arbitrary and discriminatory and also violative of Bihar Pension Rules. vii) For order and declaration that the respondents are duty bound and under statutory obligation to decide the matter of 2nd time bound promotion of late American Sharma for which he submitted his written representation before the respondent no.5 on 21.2.1996 as he was entitled to get his 2nd time bound promotion and on that basis 4 to revise and fix higher monthly pay scale since January, 1996 and accordingly the amount of his retirement and other benefits inclusive of his monthly pension and family pension. viii) For order and declaration that the writ petitioner being the only son and sole heir of late American Sharma and his widow late Budho Devi as the beneficiary is entitled to get the balance amount of the revised monthly salary which was legally payable to American Sharma during his active service and after his retirement the balance amount of his monthly pension and after his demise on 21.11.1997 the balance amount of family pension payable to his widow Budho Devi till her life time after being calculated and fixed by the respondents on the amount of revised monthly pay scale after 2nd time bound promotion of American Sharma. ix) For issuance of appropriate writ in the nature of mandamus commanding the respondents to decide without further loss of time the matter of 2nd time bound promotion of late American Sharma for which he was entitled and submitted his written representation before respondent 5 no.5 on 21.2.1996 and accordingly to revise and fix his monthly pay scale with effect from 1.1.1996, and also the rate of his monthly pension with effect from 1.8.1997 and after his demise on 21.11.1997 the amount of family pension payable to his wife Sudho Devi of the balance amount of monthly salary, monthly pension and family pension to the writ petitioner the entire balance amount of revised pay scale, monthly pension which late American Sharma was entitled to get during his service tenure and after his retirement respectively and also the balance amount of the family pension for which after his demise his widow Budho Devi was entitled to get during her life time as both of them is now have died living behind them their only son and sole heir the writ petitioner.” Mr. Mishra, however, in course of submission has confined the grievance of the petitioner as with regard to second time bound promotion of the father of petitioner, late American Sharma, and non-payment of enhanced amount of salary from Rs. 1220/- to 1240/-. 6 The respondents have filed a counter affidavit, copy whereof was served on 12.4.2001 and each and every grievance of the petitioner has been explained wherein it has been said that the petitioner, the alleged successor of his father, has already been directed to approach with succession certificate and that he has not done so and therefore, the payment which could have been claimed by him and paid by the Department could not be finalized. A further stand has been taken that the father of the petitioner was not entitled for second time bound promotion, inasmuch as the date of his appointment was 3.2.1971 and 25 years he has service after which he could have been completed only on 3.2.1976, whereas the State Government had already taken a policy decision to scrap the time bound promotion with effect from 1.1.1996. In the counter affidavit the relevant portion of the decision of the State Government has been enclosed, paragraph 11 whereof answers this part of the claim of the petitioner. “ The State Government have decided 7 to abolish the existing facilities of Time Bound Promotion and Selection Grades discussed in paras 10 and 12 of F.D.Resolution no. 6021 dated 18.12.1989 and they shall cease to be applicable with effect from 1.1.1996 and thereafter in the existing pay scales if any such promotion, however, is due under the Rules before 1.1.1996 it shall be given and the payment of arrears in the existing scale shall be made only upto 31st December, 1995 after which the promotion would be deemed to have been automatically terminated. While fixing pay in the revised scales, such promotions given after 31.12.1995 will not be taken into consideration, If such promotions have been given after 31.12.1995, then the question of adjustment of such additional emoluments obtained by the process will be decided after the Fitment Committee submits its recommendations on promotion policy. Promotion to any vacancy of a post identified as need based post would be admissible. The procedure for identification of such need based posts has been set out in paragraph 12.” In view of the admitted fact that 8 such claim for second time bound promotion of the father of the petitioner had accrued after 1.1.1996, the petitioner cannot claim any arrears for the second time bound promotion as the same was not notified or could not have been notified and as such, the petitioner claiming to be the heir of late American Sharma cannot now claim the benefit of second time bound promotion of his father which was not found to be admissible to him. In paragraph 18 of the counter affidavit it has also been explained that the payment of enhanced amount of salary from Rs. 1220/- to 1240/- has already been made. As noted above, there is no reply to the counter affidavit. In such view of the matter, this Court has no reason to disbelieve the stand taken by the respondents. In that view of the matter, this Court would only give liberty to the petitioner to approach the Department for claiming any admissible and payable dues of his father only after he obtains a 9 succession certificate in accordance with law. This application, accordingly, stands disposed of. (Mihir Kumar Jha,J.) Surendra/