IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10793 of 2002 DIWAKAR PRASAD VERMA, son of Keshendra Prasad Verma, resident of village Maldar, P.S. Tarapur, District Munger … Petitioner Versus 1. THE STATE OF BIHAR through the Commission cum Secretary, Health Department, Govt. of Bihar, Patna 2. The Director of Health, Services, Govt. of Bihar, Patna 3. The State Anti Leprosy Officer, Department of Health, Govt. of Health, Govt. of Bihar, Patna 4. The District Leprosy Officer, Bhagalpur 5. The Civil Surgeon cum Chief Medical Officer, Bhagalpur 6. The Medical Officer In-charge, Leprosy Central Unit Amapur, District Banka … Respondents ----------- 3. 25.6.2010 Heard Mr. Sunil Kumar Mandal, learned counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “The present writ application has been filed for quashing the order as contained in Annexure 5 being order dated 21.3.1996, whereby and whereunder respondent no.4 (District Leprosy Officer, Bhagalpur) has cancelled Annexure 2, by which the promotion granted to the petitioner in the year 1981 and 1986 and the recovery of payment has already been made on 16.8.2000 to the petitioner in pursuance of Annexure 2, the recovery has been made after the petitioner retired from service 2 with effect from 1.4.1981 and 1.3.1986, without any show cause notice or without there being any departmental proceeding adversely affecting the post retiral benefits which have substantially effected to the petitioner.” Mr. Mandal would submit that the impugned order passed on 21.3.1996 is not only based on incorrect premises but it is also in violation of the principles of natural justice. Before he could expand his submission it was discovered that the petitioner had earlier moved this Court alongwith other 11 persons, all of them were jointly and adversely affected by the same impugned order dated 21.3.1996, in C.W.J.C.No. 6003/1996. The writ application was dismissed on account of non-compliance of per-emptory order with regard to depositing of the court fees. Once the said writ application was dismissed on account of non-compliance of per-emptory order it would constitute resjudicata, inasmuch as the petitioner will not be at liberty to file again a writ petition for the same cause of action as this Court had not given any leave 3 to file separate writ petition. That apart from the reading of the impugned order it would be found that the promotion of the petitioner was cancelled in the year 1990 for two reasons, namely, lack of sanctioned post and non-publication of final gradation list. The moment this fact is not controverted in the writ petition that such promotion was given to the petitioner and 11 other persons on unsanctioned post, there would be no difficulty in coming to the conclusion that the promotion given to the petitioner was wholly unjustified. The budget of the State with regard to plan and non-plan expenditure is totally dependent on the availability and creation of the sanctioned post and if still the authorities keep on making promotion on unsanctioned post the State cannot bear such expenditure. Consequently, discovery of this aspect by the authorities and cancelling the order would also not involve the question of violation of principles of natural justice, inasmuch as this fact is uncontrovered that the petitioner‟s promotion was made on unsanctioned post. 4 That apart had the petitioner not retired from service and was still in service, the matter could have been remitted to find out as to whether the benefit of the Government resolution dated 30.12.1981 till it remained in force i.e. 31.12.1995 before its being abolished with regard to sanction of 20% of Junior Selection grade post, 12½% of Senior Selection Grade post and 2½% of Super Selection grade post was ever acted upon for the district cadre of Leprosy at Bhagalpur. Under the aforementioned resolution while the Pay Revision Committee had recommended and the State Government had accepted the concept of promotional post of Junior Selection grade and Senior Selection grande, the same was dependent on the consequential order and approval of the cadre controlling authority. There being nothing on record to show that such order was ever passed with regard to the district of Bhagalpur, the presumptive promotion given to the petitioner and 11 others was rightly interfered with by the impugned order in the light of the direction given by this Court in C.W.J.C.No. 235/1995 disposed 5 of on 27.9.1995 directing the authority to consider this aspect. The resultant impugned order in fact has been passed only by way of follow up measure of the direction given by this Court in C.W.J.C.No. 235/1995 as is apparent from the reading of paragraph 3 of the impugned order. In that view of the matter, once the petitioner has already retired from service in the year 1998 and has also given an undertaking to refund the amount in the event of dismissal of C.W.J.C.No. 6003/1996 vide Annexure „B‟ to the counter affidavit and had also thereafter himself voluntarily made request in writing for recovery of Rs.1,000/- per month nothing would survive as against the impugned order for its being now adjudicated after 12 years of his retirement. This Court, therefore, is satisfied that there is no merit in this application and the same is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/