IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.495 of 2009 1. THE STATE OF BIHAR THROUGH THE SECRETARY, ROAD CONSTRUCTION DEPARTMENT, BISHVESHRAIYA BHAWAN, BAILEY ROAD, PATNA. 2. THE ADDITIONAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, BISHVESHRAIYA BHAWAN, BAILEY ROAD, PATNA. 3. THE JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT, BISHVESHRAIYA BHAWAN, BAILEY ROAD, PATNA. -APPELLANTS Versus UMESH CHANDRA JHA, S/O LATE PANDIT NAMO NARAIN JAHA, R/O VILLAGE-CHAK FATEHA, P.S. PIPRAHI, DISTRICT-SHEOHAR. -RESPONDENT _______ For the Appellant : M/s Arvind Ujjwal, SC XI With Maruth Nath Roy AC For the Respondent : Mr.Kishore Kr. Thakur 6 17.12.2009 Heard the parties. This appeal has been preferred by the State of Bihar and its officials against order of the writ Court dated 20th January, 2009 whereby writ petition preferred by the sole respondent bearing CWJC no. 6069 of 2002 has been allowed. The writ Court has held that the writ petitioner, Umesh Chandra Jha, shall be deemed to be promoted on the post of Superintending Engineer with effect from 23rd December, 2000 because by that date all statutory necessary 2 clearances had been given by the State Government. He has been found to be entitled to full salary of the post of Superintending Engineer minus what may have been paid to him till the date of his retirement that is 31st December, 2002. A direction has also been given by the writ Court to re-fix the pension and other retrial benefits and make the same available to the writ petitioner within a period of six months. A liberty has been granted by the writ Court to the Authorities of the State Government to hold enquiry and fix responsibility for the reasons of delay of promotion of the writ petitioner in due time. It is not necessary to go deep into the facts of the case except to notice that the writ petitioner, at the relevant time, was holding post of Executive Engineer in the Road Construction Department, Government of Bihar. Admittedly, he was found fit for promotion along with some others by the Departmental Promotion Committee on 23rd December, 2000. The recommendation was subject to Vigilance clearance. Up to date Vigilance clearance report could be obtained only on 07th July, 2001 and then the matter was sent to Cabinet Secretariat for approval. The file was 3 sent back with Vigilance clearance on 21st July, 2001. In the meantime, the recommendation of the Departmental Promotion Committee expired on 22nd December, 2001. Hence, the file was sent back to the Bihar Public Service Commission which revalidated the recommendation on 23rd January, 2002 but, in the meantime, Vigilance Clearance reports in respect of many Officers expired due to which fresh steps were taken to obtain Vigilance clearance report. Since delay was being made in granting promotion and the writ petitioner was due to retire on 31st December, 2002, he preferred the writ petition on 14th May, 2002 which remained pending till it was allowed by order dated 20th January, 2009, already noticed earlier. Only other matter of significance is that the Authorities issued a Notification dated 05th September, 2002 granting adhoc promotion to the writ petitioner on the post of Superintending Engineer from the date he could assume charge of the higher post in the appropriate scale. In the situation then prevailing, the writ petitioner could assume charge of the post of Superintending Engineer only two days before his superannuation. 4 Learned counsel for the appellants has raised serious objection, not to the grant of promotion to the post of Superintending Engineer but to the fact that it has been made effective from 23rd December, 2000. He placed reliance upon the counter affidavit filed in the writ proceeding to point out that all the necessary formalities could be completed in usual course and the matter could be placed before Cabinet only in the month of April, 2002 and the Cabinet approval along with some conditions was granted on 24th April, 2002. It is not in dispute that the conditions did not create any hindrance in the promotion of the writ petitioner. It was further submitted that after Cabinet approval even if the Authorities had proceeded in the matter with due diligence, at least a week’s time, would have been consumed in issuing the necessary Notification granting promotion to the writ petitioner. It was also pointed out that since no junior to the writ petitioner was promoted from the earlier date hence the facts of the case did not require granting promotion to the writ petitioner with effect from 23rd December, 2000. Learned counsel for the respondent has submitted that 23rd December, 2000 is the date on which the 5 Departmental Promotion Committee considered the case of the writ petitioner and some others for promotion and found him fit subject only to Vigilance clearance in which there was no difficulty and, ultimately, such clearance was obtained. Hence the writ Court has rightly found the respondents guilty of unusual delay and has corrected such arbitrary act by ordering for promotion from a retrospective date. Law governing promotions is clear. It entitles an employee to fair consideration of his claim for promotion whenever such claim is taken up for consideration. In the present case, there is no difficulty in holding that claim of the writ petitioner received proper consideration whenever it was taken up but the writ Court was rightly disturbed by the fact that even after proper consideration and finding the writ petitioner fit for promotion, the actual release of the promotion was delayed without any good reason. The grant of adhoc promotion instead of regular promotion on 05th September, 2002 was almost like adding insult to injury. For that reason, the writ court has granted liberty to the respondent Authorities to hold an enquiry for finding out and fixing responsibility for delay. That view of the writ Court 6 does not require any interference. However, ordinarily it is the employer who has to grant promotion and general practice is to remand the matter of granting promotion to the concerned Authorities with suitable direction. In the present case, the writ Court found that the writ petitioner had already superannuated on 31st December, 2002 and there was absolutely no impediment in grant of promotion to him and, hence, positive orders have been passed for promotion of the writ petitioner. Since there is no material brought on the record, even at the stage of appeal, to show that the writ petitioner was dis-entitled for promotion, we find that the order of the writ Court that the writ petitioner shall be deemed to be promoted on the post of Superintending Engineer, cannot be faulted. But so far as the date 23rd December, 2000 is concerned, we find substance in the submission advanced by the learned counsel for the appellants that such date could be only after the Cabinet granted approval to the promotion on 24th April, 2002. Ordinarily, it would have taken about a week’s time to issue the Notification for regular promotion but instead the Authorities chose not to issue Notification for regular 7 promotion even till the writ petitioner superannuated from service and only an adhoc promotion was granted to him on 05th September, 2002. In the facts of the case, we are persuaded to modify the order of the writ Court by holding that the writ petitioner, respondent herein, shall be deemed to be promoted on the post of Superintending Engineer with effect from 01st May, 2002 and on that basis he should be given other relief as directed by the writ Court. The appeal is disposed of accordingly. (Shiva Kirti Singh, ACJ.) (Shyam Kishore Sharma, J.) AAhmad