IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8261 of 2009 Janardan Prasad Versus The State Of Bihar & Ors 2/ 12/08/2011 Heard learned counsel for the petitioner and the State. The petitioner was appointed as a Sr. Research Assistant in the Minor Irrigation Department and was assigned the pay-scale of Rs.5000-8000 in pursuance of the 5th Pay Revision Committee report. It is submitted that there is no promotional avenue for this petitioner. A person appointed as a Research Assistant like the petitioner as far back as 1984 shall retire from the very same post. The petitioner represented when Research Cadre Rules was drafted in 1999 providing for a promotional avenue to the post of Research Officer and the Deputy Director, Research. However, the Rules never came to be notified. After introduction of the A.C.P. scheme, if the Cadre Rules had been framed, the petitioner would have got his A.C.P. in the scale of Research Officer contrary to the lower pay-scale today of Rs.5,500-9000 in his own pay- scale. He would consequently have been entitled to his second A.C.P. in the pay-scale of Deputy Director also. Learned counsel for the State submits that draft Cadre Rules never came to be formalized as after 2 re-organization of the State of Bihar, four posts of Research Officer and one post of Assistant Director, Research were all surrendered to the State of Jharkhand. The Court finds it difficult to appreciate that no Cadre Rules were framed, but yet posts were created and all four posts were allocated to the State of Jharkhand. The ratio in accordance with the policy for re-organization was to be in the category of 2:1. Be that as it may, the respondents have a bounden duty as a facet of Articles- 14 and 16 of the Constitution of India to provide avenues for promotion to an employee as a basic constitutional duty. They cannot be permitted to create a situation leaving no promotional avenues for a person in service leading to stagnation and demoralization. The observations of the Supreme Court in (2008) 5 SCC 100 (Food Corporation of India v. Parashotam Das Bansal) at paragraphs 9,12 and 13 are apposite: “9. The appellant is “State” within the meaning of Article 12 of the Constitution of India. An employee of a State although has no fundamental right of promotion, it has a right to be considered therefor. What is necessary is to provide an opportunity of advancement; promotion being a normal incidence of service. 12. When employees are denied an 3 opportunity of promotion for long years (in this case 30 years) on the ground that they fell within a category of employees excluded from promotional prospect, the superior court will have the jurisdiction to issue necessary direction. 13. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country.” The Court remains totally dissatisfied with the stand taken in the counter affidavit with regard to the creation of posts in pursuance of the Cadre Rules and yet simultaneously urging that it never came to be notified coupled with surrender of the created posts. The stand appears to be a bundle of contradictions. If the Cadre Rules were not notified, the question of surrender of any posts does not arise. If the Cadre Rules were notified and the posts had been surrendered, in that event it is the constitutional duty of the respondents to provide promotional avenues in accordance with the law laid down by the Apex Court. Mandamus is therefore issued to frame Cadre Rules so that the petitioner may have the right to be considered for an avenue of promotion. 4 Let the same be done within a maximum period of four months from the date of receipt/production of a copy of this order. After the Cadre Rules are framed and if the petitioner represents in accordance with the same for promotion/A.C.P., the respondents shall be obliged to consider the same without requiring him to obtain fresh orders from the Court for that purpose. The writ application stands disposed. KC ( Navin Sinha, J.)