IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2520 of 2003 Sudarshan Sinha, Son of late Ram Dahin Singh, Resident of Village Kubari, Police Station Karpi, District Jehanabad, at present residing at Mohalla Hakikatpur, P.S. Bakhtiyarpur, District Patna. -------- Petitioner Versus 1. The State of Bihar. 2. Director-in-Chief, Department of Health and Family Welfare, Patna. 3. Health Commissioner, Government of Bihar, Patna. 4. Director, Health Services (Family Welfare), Government of Bihar, Patna. 5. Additional Director, Health Services (Family Welfare), Government of Bihar. 6. Deputy Secretary, Health and Family Welfare Department, Government of Bihar. 7. Joint Secretary, Health and Family Welfare Department, Government of Bihar. 8. Registrar, Health and Family Welfare Department, Government of Bihar, Patna. ---------- Respondents ----------- For the Petitioner : Mr. Madan Prasad Singh, Advocate For the State : G.P.-I --------- PRESENT HON'BLR MR. JUSTICE MIHIR KUMAR JHA ORDER (03/08/2010) Mihir Kr. Jha, J. Heard Mr. Madan Prasad Singh, learned counsel for the petitioner and counsel for the State. 2. The prayer of the petitioner in this writ application reads as follows:- “1. That, this application is directed for a writ of MANDAMUS commanding the respondents to give promotion to the Petitioner on the post of Accountant with effect from 2 01.04.1981 in terms of Resolution No. 10990 dated 30.12.1981 of the Finance Department which provides two bound promotions introduced by quashing the order issued under Memo No. 425(5) dated 05.05.2000 by Director of Health Services, Bihar, Patna (Respondent No.4) as rule of passing of Accounts Examination was introduced w.e.f. April 1985 Vide Rule No. 156(J) of Bihar Board Misc. Rule or issue such appropriate writ/writs/direction/ directions or pass such order/orders as Your Lordships deem fit and proper.” 3. Mr. Singh in support of the aforementioned prayer would submit that the view taken by the authority is apparently incorrect, inasmuch as, the petitioner was not required to pass the departmental examination for earning his Time Bound Promotion. He would, in this context, rely on the judgment of this Court in the case of Lala Devendra Prasad Vs. The State of Bihar & Ors. Reported in 2000(1)PLJR 228 and in the case of Mithlesh Kumar Sinha Vs. The State of Bihar & Ors. reported in 2006(1)PLJR 282. 4. Counsel for the State on the other hand would submit that the issue now stands concluded by the Full Bench in the 3 case of Maheshwar Prasad Singh Vs. The State of Bihar & Ors. Reported in 2000(4)PLJR 262. He would also submit that there is an inter- parte order which would bind the petitioner as with regard to the applicability of passing the departmental examination, inasmuch as, in the earlier round of litigation, this Court in the order dated 10.12.1999 had clearly observed that the petitioner would be entitled for grant of second Time Bound Promotion only if he would establish that he had passed the departmental examination. 5. In the opinion of this Court, the petitioner’s endless pursuit for getting Time Bound Promotion must come to an end. The petitioner has retired on 31.1.1993 at a point of time when the Time Bound Promotion was in vogue from 30.12.1981. Earlier the prayer of the petitioner for grant of Time Bound Promotion was rejected by this Court by an order dated 10.12.1999 in CWJC No. 8688 of 1998 by giving the following reasons:- “The petitioner entered in the services of the State as Routine Clerk on 17.6.1955 and ultimately retired on 31.1.93. After about five years of his 4 preferred for direction on the respondents to consider his case for time bound promotion. Counsel for the State submitted that he has received instruction, the counter-affidavit is being affidavit. According to the respondents, the petitioner was appointed as routine clerk on 16.6.1955 and then promoted as cashier w.e.f. 24.7.1971. In view of certain irregularities, petitioner was suspended on 27.12.80, which was revoked on 21.2.83. The petitioner having not passed the departmental accounts examination conducted by Board of Revenue, he is not eligible for promotion to the higher post in view of section 157(J) of Bihar Board’s Miscellaneous Rule. In view of the fact that the petitioner had been granted one promotion in 1971, I hold that he was not entitled for first time bound promotion. So far as second time bound promotion is concerned, no specific direction can be given till the petitioner show that he passed the requisite departmental accounts examination by the time he become eligible for such time bound promotion. In the circumstances, the petitioner is given liberty to move before the authorities to bring to their notice, if he has passed the requisite departmental accounts examination. It is needless to say that if the 5 petitioner can show that he has passed the requisite departmental accounts examination, the authorities will consider his case for second time bound promotion, if otherwise eligible. The writ petition stands disposed of, with the aforesaid observation.” 6. In view of the above, it would be difficult for the petitioner now to take a plea that he could earn Time Bound Promotion without passing the departmental examination, inasmuch as, he is bound by an inter-parte order. The submission of Mr. Singh that there would be no estoppel against law has to be only noted for its being rejected. There was no such law on 10.12.1999 which had laid down the earning of Time Bound Promotion without passing departmental examination. As a matter of fact, the reliance placed by him was also not available on 10.12.1999 so as to constitute any estoppel of law. Moreover, this issue, with regard to the earning of Time Bound Promotion, has been clarified in the scheme itself wherein it has been mentioned that Time Bound Promotion shall be made applicable to only such persons who, though, eligible for promotion could not earn 6 promotion due to want of vacancy. The concept of removal of stagnation, therefore, cannot mean giving rise to inefficiency. The promotion, whether regular or Time Bound Promotion, will always have a reference to the competent person to hold such post. That is how Rule 148 of the Bihar Board’s Miscellaneous Rule, the petitioner was provided right from beginning of giving promotion only after passing of the departmental examination. 7. The little confusion that had erupted after merger of the post of Lower Division Clerk and Upper Division Clerk and the replacement of a selection grade of the period in which the Circulars were operating and that is how, the Full Bench in the case of Maheshwar Prasad Singh (supra) had laid down law in the following terms:- “---- On the basis of the above discussion I have no hesitation in holding that the State Government was fully competent to amend rule 157(3) (J) of the Board’s Miscellaneous Rules by executive instructions and the amendment made vide correction slip no. 30 dated 29.3.82 was a valid amendment. Thus, clerks were required to pass the final examination in Accounts as a condition 7 for promotion to the selection grades after 29.3.82.---“ 8. The Full Bench, in fact, had only found the period between 1.5.1980 to 29.3.1982 as the gap period wherein if someone had already been given promotion without passing the departmental examination, the same was directed not to be cancelled. In the present case, when the petitioner’s case has been already indicated in the earlier order of this court, inasmuch as, the date of appointment of the petitioner as a routine clerk is 16.6.1955 and he had admittedly earned promotion as Cashier on 24.7.1971, he, having been already given one promotion, would not be entitled for first Time Bound Promotion in view of the provision made in the Government Circular dated 30.12.1981. That is how, earlier also, this Court had held that the petitioner was no entitled for first Time Bound Promotion. Thereafter, the claim of the petitioner for second Time Bound Promotion could have matured only after 16.6.1980 for its given w.e.f. 1.4.1981 in view of the Resolution of Financial Department in the line of recommendation of 8 3rd Pay Revision Committee but when he was placed under suspension on 27.12.1980 and the petitioner’s suspension was revoked only on 21.2.1983 his promotion could have been considered on any date only after 21.2.1983, a period not covered by the Full Bench i.e. after 29.3.1982. 9. In that view of the matter, this Court would find no error in the order passed by the authority rejecting the second Time Bound Promotion of the petitioner. 10. The reliance placed by the counsel for the petitioner on the two judgments of this Court in the case of Lala Devendra Prasad (supra) and in the case of Mithelesh Kumar Sinha (supra) is also misplaced inasmuch as both of them are per incurrium and have been decided without noticing and considering the binding precedent and law laid down by the Full Bench in the case of Maheshwar Prasad Singh (supra). 11. With the aforementioned observations, this application is dismissed. (Mihir Kumar Jha, J.) Patna High Court Dated the 3rd August 2010 A.F.R./Rsh