IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3153 of 2009 Umesh Prasad Arya . Versus The State Of Bihar & Ors . ----------- 3/ 14/07/2011 Heard learned counsel for the petitioner and the State. The petitioner has superannuated on 31.3.2007 from the post of Joint Director (Technical) in the Department of Industries. Contending that he became eligible to be considered for promotion to the next higher post of Additional Director (Technical), on 26.9.2005 when he completed the stipulated period of five years as a Joint Director (Technical), the petitioner assails the denial of the promotion to him by the Departmental Promotion Committee held on 29.3.2007 on the ground that he was to superannuate on 31.3.2007. Learned counsel for the petitioner contends from a proceeding of the promotion committee dated 21.5.2006 that they were fully aware that the petitioner was in the zone of consideration, but yet treated matters casually by directing that the official formalities for the same may be completed. It is submitted that if the petitioner had been considered in due time, he would have been entitled to the promotion, the 2 financial benefits of the promotion as also he would have got his pensionary benefits accordingly after retiring from the said post. The petitioner therefore cannot be visited with consequences for the lapses of the respondents and is not only entitled to the arrears of salary of the promotional post from the date of eligibility, but his pension is also required to be revised accordingly. The counter affidavit sworn by the Additional Director of the Industries Department, an officer senior in rank, is hardly helpful to the Court in adjudication of the controversy. It only mentions the consideration of the case of the petitioner and concludes that since he had retired, nothing was possible. It appears that a meeting was held on 29.5.2009 in the chambers of the Principal Secretary, Department of Industries, in view of the claims of the petitioner in the present writ application concluding that considering his claim for promotion after superannuation was not in accordance with the Finance Department Regulation dated 24.12.2005. The petitioner became eligible to be considered for promotion in September, 2005. The right to be considered for promotion does not automatically lead to a right to promotion. The petitioner does not 3 appear to have pursued the matter in time by instituting any appropriate proceedings in between Sepatember, 2005 till his superannuation on 31.3.2007. Not having worked on the promotional post also, he is not entitled to salary for the same also. Conversely, the respondents noticed stating that he was in zone of consideration as far back as 25.1.2006. They were required to act with alacricity and take steps accordingly and prevent generation of litigation by sheer inaction on their part. In fact, the duty was theirs to make a timely consideration. The right to be considered for promotion vests in the candidate a right to be considered in time. The respondents have considered him belatedly on 29.3.2007 and have found him eligible. If the delay was on the part of the respondents in considering the petitioner in due time, they cannot have the benefit of their own wrongs all the way to deny appropriate relief to the petitioner merely because he may not have approached a Court of Law in due time. The Court holds that the ground of his superannuation on 31.3.2007 days after the consideration by the Departmental Promotion Committee on 29.3.2007 and denying him promotion on that ground is arbitrary and unsustainable in law. The 4 claims of the petitioner therefore require moulding of the relief balancing the rights of the parties visiting them with respective consequences for their own delays. The Court holds that the petitioner is entitled to promotion on the post of Additional Director ( Technical) from September, 2005. No statement has been made in the counter affidavit of the absence of any vacancy on that date. But, since the petitioner has not worked on the post, he is not entitled to the salary of that post. The promotion shall be notional when his entire service benefits shall notionally be calculated from September, 2005 till 31.3.2007 on the post of Additional Director (Technical) inclusive of any increments that he may have received. He shall be deemed to have retired from the post of Additional Director (Technical) on 31.3.2007 and is entitled to his pensionary and other retiral benefits to be computed on that notional basis and revised accordingly. Let such revision of the pensionary benefits with effect from 1.4.2007 be done by the respondents within a maximum period of four months from the date of receipt/production of a copy of this order. The respondents are obliged not only to issue the ministerial order required after the order of the Court, but are required to pay him the actual monetary 5 benefits of the same. If the legitimate dues are not paid within a period of six months from the date of receipt/production of a copy of this order, the petitioner shall be entitled to interest upon the same at the bank rate which shall be paid by the State Government, but shall then be recovered from those who were responsible for not complying the court orders in time and possibly generating further litigation to be overseen by the Principal Secretary of the Department of Industries. The writ application stands disposed. KC ( Navin Sinha, J.)