IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6628 of 2003 CHANDRIKA DAS, SON OF LATE RAM PRIT DAS, RESIDENT OF BAHADURPUR HOUSING COLONY, P.S.-AGAMKUAN, DISTRICT- PATNA. ……………………………………… PETITOINER Versus 1. THE STATE OF BIHAR. 2. THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF EXCISE AND PROHIBITION, GOVT. OF BIHAR, PATNA. ………………………………………. RESPONDENTS ----------- 3. 24.06.2009. Heard Mr. Tej Bahadur Singh, learned senior counsel for the petitioner and Sri Vipin Kumar, assisting counsel to Advocate General. In this writ petition, the petitioner has made prayer to the following effect:- “1. That this is an application for issuance of appropriate writ(s) directing the respondents to consider the case of the petitioner for notional promotion on the post of Assistant Commissioner of Excise after regularizing his service as Assistant Commissioner of Excise from the date of officiation on that post i.e. 28.12.1993. It is further prayed that the respondents be further directed to grant the petitioner all consequential benefits including revision of retrial benefits on account of such promotion. 2 The petitioner also prays for a direction to the respondents to produce the relevant records concerning his promotion and the minutes of the Departmental Promotion Committee of the year, 1995 in which the case of the petitioner was considered along with others. The petitioner prays for any other relief(s) to which he is found entitled to under the law and in the facts and circumstances of this case.” Mr. Singh would submit that when the petitioner was found fit for promotion in the meeting of the Departmental Promotion Committee held on 6.8.1994 and his senior Mr. Ram Naresh Choudhary for whom a post was reserved, was ultimately subjected to an order of punishment in a departmental proceeding vide order dated 1.12.1997, the department in all fairness ought to have promoted him on the higher post of Assistant Commissioner of Excise at least from 2.12.1997. Attractive the aforesaid submissions that may be, it cannot be denied that there was only one post of schedule caste officer available for 3 promotion and the petitioner being apparently junior to Mr. Ram Naresh Choudhary could not have been promoted till the department had taken a decision to supersede him or reverse its earlier decision of keeping a post reserved for him. It is also not in doubt that in the departmental promotion committee meeting held on 6.8.1994 the petitioner was the second scheduled caste officer junior to Mr. Ram Naresh Choudhary and when the Government had taken a decision for keeping the post reserved for Mr. Ram Naresh Choudhary the petitioner could not have been promoted till Mr. Ram Naresh Choudhary remained in service. The next submission of Mr. Singh is that the petitioner cannot be penalized for inaction on the part of the State, inasmuch as no meeting of the Departmental Promotion Committee had been held prior to the year 2000, is also to be noted for its being rejected. First of all, a meeting of the departmental promotion committee can not to be held for one particular officer and in any event as any junior to the 4 petitioner was never promoted even after year 2000 the grievance of the petitioner even in regard is wholly unfounded. There is at least nothing in the writ petition on this score to substantiate that the department had superceded the senior incumbent or had promoted any one junior to the petitioner even in the reserved category or officer of schedule caste. It is well settled concept in service jurisprudence that a right to be considered from promotion can definitely be invoked by a person only if a junior person to him has been promoted and the senior person has been ignored. That however has not been happened in this case. The only difference between a time bound promotion and regular promotion is that a regular promotion has to be notified on fulfillment of certain eventualities and conditions whereas a time bound promotion has to always date back from the date of entitlement. That apart this writ application was filed on 18.7.2003 whereas if the petitioner’s own case is accepted his 5 claim for promotion w.e.f. 28.12.1993 as prayed in the writ petition or from 2.12.1997 as advanced in course of submission is hit by the vice of unexplained delay and latches. The petitioner did not approach this Court even in the next 10 years of his cause of action and had filed this writ application much after his retirement. Any promotion now to be notified even on notional basis will upset the entire departmental promotions given earlier or after. In that view of the matter, this Court is not inclined to grant reliefs as prayed for in the writ application and consequently this writ application is fit to be dismissed. Mr. Singh has however pointed out that even if the petitioner may not be found entitled for grant of regular promotion, there being no dispute on this score that the petitioner was made to officiate against a higher post of Assistant Commissioner of Excise for the period 28.12.1993 to 31.5.1999 i.e. till retirement, he would still be entitled for 6 payment of salary of higher post. He therefore, would submit that the petitioner was at least entitled for additional pay in terms of Rule 103 of the Bihar Service Code. The difficulty however for this Court is that there is no specific prayer or pleading in this regard in this writ petition and therefore the respondents can not be taken by surprise by this part of submission of the learned counsel for the petitioner. It is, however, not in doubt that the petitioner had worked against a higher post under a valid government decision for the period more than five years. In that view of the matter, this court would direct the respondents to consider the case of the petitioner for grant of additional pay and/or allowances in terms of Rule 103 of the Bihar Service Code and pass a reasoned order on a representation to be filed by the petitioner within a period of one month from the date of receipt/production of a copy of this order. It goes without saying that if the petitioner is found entitled for payment of such additional 7 pay allowances in terms of Rule 103, its actual payment shall also be made to the petitioner within next one month of such order. Subject to the aforementioned observations and directions, this writ application is dismissed. kanchan (Mihir Kumar Jha, J.)