IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2655 of 1997 SHRI JAGDISH TIWARY S/O Late Pandit Ram Pravesh Tiwary, a resident of village-Kataria, P.O. Kataria, Thana- Piro, District Bhojpur. Versus 1.THE UNION OF INDIA through the Secretary (I.S.M.) to Government of India in the Department of Health and Family Welfare, New Delhi. 2.Central Council for Research in Ayurved and Siddha, J.L.N.B.C.A.H.A.B. No.61-65, Institutional Area „D‟ Block, Janakpuri, New Delhi-58, through its Director. 3.The Director, Central Council for Research in Ayurved and Siddha, J.L.N.B.C.A.H.A.B. NO.61-65, Institutional Area, Opposite „D‟ Block, Janakpuri, New Delhi-58. 4.The Departmental Promotion Committee, Central Council for Research in Ayurved and Siddha, J.L.N.B.C.A.H.A.B. No. 61-65, Institutional Area, Opposite „D‟ Block, Janakpuri, Delhi-58. 5.The Assistant Director I/C, Regional Research Institute (AY) Rajendra Memorial Research Institute Campus, Agamkuan, Patna-8000007. ----------- For the petitioner: Mr. Awadh Bihari Ojha, Advocate For the Respondent-Union of India: Mr. P.L. Jaiswal (Central Government Counsel) & Mr. Vibhakar Kumar, A.C. to Mr. P.L. Jaiswal, Advocate. 6 08.07.2010 Heard Mr. Awadh Bihari Ojha, learned counsel for the petitioner and counsel for the respondents. Prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of a writ of mandamus or any other appropriate writ or direction or order commanding the Respondents to promote the petitioner as Research Officer (AY) with effect from the due date, i.e, when a person just below the petitioner and persons below the petitioner in seniority list were promoted, with consequential benefits along with cost of this proceeding.” In the opinion of this court nothing could have been more vague by way aforesaid prayer made in this writ application. The petitioner does not spell out the date of promotion of his 2 junior nor has be impleaded the so-called junior as a party to this writ application. Learned Counsel for the petitioner however has referred to the averment made in the counter affidavit to show that the date of promotion admissible to the petitioner was 11.12.1995 in place of 15.3.1997. The plea of the petitioner in this regard is that the petitioner while holding the post of Assistant Research Officer was all along senior to those who were screened by the Departmental Promotion Committee (D.P.C.) in the meeting held on 19.12.1995 and therefore the decision of the D.P.C. on 19.12.1975 to keep the petitioner in the waiting list and giving promotion to his juniors suffers from an apparent errors Mr. Ojha, therefore, would submit that when now the petitioner has already been superannuated from service, the limited grievance of the petitioner to date back his promotion from 15.3.1997 to 11.12.1995, the date on which juniors to the petitioner were given such promotion. Should be ventilated by this Court by issuing appropriate direction to the Respondent. Counsel for the respondents has absolutely no idea of their case. When counsel for respondent no.1 was asked the first question as with regard to manner of consideration, he had immediately asked for an adjournment of the case. That however is not permissible at least in the hearing cases where the respondents are supposed not only to be ready with the facts of the case but also with the records. From reading of the counter affidavit this much 3 however is clear that the case of the petitioner and others holding the post of Assistant Research Officer (A.R.O.) for their promotion had matured in the year 1995 and was also considered by the Departmental Promotion Committee in the meeting held on 11.12.1995. The respondents have, of course, given reference of the Government of Indian circular applicable also in the case of the petitioner which would go to show that the D.P.C. had to classify the officers on the basis of their performance and A.C.R in the category 'outstanding' 'Very Good‟ and 'Good' but there is nothing on the record to show as to the service records of the persons junior to the petitioner who were screened and promoted earlier to the petitioner while he was kept in the waiting list. The proceeding of the D.P.C. has also not been brought on the record and from the counter affidavit it is also not clear as to why the petitioner was kept in the waiting list. Submission of Mr. Ojha learned counsel for the petitioner is that the post of Assistant Reseach Officer according to Rule is a Grade-D post and the method for giving promotion on that post should have been that all the eligible persons up to a particular bench mark should have been considered on the basis of seniority. He has explained that for the post in question all officers of catagorised as Good and above including the petitioner had to be considered for promotion strictly in accordance with seniority. In the opinion of this Court submission of Mr. Ojha proceeds on many assumptions, namely, that the petitioner's service record had been evaluated and A.C.R. and found as 'Good' 4 and that the requirement of Rule was only to evaluate the persons against the bench mark of having 'Good' and above. The respondents, however, have given different explanation which may or may not be correct because they have also not explained or elucidated the matter by placing the proceedings of the D.P.C, but then if the criteria as shown in the Government memorandum vide Annexure-8 to the counter affidavit in paragraph 6.3.1 under the heading „Principles to be observed and preparation of panel‟ has to be given full and effective meaning the same by itself would go to indicate that after the evaluation of the officers is made and they are classified as 'outstanding' „very good' and 'good‟ they have be grouped separately and thus 'outstanding' officer will form a block becoming superior and senior for consideration of those catagories as 'very good' and so on even for the purpose of those who are found good. The procedure according to the Government resolution also envisages grant of promotion on the merit-cum- seniority basis which is normally applicable in the case of second promotion in the cadre. This Court, however, cannot proceed on any presumption, inasmuch as, the basic material which could have enabled this Court to decide as with regard to grievance of supersession of the petitioner as on 19.12.1995 and his being given such promotion on 15.3.1997 has not been placed by the respondents in the counter affidavit. The petitioner however cannot be made to suffer for such laches on the part of the Respondent. 5 In that view of the matter, this Court would give liberty to the petitioner to file a self contained representation to the respondent no.3 highlighting his grievance with the help of contemporaneous documents regarding to his entitlement for promotion w.e.f. 11.12.1995, the date from which his juniors were given such promotion. Such representation of the petitioner must be considered objectively by the Respondents. In the event, authorities will find that the petitioner‟s case was wrongly considered by the D.P.C. though he was eligible for promotion w.e.f. 11.12.1995 and yet he had been given such promotion w.e.f. 15.3.1997, they would pass necessary orders for dating back promotion of the petitioner from 15.3.1997 to 11.12.1995 with all the consequential benefits which was given to his juniors. If the petitioner however is found not entitled for such promotion w.e.f. 11.12.1995 they would disclose reasons and also indicate as to why the D.P.C. in the meeting held on 11.12.1995 had classified the petitioner in a particular category whereas juniors to him were classified in the higher category. Such exercise in view of pendency of this writ application for 13 years must be completed by the respondents within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations/directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)