IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11216 of 2009 Mahendra Lal Das . Versus The State Of Bihar & Ors . ----------- 3. 12.08.2011 Heard learned counsel for the petitioner and the State. The petitioner approached this Court in C.W.J.C. No. 9651 of 1999 seeking directions to consider his case for promotion to the post of Chief Engineer (Mechanical) in the Public Health Engineering Department (hereinafter referred to as the ‘PHED’ )notionally. He is stated to have retired on 31.12.1999. The order of the Court notices that the post of Chief Engineer (Mechanical) was lying vacant since 18.9.1998 more than a year prior to his superannuation. The State contended the need for roster clearance. It was held that the vacancy was not in the reserved category as per roster and therefore the question of roster clearance was not necessary as there could not be 100% reservation for a single post. Directions were given to consider his case for promotion in three months by the order dated 13.1.2005. The Departmental Promotion Committee met on 16.6.2005 and recommended him as fit for promotion with effect from 17.2.1999. The 2 respondents have then passed the impugned order dated 25.2.2006 refusing to implement the recommendation observing that (a) no person junior to him was promoted as Chief Engineer (Mechanical) before his superannuation (b) the petitioner had not worked on the post of Chief Engineer (Mechanical) (c) during his service tenure there was a criminal case F.I.R. No. 17 of 1988 against him and (d) there was no vested right to promotion from the date of availability of vacancy. Learned counsel for the petitioner submits that none of the reasons are germane. If a vacancy was available and the petitioner was the only candidate eligible for consideration, the respondents cannot deny him that promotional post. The Criminal case referred to has been quashed by the Supreme Court. If promotion was not a vested right there can be no arbitrary denial of the same also. Counsel for the State contended that since the petitioner had never worked on the promotional post and no junior had been promoted before superannuation, the Court may not interfere. Promotion may not be a vested right, but there is a fundamental right under Article 14 of the Constitution to be considered in time for promotion. 3 A delayed consideration is no consideration at all. The respondents cannot contend that though consideration may have been delayed, the two facts, that no junior was promoted and that the petitioner had superannuated was sufficient to deny him promotion so as to give them the benefit of their lapse by delay in consideration. Once it remains an uncontroverted fact that promotional vacancy was available for more than one and a half year before his superannuation and he was the only eligible candidate for consideration, the respondents had more than reasonable time to consider his case for promotion rather than doing it under the direction of the Court as late as 2005. The institution of the writ application in 1999 was in no manner preventing the respondents from considering his case from the date of eligibility and availability of the post. The criminal case had also been quashed. All the four grounds in the impugned order are therefore not sustainable. The petitioner is held entitled to the salary for the post of Chief Engineer (Mechanical) from 17.2.1999 till 31.12.1999 by directions for notional promotion. The petitioner shall be deemed to have superannuated from that post drawing the last pay of the same. The respondents are therefore required 4 to revise the pension accordingly also and pay him the arrears of pension less what has already been paid. Let this order be complied with in its entirety within a maximum period of three months from the date of receipt/production of a copy of this order. The Court is not persuaded to consider the prayer for interest as it is satisfied that the injury caused to the petitioner stands sufficiently remedied. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)