IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10630 of 2009 Baliram Pandey Versus The State Of Bihar & Ors ------------ For the Petitioner: Mr. Madhuresh Prasad, Advocate Mr. Pritish Kumar Lal,Advocate For the State : Mr. P.K.Verma, AAG V Mr. Saroj Kumar Sharma,AC to AAG V ----------- 4. 16.08.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner is aggrieved by order dated 19.5.2009 rejecting his claim for first time bound promotion and grant of annual increments. The petitioner came to this Court earlier in CWJC Nos. 10563 of 2005/ 11349 of 2005 inter alia seeking the relief for first time bound promotion from 1983. The Court observed that the criminal prosecution and the departmental proceedings were not necessary for the purpose of the controversy as no charge sheet had been submitted in either on the date of eligibility. The Court further took notice of the fact that in his entire service career the petitioner had not been granted any substantive promotion and for that reason rejected the objection of the respondents that the claim was belated. It is not in controversy that the departmental proceedings have been stayed on account of similarity in the criminal case and the departmental proceeding. It is also not in controversy that the petitioner submitted an application for exemption from passing the departmental examination as far back as 1996. Learned Counsel for the State submits that the grant of exemption was not a matter of right. The petitioner only had a right to be 2 considered. The Court may direct consideration of the pending application for exemption. Rejecting the claim for grant of first time bound promotion and increments the impugned order states that the recommendation had been kept in abeyance because of his failure to pass the departmental examination and pendency of the departmental proceeding. It then proceeds to reject his claim for time bound promotion. The Court has already held that the departmental proceeding was not relevant. That brings to the fore the question of pendency of an application for exemption for an unduly inordinately long period of time since 1996.The petitioner had a right to apply for exemption. It was the duty of the respondents to consider the same. The counter affidavit or the impugned order does not refer to any grounds from the guidelines regulating grant of exemption for time bound promotion as distinct from substantive promotion that the petitioner was not eligible for exemption. Exemption could have been denied for cogent reasons only If the respondents have refused to even consider his application for grant of exemption for no relevant and germane reasons this Court relying on AIR 1987 SC 537 (The Comptroller and Auditor General of India Vs. K.S. Jagannathan & anr.) directs such grant of exemption to the petitioner for the purpose of grant of first time bound promotion and increments. It would be appropriate to quote paragraph 20 of the aforesaid judgment. “20.There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of 3 conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. The petitioner is held entitled to first time bound promotion and consequent increments to be paid within a period of two months from the date of receipt and/or presentation of a copy of this order. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)