IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.703 of 2011. Arising out of order dated 9th August 2010 passed in C.W.J.C.No. 15122 of 2009. 1.The State of Bihar. 2.Chief Secretary, Govt. of Bihar, Patna. 3.Principal Secretary, Department of Labour, Employment & Training, Govt. of Bihar, Patna. 4.Principal Secretary, Department of Finance, Govt. of Bihar, Patna.. Appellants. Versus 1.Krishna Ram son of Late Doman Ram, Resident of Mohalla Mali Daltonganj, P.S. Daltonganj, District Palamu, Presently residing at 503.B, Banshal Plaza, Station Road, Ranchi (Jharkhand), posted as In-charge Joint Director, Training Headquarter, Ranchi. 2.State of Jharkhand. 3.Principal Secretary, Department of Labour, Employment & Training, Govt. of Jharkhand, Ranchi. 4.Principal Secretary, Department of Finance, Govt. of Jharkhand, Ranchi. …Respondents. 3. 09.08.2011 Heard learned counsel for the appellants and learned counsel for the respondent No. 1. The averments in the writ petition and the prayer show that respondent No. 1 /writ petitioner claimed a right of promotion to the post of Selection Grade Principal with effect from 4.7.1984 whereas he was actually granted such promotion with effect from 4.7.1988. In similar vein he claimed higher promotion to the post of Deputy Director Training with effect from 1.9.1988 though it was granted from 21.7.2000. He further claimed promotion to the post of Joint Director with effect from 1.9.1991. The Writ Court has allowed the writ petition on the ground that there cannot be arbitrary denial of promotion when other factors for promotion are being fulfilled. The Writ Court has placed reliance on Annexure-10 to the writ petition, a memorandum for the Cabinet dated 21.6.2003 for holding that a vacvancy was available 2 from prior to 4th July 1984 as claimed by the petitioner. Learned counsel for the appellant on the other hand submits that the matter was referred to the Finance Department. Thereafter as mentioned in paragraph 17 of the counter affidavit and on the basis of opinion given by the Finance Department the relevant facts relating to vacancy etc. were reappraised and a fresh memorandum for Cabinet was prepared. That memorandum dated 6.11.2003 has been annexed as Annexure-1 to the memorandum of appeal. The issue is whether the vacancy position as determined by the Finance Department and accepted by the State required interference by the Writ Court or not. Learned counsel for the appellants has assailed the correctness of facts mentioned in the Memorandum dated 6th November 1993 (Annexure-1 to the appeal) by pointing out that in Paragraph-2, the list of recommended candidates for regular promotion itself shows in the last but one column the date when the vacancy occurred. On that basis, he has submitted that further discussions and findings in Paragraphs 3 to 7 and particularly in Paragraphs 3 and 5 must be presumed to be erroneous because the date of vacancy for the petitioner in the subsequent paragraphs has been shown to be 4th July 1988 and not 1st August 1983 or 4th July 1984, as shown in Paragraph-2. We have considered the aforesaid submissions but are not impressed by the same because the chart contained in Paragraph-2 relates to the earlier proposal as is evident from the language used in the very first sentence of Paragraph-2 which shows that the list relates to already recommended candidates for regular promotion. There is no dispute 3 that in the earlier memorandum for consideration of the Cabinet, the proposed date for promotion of the appellants was 4th July 1984 because in the opinion of the concerned Department, a vacancy existed for regular promotion of the writ petitioner/respondent no.1 from that date. However, when the matter was sent to the Finance Department which keeps track of available posts as sanctioned by the Government, it was clearly pointed out that the dates in the earlier proposal were erroneous. The Finance Department has given reasons which are mentioned in Paragraph-3 onwards of Annexure-1 which supports the stand taken by the State of Bihar in Para-17 of the counter-affidavit filed before the writ court. However, at that stage, the State did not annex the Memorandum dated 6th November 2003 which is now annexed as Annexure-1 to the Memorandum of appeal. Having gone through the vacancy position discussed in Annexure-1, it is noticed that the date of occurrence of vacancy in the chart contained in Paragraph-2 of the memorandum was shown to be incorrect. The nature of vacancy available for regular promotion was pointed out to be need based posts and the details of the vacant posts of Selection Grade Principal mentioned in Paragraph-5 of the Memorandum justify the decision of the authorities for granting promotion to the writ petitioner on the post of Selection Grade Principal with effect from 4th July 1988. In absence of the details showing the date and nature of vacancies which are now clear from Annexure-1 to the Memorandum of appeal, the writ Court took the view that on account of earlier recommendation, the existence of vacancies shall be presumed to be 4 correct. In our view such presumption is not correct on fact as well as in law. The existence of vacancies from a particular date must be based upon actual facts and not upon any presumption. The notes subsequently corrected for consideration by the Cabinet prepared after consultation with the Finance Department gave the correct details and hence, in our considered view the writ court committed error in allowing the writ petition on the ground that the authorities have acted arbitrarily in granting promotion on various posts to the writ petitioner from particular dates, though his claim was for promotion from earlier dates. In our view, the writ petition has no merit and the same is dismissed. The appeal stands allowed. There will be no order as to costs. Mkc/Jay. ( Shiva Kirti Singh,J) (Shivaji Pandey, J)