IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6386 of 2007 DR.OM PRAKASH CHOUDHARY, son of Late Kishun Prasad Choudhary, resident of Ram Nagar, P.S. Katihar Sadar, Beside D.S. College, District- Katihar. … Petitioner. Versus 1. THE STATE OF BIHAR 2. Accountant General (A & E )-II, Bihar, Patna. 3. Secretary-cum-Commissioner, Departmental of Health Medical Education and Family Welfare, Bihar, Patna. 4. Secretary-cum-Commissioner, Department of Finance, Bihar, Patna. 5. District Magistrate, Katihar. 6. Chief Executive Officer-cum-Deputy Development Commissioner, District Board, Katihar. 7. Civil Surgeon-cum- Chief Medical Officer, Katihar. 8. Medical Officer-in-Charge, Bararai, Katihar. 9. Treasury Officer, Katihar Treasury, Katihar. .. Respondents. ----------- 2. 23.09.2010 Having heard learned counsel for the parties as with regard to the following relief:- “ That this is an application praying for issuance of a writ of certiorari or any other appropriate writ, order or direction for quashing the order dated 12.3.2007 contained in Memo No. 208(3) (Annexure-5) by which and whereunder the respondent no. 3 herein has rejected the representation of the petitioner for exemption from passing the departmental examination and thereafter for grant of first time bound promotion. Further to direct the respondent authorities to grant first time bound promotion to the petitioner after exempting the petitioner from passing the departmental examination with all consequential reliefs.” this Court is of the considered opinion that on the own showing of the petitioner he will not be entitled to 2 get the benefit of time bound promotion even if his application for grant of exemption from appearing in and passing the departmental examination is allowed. It has to be noted that the scheme of time bound promotion came to an end w.e.f. 31.12.1995 and therefore if the petitioner did not pass the departmental examination during the currency of time bound promotion scheme he could not have given such promotion inasmuch as in the earlier time bound scheme passing of the departmental examination was part of eligibility for promotion and as such the petitioner cannot get the benefit of time bound promotion. Counsel for the petitioner however has submitted that when in terms of Government decision dated 9.11.1983 the petitioner had filed his application for exemption from appearing in departmental examination on 17.2.1997 which was also duly forwarded by Civil Surgeon of district vide his letter dated 439 dated 1.3.1997, the same could not have been kept pending and an order on the same was required to be passed before the retirement of the petitioner on 31. 12.2001. He would accordingly submit that the reason given by the authority in the impugned order dated 12.3.2007 that the petitioner 3 could not be allowed exemption from appearing in the departmental examination after his retirement as he had no longer remained as a government servant is not sustainable inasmuch as no person can be allowed to make premium of his own lapse. In this context, counsel is quite confident that such an application claiming exemption was filed by the petitioner on 17.2.1997 through proper channel and therefore when the authority had not doubted the same in the impugned order an additional reason supplied in the counter affidavit that the petitioner had never filed such an application cannot be taken into consideration as it is well settled that the reasons given in the impugned order cannot be supplemented by a counter affidavit as was held in the case of Mohinder Singh Gill and another vs. Chief Election Commissioner, new Delhi & Ors., reported in 1978 SC 851 Learned counsel for the State on the other hand would submit that all these submissions of learned counsel for the parties would be now for academic purpose inasmuch as the petitioner’s time bound promotion cannot be given on his own showing that he had not even applied for exemption during currency of the 4 scheme i.e. till 31.12.1995 nor had passed the departmental examination. He would further submit that the petitioner’s earlier writ application was disposed of by this Court by order dated 7.2.2007 in CWJC No. 5960 of 2006 from which it does not appear that the petitioner had claimed to have filed an application for exemption in the year 1996. Counsel for the petitioner in reply would submit that the petitioner had specifically raised this issue in paragraph 8 of the representation filed by him before the Secretary-cum-Commissioner as with regard to filing of the application for exemption on 17.2.1997 and had in fact enclosed a copy thereof as Annexure-2 to the said representation and therefore if the Commissioner also had not found incorrect and had not made the same as reason for rejecting the order, the respondents in their counter affidavit cannot be allowed to make out a new case. In view of the fact that this aspect of the matter has not been considered and the respondents had decided the issue only by taking into account that the petitioner after retirement could not be treated to be a government service and therefore no order of his 5 exemption from departmental examination could be passed, the matter has to be once again remitted to the authority for finding out as to whether as a matter of fact such application for exemption from appearing in departmental examination was filed by the petitioner. If the authority would find that said application was filed by the petitioner which was also sent through proper channel i.e. through Civil Surgeon of Katihar vide his letter no. 439 dated 1.3.1997, a decision could be taken treating the said application to have been pending on the date of his retirement. If the petitioner will be allowed exemption from appearing in the departmental examination on the basis of said application dated 17.2.1997(Annexure-2) to this writ application, though he will not be entitled for time bound promotion, as the said scheme had come to an end w.e.f. 1.1.1996 because he had never filed such application during currency of the scheme but then his case for grant of ACP would be considered as per existing policy. If however for any reason the respondents would reject the exemption claimed by the petitioner they would be required to give the reasons for the same. With the aforementioned observation and 6 direction, this writ application is disposed of. kanchan (Mihir Kumar Jha, J.)