IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.7351 of 2009
Hridaya Narayan Mishra .
Versus
The State Of Bihar & Ors .
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2. 02.08.2011 A supplementary affidavit is stated to have
been filed on behalf of the petitioner on 22.7.2011,
copy of which has been served on the counsel for the
State. The office shall trace it and place on record.
The Court requested the counsel for the petitioner to
make available his copy for perusal so as to not hold
up the proceedings on that ground.
The petitioner is stated to have
superannuated on 30.6.2009 holding the post of
Deputy Secretary in the Department of Water
Resources (Minor Irrigation). It is his contention
that in his service period on 14.5.2009, his case has
been considered for promotion and recommended as
apparent from the file notings annexed to the
supplementary affidavit obtained by him under the
R.T.I. Act. The matter was nonetheless kept pending
and immediately after his superannuation his junior
has been promoted.
No counter affidavit has been filed despite
a passage of over two years from the date of filing of
the writ application after serving two copies in the
office of the Advocate General. No useful purpose
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shall be served by keeping the writ application
pending.
The petitioner has filed this writ
application just prior to his superannuation. A file
noting may not create a right in him to found a legal
cause of action before a Court of law. But
nonetheless if the file noting has been furnished to
him under the Right to Information Act, fairness and
reasonableness requires the respondents to consider
the claims of the petitioner in light of their own
noting contained in the file. That does not mean the
recommendation must reach its culmination. What
is important is the culmination of the decision
making process contained in the file noting.
The right to be considered for promotion
necessarily entail a consideration in time otherwise it
amounts to violation of Articles 14 and 16 of the
Constitution of India. Now that the petitioner has
retired, if the respondents find justification in the
claim it naturally has to be a notional promotion
only which may entail revision of pensionary
benefits.
Let the respondents consider the claim of
the petitioner in accordance with law within a
maximum period of three months from the date of
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receipt/production of a copy of this order.
Needless to state that if they find
justification in the claim or in any part of the claim,
necessary consequential order by revision of the
pension payable including arrears shall be all
complied with within the same period.
The writ application stands disposed.
P. Kumar ( Navin Sinha, J.)