IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.9653 of 2006
RAMA SHANKAR SAH
Versus
THE STATE OF BIHAR & ORS
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4. 22.04.2011 The petitioner had filed this writ application for a
direction to the State to grant him promotion, which was long
over due. The rejection of petitioner’s claim is sought to be
challenged in this application.
A counter affidavit has been filed in which with
reference to the Government letter dated 4.1.2010, it is stated
that the promotions are not to be granted with retrospective
effect. It is now stated that a supplementary counter has been
filed, which is not on record. Let the Registry trace out the same
and place it on record.
It is stated that the supplementary affidavit that
petitioner has now been granted promotion but it effects
prospectively from the date of order and the petitioner neither
get any monetary benefit nor promotion from the due date when
it ought to have been granted. Prima facie, in my view, the
policy of the Government is clearly arbitrary and cannot be
sustained if for any reason . The Government slept over the
matter of grant of promotion, which is due to an employee,
which is now a constitutional right, then for the fault of the
Government and for the Government sleeping over the matter .
the employee cannot be denied his due remuneration .The
principle of law is well enunciated in the case of All India
2
Groundnut Syndicate Ltd. -v- Commissioner of Income
Tax, Bombay City since reported in A.I.R 1954 Bombay 232:
“But the most surprising contention
is put forward by the Department that because
their own officer failed to discharge his
statutory duty, the assessee is deprived of his
right which the law has given to him under sub-
section 2 of S. 24. In other words, the
Department wants to benefit from and wants to
take advantage of its own default. It is an
elementary principle of law that no person- we
take it that the Income-tax Department is
included in that definition-can put forward his
own default in defence to a right asserted by the
other party. A person cannot say that the party
claiming the right is deprived of that right
because ” I have committed a default and the
right is lost because of that default”
Learned counsel for the State seeks time to seek
specific instructions in the matter from the State in respect of
this aspect.
Put up this matter on 2nd of May 2011, at the top of the
list as a zero item.
Namita ( Navaniti Prasad Singh, J.)