DR.OM PRAKASH KUMAR SARI S/O SRI GOVIND PRASAD Vs. STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT.OF BIHAR, PATNA

JUDGEMENT

(1.) With the consent of the parties, the writ petition is being disposed of at this stage itself, as facts are not in dispute.

(2.) The petitioner, who was a Medical Officer, was posted on 29.6.2002 as Assistant Director (Surgery) at Indira Gandhi Institute of Cardiology, Patna Medical College Hospital, Patna. Petitioner was entitled to promotion to the post of Deputy Director on completion of three years service as Assistant Director (Surgery). Ultimately, the matter was considered by the Departmental Promotion Committee on 19.2.2008 (Annexure-3). The recommendation of Departmental Promotion Committee was that the petitioner be given notional promotion with effect from 29.2.2005 with financial benefits with effect from the date he assumes charge of the post. In other words, promotion being due on 29.2.2005, it was granted from the due date but financial benefits accruing therefrom were restricted from the date he actually took charge of the post. Notwithstanding the aforesaid, the State Government in the Department of Health issued a notification dated 15.4.2008 granting promotion to the petitioner from the date he assumed charge, vide Annexure-4 to the writ petition, which was contrary to the recommendation of the Departmental Promotion Committee. Petitioner pursuant to order of promotion aforesaid took charge on 15.4.2008 and as such in view of the notification aforesaid the promotion became effected from 15.4.2008 and not 29.2.2005, as recommended by the Departmental Promotion Committee. Petitioner represented to the department clearly stating that the delay in granting promotion was not on account of any fault of his but on account of delay convening of Departmental Promotion Committee. He could, thus, not be deprived of his due promotion from the due time. In his representation petitioner also pointed out that one Dr. Ashwani Kumar Ashok, who was also posted in the same institution in the Department of Pathology, had earlier been granted promotion to the post of Deputy Director with retrospective effect though financial benefits were restricted to the date of notification. This was done by notification dated 18.9.2007 (Annexure-9). Petitioner thus prayed to be given similar treatment. The representation of the petitioner was disposed of by the State Government in the Department of Health by order dated 20.6.2009 and communicated to the petitioner under memo no. 468(17), dated 2.7.2009 (Annexure-7) whereby the claim of the petitioner has been rejected. Thus, the petitioner challenges the notification dated 15.4.2008 (Annexure-4) notifying his promotion and consequently the order of the State Government dated 30.6.2009 (Annexure-7) by which he has been denied notional promotion with effect from the due date.

(3.) From the impugned order, as contained in Annexure-7, the only reason given for denying promotion to the petitioner from due date is that the Department of Finance had advised the department that notional promotions retrospectively are only be given where juniors are promoted earlier and the case of a person is decided later on. It is this reasoning that is under challenge.