Judgment A. K. Ganguly, J. 1. This writ petition has been filed in which the petitioner has complained that the persons junior to him were promoted without consideration of his case for promotion to the post of Assistant commissioner, Commercial Taxes. 2. The grievance of the petitio-ner arises out of the following facts : the petitioner appeared in the year 1972 in the limited competitive examination for appointment to the then senior Branch of Bihar Finance service and after competing in the said examination he was appointed to the Senior Branch of the Bihar finance Service which the petitioner joined on 3rd February, 1975. Thereafter the petitioners case is that he also passed the departmental ex-amjination in the year 1977. The petitioner has annexed a document dated 9th March, 1979, as contained in Annexure-1, from which it appears that the petitioners dated of allotment for the determination of the seniority was fixed as 17th February, 1967. Further case of the petitioner is that the same date of allotment was also fixed in respect of two other persons, namely, Raghwansh mani Singh and Chuni Lal Khatri and they were considered for promotion prior to the petitioner, namely, in the month of June, 1977 and the case of the petitioner was not at all considered for promotion on that date. The petitioner has also annexed along with the supplementary affidavit, a seniority list from which it will appear that the petitioners seniority position is at Serial No.59. The petitioners case is that the persons much below and junior to him have been considered for promotion and, in fact, were promoted in the year 1977. The petitioner had made several representations against such denial of his promotion and he was ultimately promoted to the said post of Assistant Commissioner of Commercial Taxes with effect from 26th november, 1982. Even then the grievance of the petitioner remained that the persons junior to him and getting position below to him in the said seniority list, as contained in annexure-11, have been considered for promotion in the year 1977 and they were also promoted to the post of Assistant Commissioner Commercial taxes but the petitioners case was not considered in the year 1977. 3. 3. Learned counsel appearing for the respondents in this matter has raised various points, namely, that the petitioner was a non-commissioned staff in Indian Army during indo-China War in the year 1962 and as such the petitioner is not entitled to be treated equally with the Commissioned Officers. The other ground for not considering the case of the petitioner for promotion in the year 1977 is that the petitioner did not acquire sufficient years of qualifying service at the time of promotion of other officers and that the petitioner was found unfit. It also transpires from the counter affidavit that the petitioner was suspended and thereafter charge-sheeted. The suspension order, however, was ultimately revoked but the charge-sheet issued against the petitioner is still pending. It is said that the disciplinary proceeding initiated against the petitioner by the said charge-sheet has not yet been finalised. The petitioner has alleged in his supplemntary affidavit that despite the petitioners attending the enquiry, the same has not been completed since 1991. It has also been alleged by the respondents in the counter-affidavit that there was some irregularity about the distribution of the Military pension and the petitioner was involved in the same. However, no proceeding was initiated against the petitioner on that account. From the materials which have been disclosed in this writ petition it also appears that the petitioner has stated that the difference between the Commissioned Officer and the non-Commissioned Military Officers in the matter of their rehabilitation in Bihar State service stood abolished with effect from May, 1972 as would appear from Annexure-13 to the reply filed by the petitioner in answer to the states counter-affidavit. The petitioner has also annexed another document dated 12th July, 1991, namely, annexure-14 to show that in case where the departmental proceeding is pending against the delinquent employees for more than two years, the same cannot be considered to be a bar for promotion. 4. The other contention raised by the learned counsel for the respondents in this connection is that the seniority list which has been annexed by the petitioner is subjudice and is not final and on the basis of the said seniority list, the petitioner cannot claim his right to be considered for promotion. 4. The other contention raised by the learned counsel for the respondents in this connection is that the seniority list which has been annexed by the petitioner is subjudice and is not final and on the basis of the said seniority list, the petitioner cannot claim his right to be considered for promotion. The petitioner has, however, asserted, which could not be disputed, that on the basis of the said seniority list others have been considered for promotion and, in fact, have been promoted. The writ-petition in which seniority list has been claimed to be subjudice also stood dismissed on the ground of default. Be that as it may, this court is unable to uphold the contention of the respondents that the seniority list, on the basis of which others have been considered for promotion and, in fact, have been provisonally promoted, the petitioners case for promotion cannot be considered. If the petitioners seniority on the basis of the said list cannot be given effect to for the purpose of promotion, the same yard-stick should be followed by the respondents in case of other employees also. But it appears that in respect of other employees the respondents have considered the same seniority list for promotion and they are trying to adopt a different yardstick in so far as the claim of the petitioner is concerned. This is sheer discrimination and inhibited by the guarantee under Articles 14 and 16 of the Constitution of India. 5. The other justification which has been put forward by the respondents, namely, that the petitioner being a non-Commissioned Officer cannot be treated on the same footing as that of Commissioned Officer, also cannot be accepted by this court in view of the notification of may, 1972 (Anneure-13) as referred to above. 6. Learned counsel for the respondents has, however, fairly stated that it is not the respondents case that the petitioner cannot be considered for promotion in view of the pendency of the charge-sheet issued against the petitioner. 7. Learned counsel for the respondents, however, has further asserted that the claim of the petitioner is barred by delay inasmuch as the petitioner approached this Court in 1990, i. e. after a delay of several years and thus this Court should not entertain this belated claim on the basis of the said seniority list. 8. 7. Learned counsel for the respondents, however, has further asserted that the claim of the petitioner is barred by delay inasmuch as the petitioner approached this Court in 1990, i. e. after a delay of several years and thus this Court should not entertain this belated claim on the basis of the said seniority list. 8. Even though the ground of delay has not been taken in any of the counter-affidavit filed by the respondents but since the said ground can be urged on the basis of the materials on record and without going into the disputed question of fact, this Court permitted the learned counsel for the respondents to urge this contention and upon a closer scrutiny of the said objection, this court finds that the same is without much substance. 9. In the instant case the petitioner is seeking merely a consideration of his case for promotion in the year 1977 as the persons similarly placed like the petitioner were considered for promotion and while making the said claim the petitioner is relying on two things, namely, (i) his date of allotment for seniority fixed by the respondents and (ii) his seniority position as shown in the seniority list prepared by the respondents. The petitioner is not agitating any disputed question of fact after a long lapse of years so that this Court can refuse to entertain the same nor is the petitioner seeking to upset any settled position by his aforesaid prayer. The petitioner is not asking this Court to pass orders as a result of which the persons who have been promoted may be reverted back or they may lose their seniority. The petitioner is merely asserting his right on the basis of the records and documents which have been prepared by the respondents. This Court is not called upon to go into any disputed question of fact in appreciating the claim of the petitioner. In that view of the matter, this Court feels that the claim of the petitioner cannot be defeated merely on jejune ground of delay. In this connection, this Court refers to a decision of the Supreme court in the case of M/s Dehri Rohtas Light Railway Company Limited V/s. District Board, Bhojpur and others reported in (1992) 2 S. C. C. page 598. In this connection, this Court refers to a decision of the Supreme court in the case of M/s Dehri Rohtas Light Railway Company Limited V/s. District Board, Bhojpur and others reported in (1992) 2 S. C. C. page 598. While dealing with the question of delay in refusing the relief to an applicant in the writ petition, the learned Judges of the Supreme Court has been pleased to observe as follows: "the rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. " 10. Accepting the aforesaid proposition this Court is of the view that the petitioners prayer, in the facts and circumstances of this particular case, cannot be defeated on the ground of delay alone. Taking all the facts into consideration, this Court is of the view that having regard to the petitioners position in the seniority list which has been acted upon by the State and having regard to his admitted date of allotment fixed by the respondents, the petitioners claim ought to succeed. This writ petition is thus allowed to the extent indicated below. 11. This writ petition is thus allowed to the extent indicated below. 11. Having regard to the fact that the petitioner joined the Senior Branch of the Bihar Finance Service in the year 1975 and was given the benefit of Ex-Military service with effect from the date of his allotment, i. e.17th february, 1967, the petitioner becomes eligible for consideration of his case for promotion in the year 1977 as his juniors in the seniority list have been considered for promotion and have been promoted. In that view of the matter, this Court directs the respondents to consider the case for promotion of the petitioner on the basis of seniority as shown in the seniority list, namely, serial No.59 and on the basis of the date of his allotment, namely, 17th February, 1967 to the post of Assistant Commissioner of Commercial taxes. Such consideration must be made as on June, 1977 when persons similarly placed like the petitioner have been considered and promoted. As a result of such consideration, if the petitioner is found fit for promotion with effect from that date, all consequential benefits with effect from the said date of promotion be given to the petitioner. The respondents authorities must consider the case of the petitioners promotion within two months from the date of receipt/production of a copy of this order and must give all consequential benefits arising out of such promotion, if any, within two months thereafter. It is made clear that while considering the petitioners case for promotion, the respondents will confine their consideration in connection with the petitioners service record as on June, 1977 and will not take into account the pendency of the charge-sheet pending against him because it is pending since 1991 and has not been disposed of as yet. 12. With the aforesaid direction/observation, this writ-petition is disposed of. There will be no order as to cost. Order accordingly.