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2007 DIGILAW 1144 (PAT)

Ram Mohan Prasad v. State Of Bihar

2007-07-13

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard. 2. The sole grievance of the petitioner in the present writ application is that though by order dated 5.12.2001 (Annexure 5) after inordinate delay the State granted the petitioner promotion with retrospective effect in the Bihar Police Service from 17.11.1989 but by the same order referring to Circular no. 2074, dated 4.4.1985 the petitioner has been denied the other benefits accruing as a consequence of the said promotion. The case of the petitioner is that once it is found that promotion was due and was wrongly denied then on promotion being given, it has to be given with all consequential benefits and nothing can be with-held. 3. Mr. Yugal Kishore learned counsel appearing in support of the writ petitioner submits that such was earlier provision of rule 58 of the Bihar Service Code. Circular referred to above of the Revenue Department is in consonance with the said rules. The validity of the said rules came up for consideration before a Division Bench of this Court. In the case of Dr. Paras Nath Prasad V/s. State of Bihar, 1990 2 PLJR 248 this court held the aforesaid rules to be arbitrary and unreasonable and thus unconstitutional. 4. It goes without saying that if a person commits a default the consequence thereof has to be borne by him. No one can be punished for a default committed by another nor can a person be told that "I have committed a default and you have lost of right because of that default." 5. The provision of rule 58 is contrary to all canon of justice. Chief Justice Chagla has held in the case of All India Groundnut Syndicate Ltd., Assessee V/s. Commr. of Income Tax, Bombay City, AIR 1954 Bom 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 subsection (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. 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." 6. In that view of the matter, I am left with no option but to quash Annexure 5 insofar as it restricts the benefits of promotion and deprive the petitioner of other consequential benefits. 7. In the result, this application is allowed with a direction to the respondents to give all consequential benefits as Consequence promotion with retrospective effect as given by Annexure 5. 8. As the petitioner has since retired I direct respondent no. 5, Deputy Inspector General of Police (Personnel), Govt. of Bihar, Patna to ensure that all payments due to the petitioner are made within a period of six months from the date of receipt/ production of a copy of this order before him.