ORDER : 1. With the consent of the parties, hearing of this matter has been done through video conferencing. They have no complaint about any audio and visual connectivity. I.A. No. 8319 of 2018 2. This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 84 days in preferring this Letters Patent Appeal. 3. Heard. 4. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellants were prevented by sufficient cause in preferring the appeal within the period of limitation. 5. Accordingly, I.A. No. 8319 of 2018 is allowed and delay of 84 days in preferring the appeal is condoned. L.P.A. No. 507 of 2018 6. The instant intra-court appeal under Clause 10 of the Letters Patent is directed against the order/judgment dated 18.05.2018 passed by learned Single Judge of this Court in W.P. (S) No. 4013 of 2011, whereby and whereunder the writ petition has been allowed with a direction to the respondents to consider the case of the petitioner and take decision for grant of notional promotion as expeditiously as possible, preferably within a period of three months from the date of communication/receipt of copy of the order. 7. The brief facts of the case, as required to be referred herein, read hereunder as: “The writ petitioner was working as Additional District Magistrate/Deputy Secretary under the Deputy Secretary Cadre and being eligible for promotion to the next higher rank i.e. in the Joint Secretary rank and/or equivalent post in the pay scale of Rs. 37,400/- to Rs. 67,000/- with grade pay of Rs. 8700/- his case was considered by the duly constituted Departmental Promotion Committee, meeting of which was convened under the Chairmanship of Chief Secretary, Government of Jharkhand, Ranchi along with others, in which the Committee had found the writ petitioner fit to be promoted to the next higher post of Joint Secretary and/or its equivalent post in its meeting held on 24.08.2010 and accordingly, recommended the name of 33 persons including the writ petitioner for promotion, having the name of the writ petitioner stands at serial no. 22 of the said list. 22 of the said list. The recommendation of the Departmental Promotion Committee was processed by the Department of Personnel, Administrative Reforms and Raj Bhasa and since during the relevant time there was operation of President’s Rule under the provision of Article 356 of the Constitution of India and as such, since the democratic set up of the State was seized, the file was sent before the Advisor (Personnel) who on approving the same forwarded it before His Excellency, Governor of the Jharkhand. On 25.08.2010, His Excellency, Governor of the Jharkhand approved the proceeding of the meeting on the same date i.e. 25.08.2010 but the notification was not issued pertaining to the order of promotion in the rank of Joint Secretary, however, when the notification was not issued, some of the recommended candidates filed writ petition being W.P. (S) No. 5545 of 2010 praying therein to issue command upon the respondents, to issue notification for promotion and this Court vide order dated 15.06.2011 disposed of the writ petition with a direction upon the Principal Secretary, Department of Personnel, Administrative Reform and Raj Bhasa, to expedite the publication of notification and get the same published within a reasonable time not later than two weeks but during pendency of the writ petition the writ petitioner was retired from service with effect from 31.05.2011 from the post of Deputy Development Commissioner, DRDA, Simdega. The respondent authorities, in compliance to the order passed by this Court in W.P. (S) No. 5545 of 2010 disposed of on 15.06.2011, had issued a notification as contained in Memo no. 3313 dated 18.06.2011, by which, other candidates who had been recommended for promotion were notified to be promoted to the post of Joint Secretary and/or equivalent post, but the name of the writ petitioner was not included in the said notification. 3313 dated 18.06.2011, by which, other candidates who had been recommended for promotion were notified to be promoted to the post of Joint Secretary and/or equivalent post, but the name of the writ petitioner was not included in the said notification. The writ petitioner had made a representation before the Principal Secretary, Personnel, Administrative Reform and Raj Bhasa, requesting therein to issue notification in pursuance to the recommendation made by the Departmental Promotion Committee dated 24.08.2010 which had duly been approved by the Governor on 25.08.2010, but the day when the notification was issued in terms of the order passed by this Court in W.P. (S) No. 5545 of 2010, even though the writ petitioner had retired, he cannot be denied with the benefit of promotion, but no decision since had been taken which led the writ petitioner to approach this Court by filing writ petition being W.P. (S) No. 4013 of 2011, which is the subject matter of the present intra-court appeal.” 8. Mr. Amit Kumar Sinha, learned AC to GA-V appearing for the appellant-State of Jharkhand, has submitted that in view of the provision of Rule 58 of the Bihar Service Code and Rule 74 of the Jharkhand Finance Code, the writ petitioner cannot be allowed to get the benefit of notional promotion but this aspect of the matter has not properly been considered by the learned Single Judge. It has been contended that although the name of the writ petitioner was recommended by the duly constituted Departmental Promotion Committee but the day when the recommendation of the Departmental Promotion Committee was accepted by the competent authority of the State of Jharkhand by issuing notification, the writ petitioner since was superannuated from service on attaining the age of superannuation, therefore, he cannot be allowed to get the advantage of promotion but this aspect of the matter has not been considered in right perspective. It has further been submitted that the notification could not have been issued, even though recommendation was approved by His Excellency, the Governor of Jharkhand on 25.08.2010 as some issue was agitated to provide seniority in consequence to the provision of Article 16(4A) of the Constitution of India inserted to the Constitution by way of 85th amendment, which was elaborately been considered by the Hon’ble Apex Court in the case of M. Nagaraj and Others vs. Union of India and Others, (2006) 8 SCC 212 . The Government has taken decision to provide consequential seniority as per the criteria laid down in case of M. Nagaraj (supra) is not being finalized, the promotion is to be considered in pursuance to the Jharkhand Reservation Act, 2001 and it is only thereafter the notification was issued on 18.06.2011, but in the meanwhile, the writ petitioner has superannuated from service and hence he is not entitled to get the benefit of promotion with retrospective effect after superannuation from service. Hence, submission has been made that due to the delay in taking policy decision, the notification could not have been issued and if there is delay caused in taking policy decision, and if in the meantime, the petitioner has superannuated from service, he cannot be allowed to get the benefit on the basis of the recommendation made by the Departmental Promotion Committee, therefore, submission has been made that the order passed by the learned Single Judge suffers from infirmity, hence not sustainable in the eye of law. 9. Per contra, Mr. Saurav Arun, learned counsel for the writ petitioner-respondent has submitted that the writ petitioner is entitled to be promoted as per recommendation made by the Departmental Promotion Committee, in pursuance thereto, notification had been issued on 18.06.2011 and hence, he is entitled to be promoted notionally and if the promotion would not be granted, the writ petitioner will be allowed to suffer for no fault of his own and taking into consideration this aspect of the matter, the learned Single Judge has passed the order, which according to him suffers from no infirmity. He further submits that since there is recommendation made by the Departmental Promotion Committee wherein the writ petitioner has been found fit to be promoted, but due to the delay caused by the State authority by not issuing the notification in course of service of the writ petitioner and as such, for the delay caused by the respondents, he cannot be allowed to suffer. Learned counsel for the appellant-writ petitioner basing upon this aspect of the matter, has submitted that the order passed by the learned Single Judge suffers from no infirmity. 10. This Court, having heard learned counsel for the parties and on appreciation of the rival submissions, has found certain admitted facts as available on record to the effect that a Departmental Promotion Committee was constituted by the order of the competent authority for consideration of the case of one or the other officers holding the rank of Deputy Secretary to be promoted in the next higher rank i.e. Joint Secretary and/or its equivalent post. The Departmental Promotion Committee had convened its meeting on 24.08.2010 and after considering the case for promotion of one or the other candidate and on critical appreciation of the service records, recommended the name of the 33 candidates including the writ petitioner for promotion in the rank of Joint Secretary and/or equivalent post, the name of the writ petitioner stands at serial no. 22. The recommendation of the Departmental Promotion Committee dated 24.08.2010 had been forwarded before the Nodal Department i.e. Department of Personnel, Administrative Reform and Raj Bhasa as per the rules of executive business, which had been approved by the Advisor (Personnel) to the Governor of the State of Jharkhand on 25.08.2010 and was forwarded before the Governor since during the relevant time there was operation of President’s Rule, in view of the provision of Article 356 of the Constitution of India, the Governor of Jharkhand had also approved the recommendation on 25.08.2010 itself, as has been pleaded in the paper book, basing upon the document brought on record by the writ petitioner obtained under Right to Information Act. Subsequently, a draft notification with respect to grant of promotion in the rank of Joint Secretary was taken but no action was taken, when the Government has taken no decision, some of the candidates approached to this Court by invoking jurisdiction conferred under Article 226 of the Constitution of India by filing writ petition being W.P. (S) No. 5545 of 2010, which was disposed of vide order dated 15.06.2011, directing the Principal Secretary, Personnel, Administrative Reform and Raj Bhasa Department, to expedite the publication of notification and get the same published within a reasonable time not later than two weeks. It is admitted case of the appellants that in pursuant to the order passed by this Court dated 15.06.2011 in W.P. (S) No. 5545 of 2010, the notification was issued for promotion in pursuant to the recommendation made by the Departmental Promotion Committee, meeting of which was held on 24.08.2010 having been approved by the Governor of the Jharkhand on 25.08.2010 as contained in Memo No. 3313 dated 18.06.2011 promoting the candidates but leaving the name of the writ petitioner, thereby he has been denied the benefit of promotion. The question has been raised by the State-appellant in this appeal that once the writ petitioner has retired from service i.e. with effect from 31.05.2011 and since the notification of promotion was issued on 18.06.2011, therefore, he cannot be held entitled for promotion to the post of Joint Secretary and/or its equivalent post. There is no dispute about the settled position of law that promotion is not a fundamental right rather right for consideration for promotion is stated to be a fundamental right. Further it is settled that if an employee has retired from service and if promotion has been granted to other similarly situated persons or even juniors, the employee who has retired will have no right to claim promotion since after superannuation from service the relationship of employer and employee breaks and the day when the said relationship breaks, the employee has got no right even for consideration for promotion. But the question which requires to be considered in the facts of the present case, as to whether the benefit of promotion can be denied to such employee in whose favour the Departmental Promotion Committee has made recommendation finding such employee fit to be promoted while the employee was in service and due to the delay caused by the department in issuing notification for promotion in favour of the employee, who superannuates, in the meanwhile, from the service. 11. This Court has examined the factual aspects on the touchstone of the settled position of law as referred in the preceding paragraph, and going through the factual aspects available in this case, has found therefrom that admittedly the case of the writ petitioner was considered by the duly Departmental Promotion Committee, meeting of which was held on 24.08.2010. The Departmental Promotion Committee has found the writ petitioner fit to be promoted in the Joint Secretary rank and/or to its equivalent post along with the other candidates. The recommendation was forwarded before the nodal/parent department i.e. Personnel, Administrative Reforms and Rajbhasa Department which was approved by the Advisor (Personnel) to the Governor of Jharkhand on 25.08.2010 and thereafter the same was forwarded to the Government of Jharkhand for its approval. The Government of Jharkhand also approved the same on 25.08.2010, in consequence thereof, a draft notification was also prepared and forwarded, but for the one reason or other the promotion has been denied. It requires to refer herein that in the matter of appointment either direct or through promotion of employee of State Cadre Service, the approval of the Cabinet is required and only thereafter the required notification is to be issued as per the rules of executive business applicable but the said principle will not be applicable in a case where the democratic set up of the State is kept in abeyance by imposition of President’s Rule as under Article 356 of the Constitution of India by promulgation of the President’s Rule in the State as because when there will be a President’s Rule, the Federal Structure of Government will seize to function and the Governor of the State will act as the actual head of the State having power to take decision depending upon the advice of the Advisor. It is not in dispute that in the facts of the case herein as on 25.08.2010 there was President’s Rule in the State of Jharkhand and as such, admittedly the democratic set up of the Government was under suspension, in consequence thereof, the Governor in exercise of power to function as the actual head of the State was to function at the advice of the Advisor and admittedly herein the Advisor has approved the recommendation of the Departmental Promotion Committee on 25.08.2010 itself. The State authority has not issued notification even though draft notification was prepared after approval of the Departmental Promotion Committee on 25.08.2010 which led some of the candidates to approach this Court by filing writ petition being W.P. (S) No. 5545 of 2010 and in pursuance to the said direction, the order has been passed by issuing notification on 18.06.2011 but in the meanwhile, the writ petitioner has superannuated from service with effect from 31.05.2011. The State has come out with an excuse for not issuing the notification due to the pending decision about benefit of consequential seniority in pursuance to the provision of Article 16(4A) of the Constitution of India. The State has come out with an excuse for not issuing the notification due to the pending decision about benefit of consequential seniority in pursuance to the provision of Article 16(4A) of the Constitution of India. But even accepting the said decision, the petitioner cannot be denied the benefit of promotion, since it is not the case of the State respondent that the notification for promotion which was issued on 18.06.2011 was based upon the subsequent recommendations of the Departmental Promotion Committee meeting of which was held after superannuation of the writ petitioner w.e.f. 31.05.2011, rather it is the admitted case as would appear from the material available on record that the notification dated 18.06.2011 was issued on the basis of the recommendation of Departmental Promotion Committee, meeting of which was held on 24.08.2010 granting promotion to the other officers who were in service on the date of notification i.e. 18.06.2011, therefore, here it is the State appellants who are at fault as because when the Governor of the State has concurred with the recommendation of the Departmental Promotion Committee as on 25.08.2010, on that date admittedly, the writ petitioner was in the roll of the service and when the recommendation of the Departmental Promotion Committee dated 24.08.2010 has been given effect to by issuing notification on 18.06.2011, there is no reason to deny the benefit of Notional promotion in favour of the writ petitioner rather if the said benefit would be denied it will be nothing but the writ petitioner would be allowed to suffer for the laches committed on the part of the State authority. 12. Learned Single Judge, after taking into consideration the aforesaid aspect of the matter, has directed the respondent to consider the case of the petitioner and take decision for grant of notional promotion. According to our considered view based upon the reason aforesaid, the same cannot be faulted with. 13. In view thereof, the order passed by the learned Single Judge, requires no interference of this Court. 14. In the result, the appeal fails and is dismissed. 15. Due to disposal of appeal, no order is required to be passed in I.A. No. 8320 of 2018. 16. In the result, I.A. No. 8320 of 2018 and the Caveat Case No. 260 of 2019 also stand disposed of.