The petitioner was approved for promotion to the post of Chief Engineer by the Departmental Promotion Committee (hereinafter referred as the DPC for short) of which proceedings were drawn up on 22.4.2006

2. The DPC found that the petitioner was not entitled to the said promotion up to 31.3.2005, but found that he was entitled to that promotion w.e.f. 1.4.2005.

3. On 15.5.2006 that is after this recommendation by the DPC, certain departmental proceedings were initiated against the petitioner and on that basis the petitioner was not promoted.

4. The petitioner filed a writ petition no. 530 of 2007* which was allowed by judgment dated 27.8.2008 by, a learned Single Judge of this Court. It was directed that the promotion of the petitioner to the post of Chief Engil1eer should be considered. At the time when the said writ petition was heard, the departmental proceedings initiated on 15.5.2006 had already come to an end. Accordingly at that stage there was apparently no impediment- in the grant of promotion. Yet the promotion was not granted and the petitioner was compelled to file a Civil Contempt Case No. 599 of 2008. In that Contempt Case a counter-affidavit was filed saying that promotion could not be given because election code of conduct had intervened and the matter required clearance from the Election Commission.

5. Subsequently, another Departmental Promotion, Committee appears to have been held on 14.11.2009. A copy of the recommendation of this second DPC has been obtained under Right to Information Act by the petitioner and has been filed on record of this writ petiti9n. This second DPC again approved the name of the petitioner for promotion to the post of Chief Engineer w.e.f. 1.4.2005. This was exactly the same recommendation which was made by the first DPC However, the actual promotion was not granted and the petitioner superannuated on 30.9.2008.

6. By the order impugned in this writ petition which is dated 16.11.2009 (Annexure-9 to this writ petition), the respondents have refused to give actual promotion to the petitioner in accordance with the recommendations of the 1st as well as the 2nd Departmental Promotion Committee, on the sole ground that the petitioner having superannuated is no longer in a position to join the promotional post of Chief Engineer and therefore, in view of Rule/Clause No. 58 of the Jharkhand Service Code the petitioner would not be entitled to any financial benefits as a result of any notional promotion even if given to him.

7. For ready reference the provision of Rule 58(a) which is relevant is reproduced below, alongwith Rule 58(b) which is not relevant for the present case:-

“58(a) Subject to any exceptions specifically made in these rules and to the provisions of clause (b) of this rule, a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with, effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties.

(b) Unless in any individual case State Government otherwise direct a person recruited overseas shall commence to draw pay on first appointment as follows:-

(i) in the case of a person who receives a first class passage to India, from the date of his arrival in India, [subject to his proceeding to take up his duties without avoidable delay].

(ii) in the case of a person who receives a second class passage to India from the date of his embarkation for India.

8. Rule 74 of the, Bihar Financial Rules, which although not cited in the impugned order or in the counter-affidavit has been pointed out by the petitioner's side. That Rule is reproduced below for ready reference:-

"74. AII authorities which are competent to sanction revision of pay or the grant of concessions to Government servants should bear in mind that retrospective effect should not be given to financial sanctions, except in exceptional circumstances, without the special approval of Government."

9. Both the af