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Vyas Mishra v. State Of U.P. And Others - WRIT - A No. 45569 of 2006  RD-AH 14614 (28 August 2006)
Civil Misc. Writ petition No.45569 of 2006
Vyas Mishra Vs. State of U.P. and others
(Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice V.C. Misra)
For the Petitioner: Sri B.S. Pandey
For the Respondents: Standing Counsel
Amitava Lala, J.: The petitioner's case is that he is entitled for promotion with retrospective effect, which was given to him notionally. He filed a writ petition after acceptance of such promotion when a Bench of this Court passed the earlier order dated 19.7.2005 directing the authority to decide the representation of the writ petitioner. Such representation was considered by the authority and ultimately held that since notional promotion was given to the petitioner, no financial benefit could be given.
In support of the case, learned counsel appearing for the petitioner has cited a Judgment in the case of Dr. N.N. Pandita Vs. Banaras Hindu University and another, reported in 1993 HVD (Alld.) Vol.III, page 413 in which it was held by the Division Bench of this Court that "when a person is denied promotion or when the promotion is delayed on account of any act or omission of the concerned authorities without any reasonable justification, he is entitled to be given the promotion with retrospective effect. Law does not prohibit making back dated promotion in order to meet one peculiar contingency of a particular case so as to prevent injustice which could otherwise have been caused to the concerned employee." It was also held in the Judgment that one cannot be denied the benefit of promotion with effect from the aforesaid date merely because his case was not considered by the authority. According to us, such principle cannot be applied here since the petitioner was accepted promotion and rendering his service. However, acceptance of the notional promotion without raising any protest or with protest is further to be considered by the authority concerned, in case any application is filed before the authority concerned by the petitioner. We are not inclined to interfere in the matter nor any document is shown before this Court that protest has been lodged.
Under such circumstance, we dispose of the writ petition with the direction upon the petitioner to make an application before the authority concerned who has already considered the representation and the authority concerned will consider this aspect of the matter upon going through the record and upon giving reasonable opportunity of hearing and by passing reasoned order thereon, within a period of one month from the date of making such application. For the purpose of effective adjudication, a copy of the writ petition with annexures can be treated as part and parcel of the application. Thus, the writ petition is disposed of with the aforesaid direction.
No order is passed as to costs.
( Justice Amitava Lala )
( Justice V.C. Misra )
August 28, 2006
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