Patna High Court - Orders
Kamlanand Thakur vs The State Of Bihar And Ors on 27 October, 2021
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18727 of 2017
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Kamlanand Thakur Son of Late Surya Narain Thakur, resident of Village and
Post- Chandra Via Raiyam, P.S.- Raiyam, District- Darbhanga.
... ... Petitioner
Versus
1. The State Of Bihar
2. The Principal Secretary, Irrigation Department, Govt. of Bihar, Patna.
3. The Engineer-in-Chief, Irrigation Department, Govt. of Bihar, Patna.
4. The Chief Engineer, Irrigation Department, Darbhanga. null null
5. The Superintending Engineer, Western Koshi Canal Circle, Madhubani.
6. The Accountant General, Bihar, Patna.
... ... Respondents
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Appearance :
For the Petitioner : Mr. Prashant Sinha, Advocate
Mr. Rohan Verma, Advocate
Mr. Baua Jha, Advocate
For the Respondent State: Mr. Anjani Kumar, AAG-4
For the Respondent Accountant General : Mr. Prabhat Ranjan, Advocate
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
C.A.V. ORDER
Date : 27-10-2021
A question whether passing of departmental accounts
examination is a condition precedent for grant of benefits under
Assured Career Progression under the Bihar State Employees
Condition of Service (Assured Career Progression Scheme) Rules,
2003 (hereinafter referred to as the 'ACP Rules') has once again
arisen in the present writ application. The petitioner is claiming
grant of the benefits under the said A.C.P. Rules, which is being
denied on the ground that he has not passed the departmental
accounts examination.
Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021
2/16
2. Upon hearing Mr. Prashant Sinha, learned counsel for
the petitioner, Mr. Anjani Kumar, learned Additional Accountant
General-4 for the State of Bihar and Mr. Prabhat Ranjan, learned
Accountant General with reference to various judicial
pronouncements of this Court, it has clearly emerged that
conflicting and divergent views have been expressed on this issue
in various Division Bench decisions of this Court.
3. Before referring to the said Division Bench decisions,
it is significant to note that a question had arisen before a Full
Bench of this Court in case of Maheshwar Prasad Singh Vs. State
of Bihar, reported in 2000(4) PLJR 262 as to whether the clerks
working in the mufassil office were required to pass the
departmental examination in accounts for promotion to selection
grade. It would be evident from the very opening paragraph of the
decision in case of Maheshwar Prasad Singh (supra) and
paragraph 3 of the said decision that the core of the dispute in the
said case was whether passing of the accounts examination was an
essential condition without which the clerks could not be promoted
to selection grade.
4. The Rules relating to examination in accounts are
contained in Rule 157 of the Bihar Board's Miscellaneous Rules,
1958 (hereinafter referred to as the 'Board's Miscellaneous
Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021
3/16
Rules'). Examining the said provision under the Board's
Miscellaneous Rules with specific reference to Rule 157(3)(J) and
noticing various changes in the said provision, the Full Bench held
in paragraph 13 as under : -
"..... Thus, the clerks were required to
pass the final examination in accounts a condition
for promotion to selection grade after
29.03.1982."
(Underlined for emphasis)
5. Rule 157(3)(J) of the Board's Miscellaneous Rules reads as under : -
"(J) (a) Any Clerk, who has not passed the preliminary examination in Accounts, will be neither confirmed nor be allowed to cross the efficiency bar;
(b) A Clerk, who has not passed the final examination, will not be promoted to the Selection grade;
(c) In case of non-availability of senior clerk, finally passed in Accounts Examination, in junior clerk, having passed the final Accounts Examination may be temporarily promoted to the Selection Grade;
Provided that the Junior Clerk temporarily promoted to the Selection grade shall be reverted to the post of clerk if the Clerk senior to him passes the final Accounts Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 4/16 Examination within two years from the date of his first supersession and is promoted with effect from any date within the said two years, otherwise the senior clerk would be treated junior to all the clerks promoted to the Selection grade prior to him."
6. In case of State of Bihar and Others Vs. Kusheshwar Nath Pandey, reported in 2013(1) PLJR 939, a question arose as to whether passing of departmental accounts examination was an essential condition precedent for grant of 'time bound promotion'. Noticing Rule 157(3)(J) of the Board's Miscellaneous Rules and State Government's Circular dated 01.04.1980, a Division Bench of this Court held in paragraph 12 of its judgment and order dated 19.09.2012 that all along, the rules required passing of accounts examination a condition precedent for promotion to a higher post including the promotion to a higher grade under the time bound promotion scheme. Further, in case of State of Bihar and Others vs. Anjani Kumar, reported in 2013(2) PLJR 643, a question arose before a Division Bench of this Court, this time, on requirement of passing of departmental accounts examination as an essential condition precedent for grant of Assured Career Progression under the Assured Career Progression (ACP) Rules. The Division Bench, in case of Anjani Kumar (supra), after Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 5/16 noticing the Full Bench decision in case of Maheshwar Prasad Singh (supra) and the Division Bench decision in case of Kusheshwar Nath Pandey (supra) with reference to Rule 157 of the Board's Miscellaneous Rules noted in paragraph 5 of its judgment and order dated 07.03.2013 as under : -
"5. It is not in dispute that the promotion in question is governed by the Bihar Board's Miscellaneous Rules, 1958. Rule 157 of the said Rules provides for passing of the Departmental Accounts Examination, a condition precedent for further promotion. The writ petitioner had not passed the Departmental Accounts Examination. He was, therefore, not eligible for promotion. Consequently he was not entitled to the financial progression under Assured Career Progression."
7. The respondents before the Division Bench in case of Anjani Kumar (supra) had sought exemption from passing of departmental examination on the ground that he had attained the age of 50 years and was relying on a Government Circular dated 15.05.1992 for grant of such exemption. The Division Bench concluded in case of Anjani Kumar (supra) in paragraph 7 and 8 as under : -
"7. A Full Bench of this Court has, as early as in 2000, in the matter of Maheshwar Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 6/16 Prasad Singh vs. The State of Bihar and Ors. [2000 (4) PLJR 262], enunciated the said principle to hold that the government cannot amend, modify or supersede the statutory rules by administrative instructions. The judgment in the matter of Dinesh Narayan Mishra (supra) is per incuriam the above referred judgment in the matter of Maheshwar Prasad Singh.
8. This matter has been considered by us in the matter of The State of Bihar & Ors. Vs. Kusheswar Nath Pandey [2013 (1) PLJR 939]. In our opinion, the impugned order made by the learned single Judge is contrary to the judgments in the matter of Maheshwar Prasad Singh (supra) and Kusheswar Nath Pandey (supra)."
8. It can be easily culled out from the Division Bench decision in case of Anjani Kumar (supra) that the Division Bench proceeded with an undisputed premise that the promotion in question (ACP) was governed by the Board's Miscellaneous Rules.
9. Another Division Bench in case of Avinash Chandra Singh vs. The State of Bihar and Others, reported in 2012(1) PLJR 663, had the occasion to consider the grievance of the writ petitioner of denial of the benefits of second time bound promotion as well as two Assured Career Progression under the ACP Rules on the ground that he had not passed the departmental accounts Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 7/16 examination. The Division Bench, in its decision dated 14.07.2011 rendered in the case of Avinash Chandra Singh (supra), held in paragraphs 4 and 5 as under : -
"4. In the present appeal learned counsel for the petitioner has drawn our attention to the policy of the State Government as contained in Annexure-4 which is the letter dated 12.8.1992 of the Government in which in clause 4
(i) it is clearly mentioned that persons who had been granted promotion prior to 1.9.1983 would not be reverted only on the ground that they had not passed such departmental examination. It was further provided that in view of them having already been granted promotion prior to 1.9.83, their case for further promotion would also not be withdrawn on the ground of them not passing the said examination.
5. After hearing the learned counsel for the parties we feel that the petitioner has made out a good case for interference. Accordingly, we direct that the case of the petitioner shall be considered for his due promotion as well as A.C.P. in accordance with law which shall not be denied to him only on the ground that he has not passed the departmental examination."
10. In case of Uday Shankar Prasad vs. The State of Bihar and Others, reported in 2017(3) PLJR 824, another Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 8/16 Division Bench of this Court, in its decision dated 03.07.2017, held in paragraph 8 that the Rules of 2003 are the Rules framed under Article 309 of the Constitution of India and there is no stipulation in these Rules that the Rules contemplated under Board's Miscellaneous Rules would be applicable for grant of ACP. The Division Bench in case of Uday Shankar Prasad (supra) distinguished the Division Bench decision rendered in case of Kusheshwar Nath Pandey (supra) as the said case pertained to grant of time bound promotion under a particular scheme. It has accordingly been held in case of Kusheshwar Nath Pandey (supra) that passing of departmental accounts examination is not a condition precedent for grant of benefit under ACP.
11. In a subsequent Division Bench decision in case of Ramadhar Thakur vs. The State of Bihar and Others, (L.P.A. No. 599 of 2015), dated 19.03.2018, the question involved was specifically noted in the opening paragraph as under : -
Taking aid of Clause (J) of Sub rule (3) of Rule 157 of the Bihar Boards Miscellaneous Rules, 1958, whether the petitioner's entitlement to grant of Assured Career Progression under the Bihar State Employees Conditions of Service (Assured Career Progression Scheme) Rules, 2003 (hereinafter referred to as 'the ACP Rules') Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 9/16 could be declined on the ground that he had not passed the departmental accounts examination, is the sole question which is involved for determination in the present intra court appeal.
By the impugned judgment and order of a learned Single Judge of this Court dated 10.2.2015 passed in C.W.J.C. No. 486 of 2014, the petitioner‟s claim for grant of Assured Career Progression (hereinafter referred to as the 'ACP') has been rejected on the sole ground that he had not passed the departmental examination nor was he exempted from passing such examination. The reason behind denial of the petitioner's claim for grant of ACP is manifest from the impugned judgment and order, which is the stand of the State respondents also and is referable to Sub rule (5) of Rule 4 of 'the ACP Rules' which prescribes inter alia that the requirements and mode of sanction for financial progression under the scheme shall be the same as are prescribed under the recruitment/service rules for regular promotion against vacancies. It is the stand of the department that passing of the departmental accounts examination is a condition precedent for grant of a regular promotion, in view of the stipulation in Clause (J) of Sub Rule (3) of Rule 157 of the Bihar Board's Miscellaneous Rules.
Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 10/16
12. After examining the provisions under Rule 157(3)(J) of the Board's Miscellaneous Rules and Rules 4(5) of the ACP Rules, the Division Bench in case of Ramadhar Thakur (supra) held in paragraphs 16 and 17 as under : -
"16. The question however, in the present case, which has already been noticed, is, as to whether for grant of a regular promotion, passing of Accounts examination is a condition precedent or not and in the absence of any such bar for grant of regular promotion under any statutory provision, by invoking rule 157(J)(3) of 'the ACP Rules' (sic Board's Miscellaneous Rules), the respondents can deny the benefit of Assured Career Progression. We need not reiterate the fact that the respondents have not brought to our notice any statutory provision or executive instruction specifically providing that passing of departmental Accounts Examination is a sine qua non for grant of regular promotion. As a matter of fact, for the first time in the year 2015, the State Government of Bihar, in exercise of the powers conferred under Article 309 of the Constitution of India, appears to have made the rules for appointment and service condition of Clerical Cadre of General Provident fund Directorate and its subordinate offices with effect from 18.5.2015, Rule 12 (1) thereof stipulates "passing in Hindi noting and drafting Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 11/16 examination and in both papers of departmental Accounts Examination at higher level as conditions for grant of promotion to the post of Upper Division Clerk". No provision in the rules, on which reliance is being placed, deals with promotion from the post of Lower Division Clerk to Upper Division Clerk. Though another set of rules namely, Bihar Secretariat Service Rules 2010 has no application in the present facts and circumstances of the case, yet for the purpose of drawing inference, the provisions under the said rules need to be noticed. The said 2010 Rules deal with the Bihar Secretariat Service, consisting of various posts, as referred to in Rule 3(4), including the post of Assistant. Rule 6 of the said 2010 Rules deals with appointment in Assistant cadre through two modes i.e.; by way of the Direct recruitment and by promotion from the Upper Division Clerks of the Bihar Secretariat Clerk service. The Rules do not provide for passing of the departmental Accounts Examination as a condition precedent for regular promotion from the grade of Upper Division Clerk of Bihar Secretariat Clerical Service to Assistant Grade. Further, Rule 10 of the said rules also deals with promotion from lower grade to higher grade. Nowhere the rules specify the requirement passing of accounts examination as a condition for grant of regular promotion.
Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 12/16
17. Situated thus, and in view of the discussions, as above, there is no gainsaying that in view of Sub rule 5 of Rule 4 of "the ACP Rules", the requirements for grant of regular promotion shall be applicable while considering cases for grant of ACP. Since, there is no provision prescribing passing of accounts examination for regular promotion, the appellant could not have been denied grant of ACP. We are of the clear view that the decisions in case of Rameshwar Roy (supra) and Daya Shanker Singh (supra) do not lay down the correct law and the same cannot be made applicable."
13. Apparently thus, the Division Bench in case of Ramadhar Thakur (supra) has held in no uncertain terms that since there is no provision prescribing passing of accounts examination for regular promotion, the appellant could not have been denied grant of ACP on account of not passing the departmental examination. The view taken in case of Ramadhar Thakur (supra) is apparently in conflict with the Division Bench decisions rendered in case of Kusheshwar Nath Pandey (supra) and Anjani Kumar (supra). Though the Division Bench in case of Ramadhar Thakur (supra) has taken noted of Full Bench decision in case of Maheshwar Prasad Singh (supra), the Division Bench Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 13/16 decisions in case of Kusheshwar Nath Pandey (supra) and Anjani Kumar (supra) have not been noticed.
14. It is noteworthy, at this juncture, that relying on the Division Bench decision rendered in case of Avinash Chandra Singh (supra), a writ petition filed by one Mahendra Baitha was allowed by a coordinate Bench of this Court by a judgment and order dated 25.04.2016 passed in C.W.J.C. No. 13975 of 2011. The said judgment and order became subject matter of challenge in L.P.A. No. 332 of 2017 (State of Bihar vs. Mahendra Baitha). A Division Bench of this Court by a judgment dated 04.05.2018 rendered in L.P.A. No. 332 of 2017 has held the decision rendered by a Division Bench in case of Avinash Chandra Singh (supra) to be not laying down a good law on the question of entitlement of ACP specially when the said Division Bench had no occasion to deal with the ACP Rules. Paragraph 8 and 9 of the Division Bench decision in case of Mahendra Baitha (supra) reads as under : -
"8. With due respect, since the Division Bench, while dealing with the Avinash Chandra Singh's case (supra) did not deal with the entirety of the scheme of the A.C.P. Rules, 2003, therefore, passing reference or observation as to the object behind the A.C.P. Rule and distinction between substantive promotion, cannot become the basis for a direction for grant benefit of A.C.P. on the Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 14/16 ground that it basically is an anti-stagnation measure and as if mere passing of 12 years or 24 years is good enough for an employee to demand and beget benefit of A.C.P.
9. To that extent the judgement passed in Avinash Chandra Singh's case (supra) is not a good law on the question of entitlement of A.C.P., especially when the said Division Bench has no occasion to deal with the 2003 Rules, while passing the said order. Therefore, that judgement cannot be used for the purpose to demand and beget A.C.P. on the principle enunciated therein."
15. The Division Bench in case of Mahendra Baitha (supra), after noticing the Division Bench decisions in case of Anjani Kumar (supra) and Uday Shankar Prasad (supra) concluded in paragraph 11 as under : -
"11. This Court does not want to burden this order by relying on one too many decisions on the principle and requirements in relation to grant of benefit of A.C.P.. Let it be clarified that if a claim is made by any employee as to his entitlement under the A.C.P. Rules, such claim will have to be considered in the entirety of the scheme of the Rule and not on the mere object behind the Rules. Since the conditions laid down in sub-rule (5) of rule 4 of the 2003 A.C.P. Rules are integral to the Rules, which has been notified under Article 309 of the Constitution of India, Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 15/16 therefore, the Rule cannot be truncated and directions cannot be issued for grant of benefit of A.C.P., merely because of passage of time, ignoring what is otherwise a must, in terms of fulfilling the eligibility."
16. It is also worthy to note, at this stage, that the Division Bench decision rendered in case of Anjani Kumar (supra), wherein it was specifically laid down that passing of departmental accounts examination is a condition precedent for grant of ACP was not noticed in case of Uday Shankar Prasad (supra).
17. Having noticed aforementioned Division Bench decisions, other decisions rendered by coordinate Benches, which have been referred to by the learned counsel for the petitioner and learned Additional Advocate General-4 in support of their respective cases, have not been mentioned in the present order, as, in the Court's opinion, the matter deserves to be referred to a larger Bench for considering following question of law for authoritative pronouncement : -
(I) Whether Clause (J) of sub-rule (3) of Rule 157 of the Bihar Board's Miscellaneous Rules, 1958, applies for grant of Assured Career Progression under the Bihar State Employees Condition of Service Patna High Court CWJC No.18727 of 2017 dt. 27-10-2021 16/16 (Assured Career Progression Scheme) Rules, 2003?
(II) Whether Clause (J) of sub-rule (3) of Rule 157 of the Bihar Board's Miscellaneous Rules, 1958, is confined to passing of preliminary examination in accounts/final examination in accounts for the purpose of confirmation, crossing the efficiency bar and promotion to selection grade only and not for regular promotion.
(III) Any other ancillary question(s) arising out of the above mentioned questions.
18. Let the matter be placed before Hon'ble the Chief Justice for the same to be placed before a Division Bench to consider whether a reference is needed to a larger Bench for an authoritative pronouncement on the questions of law referred to hereinabove.
(Chakradhari Sharan Singh, J) Pawan/-
AFR/NAFR AFR CAV DATE 24.07.2021 Uploading Date 27.10.2021 Transmission Date N/A