Patna High Court - Orders
Mahadev Singh Chandel & Ors vs The State Of Bihar & Ors on 13 May, 2014
Author: Chakradhari Sharan Singh
Bench: Sharan Singh, Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9798 of 2008
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Rajdeo Paswan son of Late Ishwar Dayal Paswan, resident of village
Goyalpur, P.S. Masurhi, District, Patna
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Principal Secretary, Department Of
Finance, New Secretariat, Government Of Bihar, Patna.
2. The Principal Secretary, Department Of Finance, New Secretariat,
Government Of Bihar, Patna.
3. The Agriculture Production Commissioner, Agriculture Department, New
Secretariat, Government Of Bihar, Vikash Bhawan, Patna.
4. The Joint Secretary, Agriculture Department, Government Of Bihar, New
Secretariat, Vikash Bhawan, Patna.
5. The Administrator, Bihar State Agriculture Marketing Board (Dissolved),
Pant Bhawan, Bailey Road, Patna.
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.4157 of 2007
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Balram Prasad Son of Late Harihar Prasad, resident of A/242, P.C. Colony,
P.S. Kankarbagh, District Patna
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Principal Secretary, Department Of
Finance, New Secretariat, Government Of Bihar, Patna.
2. The Principal Secretary, Department Of Finance, New Secretariat,
Government Of Bihar, Patna.
3. The Agriculture Production Commissioner, Agriculture Department, New
Secretariat, Government Of Bihar, Vikash Bhawan, Patna.
4. The Joint Secretary, Agriculture Department, Government Of Bihar, New
Secretariat, Vikash Bhawan, Patna.
5. The Administrator, Bihar State Agriculture Marketing Board (Dissolved),
Pant Bhawan, Bailey Road, Patna.
.... .... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No.5045 of 2011
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1. Mahadev Singh Chandel son of Sukhu Ram, R/o Tufanganj, P.S.
Sohsarai, District-Nalanda
2. Mithilesh Kumar Son of Late Mathura Sharma, R/o Village Sultanpur,
PO Bhagwanpur, P.S. Hulasganj, District Jehanabad, at present Posted
as Panchayat Secretary in the Block Jokihat, District-Araria
3. Braj Bhushan Singh son of late Gaya Prasad Singh, R/o village Girija
Nagar, Suresh Colony, P.O. Sadar, P.S. Sadar Hazaribagh, District-
Hazaribagh ( Jharkhand)
4. Dilip Kumar Sinha son of Late Tapeshwar Prasad Sinha, R/o at P.O. &
P.S. Farbisganj, District Araria, at present posted as Panchayat Secretary
in the Block Narpatganj, District Araria
2
5. Satya Narayan Prasad Sharma Son of late Singheshwar Singh, R/o
village-Mokama ( Sakarwar Tola), P.S. Mokama District Patna
6. Bhubneshwar Lal Mandal Son of late Arjunlal Mandal, R/o village
Kasba, District Purnea
7. Umesh Prasad Sharma Son of late Ramjulum Rai, R/O at & PO
Khabra, P.S. Sadar District Muzaffarpur
8. Vijay Kumar Jha son of Late Baidyanath Jha, R/O village Mauahi, P.S.
Babuganj, District Madhubani, at present posted as Panchayat Secretary,
Block Triveniganj, District Supaul
9. Pandit Ram S/o Late Toofani Ram, R/O village Chandpur Bela, Seema
Bhawan, PO G.P.O. P.S. Jakkanpur, Distt-patna
10. Kao Prakash Pandit son of late Laxman Pandit R/o village Gulab Bagh
P.O. Sardar Tola P.S. Gulab Bagh, District-Purnea
11. Amrendra Kumar son of Late Bundi Ram, R/o at & PO Wazirganj,
District Gaya
12. Lalan Prasad son of late Ram Nath Prasad, R/O village Sandha Khewaji
Tola, PO Sandha, Distt Saran ( Chapra)
13. Jitendra Kumar Pandey son of Late Baribansh Pandey, resident of
village Daud Nagar, District Aurangabad
14. Kamla Pati Tiwari son of Late Keshaw Tiwari R/o village & PO
Banarpur, District Buxar
15. Binod Prasad Saha son of Sri Dhan Lal Sah, R/o village Takapur, PO
Kasba District Purnea
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Principal Secretary, Department Of
Finance, New Secretariat, Government Of Bihar, Patna.
2. The Principal Secretary, Department Of Finance, New Secretariat,
Government Of Bihar, Patna.
3. The Agriculture Production Commissioner, Agriculture Department, New
Secretariat, Government Of Bihar, Vikash Bhawan, Patna.
4. The Joint Secretary, Agriculture Department, Government Of Bihar, New
Secretariat, Vikash Bhawan, Patna.
5. The Administrator, Bihar State Agriculture Marketing Board (Dissolved),
Pant Bhawan, Bailey Road, Patna.
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.21745 of 2011
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1. Rajdeo Prasad S/O Late Tejnarain Prasad R/O Vollage-Rupdih, P.S.
Motihari Mufassil, District-East Champaran. Retired From The Post Of
Panchayat Secretary, Block-Araria, Dist.-Araria.
2. Brajkishore Prasad S/O Late Baidyanath Prasad R/O Mohalla-Hanri
Bazar, Ward No. 5, Motihari, P.S. Motihari Town, Dist.-East Champaran,
Retired From The Post Of Panchayat Secretary, Block-Araria, Dist.-Araria.
3. Dhrub Kumar S/O Late Ramashray Sah R/O Teliapatti, P.S. Motihari,
Dist.-East Champaran, Retired From The Post Of Panchayat Secretary,
Block-Manjhaulia, Dist.-West Champaran.
4. Umesh Nandan Srivastava S/O Late Sahdeo Prasad R/O Ruphara, P.S.
Chiraiya, Dist.-East Champaran. Retired From The Post Of Panchayat Post
3
Of Panchayat Secretary, Dist.-Araria.
5. Kamakhya Tiwari S/O Late Shivpujan Tiwari R/O Village-Madhubani
Tiwari Tola, P.S. Sangrampur, Dist.-East Champaran. At Present Posted As
Udayan Sevak In The Office Of District Udayan Karyalaya Motihari, East
Champaran.
6. Anil Prasad S/O Late Kedar Prasad R/O Village-Govindbara, P.S.
Fenhara, Dist.-Easa Champara. At Present Posted As Kamdar In The Office
Of Kaniya Paudha Sanrakshak Karyalaya, Madhubani.
7. Nagendr Singh S/O Late Collector Singh R/O Parsauna, P.S.
Ramgharwa, Dist.-East Champaran. At Present Posted As Udayan Sevak In
The Ffice Of District Udayan Karyalaya Motihari, East Champaran.
8. Narendra Kishore Singh S/O Late Bindeshwari Singh R/O Village-Barka
Balua, P.S. Patahi, Dist.-East Champaran. Retire From The Post Of Udayan
Sevak In The Office Of Zila Uday Karyalaya Motihar, Sevak In The Office
Of District From The Post Of Udayan Sevak In The Office Of District
Udayan Karyalaya Motihari, East Champaran.
9. Angad Thakur S/O Ram Eqbal Thakur R/O Singhhasani, P.S.
Ramgharwa, Dist.-East Champaran. At Present Working As Udayan Sevak
In The Office Of District Udayan Karyalaya Motihari, East Champaran.
10. Ram Binod Rai S/O Late Sawaroop Rai R/O Village-Chhatauni Amar,
Post-Rupdih, P.S. Motihari Mufassil, Dist.-East Champaran. At Present
Working As Udayan Sevak In The Office Of District Udayan Karyalaya
Motihari, East Champaran.
11. Baidya Nath Ram S/O Late Ramjeet Ram R/O Mohalla-Jagjeevan
Nagar, Nakchhedtola, P.S. Motihar, Dist.-East Champaran. At Present
Working As Udayan Sevak In The Office Of District Udayan Karyalaya
Motihari, East Champaran.
12. Brajikishore Pandey S/O Sri Ramanand Pandey R/O Village-Chhatauni,
P.S. Chhatauni, Dist.-East Champaran. At Present Working As Udayan
Sevak In The Office Of District Udayan Karyalaya Motihari, East
Champaran.
13. Raghav Prasad S/O Late Jagat Rai R/O Village-Deopur, P.S. Chakia,
Dist.-East Champaran. At Present Working As Store-Keeper In The Office
Of Block-Motihari, East Champaran.
14. Amod Kumar Sinha S/O Late Ramchandra Prasad Srivastava R/O
Village-Keshari, P.S. Kesharia, Dist.-East Champaran. At Present Working
As Head Clerk In The Office Of Joint Director, Agriculture, Muzaffarpur.
15. Ram Swarath Rai S/O Late Naje Rai R/O Village-Fatehpur, P.S.
Girmishni, Dist.-Sitamarhi. At Present Working As Store-Keeper Cum
Clerk In The Office Of Joint Director, Agriculture, Saharsa, Dist.-Saharsa.
16. Md. Rakib S/O Md. Hanif R/O Village-Sukti Musarnia, P.S. Parihar,
Dist.-Sitamarhi. At Present Working As Store-Keeper Cum Clerk In The
Office Of Joint Director, Agriculture, Saharsa, Dist.-Saharsa.
17. Laxmi Mishra S/O Late Umakant Mishra R/O Village-Pupari Ratan
Laxmi, P.S. Pupri, Dist.-Sitamarhi. At Present Working As Store-Keeper
Cum Clerk In The Office Of Joint Director, Agriculture, Saharsa, Dist.-
Saharsa.
18. Kamni Devi W/O Late Umakant Singh R/O Hussainipur, P.S. Mahua,
Dist.-Vaishali. At Present Working As Keshetriya Sahayak In The Office
Of Joint Director, Agriculture, Chapra, Dist.-Chapra.
19. Shambhu Sharan Pandey S/O Janardan Pandey R/O Village-Mathiyadut,
P.S. Majhhaulia, District-West Champaran. At Present Posted As Chhetra
4
Parichalak, In The Office Of Junior Plant Protection Officer, East
Champaran, Motihari.
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Principal Secretary, Department Of
Finance, New Secretariat, Government Of Bihar, Patna.
2. The Principal Secretary, Department Of Finance, New Secretariat,
Government Of Bihar, Patna.
3. The Agriculture Production Commissioner, Agriculture Department, New
Secretariat, Government Of Bihar, Vikash Bhawan, Patna.
4. The Joint Secretary, Agriculture Department, Government Of Bihar, New
Secretariat, Vikash Bhawan, Patna.
5. The Administrator, Bihar State Agriculture Marketing Board (Dissolved),
Pant Bhawan, Bailey Road, Patna.
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.21785 of 2011
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1. Ram Raja Prasad S/O Late Ganesh Prasad R/O Village Tonwa, P.S.
Jharaukhar (Ghorasahan), District - East Champaran At Present Posted As
Head Clerk Before The Joint Director Agriculture, Patna
2. Sanjeev Kumar No. 1 S/O Late Nand Kumar Prasad R/O Flat No. 1-2,
Block - A, Paradize Apartment , New Area, P.S. Kadamkuan, District Patna
At Present Posted As Head Clerk Before The Joint Director Agriculture,
Patna
3. Sanjeev Kumar No. 2 S/O Late Arjun Prasad R/O Alinagar Colony, Road
No. A/4, House No. 1/120, P.S. Gardanibagh, Dist, Patna At Present Posted
As Head Clerk Before The Joint Director Agriculture, Patna
4. Bhupendra Narayan Singh S/O Rameshwar Prasad Singh R/O Village -
Moldiar Tola, Ward No. 13, P.S. Mokama, District Patna At Present Posted
As Head Clerk Before The Joint Director Agriculture, Patna
5. Indra Kant Jha S/O Late Ramchandra Jha R/O Village Ghoghardiha, Dist
- Madhubani At Present Posted As Head Clerk Before The Joint Director
Agriculture, Gaya
6. Krishna Kumar Singh S/O Sri Sital Prasad Singh R/O Village - Gulab
Bag, P.S Barh, Dist- Patna At Present Posted As Head Clerk Before The
Joint Director Agriculture, Saharsa
7. Md. Sarif S/O Late Abul Kashim R/O Village - Kajol, P.S. Barharwa,
Dist - Sahebganj (State Of Jharkhand) At Present Posted As Head Clerk
Before The Joint Director Agriculture, Muzaffarpur
8. Raghunath Prasad Sinha S/O Late Ram Bhajan Sinha R/O Village -
Kathar, P.S. Raipur, Dist - Buxar, At Present Posted As Head Clerk Before
The Joint Director Agriculture, Patna
9. Ram Babu Singh S/O Late Gorakh Singh R/O Village Mohanpur, P.S.
Begusarai, Dist - Begusarai At Present Posted As Head Clerk Before The
Joint Director Agriculture, Darbhanga
10. Vijay Kumar Mishra S/O Late Bhola Nath Mishra R/O Village - Jharhi,
P.S. B-Kothi, Dist - Purnia At Present Posted As Head Clerk Before The
Joint Director Agriculture, Saharsa
5
11. Ravindra Kumar S/O Late Mathura Prasad R/O Mohalla - Mandiri, P.S.
Budha Colony, Dist- Patna, At Present Posted As Head Clerk Before The
Joint Director Agriculture, Patna
12. Kumar Satendra Prasad Sinha S/O Sitalpati Sinha R/O K-119, P.C.
Colony, Hanuman Nagar, Patna -20 At Present Posted As Block Panchayat
Raj, Padadhikari, Block - Fatuhan, Dist- Patna
13. Vinay Kumar Srivastava S/O Late Basudeo Prasad R/O Village -
Damodarpur, P.S. Govindganj, Dist - West Champaran At Present Posted
As Udayan Sevak , Zila Udayan Karyalaya, Bettiah, Dist - West Champaran
14. Md. Samim S/O Late Ali Hafiz R/O Village And P.S. Chanpatia, Dist -
West Champaran At Present Posted As Udayan Sevak, Zila Udayan
Karyalaya, Bettiah, Dist- West Champaran
15. Deep Narayan Tiwari S/O Late Sipahi Tiwari R/O Village - Mamarkha,
P.S. Govindganj, Dist - East Champaran At Present Posted As Udayan
Sevak. Zila Udayan Karyalaya, Bettiah, Dist- West Champaran
16. Nagendra Nath Tiwari S/O Late Ramapati Tiwari R/O Village - Jaitiha,
P.S. Chanpatia, Dist - West Champaran, At Present Posted As Udayan
Sevak, Zila Udayan Karyalaya, Bettiah, Dist - West Champaran
17. Raj Banshi Ram S/O Sri Hari Ram R/O Village - Sukhlahi, P.S
Mainatarn, Dist - West Champaran At Present Posted As Udayan Sevak,
Zila Udayan Karyalaya, Bettiah, Dist - West Champaran
18. Brij Bihari Mahto S/O Late Ram Govind Mahto R/O Village -
Dhumnagar, P.S. Sikarpur, Dist - West Champaran At Present Posted As
Haldhar, Sub- Divisional Office, Bettiah
19. Nagendra Prasad S/O Late Laxami Prasad R/O Mohalla - Kotwali
Chowk Bettiah, P.S. Bettiah, Dist- West Champaran At Present Posted As
Udayan Sevak, Zila Udayan Karyalaya, Bettiah, Dist - West Champaran
20. Krishna Baitha S/O Late Mukhlal Baitha R/O Mohalla - Ujain Tola,
Bettiah, P.S. Bettiah, Dist - West Champaran At Present Posted As Udayan
Sevak, Zila Udayan Karyalaya, Bettiah, Dist - West Champaran
21. Sri Krishna Ram S/O Late Gaya Ram R/O Sakhubania Jamunia, P.S.
Shikarpur, Dist- West Champaran At Present Posted As Kamdar, Paudha
Sanrakshan Karyalaya, Bettiah, Dist- West Champaran
22. Ashok Kumar S/O Late Ganga Prasad R/O Village And P.S, Chanpatia,
Dist- West Champaran At Present Posted As Clerk, Block - Paru, Dist-
Muzaffarpur
23. Sarful Hoda S/O Late Md. Muslim R/O Village - Karanmetha, P.S.
Chanpatia, Dist - West Champaran At Present Post As Udayan Sevak,
Distric Udayan Karyalaya, Bettiah, Dist - West Champaran
24. Ravindra Kumar S/O Late Chandrabhan R/O Village - Narialghat, P.S.
Digha, Dist-Patna At Present Posted As Head Clerk In The Office Of Joint
Director Agriculture, Muzaffarpur
25. Satyaranjan Das S/O Late M.N. Das R/O Village - Nayabagh, P.S
Jugsalai, Dist- Jamshedpur At Present Posted As Head Clerk In The Office
Of Joint Director Agriculture, Muzaffarpur
26. Raj Ballabh Singh S/O Late Raju Singh R/O Village - Raibagh, P.S.
Didarganj, Dist. Patna At Present Posted As Plant Protection Supervisor
Before The Joint Director, Plant Protection, Patna
27. Md. Faruk Sajid S/O Khadim Hussain R/O Village - Punash, P.S.
Kochadhawan, Dist - Kishanganj. At Present Posted As Head Clerk In The
Office Of Joint Director, Saharsa
28. Vijay Kumar Mallik S/O Late Shiv Narayan Mallik R/O Village -
6
Biraul, P.S. Pandaul, Dist- Madhubani, Retired From The Post Of Head
Clerk While Posted Before The Joint Director, Agriculture, Patna
29. Nazim Anwar S/O Kamuriddin R/O Sikpihar, P.S. Bahadurganj, District
Kishanganj, Retired From The Post Of Panchayat Secretary, Block - Sikti,
Dist- Araria
30. Shivji Sah S/O Late Mahesh Sah R/O Village - Diulia, P.S. Ramnagar,
Dist- West Champaran Retired From The Post Of Agriculture Produce
Market Committee (Dissolved), Narkatiaganj, Dist- West Champaran
31. Gauri Shankar Sah S/O Late Mannu Sah R/O Hirapakar, P.S. Manuapul,
Dist- West Champaran, Retired From The Post Of Kamdar, Paudha
Sanrakshan Karyalaya, Begusarai, Dist.- Begusarai
32. Upendra Kishore Prasad Sah S/O Late Basdeo Prasad R/O Mohalla-
Ganjnagar-1, Bettiah, P.S. - Bettiah, Dist- West Champaran , Retired From
The Post Of Clerk, District- Agriculture Office, Khagaria
33. Ramjit Chaudhari S/O Late Nathu Chaudhari R/O Village - Katgharwa,
P.S. Sikarpur, Dist-West Champaran Retired From The Post Of Udayan
Sevak, Distric - Udayan Karyalaya, Bettiah, Dist- West Champaran
34. Md. Mustafa S/O Late Md. Bazir R/O Village - Bakulia, P.S.
Ghorasahan, Dist- East Champaran Retired From The Post Of Pryogsala
Sevak, District Udayan Karyalaya Bettiah, Dist - West Champaran
35. Krishna Nath Singh S/O Shivdhari Singh R/O Village - Bahuaraman,
P.S. Mehsi, Dist- East Champaran Retired From The Post Of Panchayat
Secretary, Block - Dagarua, Dist- Purnia
36. Birendra Prasad Chaudhari S/O Late Nathun Chaudhari R/O Anathalaya
Road, Katihar, Dist- Katihar, Retired From The Post Of Panchayat
Secretary, Block- Araria, Dist- Araria
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Principal Secretary, Department Of
Finance , New Secretariat, Government Of Bihar, Patna
2. The Principal Secretary, Department Of Finance, New Secretariat,
Government Of Bihar, Patna
3. The Agriculture Production Commissioner, Agriculture Department, New
Secretariat, Government Of Bihar, Vikash Bhawan, Patna
4. The Joint Secretary, Agriculture Department , Government Of Bihar,
New Secretariat, Vikash Bhawan, Patna
5. The Adminsitrator, Bihar State Agriculture Marketing Board (Dissolved),
Pant Bhawan, Bailey Road, Patna
.... .... Respondent/s
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Appearance :
(In CWJC No.9798 of 2008)
For the Petitioner/s : Mr. Jai Prakash Verma
For the Respondent/s : Mr. (Ga10)
Mr. B.K.Singh Chouhan
(In CWJC No.4157 of 2007)
For the Petitioner/s : Mr. Prashant Kumar
Mr. Girish Chandra Jha
7
For the Respondent/s : Mr. (Gp10)
Mr. B.K.Singh 'Chouhan'
(In CWJC No.5045 of 2011)
For the Petitioner/s : Mr. Jai Prakash Verma
For the Respondent/s : Mr. Subhash Pd. Singh Ga7
(In CWJC No.21745 of 2011)
For the Petitioner/s : Mr. Jai Prakash Verma
For the Respondent/s : Mr. Rajesh Kr.Verma Sc27
(In CWJC No.21785 of 2011)
For the Petitioner/s : Mr. Jai Prakash Verma
For the Respondent/s : Mr. Kundan Bhadur Singh Sc22
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
CAV ORDER
9 13-05-20141. The sole question involved in a batch of present writ applications is as to whether the petitioners would be entitled for benefit of Assured Career Progression Scheme in terms of the decision of the Board of Directors of Bihar State Agriculture Marketing Board (Hereinafter referred to as the Board) dated 9.9.2004, issued vide Office order No. 1047 dated 7.12.2004 under the signature of the Managing Director of the Board. The Board was constituted under Bihar Agriculture Produce Market Act, 1960. The Act has however, been repealed by Bihar Agriculture Produce Market (Repeal) Act,2006.
2. The petitioners are retired/working employees under the Board.
3. For the purpose of adjudication in the present case, facts are short and not at all in dispute.
4. The State Government of Bihar decided to extend 8 benefit of Assured Career Progression Scheme to its employees with effect from 9.8.1999. Rules in this regard were framed in exercise of power under proviso to Article 309 of the Constitution of India called Bihar State Employees Conditions of Service ( Assured Career Progression Scheme) Rules, 2003. The provisions were subsequently amended by Bihar State Employees service Conditions (Assured Career Progression Scheme) (Amendment) Rules, 2006.
5. As per the Assured Career Progression Scheme, such regular employees of Group „B‟, „C‟, and „D‟ of the State Government who had not got benefit of financial progression during their service career would be granted first financial progression on completion of 12 years of service and second financial progression on completion of further 12 years of service, i.e. after a total of 24 years of regular service. By an amendment in the rules, the State Government clarified that benefit of selection grade/time bound promotion granted prior to 1.1.1996 would not be treated to be financial benefit for consideration of grant of first Assured Career Progression Scheme.
6. It appears, from the office order No. 1047 dated 7.12.2004 issued by the Managing Director of the Board (Annexure-3) that the Board of Directors in its meeting dated 9 9.9.2004 took a decision to extend the benefits to its employees and employees of subordinate Officers, of Assured Career Progression Scheme as granted to the employees of State Government by virtue of Bihar State Employees Service Condition (Assured Career Progression Scheme) Rules, 2003 mutatis mutandis. It further appears from the said order that the Board had requested the Agriculture Production Commissioner, Department of Agriculture, Government of Bihar seeking his approval making it clear that if the Government did not agree with the said decision, an intimation to this effect might be sent to the Board within two months failing which the provisions of the said Bihar State Employees Service Conditions ( Assured Career Progression Scheme) Rules, 2003 shall be made applicable to all employees under the Board. Since the State Government did not express any disagreement, the Board implemented the benefits of Assured Career Progression accordingly. An office order to this effect was accordingly, issued vide no. 1047 dated 7.12.2004 ( Annexure-3).
7. Thereafter, Bihar Agriculture Produce Market Act, 1960 came to be repealed by Bihar Agriculture Produce Market Repeal Act, 2006 ( Bihar Act, 23 of 2006). Section 3(2) of the Repeal Act provides that notwithstanding such repeal, any action taken or decision rendered shall be deemed to have been valid and 10 shall not be questioned on the ground of repeal of the Act. Section 6 of the Repeal Act deals with the absorption of Officers and employees of Bihar Agriculture Marketing Board/Market Committee/Bazar Samiti. Section of the Act reads thus:-
"6. Absorption of Officers and employees of Bihar Agriculture Marketing Board/Market Committee/Bazar Samiti.
(i) (i) On and from the date of repeal of the Act, all officers and employees of the Board, shall remain in employment, as if the Act has not been repealed and they shall continue to be paid same salary and allowances as was payable on the date of repeal of the Act till such time State Government has taken such final decision as is provided hereafter.
(ii) (ii) The State Government shall constitute a committee of Secretaries consisting of three Secretaries who shall prepare detail scheme of absorption, retirement, compulsory retirement or voluntary retirement, other service conditions of officers and employees of the Board and the Committee. Scheme prepared by group of Secretaries shall be placed before the State Government within two months from the date of enforcement of the present Act. The State Government shall thereafter approve the scheme.
Provided that it shall be open to the State Government to modify, amend or suggest modification or amendment and the scheme thereafter shall be made operational in such form and interest as finally approved by the State Government. Scheme approved by the State Government shall be considered as statutory scheme framed under this Act.
(iii) (iii) After the scheme approved by the State Government is enforced it shall be fully implemented in its form and intent within three months from the date of its enforcement.
(iv) (iv) Group of Secretaries constituted under Sub Section (ii) above shall be competent t decide utility and deployment of officers and employees of the Board or the Committee during transition period and it shall not be open to any officer or employee to question decision of 11 group Secretaries.
(v) (v) Scheme framed under this Act shall have effect, notwithstanding any other Act, Ordinance, Rule, regulation, direction order or instruction and condition of service of officers and employees of the Board or the Committee, shall be governed and regulated under the scheme to the extent provision has been made in the scheme.
Provided further that is (sic) shall be competent for the State Government to amend, modify, alter or substitute the scheme so framed for removal of difficulties in implementation of the scheme."
8. The petitioners approached the authorities for grant of actual benefits on account of implementation of Assured Career Progression Scheme. It appears that the Agriculture Department, Government of Bihar vide its communication dated 18.6.2007 addressed to the Administrator, Bihar State Agriculture Market Board (Dissolved) informed that the process of adjustment/absorption of the employees of the Board was in process and a decision with respect to grant of benefits of Assured Career Progression Scheme shall be taken only after absorption of the employees of the Board. By the said letter dated 18.6.2007 the State Government also communicated its decision to reject the proposal of the Board to grant benefits of Assured Career Progression Scheme to the employees of the Board/Committee. The said letter dated 18.6.2007 has been challenged in the present 12 writ application. It further appears that pursuant to certain order of this Court passed in CWJC No. 5045 of 2011 ( Mahadeo Singh Chandel and others vs. State of Bihar), the State Government has taken a final decision vide order dated 30.8.2011, rejecting the claim of the employees of erstwhile Board of benefit under the Assured Career Progression Scheme on the ground that there is no provision for grant of Assured Career Progression Scheme under the Bihar Agriculture Produce Market ( Repeal) Act, 2006 for the employees of Marketing Board/Committee.
9. For the purpose of quick reference relevant portion of the said order dated 30.082011 is being quoted hereinbelow:-
"fcgkj d`f"k mit cktkj ¼fujlu½ vf/kfu;e] 2006 esa foi.ku i"kZn@cktkj lfefr;ksa ds dfeZ;ksa dks ,0lh0ih0 Lohd`r fd;s tkus dk izko/kku ugha gSA"; meaning thereby there is no provision for grant of ACP to the employees of the Board/Committee in Bihar Agriculture Produce Market ( Repeal) Act, 2006.
10. By way of filing an interlocutory application being I.A. No. 6028 of 2013 In CWJC No. 9798 of 2008, the petitioners have challenged the said decision dated 30.8.2011. Another interlocutory application i.e. I.A. No. 8911 of 2013 has been filed in CWJC No. 9798 of 2008 seeking addition of the Secretary and Principal Secretary, Agriculture Department, Government of 13 Bihar, as party respondent. Both I. A. Nos. 6028 of 2013 and 8911 of 2013 are allowed. I take note of the fact that the State of Bihar has been impleaded as party respondent no.1 through the Principal Secretary, Agriculture Department, Government of Bihar.
11. The petitioners have also brought on record a letter dated 2.12.2009 addressed to the Administrator of the Board (dissolved), seeking a report as to the financial burden which would accrue on implementation of Assured Career Progression Scheme to the employees of the Board and the fund available with the Board. The Administrator of dissolved Board is said to have written a letter dated 1.2.2010 addressed to the Agriculture Production Commissioner, Bihar Government stating that a total financial burden on grant of benefit of A.C.P. scheme to the employees of the Board as anticipated would be 16 crore whereas the Board has more than 104 crores in its fund. The petitioners have also brought on record an order issued by the Finance Department, Government of Bihar to make out a case that the employees of the other Boards and Corporations have been given the benefits of Assured Career Progression Scheme in similar circumstances as per notification no. 4685 dated 25.6.2003 of the State Government. They have referred to the cases of the employees of Bihar State Pollution Control Board and Bihar State 14 Bridge Construction Limited etc.
12. A counter affidavit and a supplementary counter affidavit have been filed on behalf of the respondent-State of Bihar. Paragraphs 6 to 8 of the counter affidavit are being quoted hereinbelow which are relevant:-
"6. That it is stated that after coming in to force of Bihar Agriculture Produce Market ( Repeal), Act, 2006 the erstwhile Board and the committee have been dissolved and the Board has completely been merged in the Government, after its dissolution. The employees and officer working in the Board at the time of dissolution have been decided to be absorbed/appointed according to available vacant posts in the Government Department.
7. That accordingly the petitioner has also been absorbed/appointed under the resolution no. 5661 dated 2.9.2008 issued by General Administration Department.
8. That it is further relevant to state here that is no such provision laid down in the Repeal Act, 2006 to grant ACP to the employee or officers of the Board and Committee. Despite the aforesaid facts, the Agriculture Department had sent the file to the Finance Department for its concurrence as to whether the same can be given or not. However, the finance department being a competent department did not agree to give them ACP."
13. From the pleadings of the parties it would transpire that this is not in dispute that the Board of Directors of Bihar State Agriculture Market Board had taken a decision to apply the provisions of Bihar State Employees Service Conditions (Assured Career Progression Scheme) Rules, 2003, mutatis Mutandis to the 15 employees of the Board and its subordinate Officers, in its meeting held on 9.9.2004. This fact has not been disputed by the respondents-state of Bihar that intimation in this regard was sent to them way back on 17.9.2004 for their concurrence, making it clear that if no information was received in this regard, the Assured Career Progression Scheme would be implemented mutatis mutandis , as applicable in case of the employees of the State Government. This is also not in dispute that the State Government did not object to the decision of the Board of Directors dated 9.9.2004 at any stage regarding implementation of Assured Career Progression Scheme, even after issuance of the office order no. 1047 dated 7.12.2004 (Annexure-3), though it was communicated to the Agriculture Production Commissioner, Government of Bihar. The State-Respondents in their counter affidavit have not taken a plea that the decision of the Board of Directors dated 9.9.2004 pursuant to which office order no. 1047 dated 7.12.2004 had been issued to implement Assured Career Progression Scheme to the employees of the Board and its Subordinate Officers was not within their jurisdiction. The only reason for denying the benefits of ACP that has been given in the counter affidavit filed on behalf of the respondent-State of Bihar is that the Repeal Act, 2006 does not contain any provision for grant of benefits of Assured Career 16 Progression Scheme to employees of the Board or Committees. It has also been mentioned that despite this, the Agriculture Department had sent the file to the Finance Department for concurrence. However, the Finance Department has not agreed on the proposal to give such employees, benefits of ACP.
14. The plea/stand of the State-Respondents in their counter affidavit that the employees of the Board would not be entitled for benefits of ACP because there is no such provision in the Repeal Act, 2006 is preposterous, to say the least. Purpose of the Bihar Agriculture Produce Market ( Repeal) Act, 2006 is to repeal Bihar Agriculture Market Produce Act, 1960 and Bihar Agriculture Produce Market Rules, 1975 framed thereunder and to deal with and provide for consequences of such repeal as regards assets and liabilities of the Board, absorption of the Officers and employees of the Board and its Subordinate offices etc. The other purpose of Repeal Act is to save action taken or decision rendered by the Board and other matters as mentioned therein. In my considered view, on the ground that no provision has been made for grant of ACP under the Repeal Act, claim of the petitioners for such benefit could not have been rejected by the impugned order.
15. Section 6(1) of the Repeal Act provides that on 17 and from the date of the repeal of the Act, all officers and employees of the Board shall remain in employment, as if the Act has not been repealed and they shall continue to be paid same salary and allowances as was payable on the date of repeal of the Act till such time State Government has taken such final decision as regards their absorption. There is no pleading that the scheme as contemplated under Section 6 of the Repeal Act has been approved and finally implemented in accordance with the provisions.
16. In the facts and circumstances as noted above and in view of the pleadings of the State-Respondents in their counter affidavit and supplementary affidavit, I find the impugned order dated 18.6.2007 ( Annexure-6) to be unsustainable as it has not dealt with the decision of the respondent-Board taken before its dissolution to grant the benefit of ACP Scheme to its employees. In my opinion, the petitioners would be entitled for grant of ACP in terms of the office order no. 1047 dated 7.12.2004 ( Annexure-
3) as no objection has been raised on behalf of the State Government over the jurisdiction of the Board to take such decision. The reasoning/logic assigned in impugned order dated 30.8.2011 ( Annexure-8) to I. A. 6028 of 2013 is also not sustainable as it is based on consideration which is erroneous on 18 the face of it. The order dated 30.8.2011 has been relied upon by the State-Respondent in their counter affidavit to deny claim of the petitioners of grant of ACP, though the said order has been passed dealing in case of one Mahadeo Singh Chandel and others. Since it has been held in the present order that the reason assigned in the said order for rejecting the claim of ACP is not germane to the issue, same will not come in the way of granting the benefit of ACP to these petitioners.
17. These writ applications are accordingly, allowed. It is held that the petitioners and other similarly situated persons are entitled for benefit of Assured Career Progression Scheme in terms of office order no. 1047 dated 7.12.2004 issued under the signature of the Managing Director, Bihar State Agriculture Market Board in terms of Bihar State employees Service Condtiions ( Assured Career Progression Scheme) Rules, 2003. They will be entitled for all consequential benefits including arrears of pay and allowances as well as revision of their pensionary benefits, if any, and arrears arising thereof. The respondents are accordingly directed to calculate the arrears of salary and allowances of these petitioners after applying the provisions of Assured Progression Scheme, 2003 read with the amendment brought in 2006 in the said Scheme, in their cases and pay them arrears of salary and 19 pensionary benefits etc, accordingly. Entire exercise must be completed within a period of six months from the date of receipt/production of a copy of this order.
18. These writ applications are accordingly allowed. There shall, however, be no order as to costs.
(Chakradhari Sharan Singh, J) ArunKumar/-