Patna High Court
Samiran Bakshi vs The State Of Bihar on 11 July, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10192 of 2024
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1. Samiran Bakshi, son of Ashwini Kumar Bakshi, residing at Sardar Patel
Colony, Phulwari, P. S.- Digha, District- Patna-800010.
2. Tanuja Mani, daughter of Muneshwar Prasad, residing at Flat no. 403, Arjun
Bihar Apartment, Mithapur B area near Post Office, P. S.- Jakkanpur,
District- Patna-800001.
3. Dharmendra Prasad, son of Kumar Nandan Prasad, residing at Birla Mandir
Road near Amber Market, Arya Kumar Road, Bankipore, P. S.- Pirbahore,
District- Patna-800004.
4. Shashi Sekhar Pandey, son of Baidhyanath Pandey, residing at Sandalpur
Road no.- 4, Sampatchak, P. S.- Alamganj, District- Patna- 800006.
5. Siyaram Paswan, son of Bal Govind Paswan, residing at Parsa, Supaul, P. S.-
Balua Bazar, District- Supaul-854339.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Finance
Department, Bihar, Patna.
2. The Principal Secretary, Finance Department, Bihar, Patna.
3. The Secretary, General Administration Department, Bihar, Patna.
4. The Secretary, Expenditure, Finance Department, Bihar, Patna.
5. The District Magistrate, Patna.
6. The Senior Treasury Officer, Treasury Collectorate, Patna.
7. The District Accounts Officer, Patna.
8. The Accountant General, Bihar, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Lal Mani Sharma, Advocate
For the Respondent/s : Mr.Government Pleader (13)
Fro the A.G. Bihar : Mr. Ram Kinker Choubey, Advocate
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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 11-07-2024
Heard learned counsel for the petitioners and learned
counsel for the State as well as learned counsel for the
Accountant General, Bihar.
2. The petitioners have filed the present petition for
the following relief/s :-
Patna High Court CWJC No.10192 of 2024 dt.11-07-2024
2/11
"(i) For issuance of a writ in the nature
of Certiorari for quashing of the order contained in
letter no. 471 dated 24-3-2022(Anx-P/4) passed by
the respondent no.6 by which the claim of the
petitioner no.1 to count his service w.e.f. 11-4-1988
i.e. from the date of appointment /joining of the
petitioner in the Corporation has been rejected.
(ii) For issuance of an appropriate writ,
order or direction directing and commanding the
respondents to count the services of the petitioner
w.e.f. 11-4-1988 i.e. w.e.f. the date the petitioner
no.1 was initially appointed after quashing of the
aforesaid order contained in letter no. 471 dated 24-
32022 (Anx. -P/4) as well as to give the Pay
protection to the petitioner no.1 as guaranteed in the
order by which the petitioner no.1 was brought on
deputation in treasury.
(iii) For issuance of an appropriate writ,
order or direction directing and commanding the
respondents to count the services of the petitioner
nos. 2 to 5 w.e.f. the date the petitioner nos. 2 to 5
were initially appointed and to give the Pay
protection to the petitioner nos. 2 to 5 as guaranteed
in the order by which the petitioner nos. 2 to 5 were
brought on deputation in treasury.
(iv) For issuance of an appropriate writ
directing and commanding the respondents to revise
the date of grant of ACP/MACP and to grant the
petitioners ACP/MACP from an earlier date after
counting the service of the petitioner w.e.f. their
Patna High Court CWJC No.10192 of 2024 dt.11-07-2024
3/11
initial appointment in the Corporation.
(v) For issuance of an appropriate writ
directing and commanding the respondents to give
the petitioners all consequential benefits including
the revision of the retirement benefits of the
petitioners as well as the monetary benefits after
revising the date of ACP/MACP and after granting
the same to the petitioners from an earlier date by
counting the services of the petitioner w.e.f. their
initial appointment in the Corporation."
3. Learned counsel for the petitioners submits that by
filing the present writ petition for petitioner no.1 he seeks
quashing of Annexure -P/4, i.e. Letter No. 471 dated 24.03.2022
but for petitioner nos. 2 to 5, he seeks another relief, i.e. to pass
order on their representation which is pending before the
authority since long.
4. Learned counsel for the petitioners further submits
that the grievances of all the petitioners are identical that the
respondent-State has not considered the provisions of the Bihar
State Employees Conditions of Service (Assured Career
Progression Scheme) Rules, 2003 in its true sprit due to which
the grievances have been developed. Learned counsel for the
petitioner further submits that the said rule has been decided
before the Hon'ble Division bench of this Court which is
Patna High Court CWJC No.10192 of 2024 dt.11-07-2024
4/11
Annexure P/6 which has been delivered in the case of State of
Bihar and Ors. Vs. Prabhakar Mishra and Ors. In LPA No. 438
of 2017 on 10.01.2018.
5. Learned counsel for the petitioners submits that in
the light of the decision made by a Division Bench of this
Hon'ble Court, the letter dated 24.03.2022 (as contained in
Annexure P/4) which has been issued for petitioner no.1, is not
sustainable, hence, it may be set aside. He further submits that
the a direction may also be given with regard to petitioner nos.2
to 5 that their representation may be disposed of in the light of
the ratio laid down by a Division Bench of this Court in the case
of State of Bihar and Ors. Vs. Prabhakar Mishra and Ors. in
LPA No. 438 of 2017 on 10.01.2018.
6. Learned counsel for the Accountant General,
Bihar, Patna submits that a direction may be given to the
respondent authorities to decide the matter in the light of the
ratio laid down in the case of State of Bihar and Ors. Vs.
Prabhakar Mishra and Ors. In LPA No. 438 of 2017 on
10.01.2018.
7. With a view to decide this matter, this Court feels it necessary to quote the relevant paragraph of the judgement dated 10.01.2018 rendered in the case of the State of Bihar and Patna High Court CWJC No.10192 of 2024 dt.11-07-2024 5/11 Ors. Vs. Prabhakar Mishra and Ors.(supra) as under :-
"7. When their cases for grant of ACP/MACP under the ACP and MACP Rules were not considered, they represented and when the representation was not properly decided, the matter came to this Court in the writ petition and before the Writ Court the question was as to whether the services rendered by the employees in the erstwhile Corporation is to be counted for grant of benefit to them under the ACP and MACP Schemes. It was the case of the Government before the Writ Court that the employees were appointed by the State Government after the Corporation was dissolved and therefore the past service rendered by them in the Corporation cannot be counted. The Writ Court took note of all these aspects of the matter and in paras 6 and 7 of the judgment considered the notification issue vide Annexure-3 on 7.3.1986, evaluated it and came to the conclusion that it is not a case of appointment or induction to the service of the State Government after the Corporation was bound up, on the contrary, it was a case of absorption of the services of the employees and therefore, once it was a case of absorption, the Writ Court allowed the writ petition.
8. Now, two new additional grounds are raised in support of the aforesaid contention. Patna High Court CWJC No.10192 of 2024 dt.11-07-2024 6/11 The first one, is that in the case of another employee, namely, one Shri Anjani Kumar Sinhain CWJC No. 2 of 2013, in whose case similar issues were involved, another Bench of this Court on 4.3.2016 rejected the contention of interpreting the provisions of the ACP and MACP Rules and held that the services rendered in the erstwhile Corporation or Public Sector Undertaking cannot be counted.
9. Learned counsel invites our attention to the Bihar State Employees Service Condition (Assured Career Progression (ACP) Rules 2003 and Rule 10 and 22 of the Modified AssuredCareer Progression (MACP) Rules, 2010 to show that the services rendered in a Public Sector Undertaking or a Government Corporation cannot be counted for the purpose of grant of benefits under the ACP and MACP Schemes. He further points out that in the case of one Ram Bilas Thakur in CWJC No. 22355 of 2012 on remand of the matter by the Writ Court the matter was reconsidered by the Department and on similar consideration the claim of said Ram Bilas Thakur was rejected and therefore, argued that the Writ Court has committed grave error in allowing the writ petition.
10. We have considered the submissions made and we deem it appropriate to take note of the provisions of Assured Career Progression Rules, 2003 and Modified Assured Patna High Court CWJC No.10192 of 2024 dt.11-07-2024 7/11 Career Progression Rules, 2010. In the ACP Scheme of 2003 the provisions and eligibility conditions are contemplated under Rules 3 and 4 sub rule (3) Explanation (3) which reads as under:
(iii) fdlh yksd miØe ;k Lo"kklh fudk;
dk dksbZ deZpkjh ;fn jkT; ljdkj dh fu;fer lsok esa izos"k djrk gS rks ljdkjh lsok esa mlds izos"k dh frfFk ls dh x;h lsokof/k dh gh x.kuk Ldhe ds v/khu foÙkh; mUu;u dh eatwjh ds iz;kstukFkZ dh tk,xhA
11. Similarly, in the MACP Rules, 2010, Rules 10 and 22 reads as under:
10. jkT; ljdkj esa fu;qfDr ds iwoZ jktdh;d`r fo/kky;ksa ds f"k{kdksa ,oa jkT; ljdkj } kjk iw.kZ ;k vkaf"kd vuqnku izn~Ùk Lok;Ùk laLFkkvksa ;k yksd miØeksa esa fdlh ljdkjh lsod }kjk dh xbZ fiNyh lsok dh x.kuk fu;fer lsok ds :i esa ugh dh tk,xhA
22. ;fn fdlh deZpkjh dks vius laxBu esa vfrjsd ?kksf'kr dj fn;k tkrk gks vkSj mldh fu;qfDr u, laxBu esa mlh osrueku ;k fuEurj osrueku eas dh tkrh gks rks fiNys laxBu esa mlds }kjk dh xbZ fu;fer lsok dh x.kuk :ikUrfjr lqfuf"pr o`fÙk mUu;u ;kstuk ds v/khu u, laxBu esa mls foÙkh; mRØze.k nsus ds iz;kstukFkZ fu;fer lsok ds :i esa dh tk,xhA
12. Rule 4 sub-rule (3) Explanation 3 thereof in the ACP Rules as reproduced hereinabove, indicates that if an employee of the Public Sector Undertaking or Autonomous Body enters into regular service of the State Government, the period of service rendered from the date of his entry into Government Service alone shall be counted for the purpose of sanction of financial progression under the Scheme. If the explanation part of this rule is Patna High Court CWJC No.10192 of 2024 dt.11-07-2024 8/11 taken note of, it deals primarily with service rendered by an employee as a casual, daily wages, temporary, work charge or contingency paid establishment and these eventualities that are indicated clearly show that the provision applies in the case of an employee who enters into the regular service of the State Government meaning thereby that prior to entry into regular service of the State Government, he may not have been a regular employee in the Autonomous Body or the Corporation that seems to be and is the only intention of the Rule maker. The provision is applicable only in case where the employees were working in the Autonomous Body or the Corporation in any capacity other than regular service and their services were taken up in the regular establishment by the State Government. On the contrary, if in a case the employee was already employed by the Corporation or the Autonomous Body as a regular employee and then absorbed in Govt. service this rule will not apply. In this case all the employees of the Corporation vide notification dated 7.3.1986 (Annexure-3) were absorbed in the services of the State. It is not a case of appointment, regularization in service or inducting the employees into the service of the State Government afresh. It is a case of absorbing the services of the employees who were already in regular service and as held in the case of Priya Ranjan Sharma Vs. The State of Bihar and others: 2010 (2) PLJR 357,the services rendered in the Corporation has to be counted for grant of pensionary benefits, thus treated as regular service. That being the position, we see no reason why services of the regular employee in the Corporation should not be calculated for the grant of ACP and the rule in question does not come in the way of the employees in Patna High Court CWJC No.10192 of 2024 dt.11-07-2024 9/11 claiming the benefits.
13. Similarly, if Rules 10 and 22 of the MACP Rule, 2010 are taken note of, it speaks about appointment in the State Government service of an employee, who had been working in a school as a teacher or in any other Public Sector Undertaking or Autonomous Body. The rule speaks about induction and appointment of the employees into the service of the State Government and does not refer to a case where the services of the employees working in the Corporation is absorbed in the State Government on winding up or closing of the Corporation. The case in hand is one where the State by its own notification dated 7.3.1986 thought it appropriate to absorb the services of the employees and after such absorption when for getting the benefit of pension and post retiral benefits, the services rendered by them in the Corporation is counted, we are of the considered view that there should not be any impediment in counting the same services for grant of ACP or MACP. The interpretation given by the State Government in our considered view, will only apply in the case of employee in the State Government service after following the selection process or after his lien is terminated in the Corporation or Autonomous Body. The respondents were regular employees in service of Corporation and not appointed in regular cadre service of the State Government after selection or termination.
14. We are of the considered view that the Writ Court has not committed any error in passing the order, as from para-6 onwards by holding that in the case of absorption the principle applicable in the case of appointment or fresh appointment will not apply. In our considered view it is correct interpretation and the same need not be interfered with.
Patna High Court CWJC No.10192 of 2024 dt.11-07-2024 10/11 Accordingly, we find that the Writ Court has not committed any error and further hold that the Single Bench in the case of Anjani Kumar Sinha (supra) has not considered the law correctly and has not interpreted the ACP Rules, 2003 and MACP Rules, 2010 in its right perspective. With due respect, we disagree with the observation of the Writ Court in that case."
8. From the ratio laid down by the Division Bench, it transpires to this Court that there is subsistence in the argument of the petitioners. It also transpires to this Court that at the time of issuance of letter dated 24.03.2022 which is order impugned, the decision taken by this Hon'ble Court in LPA No. 438 of 2017 has not been taken into consideration. As such, letter no.
471 dated 24.03.2022 (Annexure P/4) is hereby sets aside.
9. The petitioner is directed to file a fresh representation before the respondent No.2, namely, the Principal Secretary, Finance Department, Bihar, Patna within 30 days from today along with a copy of this order whereupon the respondent No.2 shall pass a reasoned and speaking order within 90 days thereafter.
10. It is made clear that respondent No.2 shall pass order with regard to all the petitioners considering the ratio laid down in the case of the State of Bihar and Ors. Vs. Prabhakar Mishra and Ors. (supra) as well as the Resolution dated 27.05.2013 contained in Memo No. 5376 issued by the State Patna High Court CWJC No.10192 of 2024 dt.11-07-2024 11/11 Government (as contained in Annexure P/8 to the writ petition).
11. With the aforesaid observation and direction, the present writ petition stands disposed off.
(Dr. Anshuman, J) Ashwini/-
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