Patna High Court
Ram Udar Charudhay vs The State Of Bihar & Ors on 30 October, 2015
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 10113 of 2011
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Ram Udar Chaudhary, aged about 61 years, Son of Late Laksheshwar Chaudhary,
Resident of Vachaspati Nagar, P.O. Mahendru, P.S. Bahadurpur, District- Patna,
Bihar.
.... .... Petitioner/s
Versus
1. The State of Bihar through its Chief Secretary, Government of Bihar, Patna.
2. Director, Secondary Education, Human Resources Development Department,
Government of Bihar, Patna.
3. Accountant General, Bihar, Patna.
4. Divisional Commissioner, Patna Division, Patna.
5. Regional Deputy Director, Patna Division, Patna.
6. Principal, Government Senior Secondary School, Rajendra Nagar, Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Kumar Kaushik, Advocate.
For the Respondents No.1,2,3 & 6 : Mr. Sanjay Kumar, A.C. to A.A.G. 6.
For the Accountant General : Mr. Jitendra Kumar Roy, Advocate.
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date: 30-10-2015
Heard learned counsel for the parties.
The dispute in the present case now remains as
to whether the petitioner is entitled to 2nd and 3rd A.C.P. benefits
which have been denied to him on the ground that he has not
cleared the departmental examination.
Learned counsel for the petitioner submits that
in the year 2005 pursuant to him having attained the age of 50
years he had applied for exemption from passing of the said
departmental examination which was permissible under the Rules
and taking note of the same the Controlling Authority had
recommended for grant of 1st A.C.P. to the Competent Authority
clearly stating that the case of the petitioner may be considered.
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It is submitted that subsequently by order dated 21.03.2007, the
petitioner and others were granted the benefit of 1st A.C.P. with
effect from 09.08.1999 though even the 2nd A.C.P. was due from
that very date. It is submitted that thereafter the petitioner was
entitled for grant of 3rd A.C.P. from 01.01.2009. Learned counsel
submits that once the 1st A.C.P. was granted to the petitioner
without any pre-condition, it is obvious that the authorities had
given him the benefit of exemption from passing departmental
examination and thus there was no ground for them to deny the
subsequent 2nd and 3rd A.C.P. Learned counsel submits that even
otherwise the petitioner even after being granted 1st A.C.P., only
one departmental examination was held in the year 2008 and the
petitioner had not appeared at the said examination in view of 1st
A.C.P. having been granted without insisting for the petitioner to
pass the examination subsequently. Learned counsel further
submits that the petitioner had applied in the year 2010 for grant
of remaining 2nd A.C.P. and 3rd A.C.P. but till date the same has
not been granted to him.
Learned counsel for the State submits that
admittedly the petitioner has not cleared the departmental
examination as per the Rule governing grant of A.C.P. for which
such passing is a basic requirement. It is further submitted that
the petitioner had to make a formal application for grant of such
exemption which seems to have been made only in the year 2010
when the petitioner, upon superannuation applied for grant of 2nd
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and 3rd A.C.P. Learned counsel submits that the law relating to
exemption being very clear that the request for such exemption
has to come from the concerned employee and then only the
Department is obliged to take a decision on the same though it
may be applicable from the date of the application; but since the
application itself came upon superannuation of the petitioner from
service, even if the Department could have granted such
exemption it would have been infructuous because he had
superannuated by that time and the same could not have been
given with retrospective effect.
Learned counsel for the petitioner, by way of
reply, submits that when the order dated 21.03.2007 was passed
granting 1st A.C.P. to him, upon the 2nd A.C.P. not been granted to
him, on query from the office he was told that it was due to him
not passing the departmental examination and in that light, he
had applied in the year 2010 for grant of exemption and 2nd and
3rd A.C.P. It is submitted that in view of the matter, by mere
conduct of the parties, the 1st A.C.P. having been given
unconditionally and in the background of the fact that the grant of
A.C.P. can be granted only upon passing of departmental
examination, the only presumption in law would be that the
authorities had exempted the petitioner. Thus, once the exemption
is granted, for the subsequent stages i.e., grant of 2nd and 3rd
A.C.P. the same stipulation of passing of the departmental
examination cannot be enforced upon the petitioner.
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Having considered the rival contentions, this
Court finds substance in the submissions of learned counsel for
the petitioner. Taking into account the overall picture, the
authority having granted the petitioner 1st A.C.P. by order dated
21.03.2007without any pre-condition, the presumption would go in favour of the petitioner that he was granted relaxation from appearing in the departmental examination. Once such relaxation is deemed to have been granted, for the subsequent stages i.e., 2nd and 3rd A.C.P., passing of the departmental examination cannot be insisted upon by the respondents. The view taken by the Court supported by a decision of a coordinate Bench of this Court in the case of Dr. Shree Narayan Pandit vs. State of Bihar reported in 2013 (1) PLJR 747.
Accordingly, the writ application stands disposed off holding that the petitioner is entitled to grant of 2nd and 3rd A.C.P. from the due date. The authorities shall ensure that necessary orders are issued in favour of the petitioner and sent to the Accountant General, Bihar within four months from the date of production of a copy of this order before the respondent no. 5. The Accountant General, Bihar shall issue authorization within one month thereafter.
(Ahsanuddin Amanullah, J.) Anand Kr.
U T