Patna High Court
Masomat Indu Devi vs The State Of Bihar And Ors on 14 February, 2019
Equivalent citations: AIRONLINE 2019 PAT 202
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15647 of 2017
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Masomat Indu Devi, Wife of Late Shyam Kishore Jha, Resident of Village-
Bargodiya, Police Station- Pandaul, District- Madhubani.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. The Principal Secretary, Water Resources Department, Government of
Bihar, Patna.
3. The Under Secretary, Water Resources Department, Government of
Bihar, Patna.
4. The Chief Engineer, Water Resources Department, Koshi Colony,
Saharsa.
5. The Superintending Engineer, Irrigation Circle, Purnea.
6. The Executive Engineer, Irrigation Division, Araria.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Satish Chandra Jha-3, Adv.
For the Respondent/s : Mr. Anjani Kumar, AAG-4
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL JUDGMENT & ORDER
Date : 14-02-2019
The petitioner, who is the wife of a late
employee, viz., Shyam Kishore Jha, has approached this
Court for a direction to the respondents to consider and
grant benefits of the Assured Career Progression Scheme to
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her late husband and to also give him time bond promotion
and only thereafter, fix the retirement benefit which would
be given to the petitioner.
2. The late employee, i.e., the husband of
the petitioner, joined service in a work-charged
establishment as a Gauze Reader on 22.10.1968, but was
regularized in the regular establishment in the Irrigation
Department as Accounts Clerk on 09.07.1981 on the pay-
scale of Rs. 730-1080 in the light of 4th Pay Revision
Report.
3. It is to be noted that in the light of 4th
Pay Revision Committee Report, the concept of time bond
promotion was introduced, entitling an employee to get the
1st time bond promotion after completion of 10 years of
service and the 2nd time bond promotion after completion of
25 years of service, in case such employee was not allowed
any regular promotion. The aforesaid scheme was dropped
with effect from 01.01.1996. Thereafter, the Bihar State
Employees Service Condition (Assured Career Progression
Scheme) Rules, 2003 (in short the A.C.P. Rules of 2003)
Patna High Court CWJC No.15647 of 2017 dt.14-02-2019
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was brought about which also primarily aimed towards
diluting the effect of stagnation in service.
4. The contention of the petitioner is that the
late employee was entitled to get 1st time bond promotion
after 10 years of service with effect from 10.07.1991, but
the same was never given to him for which he was entitled.
During the service tenure of the late employee, the A.C.P.
Rules of 2003, as referred to above, was implemented. The
benefits of the aforesaid rules were also not given to the late
employee who died, while in service, on 04.09.2009. It is
under such circumstances that the petitioner, who is the
widow of aforesaid late employee, made a prayer before the
respondents for giving to her late husband the benefits of
the 1st A.C.P. and the 2nd A.C.P. with effect from
09.08.1999and 10.07.2005 respectively.
5. It appears that the claim of the petitioner was rejected by the respondents on the ground that the late employee had not passed the departmental examination and, therefore, he had not been accorded the benefits of the Assured Career Progression Scheme.
Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 4/18
6. The aforesaid stand of the respondents is sought to be challenged by the petitioner on the ground that grant of financial progression under the A.C.P. Rules of 2003 is not a vertical promotion on any higher post, but only financial up-gradation and the requirement of passing departmental examination would not be applicable to the case of the late husband of the petitioner for grant of time bond promotion and A.C.P.
7. The learned counsel for the petitioner has submitted that a Bench of this Court in the case of Bishwanath Prasad Vs. The State of Bihar, reported in 2011(2) PLJR 136, has held that there is no requirement of an employee to undergo any examination for confirmation of time bond promotion. Even for grant of benefits of A.C.P., passing of departmental examination would not be necessary, as has been held in the case of Avinash Chandra Singh Vs. The State of Bihar & Ors. , reported in 2012(1) PLJR 663.
8. The learned counsel appearing for the State, with reference to the counter affidavit, has opposed Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 5/18 the aforesaid contention of the petitioner on the ground that the late employee would have only been given the benefits of 1st time bond promotion on his passing Departmental Accounts Examination, which has been made an essential condition by a guideline issued by the Finance Department, Govt. of Bihar. Even for the late employee being eligible for the benefits of A.C.P., he was required to pass the Departmental Accounts Examination, which was not done. The aforesaid argument has been advanced on the strength of sub-Clause (5) of Rule 4 of the A.C.P. Rules of 2003, which contemplates that any employee claiming benefits of A.C.P. must fulfill all the requirements which are needed for substantive promotion.
9. For the sake of convenience, sub-Clause (5) of Rule 4 of the A.C.P. Rules, 2003 is extracted hereinbelow:-
"5- Ldhe ds v/khu osru mUu;u dh eatwjh dh fufgr v/;is{kk,¡ ,oa <ax ogh gksaxs tks HkrhZ@lsok fu;ekoyh esa fjfDr;ksa ds fo:) fu;fer izksUufr ds fy, fofgr fd;s x;s gksa A ;fn fdlh izksUufr ds fy, foHkkxh; ijh{kk ikl djuk ;k dksbZ vU; vgZrk fofgr dh x;h gS rks Ldhe ds v/khu ykHk dh eatwjh ds fy, Hkh og vfuok;Z "krZ gksxh ;fn os "krsZa fu;ekoyh@ifji=ksa@ladYiksa ds v/khu fofgr dh x;h Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 6/18 gksa( ijUrq Ldhe ds v/khu foRrh; mUu;u 12@24 o'kksZa dh lsok iw.kZ gksus ds ckn ns; gksxk vkSj blds fy, fu;fer izksUufr ds fy, fu/kkZfjr dkykof/k dksbZ ck/kk ugha gksxh A"
10. The learned counsel for the State has also drawn the attention of this Court to the provisions contained in Rules 156 and 157 of the Bihar Boards Miscellaneous Rules, 1958 and the Finance Department Circular, bearing No. 4685 dated 25.06.2003, which requires an employee to pass the Departmental Accounts Examination mandatorily, which is uniformly applicable to all clerical cadre employees for any regular promotion as also for getting the benefits of A.C.P./M.A.C.P.
11. By way of a supplementary counter affidavit, the learned counsel for the State has also brought on record the Field Accounts Clerk Cadre Rules, 2014 (in short the Cadre Rules of 2014) framed by the Bihar Water Resources Department, Govt. of Bihar. The aforesaid Cadre Rules of 2014 defines the Cadre as comprising Accounts Clerk working in the Department of Water Resources Department, Govt. of Bihar. Rule 3 of the Cadre Rules of Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 7/18 2014 provides for three-tiers in the Cadre of Clerks, viz., (A) Junior Accounts Clerk (Basic Category); (B) Senior Accounts Clerk (First Promotion Level) and (C) Head Accountant (Second Promotion Level). Rule 16 of the Cadre Rules of 2014 further indicates that promotions against vacancies for Senior Accounts Clerk shall be given after the recommendation of the Departmental Promotion Committee on the basis of passing of Departmental Accounts Examination.
12. The learned counsel for the petitioner, however, has stated that the aforesaid Cadre Rules of 2014 have come in the year 2014, which would definitely not be applicable to the case of the late employee of whom the petitioner is the widow.
13. In order to appreciate the contentions advanced on behalf of the parties, it would be necessary to refer to the two decisions passed by two Division Benches of this Court, which, more often than not is cited as depicting two different viewpoints, leading to confusion with the Employer/State regarding the implementation of the A.C.P. Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 8/18 Rule of 2003.
14. The provision of sub-Clause (5) of Rule 4 of the A.C.P. Rules of 2003 was considered in both the aforesaid decisions decided on 03.07.2017 in L.P.A. No. 1871 of 2016 in the case of Uday Shankar Prasad Vs. The State of Bihar & Ors. [reported in 2017(3) PLJR 824] and in L.P.A. No. 332 of 2017, decided on 04.05.2018, in the case of The State of Bihar & Ors. Vs. Mahendra Baitha. Apart from the aforesaid two decisions, a reference of another decision by a Division Bench of this Court has been made, viz., L.P.A. No. 599 of 2015, decided on 19.03.2018, in the case of Ramadhar Thakur Vs. The State of Bihar & Ors. , wherein the provisions of the A.C.P. Rules of 2003 and the relevant rules of the Bihar Boards Miscellaneous Rules, 1958 were also referred to and the respective scope has been discussed.
15. In the case of Uday Shankar Prasad Vs. The State of Bihar & Ors. (supra), the petitioner, who was a Compilation Clerk in the Road Construction Department, Govt. of Bihar, was granted the benefits of the A.C.P. Rules Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 9/18 of 2003, but later the aforesaid benefits were sought to be withdrawn and the amount paid to him was directed to be recovered giving rise to the litigation. The Division Bench of this Court in the aforesaid case, after perusing the scheme, particularly sub-Clause (5) of Rule 4 thereof of the A.C.P. Rules of 2003 held as follows:-
8. A perusal of the aforesaid rules clearly stipulates that the prescribed requirement and mode of sanction of financial progression under the scheme shall be the same which are prescribed under the Recruitment/Service Rule for regular promotion against the vacancy. It is, therefore, clear that for getting benefit under the scheme in question, an employee has to fulfill all the conditions stipulated in the Recruitment or the Service Rules which is prescribed for regular promotion from the post held to the next higher post. Admittedly, in the case in hand, for further promotion from the post of Compilation clerk to a higher post, no Service Rules are prescribed as there is no further avenue for promotion from post of Compilation clerk to any other higher post.
That being so, sub rule 5 of Rule 4 and its interpretation would clearly show that for Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 10/18 grant of ACP from the post of Compilation Clerk no rules of promotion or recruitment being prescribed, this rule will not apply, i.e. 4(5). Thus, there are no prescribed statutory rules for recruitment or promotion from the post of compilation clerk to any other post. That apart, we find 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 the Bihar Board Miscellaneous Rules, 1958 would be applicable for grant of ACP. That being the position, the contention of the respondents that the appellant is not entitled to the benefit under the scheme, is wholly misconceived and while rejecting the claim of the appellant the learned Writ Court has not taken note of this factual or legal aspect of the matter. On going through the judgment referred to by the State in the case of Kusheshwar Nath Pandey (supra), we find that it was a case pertaining to grant of time bound promotion under a particular scheme and the said case was pertaining to promotion of a Tracer to some higher post and is not applicable to this appellant.
9. A perusal of the Rule, which is reproduced in para 10 of the judgment in the Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 11/18 case of Kusheswar Nath Pandey (supra), goes to show that the rule is applicable for the purpose of crossing the efficiency bar, confirmation and for promotion to the selection grade. There is nothing in the said rule to show that it pertains to promotion of Compilation Clerk to any other higher post. Rules of 2003 is the rule framed under Article 309 of the constitution and the aims and objects of the scheme is to grant higher pay scale or grade to the employees who stagnate in particular post without any promotion, may be because no promotional posts are available or vacancies are not available and the scheme has been envisaged to grant only benefit of higher pay scale or grade to an employee who stagnates for 12 years or 24 years. Once we are convinced that there are no rules for promotion from the post of Compilation Clerk and the Boards Miscellaneous Rules of 1958 are not applicable, in the case in hand, there is no reason why the benefit claimed by the appellant cannot be granted. That being the position, the benefit of ACP was rightly granted to the appellant and there was no justification in withdrawing the same.
(emphasis supplied)
16. What the aforesaid judgment clearly lays Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 12/18 down is that the A.C.P. Rules of 2003 has been framed under Article 309 of the Constitution of India and the said rules clearly prescribe that financial progression shall be given to a person who is otherwise fit for promotion. The requirement of passing any Departmental or Accounts Examination for being eligible for promotion or payment of A.C.P. occurs only when there are statutory/departmental/service rules prescribed for passing any examination for promotion to the higher post. The judgment further takes note of the fact that the provisions of the Bihar Boards Miscellaneous Rules, 1958 are only applicable for the purposes of crossing the efficiency bar, confirmation and for promotion to the selection grade. If there are no rules for promotion, the Bihar Boards Miscellaneous Rules, 1958 would not be applicable to the case of an employee and in the present case, to the late employee.
17. In the case of Ramadhar Thakur Vs. The State of Bihar & Ors. (supra), the provisions of Rule 157(3) (J) of the Bihar Boards Miscellaneous Rules, 1958 and sub- Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 13/18 Clause (5) of Rule 4 of the A.C.P. Rules of 2003 were analyzed and discussed. It was conclusively held by the Bench, after referring to the various judgments, viz., Mithilesh Kumar Sinha Vs. The State of Bihar & Ors. [2006(1) PLJR 282]; Syed Mozammil Ashraf Vs. The State of Bihar & Ors. [2007(1) PLJR 438]; Shashi Shekhar Ambasta Vs. The State of Bihar & Ors. [2011(3) PLJR 474]; Maheshwar Prasad Singh & Ors. Vs. The State of Bihar [2000(4) PLJR 262]; Rameshwar Roy Vs. The State of Bihar & Ors. [2017(2) PLJR 127]; Daya Shankar Singh Vs. The State of Bihar & Ors. [2010(3) PLJR 220] and Md. Shamsuddin & Ors. Vs. The State of Bihar [1983 PLJR 347] , that Rule 157(3)(J) of the Bihar Boards Miscellaneous Rules, 1958 makes the passing of the Departmental Accounts Examination a condition precedent for promotion to the selection grade, but not for general promotion and for not passing such exam, the benefits of the A.C.P. Rules of 2003 also cannot be withheld, unless there is a Departmental Rule for promotion. In other words, the Bench held that passing of Departmental Accounts Examination is not a condition Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 14/18 precedent for grant of Assured Career Progression under the A.C.P. Rules nor does Rule 157(3)(J) of the Bihar Boards Miscellaneous Rules, 1958 conceive of such a requirement.
18. In the case of The State of Bihar & Ors. Vs. Mahendra Baitha (supra), the issues were almost similar. The petitioner therein was not given the benefit of the financial progression scheme on the ground that he had never passed the Departmental Examination. After taking note the judgment delivered in the case of Uday Shankar Prasad Vs. The State of Bihar & Ors. (supra) and holding that the sum-essence of the A.C.P. Rules of 2003 was anti- stagnation measure, but in accordance with sub-Clause (5) of Rule 4 thereof, the benefits would only accrue if an employee fulfills all the requirements which are needed for substantive promotion which includes passing of certain Departmental Examinations etc.
19. While coming to operative portion of the judgment in the case of The State of Bihar & Ors. Vs. Mahendra Baitha (supra), the Bench declared as follows in paragraph 11 of its decision:-
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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, 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.
20. A bare reading of the three judgments, referred to above, makes the following propositions absolutely clear, leaving no scope of any confusion, unless the judgments are viewed and analyzed with a myopic vision. The common thread running in all the three judgments, referred to above, is as follows:-
(A) The A.C.P. Rules of 2003 do not provide an avenue of promotion, but only Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 16/18 financial progression in case of no promotion having been given to an employee;
(B) The recipient/beneficiary of such scheme has to be an employee who is otherwise eligible for being promoted to the higher post;
(C) Passing of Accounts Examination or Departmental Examination, as the case may be, under the Bihar Boards Miscellaneous Rules, 1958 would be necessary for crossing efficiency bar, confirmation and for promotion to selection grade, but not general promotion;
(D) The requirement of passing the exam can only be thrust upon and made applicable to an employee in view of the Service Rules of the Department.
21. A further condition can be gleaned from the aforesaid judgments for being eligible for getting the benefits of financial progression under the A.C.P. Rules of 2003, which is that, if there are no promotional avenues available in the Cadre.
22. Applying the aforesaid principles in the case of the late employee, it can safely be stated that he Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 17/18 was absorbed and regularized in government service on 09.07.1981 on the post of Accounts Clerk in the Irrigation Department on which, he joined on 10.07.1981 at a pay- scale of Rs. 730-1080. Admittedly, he has not been paid the 1st time bond promotion and the benefits of A.C.P. Rules of 2003. The late employee died in harness on 04.09.2009, while was posted as Accounts Clerk. The Departmental Rules, framed only in the year 2014, has provided for 3-tier in the Cadre of Accounts Clerk and the requirement of passing the Departmental Accounts Examination and attaining computer knowledge for confirmation and promotion. The petitioner died much before the aforesaid rules came into effect.
23. Under such circumstances, in the considered opinion of this Court, the respondents are not justified in withholding the benefits of 1 st time bond promotion and financial progression under the A.C.P. Rules of 2003 to the late husband (employee) of the petitioner.
24. Under the aforesaid circumstances, the petitioner is directed to make a representation before the Patna High Court CWJC No.15647 of 2017 dt.14-02-2019 18/18 Principal Secretary, Water Resources Department, Govt. of Bihar, Patna (respondent No. 2) within a period of four weeks from the date of receipt/production of a copy of this order. On receipt of such representation, the Principal Secretary, Water Resources Department, Govt. of Bihar, Patna (respondent No. 2) shall dispose off such representation within a period of eight weeks thereafter, taking into account the position of law as has been discussed in the present order. If the dues of the late husband (employee) of the petitioner is found to be tenable, necessary sequel orders shall be or directed to be passed within the aforesaid stipulated period.
25. With the aforesaid observation and direction, the writ petition stands disposed off.
(Ashutosh Kumar, J) Praveen-II/-
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