Patna High Court
The State Of Bihar & Ors vs Prabhakar Mishra & Ors on 10 January, 2018
Bench: Chief Justice, Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.438 of 2017
In
Civil Writ Jurisdiction Case No.9071 of 2014
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1. The State of Bihar through the Secretary, Department of Animal
Husbandry and Fisheries, Patna.
2. The Principal Secretary, Animal Husbandry and Fisheries
Department, Government of Bihar, Patna.
3. The Director, Animal Husbandry and Fisheries Department,
Government of Bihar, Patna.
4. The Director, District Animal Husbandry and Fisheries,
Samastipur.
5. The Director, District Animal Husbandry and Fisheries, Purnia.
6. The Regional Director, District Animal Husbandry, North Bihar
Range, Muzaffarpur. ... ... Appellant/s
Versus
1. Prabhakar Mishra, Son of Late Kedar Nath Mishra, Resident of Village-
Gaura, Police Station Teghra, District- Begusarai.
2. Md. Ahad Raja, Son of Late Hasan Raja, Resident of Village- Pokharia
Begusarai, Police Station and Town Begusarai, District Begusarai.
3. Navin Kumar Roy, Son of Late Rama Nand Roy, Resident of Village-
Kalyanpur Basti, Police Station Mohiyuddin Nagar, District Samastipur.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Kumar Ravish, AC to Ga-1
For the Respondent/s : Mr.
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 10-01-2018
Delay in filing the appeal is condoned.
2. I.A. No. 2173/2017 stands allowed and disposed of.
3. Substitution of legal heirs of respondent No. 3 is
allowed. Let necessary corrections be made in the cause title.
4. I. A. No. 9272 of 2017 stands allowed and disposed
of.
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5. Seeking exception to an order dated 24.11.2016
passed by the learned Writ Court in CWJC No. 9071/2014, this
appeal has been filed by the appellants-State under Clause 10 of
the Letters Patent.
6. Facts, in brief, necessary for decision on the appeal,
are that the employees concerned were originally working in the
Dairy Development Corporation, a Corporation managed and
controlled by the State of Bihar. However, the Corporation went
into financial crisis and therefore, the entire work of the
Corporation was taken over by the Department of Animal
Husbandry in the Government of Bihar and by a notification dated
7th March, 1986, Annexure-3 to the writ petition, the services of
the respondents herein were absorbed and they became
Government employees.
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
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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. The first one, is that in the
case of another employee, namely, one Shri Anjani Kumar Sinha
in 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 Assured
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Career 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 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:-
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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
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
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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 claiming the benefits.
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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
7.3.1986thought 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 appointment 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 Patna High Court LPA No.438 of 2017 dt.10-01-2018 8/8 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. 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.
15. With the aforesaid, the appeal, is dismissed.
(Rajendra Menon, CJ) ( Anil Kumar Upadhyay, J) spandey/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 18.01.2018 Transmission Date