IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1115 of 2009 MOSTT.CHANDRA LEKHA DEVI W/o late Sita Ram Chaudhary, resident of village and Post- Digha, P.S. Sadar, District- Muzaffarpur Versus 1. THE STATE OF BIHAR, through the Principal Secretary, Finance Department, Government of Bihar, Patna. 2. The Commissioner, Darbhanga Division, Darbhanga 3. The Joint Commissioner, Accounts Administration, Directorate Provident Fund, Pant Bhawan, Bailey Road, Patna. 4. The Assistant Director, Directorate Provident Fund, Department of Finmance, Pant Bhawan, Bailey Road, Patna. 5. The Secretary to the Commissioner, Darbhanga Division, Darbhanga 6. The District Provident Fund Officer, Samastipur. ----------- 2. 16.2.2010 Heard Mr. Jai Prakash Verma, learned counsel for the appellant and Mr. Arup Kumar Chongdar, learned counsel for the State. The appellant invoked the jurisdiction of this Court under Article 226 of the Constitution of India in C.W.J.C. No.8744 of 2009 claiming for the relief that her late husband was entitled for grant of Assured Career Progression with effect from 9.8.1999 in terms of the resolution of the State Government dated 25.6.2003 ( Annexure-6 to the writ petition ) which has been subsequently amended on 28.1.2008 ( Annexure-7). Learned single Judge taking note of the factual matrix into consideration expressed the view that as the husband of the appellant had not cleared the departmental examination and further had not applied for exemption from passing the said departmental examination before his superannuation, the wife - 2 - was not entitled to put forth stale claim and on that basis dismissed the writ petition. Questioning the legal propriety of the order, it is submitted by learned counsel for the appellant that her late husband was entitled to get the benefit on the basis of the circular referred to in the writ petition. He has relied upon a decision rendered in the case of Maheshwar Prasad Singh vs. The State of Bihar & ors.: 2000(4) PLJR 262 (F.B.). Mr. Arup Kumar Chongdar learned counsel for the State submitted that it was incumbent upon her late husband to apply for exemption from passing the departmental examination but he had not done so and therefore the appellant cannot claim the said benefit. To appreciate the submissions raised at the bar, it would be appropriate to refer to Rule 4, Sub-Rule (5) of the Bihar State Employees Conditions of Service Conditions ( “Assured Career Progression Scheme”) Rules, 2003. The said Rule 4 Sub-Rule (5) of the Rules is quoted herein below: “The prescribed requirements and mode of sanction of financial progression under the scheme shall be the same which are prescribed under the Recruitment/Service Rules for regular - 3 - promotion against vacancies. If the Rules/Resolutions prescribe passing of the departmental examination or any qualification for promotion that shall also be a essential condition for sanction of benefit under the scheme, provided that after completion of 12/24 years of service, the financial progression shall become due and for this, there shall be no bar of period prescribed for regular promotion. Explanation: (i) Notwithstanding any provision for relaxation in the period of service for regular promotion to certain categories of employees contained in any Rules, no relaxation of conditions in the period of 12/24 to eligibility years shall be granted for the benefits of financial progression under the Scheme.” On perusal of the aforesaid rule, it is quite clear that it was incumbent upon the official to pass the departmental examination or any qualification for promotion and that was the condition precedent. It is admitted position that appellant’s late husband had not appeared in the departmental examination. On perusal of Annexure-5, which is the resolution, it appears that the appellant after attaining the age of 50 years had not applied to get the benefit of the scheme by making prayer therein for being exempted from passing the departmental examination. As far as the decision in case of Maheshwar Prasad Singh (supra) is concerned, the Full Bench was advertent to - 4 - the issue whether the rules, which came later on would be retrospectively applicable covering the period between 1.5.1980 and 29.3.1982 and in that context it was held that the rule could not have been any retrospective effect and, therefore, any promotion due during that period cannot be denied on the ground that they had not passed the said examination. The said decision, in our considered view, does not render any assistance to learned counsel for the appellant and in view of the aforesaid analysis, we perceive no merit in the appeal and the same is, accordingly, dismissed without any order as to costs. ( Dipak Misra, C.J.) ( Ramesh Kumar Datta,J.) VPS