IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.576 of 2008 ====================================================== Jagdish Chandra Singh, s/o- Late Ram Dahin Singh, r/o- C/o- Shri Hari Chaudhary, Road No. 2A, P.S.- Patliputra, District- Patna. .... .... Petitioner/s Versus 1. Bihar Public Service Commission through its Secretary, Bailey Road, Patna. 2. Chairman, Bihar Public Service Commission, Bailey Road, Patna. 3. Secretary, Bihar Public Service Commission, Bailey Road, Patna. 4. The State of Bihar through the Secretary, Finance Department, Government of Bihar, Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Abhinav Shrivastava For the Respondent/s : Mr. Ashutosh Singh, G.P.8 Mr. Sanjay Pandey ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER (Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL) 4 15-11-2011 Heard learned counsel for the petitioner, learned counsel for the respondent Bihar Public Service Commission (for short “ the Commission”) and the State. Petitioner seeks a direction upon the respondents to consider his case for grant of benefit/privilege under the Assured Career Progression Scheme (hereinafter referred to as “A.C.P. Scheme”) treating him to be working on the post of Assistant w.e.f. 3.9.1981. Background facts are as under: Petitioner was appointed as Typist in the Commission. Patna High Court CWJC No.576 of 2008 (4) dt.15-11-2011 2 In the year 1980, a limited examination was conducted for In- house employees for promotion to the post of Assistant. There is no dispute that petitioner participated in the said selection process whereafter he was found fit/suitable and appointed as Assistant on adhoc basis w.e.f. 3.9.1981. Subsequently, petitioner was found entitled to grant of first time bound promotion on completion of 10 years of service which was accordingly granted to him w.e.f. 3.9.1991 (Annexure-11) The petitioner was subsequently considered under the A.C.P. scheme and was granted privilege/benefit/escalation of scale w.e.f. 22.12.2002 by an order contained in Annexure- 13. The grievance of the petitioner is that the respondents have, for all practical purposes, treated him as Assistant having been appointed on 3.9.1981 (Annexure-3) inasmuch as in the final gradation list of the respondent Commission, he has been treated as such. Learned counsel relying on averments made in paragraph 18 of the writ petition has further contended that in the matter of grant of privilege under A.C.P. scheme, he has been discriminated. Learned counsel, with reference to the averments made in the said paragraph read in the light of documents annexed at Annexure-10, submits that one Chandrama Prasad placed below him at Sl. No. 70 in the gradation list was considered under the A.C.P. scheme and was granted Patna High Court CWJC No.576 of 2008 (4) dt.15-11-2011 3 privilege/benefit w.e.f. 9.8.1999 (Annexure-13) whereas his case was arbitrarily omitted. Learned counsel for the respondent Commission resisted the claim by filing counter affidavit. It is contended that at the time when the limited examination was conducted in the year 1980, only 06 vacancies in the cadre of Assistant was/were available. Petitioner was admittedly placed at Sl. No. 7 and as such he was promoted on adhoc basis. Subsequently, he was considered and was appointed as Assistant (Temporary) vide order dated 22.12.1990 (Annexure-A). The Commission subsequently considered his case and confirmed him on the post of Assistant by an order dated 29.8.1992 (Annexure-10). Relying on Clause (iv) of the A.C.P. scheme (Annexure-12), it is submitted that only the period spent on regular post would be considered for grant of privilege/benefit under the Scheme. It is contended that the Commission treated him as Assistant on regular basis w.e.f. 22.12.1990 and as such he was considered under the A.C.P. scheme and was granted benefit w.e.f. 22.12.2002 vide order contained in Annexure-13. Learned counsel for the petitioner, on the other hand, submits with reference to the final gradation list prepared and published by the Commission (Annexure-9) that the respondent Patna High Court CWJC No.576 of 2008 (4) dt.15-11-2011 4 Commission always treated the petitioner as Assistant (Temporary) w.e.f. 3.9.1981. The Commission has not explained under what circumstances, he was considered and granted benefit under the circular issued pursuant to 4th P.R.C. and granted the benefit on expiry of 10 years of service from 3.9.1981. I have heard the parties at length. Two aspects of the matter are relevant for consideration. The Commission treated the petitioner as Assistant w.e.f. 3.9.1981 by virtue of the order contained in Annexure-3, although it describes petitioner as adhoc. However, the Commission subsequently treated the petitioner as having been duly promoted to the post of Assistant w.e.f. 3.9.1981 and granted benefit under the 4th P.R.C. There is no controversy, thus, that he was granted such benefit on expiry of 10 years of service from 3.9.1981. It appears on perusal of the final gradation list (Annexure-9) that the petitioner has been treated as Assistant by the Commission. Petitioner has also argued that he has been discriminated by the Commission in the matter of grant of privilege/promotion under the aforesaid Scheme. In this regard, it has been pointed out that one Chandrama Prasad was shown lower in the rank in the gradation list but was considered and granted benefit under the A.C.P. Scheme. Learned counsel for the petitioner seems to be right in his submission that this aspect of Patna High Court CWJC No.576 of 2008 (4) dt.15-11-2011 5 matter have not been specifically controverted or replied to by the respondents. Materials on record do indicate that the petitioner was treated as Assistant on temporary basis and was given time bound promotion w.e.f. 3.9.1991. If that is the position, then the petitioner is obviously entitled to be considered for grant of benefit/promotion under A.C.P. scheme considering his service as Assistant on temporary/regular basis w.e.f. 3.9.1981. I order accordingly. Let the respondents consider the case for grant of benefit under A.C.P. scheme treating his position as Assistant w.e.f. 3.9.1981. Such consideration shall be made by the respondents and consequential order be passed within eight weeks from the date of receipt/production of a copy of this order. PANKAJ KUMAR/- (Kishore K. Mandal, J)