IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.9224 OF 2007 TETAR DAS, S/O LATE RUP LAL DAS, R/O MOHALLA SANDALPUR, POST MAHENDRU, POLICE STATION SULTANGANJ, DISTRICT PATNA, 800006. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.FINANCE COMMISSIONER, BIHAR, PATNA. 3.SECRETARY, SOCIAL WELFARE DEPARTMENT, GOVT. OF BIHAR, OLD SECRETARIAT, BARRACK NO. 2, PATNA. 4.DIRECTOR, SOCIAL WELFARE, BIHAR, SICHAI BHAWAN, THIRD SECRETARIAT, PATNA. 5.DEPUTY DIRECTOR, SOCIAL WELFARE, BIHAR SICHAI BHAWAN, THIRD SECRETARIAT, PATNA. 6.DEPUTY DIRECTOR WELFARE, PATNA DIVISION, COMMISSIONER BUILDING, PATNA DIVISION, PATNA. ………………………RESPONDENTS. ----------- 02/ 12.10.2011 Heard counsel for the parties. The petitioner’s case for grant of A.C.P is based either on a plea of discrimination or on a plea of his being never given promotion in B.A trained scale of pay. The petitioner mentions that when he was appointed on 13.07.1978 in the pay scale of Rs. 230-340/- as an assistant teacher which got subsequently revised to Rs. 415-745/- under the orders of welfare department dated 19.03.1982 with retrospective effect i.e. 01.04.1978, his appointment itself will be deemed to have been made in the pay scale of Rs. 415-745/. 2 The petitioner thereafter having been given the higher pay scale of Rs. 880-1510/- w.e.f. 06.04.1982 has tried to make out a case that it was also not a promotion because from the pay fixation statement of Sushri Pratibha Sahani, a teacher of the School of the petitioner, it would appear that the replacement pay scale of Rs. 415- 745/- was Rs. 880-1510/-. The petitioner, therefore, claims that it was the pay scale of Rs. 415-745/- in which he continued only by way of getting replacement pay scale either of Rs. 880-1510/- or Rs.1640-2900/-. According to the petitioner the only promotion earned by him was w.e.f. 19.03.2001, when he was given promotion on the post of headmaster in the pay scale of Rs. 7500-12000/- and therefore, he cannot be deprived of the two A.C.P benefits as per the A.C.P Rules 2003. In this regard he has also compared his place with Sushri Pratibha Sahani who too was given the benefit of two A.C.Ps’ vide memo no. 1419 dated 07.08.2006 (Annexure-10) while denying the same to the petitioner by an order dated 16.09.2006 contained in 3 Annexure-12. Mr. Gyanand Roy, learned counsel for the petitioner has therefore, submitted that when the respondents have also not been able to distinguish the case of Sushri Pratibha Sahani, it has to be held that the petitioner alike Sushri Pratibha Sahani was entitled to grant of two A.C.P benefits. Learned counsel for the State on the other hand with the help of the counter affidavit has explained that even when the petitioner’s initial appointment was made in the pay scale of Rs. 230-340/- which got revised in the pay scale of Rs. 415-745/- w.e.f. 01.04.1978, he having been promoted on the post of B.A trained scale w.e.f. 06.04.1982, would be disentitled to claim A.C.P benefit, inasmuch as, he has received two promotions one in the pay scale of graduate trained scale of Rs. 880-1510/- and another on the post of Headmaster w.e.f. 19.03.2001. He has also, accordingly, submitted that the case of Sushri Pratibha Sahani was not incomparable, inasmuch, her initial appointment was made in a private School 4 which was later on taken over as a Government School and therefore, she having different service history, probably her pay fixation may not be a safe criteria for grant of A.C.P to the petitioner. In the considered opinion of this Court, while it is true that, an illegality committed in the case of one cannot be directed to be perpetuated by this Court in exercise of power under Article 226 of the Constitution of India, but at the same time the respondents were required to look into the aspect as to whether the petitioner was given promotion on the post of graduate trained teacher w.e.f. 06.04.1982. If the pay scale of Rs. 230-340/- in which the petitioner was appointed got upgraded to Rs. 415-745/-, and if the petitioner was earlier given time bound promotion on account of his being given no such promotion in the pay scale of Rs. 730- 1080/- by order dated 31.07.1989 and if thereafter petitioner’s representation for promotion on account of his passing the B.A trained examination w.e.f 06.04.1982, had made him entitled for grant of promotion in 5 the B.A trained scale of Rs. 880-1510/- or its replacement pay scale of Rs. 1640- 2900/-, the petitioner cannot contend that he was not given such promotion even when the order in question itself describes such promotion with grant of consequential higher pay scale. The petitioner, however, has tried to explain the said aspect by claiming that he was never promoted, inasmuch as, the pay scale of Rs. 880- 1510/- was replacement pay scale of Rs. 415-745/-. This aspect of the matter can still be looked into by the Authorities and if it is found that the pay scale of Rs. 880-1510/- was the revised pay scale of Rs. 415-745/-, probably the whole thing will be required to be reconsidered but in the event it is found that the promotional pay scale of Rs. 880-1510/- was the natural follow up measure of higher pay scale of Rs. 415-745/-, the petitioner will have to automatically forego the claim of A.C.P, inasmuch as, he has already been given promotion on the post of Headmaster on 19.03.2001 in the pay scale of Rs. 7500- 12000/-. 6 This Court also must accept the submission of Mr. Roy that the subsequent time bound promotion given to the petitioner on 03.12.1992 in the pay scale of Rs. 2000-3500/- will not come in the way of the petitioner in view of the amendment made in A.C.P Rules 2003 by Government notification dated 23.03.2006, wherein, while amending Rule 3(1) of 2003 A.C.P Rules, it has been clarified that any financial benefit received by way of selection grade/time bound promotion prior to 01.01.1996 will not stand in the way of A.C.P benefits. Thus the issue of time bound promotion given to the petitioner either on 31.07.1989 in the pay scale of Rs. 730-1080/- or on 03.12.1992 in the pay scale of Rs. 2000-3500/- will not be used against the petitioner in considering his claim for grant of A.C.P benefits. Thus this Court would remit the matter back to the Competent Authority of the Welfare Department only to examine as to whether the petitioner’s promotion in the B.A trained scale on 28.11.1990 and 28.09.1991 was his regular promotion or 7 only an upgradation of his earlier pay scale. In the event, it is found that the petitioner was given promotion in the pay scale of Rs. 880-1510/-, petitioner’s case for grant of A.C.P will straight way be rejected by recording reasons to this effect but on the other hand if it is found that the use of word promotion in orders dated 28.11.1990 and 28.09.1991 was a misnomer and the grant of pay scale of Rs. 880-1510/- or its replacement pay scale of Rs.1640-2900/- was only by way of substituted pay scale of Rs. 415-745/-, his case for grant of A.C.P will be reconsidered in accordance with law and Government rules and policy for grant of A.C.P. In order to complete this exercise, this Court would give liberty to the petitioner to file his self contained representation for claiming benefit of A.C.P as per the latest Rules, whereafter the Competent Authority of Welfare Department shall take its final decision at an early date preferably within a period of four months from the date of 8 receipt/production of a copy of this order. It is however, made clear that while doing so the respondents while examining the case of the petitioner on merits will not be guided by the precedent of Sushri Pratibha Sahani unless they find the grant of A.C.P to her to be absolutely in accordance with law. That being so, this writ application is, accordingly, allowed, the impugned order (Annexure-1) is quashed and the matter is remitted back to the Welfare Department for reconsideration in the light of the aforesaid observations and directions. Ranjan (Mihir Kumar Jha, J.)