IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2752 of 2007 1. Birendra Ray, SON OF SRI DIWAKAR PRASAD RAY, RESIDENT OF VILLAGE- KHAIRATIYA, POLICE STATION- NAWALPUR, DISTRICT- WEST CHAMPARAN. 2. PRABHAKAR PRASAD SRIVASTAVA, SON OF LATE SHIV SHANKAR PRASAD, RESIDENT OF VILLAGE- MURLA, POLICE STATION- RAMGARHWA, DISTRICT- EAST CHAMPARAN. 3. RAJ KUMAR PRASAD SINGH, SON OF LATE TRIVENI PRASAD SINGH, RESIDENT OF VILLAGE- BHITA DEVADHA, POLICE STATION- HASANPUR, DISTRICT- SAMASTIPUR. 4. NARSINGH RAM, SON OF LATE MUNESHWAR RAM, RESIDENT OF VILLAGE- CHETAN CHAPRA, POLICE STATION- BANIAPUR, DISTRICT- SARAN. 5. RAGHAV MISHRA, SON OF LATE VISHWANATH MISHRA, RESIDENT OF VILLAGE- SUDAMA NAGAR, POLICE STATION- BAIRIYA, DISTRICT- WEST CHAMPARAN. 6. SHIV NATH RAY, SON OF SRI HIRA RAY, RESIDENT OF VILLAGE- JITWARPUR, POLICE STATION- PIPRA, DISTRICT- EAST CHAMPARAN. 7. GIRIJA SHANKAR RAM, SON OF LATE PALTU RAM, RESIDENT OF VILLAGE- DABARIYA, POLICE STATION- NAUTAN, DISTRICT- WEST CHAMPARAN. 8. MD. EHASAN, SON OF MD. JAAN, RESIDENT OF VILLAGE- JOGIYA, POLICE STATION- RAM NAGAR, DISTRICT- WEST CHAMPARAN. 9. ANIL KUMAR SINGH, SON OF SRI RAM BAHAL SINGH, RESIDENT OF VILLAGE- BANU CHHAPRA, PASCHIM TOLA, WARD NO. 2, POLICE STATION- BETTIAH MUFFASSIL, DISTRICT- WEST CHAMPARAN. 10. AMAR KISHORE PRASAD SINGH, SON OF LATE ANIRUDDHA SINGH, RESIDENT OF VILLAGE AND POLICE STATION- PAHARPUR, DISTRICT- WEST CHAMPARAN. 11. JITENDRA NATH TIWARY, SON OF LATE SHAMBHU NATH TIWARY, RESIDENT OF VILLAGE- LACHHANAUTA, POLICE STATION- CHANPATIYA, DISTRICT- WEST CHAMPARAN 12. DWARIKA BAITHA, SON OF LATE CHINAGI BAITHA, RESIDENT OF VILLAGE- BANBARIYA, POLICE STATION- NARKATIYAGANJ, DISTRICT- WEST CHAMPARAN. 13. JAGDISH TIWARY, SON OF LATE PANDODHA TIWARY, RESIDENT OF VILLAGE- BAGAHI RATANPUR, POLICE STATION- BAIRIYA, DISTRICT- WEST CHAMPARAN. 14. JAI PAL RAM, SON OF LATE PATHALU RAM, RESIDENT OF VILLAGE- NAURANGABAG BASBARIYA, BETTIAH, POLICE STATION- BETTIAH, DISTRICT- WEST CHAMPARAN. 15. YOGENDRA PRASAD HARIJAN, SON OF LATE TOKHI RAUT, RESIDENT OF VILLAGE- JAGJIWAN NAGAR, BETTIAH, POLICE STATION- BETTIAH, DISTRICT- WEST CHAMPARAN. 16. CHHABILA RAM, SON OF LATE SHIV NANDAN RAM, RESIDENT OF VILLAGE- RAJARAM NARAHANWA, POLICE STATION- NARAHANWA SHUKLA, DISTRICT- GOPALGANJ. 17. RAVINDRA NATH TIWARY, SON OF LATE RISHESHWAR TIWARY, RESIDENT OF VILLAGE- MANSA DUBEY PATAKHAULI, POLICE STATION- BAIRIYA, DISTRICT- WEST CHAMPARAN. 18. ANAND BIHARI PRASAD KUSHWAHA, SON OF LATE SUBH NARAYAN PRASAD, RESIDENT OF VILLAGE- NAYAGAON, POLICE STATION- KESARIYA, DISTRICT- EAST CHAMPARAN. 2 19. RAJESHWAR SINGH, SON OF SRI BAIJNATH SINGH, RESIDENT OF VILLAGE- BELBA RAY, POLICE STATION- SEMRA, DISTRICT- EAST CHAMPARAN. 20. AUGUSTIN M. PASCAL, SON OF LATE A.M.PASCAL, RESIDENT OF SHRISTAN QUARTER, BETTIAH, POLICE STATION- BETTIAH, DISTRICT- WEST CHAMPARAN :---PETITIONERS. Versus 1. The State Of Bihar THROUGH THE SECRETARY/COMMISSIONER, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE SECRETARY/COMMISSIONER, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE SECRETARY/COMMISSIONER, FINANCE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, BALMIKI NAGAR. 5. THE SUPERINTENDING ENGINEER, TIRHUT CANAL CIRCLE, BETTIAH, DISTRICT- WEST CHAMPARAN. 6. THE SUPERINTENDING ENGINEER, HEAD WORKS CIRCLE, BALMIKI NAGAR, DISTRICT WEST CHAMPARAN. 7. THE EXECUTIVE ENGINEER, WATER DRAINAGE INVESTIGATION DIVISION, BETTIAH, DISTRICT- WEST CHAMPARAN. 8. THE EXECUTIVE ENGINEER, TIRHUT CANAL DIVISION NO. 2, BETTIAH, DISTRICT- WEST CHAMPARAN. 9. THE EXECUTIVE ENGINEER, TRIVENI CANAL CONSTRUCTION DIVISION, NARKATIYAGANJ, DISTRICT- WEST CHAMPARAN. 10. THE EXECUTIVE ENGINEER, TIRHUT CANAL DIVISION NO.1, BETTIAH DISTRICT- WEST CHAMPARAN. 11. THE SUB-DIVISIONAL OFFICER, TRIVENI CANAL SUB- DIVISION, NAUTAN, DISTRICT- WEST CHAMPARAN. 12. THE SUB-DIVISIONAL OFFICER, TIRHUT CANAL SUB- DIVISION NO. 2, BETTIAH, DISTRICT- WEST CHAMPARAN. 13. THE DEPUTY COLLECTOR, REVENUE DIVISION, WATER RESOURCES DEPARTMENT, MOTIHARI, DISTRICT- EAST CHAMPARAN :---RESPONDENTS. ---------------------------------- For the petitioners :- M/S. V.R.P.Singh, Mrityunjay Kumar, Harish Kumar, Advocates. For the State :- Mr. Sunil Kumar Mandal, S.C. 24, Mr. Bipin Kumar, A.C. to S.C. 24. ======= 2. 06.09.2011. Re: I.A.No. 6033 of 2011. During the pendency of the writ petition Petitioner No. 11 Jitendra Nath Tiwary left for his heavenly abode on 15.11.2007 leaving behind his widow Gyanti Devi. 3 2. Let the name of Petitioner No. 11, Jitendra Nath Tiwary be expunged from the array of the petitioners and Gyanti Devi be substituted as Petitioner No.11. 3. I.A.No. 6033 of 2011 is, accordingly, disposed of. 4. Learned counsel for the petitioners is permitted to correct the averment(s) made in paragraph 33 of the writ petition. 5. Heard learned counsel for the petitioners and the State. 6. Petitioners at the relevant time served as Clerk in the different offices under Respondent Chief Engineer, Water Resources Department, Balmiki Nagar. They have filed this writ petition for a direction to the State-respondents to consider their case for grant of A.C.P. in terms of the provisions contained in Bihar State Employees Conditions of Service (Assured Career Progression Scheme) Rules, 2003 (hereinafter referred to as the “Rules”) notified by the Finance Department of the State Government under notification dated 25.6.2003. 7. By filing counter affidavit Executive Engineer, Tirhut Canal Division No. 1, Bettiah, Respondent No. 10 has opposed the prayer stating that petitioners are not entitled for grant of A.C.P. benefits in the light of the Rules as they have not passed the Departmental Accounts Examination conducted by the Board of 4 Revenue. Reliance in this connection is placed on Clause (4) of the Rules which provide for eligibility and condition for grant of A.C.P. Sub-clause (1) of Clause (4) of the Rules provides that the basic criterion for grant of financial progression under the Rules is that the concerned Group B,C,D employee should stagnate for 12/24 years in the same/revised scale in which the employee was appointed. Sub-clause (5) of Clause (4) of the Rules further provide that only such employee shall be entitled for grant of A.C.P. benefit who is otherwise qualified for regular promotion against a vacancy. 8. Counsel for the petitioners submits that petitioners being appointed as Clerk have served the employer in the same/revised scale in which they were appointed for 12/24 years and are thereby qualified for grant of A.C.P. as petitioners are stagnating in the same/revised scale in which they were initially appointed for 12/24 years. In this connection learned counsel for the petitioners brought to my notice Rule 156, 157 (J) of the Bihar Board’s Miscellaneous Rules, 1958 and submitted that any clerk who has not passed the final Accounts Examination will not be promoted to the selection grade. Learned counsel further submitted that grant of selection grade to the Group B,C,D employees of the State was abolished by the State Government with effect from 1.1.1996 under Resolution of the Government bearing no. 660 dated 8.2.1999 issued from the Finance 5 Department. The grant of selection grade having been abolished with effect from 1.1.1996 there is no necessity for the Group B,C,D employees of the State to pass the Departmental Accounts Examination with effect from 1.1.1996 for earning promotion in the selection grade. Learned counsel for the petitioners further submitted that as there has been no corresponding correction in Clause (J) of Rule 157 of the Board’s Miscellaneous Rules, 1958 after coming into force of the Rules there is no occasion for the State to rely over Clause (J) of Rule 157 for submitting that passing of the Departmental Accounts Examination by the Group B,C,D employee is necessary for earning A.C.P. benefits under the Rules. Learned counsel for the petitioners in this connection relied on the judgment of this Court in the case of Mithlesh Kumar Sinha Vs. The State of Bihar and Ors., reported in 2006 (1) PLJR 282 paragraph 6, wherein this Court having considered Circular Letter No. 2132/Bi.(2) dated 1.4.1980 held that neither Rule 156-157 nor the said circular dated 1.4.1980 require passing of Departmental Accounts Examination for becoming eligible for promotion from the post of Head Clerk to Head Assistant. In the case of Mithlesh Kumar Sinha (supra) this Court held that the requirement of passing the Departmental Accounts Examination is necessary for earning selection grade, as such, the same has no application for grant of substantive promotion from the 6 post of Head Clerk to Head Assistant. Similar view has been taken by another Single Judge in the case of Syed Mozammil Ashraf Vs. The State of Bihar & Ors., reported in 2007 (1) PLJR 438 paragraph 9. Learned counsel also relied on the judgment in the case of Shashi Shekhar Ambasta & Ors. Vs The State of Bihar & Ors., reported in 2011 (3) PLJR 474 paragraph 8, wherein this Court held that there is difference between substantive promotion and grant of A.C.P. With reference to the aforesaid judgments learned counsel for the petitioners submitted that Head Clerk is not required to pass Departmental Accounts Examination for becoming eligible for earning promotion on the next higher post of Head Assistant. In the same manner there is hardly any basis for the authorities to insist that only such Group B,C,D employee who passed Departmental Accounts Examination shall become eligible for grant of A.C.P. benefits under the Rules. 9. Counsel for the State opposed the submission and submitted with reference to the Board of Revenue Circular Letter dated 10.3.1980 and another Circular Letter No. 2132 dated 01.04.1980, Annexures B,C that Lower Division Clerk must necessarily pass Departmental Accounts Examination for becoming eligible for earning promotion on the post of Upper Division Clerk. He further submitted that in the light of the aforesaid two circulars and sub-clause (5) of Clause 7 (4) of the eligibility conditions for grant of A.C.P. under the Rules only those who have passed the Departmental Accounts Examination are eligible for grant of A.C.P. 10. Learned counsel for the petitioners in rejoinder submitted that Circular Letter dated 10.3.1980 and 01.04.1980 have no application in the matter as with effect from 01.05.1980 the post of Lower Division Clerk was merged with the post of Upper Division Clerk and the two circulars referred to by the learned State counsel require Lower Division Clerk to pass Departmental Accounts Examination for earning promotion on the post of Upper Division Clerk. Post of Lower Division Clerk having already been merged with Upper Division Clerks the purpose for which circular letter dated 10.3.1980 and 01.4.1980 was issued having been achieved, the two circulars had hardly any application in the matter of consideration for grant of A.C.P. to the Group B,C,D employees. 11. Having heard counsel for the parties and having perused the resolution of the Government dated 08.02.1999, I am of the opinion that the State Government having considered the recommendations of the Fitment Committee regarding post-wise Central Scale of Pay accepted the revised pay scales as indicated in Schedule-I of the resolution and decided to abolish the existing facilities of time bound promotion and the selection grades with effect from 1.1.1996. Having 8 abolished the existing facility of time bound promotion and selection grade the State Government exercising its power under proviso to Article 309 of the Constitution of India framed Rules for grant of A.C.P. benefits to its regular Group B,C,D employees who completed 12/24 years of service in the same/revised scale in which the employee was appointed. Clause (4) of the Rules lays down the eligibility and condition for grant of first, second A.C.P. benefit on completion of 12/24 years of service in the same/revised scale in which the Group B,C,D employee was appointed provided the Group B,C,D employee concerned has not earned any promotion during the preceding 12/24 years. Sub-clause (5) of Clause (4) of the Rules further provides that the A.C.P. benefits under the Rules shall be allowed to only those Group B,C,D employees who are eligible for regular promotion against vacancies. From a conjoint reading of sub-clause (1) and sub-clause (5) of Clause (4) of the Rules it would appear that merely because Group B,C,D employee has completed 12/24 years of service in the same/revised scale in which the Group B,C,D employee was appointed he shall not become entitled for grant of A.C.P. For such grant he is also required to qualify for regular promotion against vacancies. Sub-clause (b) of Rule 157 (J) of the Board Miscellaneous Rules provides that a clerk (Group C employee) who has not passed the final Accounts Examination will not be promoted to the 9 selection grade. Selection grade having been abolished under resolution dated 08.02.1999 with effect from 1.1.1996, in the circumstances from 1.1.1996 there is no occasion for any Group B,C,D employee of the State Government to be considered for grant of selection grade. Under the Rules provisions have been made for grant of A.C.P. benefits to Group B,C,D employee of the State Government who have completed 12/24 years of service and are stagnating in the same/revised scale in which they were appointed. Such grant is subject to the employee having become qualified for regular promotion against vacancies. Sub-clause (b) of Rule 157 (J) provides that a clerk who has not passed the final Accounts Examination will not be promoted. Such requirement having already been incorporated in sub-clause (5) of Clause (4) of the Rules in my opinion, therefore, the Group B,C,D employee of the State Government who has not passed Departmental Accounts Examination is not eligible for grant of A.C.P. benefits under the Rules. In paragraph 4 of the supplementary affidavit filed on behalf of the petitioners on 2nd September, 2011 statement has been made that Petitioner No. 1 passed Departmental Accounts Examination in the year 2008. Petitioner Nos. 3,7,9,10, 12, 17, 18, 19 have passed Departmental Accounts Examination in the year 2010. Petitioner No. 6 passed Departmental Accounts Examination in the year 2011. Petitioner No. 11 passed Departmental Accounts 10 Examination in the year 2007. In Paragraph-5 of the said affidavit it has been stated that Petitioner No. 5 has been exempted from passing the said examination. 12. Let the competent authority consider the case of the aforesaid petitioners who have either passed the Departmental Accounts Examination or have been exempted from passing such examination, for grant of A.C.P. benefit under the Rules with effect from the date from which they have either passed or have been exempted from passing Departmental Accounts Examination, as early as possible, in any case within a period of two months from the date of receipt/production of a copy of this order before the competent authority. It goes without saying that if the petitioners are held entitled for such grant, then payment be also made within the same time from the date of issue of the order granting A.C.P. benefit. 13. The writ petition is, accordingly, disposed of. A.F.R. P.K.P. (V.N.Sinha,J.)