IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7671 of 2009 Malti Devi wife of Late Braj Kishore Prasad Kashyap resident of village Buranichak, P. S. Barh, District- Patna. … Petitioner. Versus 1. The High Court Of Judicature At Patna its Registrar General, Patna High Court, Patna. 2. The State of Bihar through Secretary Department of Personnel and Administrative Reform, Government of Bihar, Patna. 3. A. G. Bihar, Patna Birchand Patel Path, Patna. … Respondents ----------- For the petitioner : Mr. Ashok Kumar Kashyap, Adv. For respondents : Mr. Sanjeet Kumar, Adv. For Accountant General : Mr. Madhvnesh Pd. Adv. --------- 2. 12.03.2010 Heard learned counsel for the parties. In this writ petition, the petitioner, widow of late Braj Kishore Prasad Kashyap, a retired Chief Judicial Magistrate (Civil Judge, Senior Division) has made a prayer to the following effect:- “i) To grant the benefits of assured career progression scheme, (hereinafter referred to as “A.C.P. with all consequential benefits and relief as such enhancement of pay and the post retrial benefits to Late Braj Kishore Prasad Kashyap who retired from the post of Chief Judicial Magistrate, from Sasaram Judgeship in the year 1999. ii) To pay all the dues and arrears with respect to salary and retrial benefits with penal interest forthwith.” From the pleadings on record as highlighted by learned counsel for the petitioner, it appears that late 2 Braj Kishore Prasad Kashyap, the husband of the petitioner was appointed in Bihar Judicial Services in the year 1975 on the recommendation of Bihar Public Service Commission and in his tenure service of more than 24 years he had held several assignments till 30.11.1999 when he had superannuated while holding the post of Chief Judicial Magistrate Sasaram. It is the case of the petitioner that her husband had a satisfactory service record on account of which he had earned not only time bound promotion but also promotion on the post of Civil Judge, Senior Division and as such even after his death when the benefit of Assured Career Progression (A.C.P.) scheme became effective w.e.f. 1.1.1996 his case ought to have been considered for grant of A.C.P. from the date he had completed five years of his service as Sub-judge or Civil Judge Senior Division. In this context, learned counsel for the petitioner has relied on a Division Bench judgement of this Court dated 5.2.2008 in C.W.J.C. No. 14314 of 2007 (K. K. Chaubey vs. the High Court of Judicature at Patna and Ors.), a copy whereof has been made Annexure-3 to the writ petition. A counter affidavit has been filed on behalf of 3 Registrar General, Patna High Court wherein the deponent Joint Registrar (Establishment) while explaining the issue of grant of A.C.P. to the deceased husband of writ petitioner has taken a stand that a decision had been taken on 24th May 2007 by the Standing Committee of Patna High Court that such officers who had not been given the benefit of extension of their service from 58 years to 60 years were held to be not entitled for consideration of grant of A.C.P.. On that basis, it has been further stated in the counter affidavit that since the husband of the petitioner was also not given the benefit of extension of service upon completing his age of 58 years he too would not be entitled for consideration of grant of A.C.P.. In the opinion of this Court, there cannot be automatic denial of consideration of the case of the deceased husband of the writ petitioner merely because his services were not extended from 58 years to 60 years in the year 1999 specially when a beneficial provision for grant of A.C.P. in keeping with the resolutions of the State Government dated 16th April 2004 and 30th June 2006 was brought into force with retrospective effect 1.1.1996 for all judicial officers. The High Court on the administrative 4 side infact was required to consider the case of the husband of the petitioner for grant of A.C.P. inasmuch as such consideration for grant of A.C.P. was to be made for each and every Judicial Officer on completion of five years of service on or after 1.1.1996. Unfortunately, no specific detail has been given either of the widow petitioner or even by respondent no. 1 the custodian of service records of the husband of the petitioner as with regard to date of promotion of husband of the petitioner on the post of Sub-Judge, re-designated as Civil Judge ( Senior Division). In fact, nothing has also been brought on record to show that the husband of the petitioner had any adverse entry or chequered service record. The only adverse inference sought to be drawn by respondent no. 1 that since the husband of the petitioner was not given his extension of service from 58 years to 60 years in terms of evaluation made by the Evaluation Committee, it must be inferred that he was not fit for even being considered for grant of A.C.P., by itself cannot be sufficient ground so as to deny consideration of the case of husband of the petitioner for grant of A.C.P. From a bare reading of Government 5 Resolutions on the subject of grant of A.C.P. to judicial officers as contained in Annexure 1 and 2 to the writ application, it would be clear that a member of judicial officers whether a Civil Judge (Junior Division) or Civil Judge (Senior Division) became entitled to be placed in the higher scale of pay on completion of five years term, described as the 1st Assured Career Progression and, on completion of 10 years on the same post, in the next higher scale of pay described as the 2nd Assured Career Progression. Admittedly, the case of husband of the petitioner was never considered for grant of A.C.P. at any point of time and therefore respondents could not have refused to consider the case for grant of A.C.P. to the husband of the petitioner merely on the ground that he was not found fit for being given extension of service at the age of 58 years for continuing in service up to 60 years. It is infact this aspect of the matter which has been decided in the case of K. K. Chaubey (Supra) by a Division Bench of this Court wherein it has been held that:- “…When his case was being considered whether he should be given the benefit of extended service up to 60 years or he should be allowed to superannuate on 6 completion of the normal age of superannuation, it was not an exercise for the purpose of considering his case for grant of the benefit of Assured Career Progression under any of the Notifications. Since the petitioner has been found “ Not fit” for allowing him the benefit of extension of service on completion of normal age of superannuation, it was also assumed that the petitioner was not fit for grant of the benefit of Assured Career Progression Scheme, which was first notified on 16.4.2004. Suffice it to say that as on the date of the first Notification, the petitioner had retired in 2002 and since the actual benefits under 1st Notification were to flow from 2003, the petitioner was otherwise not entitled to any benefit under the Scheme of 2003 which could have affected his last drawn pay if so as to require revision of even pensionary benefit. It has no bearing on his claim for being considered for grant of the benefit of Assured Career Progression…” The case, in hand, seems to be almost identical and therefore this Court would not approve the reasons given in the counter affidavit of respondent no. 1 that only because the husband of the petitioner was not found fit for grant of extension of his age for his retirement from service from 58 years to 60 years he would also not be found entitled for consideration for grant of A.C.P.. Accordingly, this writ application is disposed of by directing the respondents to consider the case of 7 husband of the petitioner for grant of first and second A.C.P. on the post of Civil Judge Senior Division in the light of the observation made above. Such exercise must be completed within a period of three months from the date of receipt/production of a copy of this order. It is also made clear that if the deceased husband of the petitioner is ultimately found eligible for grant of any benefit under A.C.P. Scheme either first and Second or both, the petitioner shall be entitled to all consequential benefits including re-fixation and payment post retrial benefits on the basis of the last emoluments, which the husband of the petitioner would have drawn at the time of his retirement as a result of grant of A.C.P. or A.C.Ps. as the case may be. We would, however, hasten to add here that all that we have said is to consider the case of the husband of the petitioner for grant of A.C.Ps. in terms of government resolution and therefore anything said in this order should not be deemed to be an expression of our opinion on the merits of grant of A.C.P. which has to be decided on the basis of evaluation of service records of the deceased husband of the petitioner strictly in terms of two relevant 8 Government resolutions dated 16.4.2004 and 30.6.2006 and the judgment of this Court in the case of K.K. Chaubey (supra). With the aforementioned observations and directions, this writ application is disposed of. kanchan (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)