IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11253 of 2006 MD.NASIRUDDIN . Versus THE STATE OF BIHAR & ORS . with CWJC No.11396 of 2006 MD.ZOBAIR AHMAD . Versus THE STATE OF BIHAR & ORS . ----------- For the petitioners:- Mr. D.K.Sinha,Sr.Advocate & Mr. Md. Najmul Hoda,Advocate For the State:- Mr. Iqbal Asif Niczi, AC to GP 4 3 17.05.2011 Prayer of the petitioners in both the writ applications is for quashing of the orders passed by the Registrar Cooperative Society, Bihar, Patna (Respondent No.3) rejecting petitioners’ representation for giving promotion in Junior Selection Grade and Senior Selection Grade with all consequential benefits with effect from 10.5.1965/ 29.9.63 and senior selection grade with effect from 1.4.1981 respectively. Petitioners have now retired. They had joined their services as Lower Division Clerk on different dates prior to 1965. Their grievance is that persons placed below them in the seniority list of the employees of the Cooperative Department prepared in the year 1973 were given promotion in the Junior and Senior Selection Grade without passing the final accounts examination, but petitioners’ claim for 2 similar relief had been rejected on the ground that they have not passed final accounts examination. Respondents have discriminated the petitioners while considering their case for similar relief but allowing it to juniors to them. In the counter affidavit of respondents, it has been stated that petitioners’ claim for allowing them junior and senior selection grade was considered in the light of Full Bench decision in CWJC No. 2995 of 1990 and analogous cases and it was found that they are not entitled for such promotion. The Full Bench while deciding the issue regarding necessity of passing examination in accounts as per Rule 157(3) (J) of the Bihar Board Miscellaneous Rules 1958 has exempted only such persons from passing their final account examinations for promotion to the selection grade, whose promotions were due in between 1.5.1980 to 29.3.1982. In all other cases passing of accounts examination was found to be mandatory since both the petitioners would have been entitled for promotion to selection grade after 1982, as such they could not have been promoted without passing of examination in accounts. The issue relating to passing of accounts 3 examination for promotion to the selection grade was initially considered in CWJC No.3506 of 1979 ( Md. Shamsuddin and others vs. State of Bihar and others). The scope of Bihar Board Miscellaneous Rules 157(3) (J) was considered in the matters of promotion to selection grade, specially after amalgamation of Lower Division Clerk and Upper Division Clerk in the year 1980 and creation of new cadre of Assistants. Prior to amalgamation of the Lower Division Clerks and Upper Division Clerks passing of departmental accounts examination was mandatory for promotion to the Upper Division Clerk, in view of Rule 157(3) (J) of the Bihar Board Miscellaneous Rules, but in this judgment it was held that after amalgamation and creation of new cadre of Assistant, passing of departmental examination was not mandatory, since the Bihar Board Miscellaneous Rules 1947 did not provide any rule relating to promotion in the selection grade. On the basis of executive instructions no such amendment can be brought, having force of statutory rule. Mandatory condition of passing departmental examination for promotion to selection grade cannot be made applicable, in absence of any such rule. Petitioners’ case is that Md. Shamsuddin and 4 others, writ petitioners of CWJC No. 3506 of 1979 were promoted to Junior Selection Grade in the light of the judgment, though they did not pass any departmental examination. Those writ petitioners were junior to present writ petitioners in the gradation list of 1973. In that view of the matter, petitioners were also entitled for promotion to Junior and Senior Selection Grade but it has been denied to them. The judgment passed in Md. Shamsuddin’s case was referred to the Full Bench and the Full Bench while deciding the issue, was of the view that after the amalgamation of the post of Lower Division Clerk and Upper Division Clerk, and creation of common cadre of clerk, with effect from 1.5.1980, the provision for passing of accounts examination for promotion from Lower Division Clerk to Upper Division Clerk became inapplicable. The amendments were subsequently made with respect to promotion to selection grade by executive orders through ‘correction slip’, and inserted in the Bihar Board Miscellaneous Rules, but it was held having no legal effect. Rule 157 (3) (J) as it originally stood in the 1947 Rules had statutory force and that could not have been modified by executive order. Rule was 5 finally amended by ‘Correction slip’ No. 30 dated 29.3.1982, which was considered to be an amendment under Article 309 of the Constitution of India. As per the amended Rule a clerk who has not passed the final accounts examination will not be promoted to the selection grade. Considering the amended Rule and the period of gap in between the Bihar Board Miscellaneous Rules 1947 and the amended Rule which was brought vide ‘correction slip’ No. 30 dated 29.3.1982. The Full Bench held that on account of amalgamation of Lower Division Clerk and Upper Division Clerk in the year 1980 and amendment of Rule 157(3) (J) in the year 1982, during the period in between 1.5.1980 to 29.3. 1982 any promotion due to the clerks on selection grade, cannot be deemed on the ground that they had not passed the departmental examination. Petitioners in both the writ applications were senior to Md. Shamsuddin and others, who were granted promotion to the selection grade without passing the departmental accounts examination. Petitioners could not pass departmental examination till the date of amalgamation of Lower Division Clerk and Upper Division Clerk; as such they had not been 6 promoted to the post of Upper Division Clerk. Both the petitioners could not be promoted to the post of Upper Division Clerk on account of non passing of the departmental examination. However, on account of amalgamation of the post of Lower Division Clerk and Upper Division Clerk, they also became Assistant i.e. the new Cadre created on account of amalgamation. Persons junior to these petitioners were given promotion on account of an order passed in their favour in the writ application. In that view of the matter, these two petitioners also became entitled for promotion in the selection grade and senior selection grade without passing the accounts examination, as petitioners were entitled for promotion in between 1.5.1980 to 29.3.1982. In the light of Full Bench decision, in between the period 1980-1982 passing of departmental examination for giving promotion to the selection grade was not essential. Both the petitioners should have been given promotion in the junior and senior selection grade with effect from the date juniors to them i.e. Md. Shamsuddin and others were promoted, without passing the departmental accounts examination. Since the petitioners have already retired, the respondents are directed to pass 7 necessary orders giving promotion to both the petitioners in junior Selection Grade and Senior Selection Grade with all consequential benefits from the date juniors to them had been allowed such promotion. The impugned orders dated 28.9.2005 contained in memo no. 4320 and Memo No. 4325 is quashed. Both the writ applications stands allowed. A. Kumar ( Mridula Mishra, J.)