IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7439 of 2010 1. SHASHI SHEKHAR AMBASTA S/O LATE RUDRA BIHARI CHARAN R/O MOHALLA- SHEIKHPURA BAGICHA, TUBE WELL NO.2 ROAD, P.O.- B.V. COLLEGE, DISTT.- PATNA, PRESENTLY POSTED AS SENIOR COUNCILOR, OFFICE OF EXECUTIVE ENGINEER, NATIONAL HIGHWAY MECHANICAL, PLANNING DIVISION, PATNA 2. PRADIP KUMAR SINHA S/O LATE VISHWA NATH PRASAD R/O MOHALLA- MOHANPUR, NEW PUNAICHAK, P.S.- SHASTRI NAGAR, DISTT.- PATNA, PRESENTLY POSTED AS SENIOR COUNCILOR, OFFICE OF SUPERINTENDING ENGINEER, MECHANICAL CIRCLE, ROAD CONSTRUCTION DEPARTMENT, PATNA 3. ARUN KUMAR SINHA S/O LATE RAM PADARATH SINHA R/O R.M.S. COLONY, ROAD NO.1, P.S. KANKARBAG, DISTT.- PATNA, PRESENTLY POSTED AS SENIOR COUNCILOR, OFFICE OF SUPERINTENDING ENGINEER (MECHANICAL) NATIONAL HIGHWAY, MECHANICAL CIRCLE, PATNA 4. PRANAV KANT BABBAN S/O LATE NAND KISHORE PRASAD R/O R.N. VILLA APARTMENT, FLAT NO. 402A, MAHATMA GANDHI NAGAR, P.S. AGAM KUAN, DISTT.- PATNA, PRESENTLY POSTED AS SENIOR COUNCILOR, OFFICE OF SUPERINTENDING ENGINEER, MECHANICAL CIRCLE, ROAD CONSTRUCTION DEPARTMENT, PATNA Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, BISHWESHWARAIYA BHAWAN, BAILEY ROAD, PATNA 3. THE PRINCIPAL SECRETARY RURAL WORKS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE FINANCE SECRETARY GOVERNMENT OF BIHAR, PATNA 5. THE ENGINEER-IN-CHIEF - CUM - ADDITIONAL SECRETARY ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, BISHWESHWARAIYA BHAWAN, BAILEY ROAD, PATNA 6. THE ENGINEER-IN-CHIEF - CUM - ADDITIONAL SECRETARY RURAL WORKS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 7. THE CHIEF ENGINEER RURAL WORKS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 8. THE EXECUTIVE ENGINEER NATIONAL HIGHWAY MECHANICAL, PLANNING DIVISION, ROAD CONSTRUCTION DEPARTMENT, PATNA 9. THE SUPERINTENDING ENGINEER MECHANICAL CIRCLE, ROAD CONSTRUCTION DEPARTMENT, PATNA 10. THE SUPERINTENDING ENGINEER (MECHANICAL) NATIONAL HIGHWAY, MECHANICAL CIRCLE, ROAD CONSTRUCTION DEPARTMENT, PATNA 11. THE SUPERINTENDING ENGINEER MECHANICAL CIRCLE, ROAD CONSTRUCTION DEPARTMENT, PATNA with CWJC No.6746 of 2010 1. PRAMOD KUMAR S/O LATE GANGA SAGAR CHAUDHARY R/O MOHALLA- RAJIV NAGAR, P.S. RAJIV NAGAR, TOWN AND DISTT.- PATNA, PRESENTLY POSTED AS SENIOR ACCOUNTS CLERK IN THE OFFICE OF EXECUTIVE ENGINEER, PLANNING AND RESOURCES MANAGEMENT DIVISION (HEADQUARTER-1), RURAL WORKS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2. RAJIB LOCHAN CHATTERJEE S/O LATE BIROJA NANDA CHATTERJEE R/O C-2, ANAND VILLA APARTMENT, ASHIANA ROAD, P.O. ASHIANA NAGAR, P.S. RAJIV NAGAR, DISTT.- PATNA, PRESENTLY POSTED AS SENIOR ACCOUNTS CLERK, N.H. MECHANICAL CIRCLE, ROAD CONSTRUCTION DEPARTMENT, BISHWESHWARAIYA BHAWAN CAMPUS, BAILEY ROAD, PATNA Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, BISHWESHWARAIYA BHAWAN, BAILEY ROAD, PATNA 3. THE PRINCIPAL SECRETARY RURAL WORKS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE FINANCE SECRETARY GOVERNMENT OF BIHAR, PATNA 5. THE ENGINEER-IN-CHIEF - CUM - ADDITIONAL SECRETARY ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, BISHWESHWARAIYA BHAWAN, BAILEY ROAD, PATNA 2 6. THE ENGINEER-IN-CHIEF - CUM - ADDITIONAL SECRETARY RURAL WORKS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 7. THE CHIEF ENGINEER RURAL WORKS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 8. THE EXECUTIVE ENGINEER PLANNING AND RESOURCES MANAGEMENT DIVISION (HEADQUARTER-1), RURAL WORKS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 9. THE SUPERINTENDING ENGINEER (MECHANICAL) N.H. MECHANICAL CIRCLE, ROAD CONSTRUCTION DEPARTMENT, PATNA ----------- For the Petitioners: Mr. S.B.K.Mangalam, Advocate For the State : Mr. P.K.Verma, AAG 11 Mr. Rishi Raj Sinha, GP 19, with M/s Rakesh Prabhat, Rakesh Kumar & Archana Prasad, AC to GP 19 --------- 4. 23.06.2011 Heard learned Counsel for the petitioners and the learned Counsel for the State in both the writ applications. The petitioners were appointed as Accounts Clerk in the Road Construction Department. There is no next promotional post within that cadre. Consequently they have been granted the next higher pay scale in their own cadre of Rs. 5000-8000/- as lst Assured Career Progression (hereinafter referred to as ‘ACP’). The contention on their behalf is that the post of Accounts Officer under the Bihar Accounts Service Rules, 2000, is the next promotional post for them which forms a different cadre and against which 25 % vacancies are reserved for promotion of Accounts Clerk, subject to their passing the limited competitive examination. Therefore they are entitled to the basic pay scale of the post of Accounts Officer as a part of their lst ACP. Learned Counsel for the petitioner strenuously relied upon the amended notification to the ACP Scheme published on 28.1.2008 amending Rule 3(2) of the ACP Scheme 2003. He submits that the amendment in no uncertain terms states that if there was a provision for promotion from one cadre to another, they are entitled to the basic pay scale of the next higher promotional cadre post. It is submitted that the grant of ACP is not a promotion, but only an anti stagnation measure. If the petitioners do not clear the limited competitive examination they do 3 not get promotion to the post of Accounts Officer but shall remain in the cadre of Accounts Clerk in their own scale along with the benefit of ACP only. To urge that the benefit of ACP cannot be given to them unless and until they clear the limited competitive examination is defeating the very purpose for grant of ACP. If they clear the examination they are entitled to substantive promotion as Accounts Officer and the question of grant of basic minimum pay scale of the same does not arise. Learned Counsel for the State submits that even if the petitioners have completed the qualifying period of service under the Bihar Accounts Service Rules 2000 they do not acquire an automatic right to be promoted as Accounts Officer unless and until they clear the limited competitive examination. Therefore the question of grant of basic minimum scale of the post of Accounts Officer to them as a part of their lst ACP without clearing the examination does not arise. Since the promotion from Accounts Clerk to Accounts Officer is a promotion from Grade III to Grade II, there is no right in the petitioner to demand minimum of the pay scale of Accounts Officer as also their lst ACP benefit without clearing the examination. Learned Counsel for the petitioners has also sought to draw parity in the action of the respondents by granting the basic minimum of the pay scale of Circle Inspector cum Kanungoh as ACP to Halka Karamchari by urging that they are also required to pass the departmental examination to be considered for promotion notwithstanding which they have been granted the minimum of the pay scale of the next promotional post in a separate cadre. The Court presently does not consider it necessary to go into that aspect of the matter though it shall be open for the petitioners to agitate those issues before the respondents in the nature of the order to be passed. 4 Matters of pay scale are primarily for the Government to decide. Unless and until there is violation of any rule and/or instruction or the fixation of the pay scale is patently arbitrary on the face of it, it shall not be the domain of the writ court to interfere in the matter of fixation of pay scale. Conversely, if the Court finds that certain issues arising for consideration with regard to the fixation of pay scale remains unanswered by the respondents it shall be proper at the first instance to remand the matter to the employer to apply its mind afresh and pass a fresh appropriate order whereafter the question of judicial review may or may not arise. There has to be difference between a substantive promotion and grant of ACP. The latter does not result in the benefit of higher post carrying a higher pay scale. It is basically an anti stagnation measure to uplift the sagging spirit of an employee who may not have had an avenue of promotion or may have failed to secure promotion. A person may remain as Accounts Clerk throughout his life either for reason of lack of avenue for promotion or for having failed to qualify in the examination for promotion as Accounts Officer. To put at par the issue of grant of ACP with grant of promotion by requiring passing of the limited competitive examination for both purposes may prove counter productive to the entire scheme of ACP. If he clears the examination he gets promotion to higher post and he does not require ACP. If he does not clear the examination he stagnates and requires ACP. Yet it is denied because he did not pass the examination. The amendment made on 21.8.2008 in the ACP Scheme visualises that if there is avenue for promotion from one cadre to another then the basic of the pay scale of the promotional cadre post is available as ACP. There is no rider incorporated in it for clearing any examination much less any other process for promotion to the next higher post in the next cadre. To this 5 Court, the amendment is clear in its language and only visualizes that the next higher post in the next cadre is an avenue for promotion. Several counter affidavits have been filed on behalf of the respondents in both cases and it has also been pointed out that some of them are not on record. The office shall endeavour to locate such counter affidavits that may have been filed and place them on record. Learned Counsel for the State very fairly acknowledges that the several counter affidavits do not deal with the amendment dated 28.1.2008 much less explain its meaning, purport and scope as per understanding of the State and how and in what manner the State seems to incorporate into it words which are not there, that the passing of the limited competitive examination was necessary for that purpose also. That is the crux of the controversy which remains unanswered. Perhaps if the officials of the State had been a little more careful in filing their counter affidavit, applying their mind to the nature of the controversy involved, answered the issues relevant for adjudication the litigation could have been brought to finality today one way or other. The litigation continues as the matter has to be remanded. The matter is remanded to respondent no. 4, the Finance Secretary. He is required to examine the issue of grant of ACP to the petitioners in the appropriate scale in light of the discussion contained in the present order. If the respondent propose to deny the same to the petitioners he shall be required to deal adequately with the issue of the difference between a substantive promotion and an anti stagnation measure with reasons of the purposes for the difference between the two. It shall be open for the petitioners to agitate any other ground that they may be advised in support of their pleas also. 6 Let the Finance Secretary then pass a reasoned and speaking order disclosing full application of mind, displaying the process of reasoning with transparency in his fresh order to facilitate judicial review should the need arise. Let this order be complied with within a maximum period of six months from the date of receipt and/or presentation of a copy of this order along with the representation, if any. It is expected that if the Finance Secretary finds justification in the claims of the petitioners or in any part of the claims necessary consequential order shall be passed simultaneously without awaiting them to have to obtain fresh orders from this Court for implementation of the same. The writ applications stands disposed. Snkumar/- (Navin Sinha,J.)