IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5589 of 2010 1. Jagdish Sharma S/O Late Mukhlal Sharma R/O Harishchandra Nagar, P.S.- Beur, Distt.- Patna Versus 1. The State Of Bihar 2. The Agriculture Production Commissioner, Government Of Bihar, Patna 3. The Finance Commissioner, Government Of Bihar, Patna 4. The Director, Horticulture, Bihar, Patna 5. The State Of Jharkhand 6. The Director, Agriculture Government Of Jharkhand, Ranchi 7. The District Horticulture Officer, Giridih, Jharkhand 8. The Accountant General, Bihar ---------------------------------- with Civil Writ Jurisdiction Case No.5690 of 2010 1. Amresh Kumar Sinha S/O Late Nageshwar Prasad Sinha R/O 72, Mig, Hanuman Nagar, P.S.- Patrakar Nagar, Patna Versus 1. The State Of Bihar 2. The Agriculture Production Fommissioner New Secretariat, Vikas Bhawan, Patna 3. The Finance Commissioner, Govt. Of Bihar, Patna 4. The Director, Horticulture And Secretariat, Patna 5. The District Horticulture Officer, Gaya 6. The Accountant General, Bihar, Patna ---------------------------------- For the Petitioners : Mr. Mayank Rukhaiyar,Advocate For the State of Bihar : Mr. Prabhat Kumar Singh,AC to GA V For the State of Jharkhand: Mr.Dhruba Mukherjee, Advocate ---------- 3. 08.09.2011 Heard learned Counsel for the petitioners, the State of Bihar and the State of Jharkhand. The questions involved being common both the writ applications are being disposed by a common order. 2 Counter affidavit has been filed in CWJC No. 5690 of 2010 and the Counsel for the State has submitted that it may suffice for the other writ petition also on the questions of law. The petitioners, who hold the post of Horticulture Inspector were promoted on 17.3.1978, seek the relief for grant of second ACP on completion of 24 years of service. The respondents contend that the petitioners were appointed as Village Extension Worker and within a period of 24 years have been promoted to the post of Horticulture Inspector. In view of the substantive promotion they are not entitled to second ACP. The writ petitions specifically contend that the post of Village Extension Worker was an ex cadre post. The petitioners compute their eligibility for completion of 24 years from the date of appointment as Horticulture Inspector of 17.3.1978 and on that basis demand second ACP from 6.4.2002.They further rely upon certain file notings dated 9.6.2009 by which the concerned committee on examination of their service records found them eligible to grant of second ACP from 6.4.2002. In both writ petitions I.A. Nos. 5912 of 2011 and 5913 of 2011 respectively have been filed bringing on record the fresh order passed by the Horticulture Directorate during pendency of the writ application dated 6.5.2010 finally rejecting their claims for second ACP on clarification sought by them from the Department of Finance. Having heard Counsel for the parties to shorten the litigation the Court considers it appropriate to allow the I.A. applications and allows the challenge to the fresh order dated 6.5.2010. 3 Counsel for the respondents submitted that file notes per se may not create a right in the petitioners to demand second ACP. They were merely a part of the decision making process. There can be no quarrel with that very broad proposition on behalf of the respondents. But if the petitioners have been able to demonstrate a deliberation of their claim with reasons spelt out, over and above the issue of the file notes, fairness demands that the respondents must disclose before the Court that all aspects were considered before a final decision was taken. Had the respondents in their counter affidavit only stated that the recommendations of the Committee for grant of ACP had been considered but the petitioners were not found eligible, there may have been no occasion for the Court to scrutinize the order dated 6.5.2010 for any reason whatsoever. Unfortunately the order dated 6.5.2010 does not state so and on the contrary refers to the opinion given by the Finance Department. The claim of the petitioners that they held ex cadre posts as Village Extension Worker and that it was not relevant for the purpose of second ACP was attempted to be answered by the respondents urging that in pursuance of certain orders of this Court in CWJC No. 959 of 1972 when similar persons were promoted as Horticulture Inspector from the post of Village Extension Worker, the notification issued on 19.8.1980 refers to it as based on consideration for promotion and not appointment. It may only be noticed that in the judgment sought to be relied upon by the respondents question of Village Extension Worker being an ex cadre post did not come up for consideration. Despite specific assertion of the petitioners the respondents have maintained studied silence on it. The question to the mind of the Court is crucial for determination. 4 Learned Counsel for the petitioner has lastly submitted that the order dated 6.5.2010 is in teeth of government instruction dated 25.2.2006 when it purports to deny second ACP to the petitioners based on opinion/recommendation of the Finance Department urging that the aforesaid notification states there was no need for the Department of Horticulture to approach the Finance Department for its concurrence. The Court in the facts of the present case is satisfied that no further discussion need to be held with regard to the order dated 6.5.2010. No functionary of a government much less the Director, Horticulture can act contrary to the direction of the State Government under the circular dated 25.2.2006 much less can the Department of Finance do it. The order dated 6.5.2010 is accordingly set aside and the matter is remanded to the respondent no. 4, the Director Horticulture, Bihar, to decide the claim for grant of second ACP in light of the materials now available on the record from the writ petition and the counter affidavit. Since the specific order dated 6.5.2010 is being set aside there is no need to consider other aspects of the matter. Let the order be complied with within a maximum period of four months from the date of receipt and/or production of a copy of this order. The writ applications stand disposed. Snkumar/- (Navin Sinha,J.)