IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4122 of 2005 1. Badri Prasad Sharma son of Late Jadunandan Sharma resident of Mohalla-Issakchak, P.S. Issakchak, Dist. Bhagalpur. ---Petitioner. Versus 1 The State Of Bihar through Commissioner –cum- Secretary, Rural Development Department, Govt. of Bihar, Old Secretariat, Patna 2 Director, Pandhayat Raj, New Secretariat, Patna. 3 Zila Parishad, Bhagalpur, through Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Bhagalpur. 4 Deputy Development Commissioner- cum Chief Executive Officer, Zila Parishad, Bhagalpur. --Respondents. ---------------------------------- 07 25.11.2011 Heard Mr. T.N.Matin, learned Senior counsel for the petitioner, Mr. Nikesh Kumar, learned counsel for the respondent-Zila Parishad and Mr. Nagendra Sharma learned AC to G.P.8 for the State. Petitioner joined the service of respondent-Zila Parishad, Bhagalpur ( for short „Parishad‟) on 18.06.1965. He along with others was considered and granted benefit of first time bound promotion w.e.f. 01.04.1981 by an order dated 12.08.1987 passed by the Chief Executive Officer of the Parishad as contained in Annexure-1. By order dated 30.10.2004 as contained in memo no. 423 (Annexure-6 to IA No.6169 of 2001) the respondent-Parishad cancelled the grant of said benefit of first time bound promotion on the ground that the petitioner had not passed the departmental accounts examination as required by Rule 157 (3) (J) of the Board‟s Miscellaneous Rules ( for short „Rules‟). The amount already disbursed in his favour, on account of grant of such benefit, was directed to be re-deposited leading to filing of the present writ petition. Learned counsel for the petitioner contended that there is 2 no controversy that passing of departmental accounts examination as provided in the Rules for an employee for consideration of further promotion be regular or time bound is ncecessary. A full bench of this Court in Maheshwar Prasad Singh vs. State of Bihar & Ors. since reported in 2000(4) PLJR 262 has considered in great detail the said provisions and the amendments brought about therein from time to time. On a conspectus thereof this Court concluded as under in para 14 of the report:- “14.The above discussion, however, covers the period between 29.3.1982 and 29.4.1985. So far as the period between 1.5.80 and 29.3.82 is concerned, I am inclined to agree with the petitioners that after amalgamation of the posts of L.D. and U.D. clerks, in the absence of any provision requiring the clerks to pass Accounts Examination for promotion to selection grade, and the erstwhile provision having become redundant or otiose, the promotion could not be denied to them on account of non-passing of the Accounts examination during that period. The amendment dated 29.3.82 was result of administrative instruction and could not have any retrospective effect. To that extent, I would also endorse the decision of this Court in Shamsuddin‟s case.” It is thus contended that if there was no statutory provision in place requiring passing of departmental accounts examination between 01.05.1980 to 29.03.1982 then the respondents cannot deny him the benefit of time bound promotion to which he became entitled w.e.f. 01.04.1981 on the ground that the petitioner on that date had not passed/cleared the departmental accounts examination as provided/contemplated in 157 (3)(J) of the Rules. Learned counsel, in this regard, has drawn attention of the Court to the impugned order dated 30.10.2004 (Anexure-6), wherefrom it 3 appears that on this ground alone benefit granted to the petitioner earlier by order 12.08. 1987 (Annexure 1) was withdrawn/cancelled. Per contra, learned counsel for the respondent-Parishad relying on the order of a learned Single Judge of this Court in the case of Daya Shankar Singh vs. State of Bihar & Ors. since reported in 2010 (3) PLJR 220 contends that petitioner was required to clear the aforesaid departmental accounts examination for being considered for grant of time bound promotion. He has, in this regard, relied on paragraph no. 19 of the report. I have considered the submissions of the parties and perused the materials on record. There is no controversy that an employee would be entitled to grant of time bound promotion only when he is otherwise eligible for such grant. In other words, the employee has cleared all examinations and there was no proceeding either departmental or judicial pending against him and the employee had been stagnating in one scale of pay for ten years. There is also no controversy that passing of departmental accounts examination is provided under the said Rules. This Court, considering the length and breadth of the aforesaid Rule, has held in Maheshwar Prasad Singh (supra) that between the period 01.05.1980 to 29.03.1982 there was no rule provision obliging an employee to clear the departmental accounts examination for consideration of his case for grant of promotion, be regular and/or time bound. Petitioner‟s claim for grant of time bound promotion matured on 01.04.1981. Since there was no requirement to pass the departmental accounts examination the respondents had 4 rightly considered and granted him the benefit of Ist time bound promotion under order dated 12.08.1987 (Annexure-1). Learned counsel for the respondent has contended that the petitioner was granted first time bound promotion by an order passed in 1987 but w.e.f. 01.04.1981. On the date on which the said order was passed granting him the benefit relevant Rule provisions were in place. On that day, no order could have been passed granting any benefit from the day on which the petitioner was found entitled to. In my view, reliance placed by learned counsel for the respondent on Daya Shankar Singh (supra) seems to be misplaced. On going through the judgment particularly paragraph no.19 thereof, it appears that the learned Judge has endorsed the findings of the Full Bench in Maheshwar Prasad Singh (supra) that between the period 01.05.1980 to 29.03.1982 there was no requirement of passing the departmental accounts examination as a condition precedent for grant of promotion. Another contention of the respondent is also fit to be noticed only to be rejected. There is no controversy that the right of the petitioner for consideration and grant of first time bound promotion under relevant Circular of the Government adopted by the Parishad accrued on 01.04.1981. The respondents were required to grant him the said benefit. The respondent cannot take a stand that since they failed to discharge their duty or obligation the legal right of the employee to receive the benefit stood defeated. Admittedly on the day when the right of the petitioner for consideration and grant of time bound promotion accrued there was no requirement under the relevant Rules for passing the departmental accounts examination. 5 There is yet another issue to be addressed. In the writ petition the petitioner has also prayed for grant of second time bound promotion. There is no controversy between the parties that he cleared the required departmental accounts examination w.e.f. 31.10.1994. Petitioner was appointed on 18.06.1965. He was, therefore, entitled to be considered for grant of time bound promotion on expiry of 25 years therefrom. Learned counsel for the respondent has also conceded to that effect. In the result, the application is allowed in the following terms:- (i) The order dated 30.10.2004 (Annexure-6 to I.A. No. 6169 of 2011) and the consequential order as contained in Annexure-6/1 to I.A. No. 6169 of 2011 are quashed and set aside. (ii) The authority of the respondent Parishad is directed to consider the case of the petitioner for grant of second time bound promotion w.e.f. 31.10.1994 in accordance with the relevant circular applicable to the case of the petitioner and pass appropriate order within 06 weeks from the date of receipt/production of a copy of this order. (iii) The amount which is said to have been recovered pursuant to Annexures 6 and 6/1 shall be refunded to the petitioner within 6 the same time. (iv) In case the petitioner is found entitled to grant of second time bound promotion obviously he would be entitled to payment of consequential benefits. (v) There shall be no order as to costs. Sym ( Kishore K. Mandal, J.)