IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10368 of 2010 1. RAGHUBANSH NARAIN SINGH S/O LATE JAGDISH SINGH R/O VILL.- MOHABBAT PARSA, P.S. AND P.O.- RIVILGANJ, DISTT.- CHAPRA (SARAN) AT PRESENT RESIDING AT ARYA NAGAR PATNA-RANCHI ROAD, HAZARIBAGH, DISTT.- HAZARIBAGH, JHARKHAND, PIN- 825301 Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, HOME (POLICE) DEPARTMENT, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 3. THE JOINT SECRETARY, HOME (POLICE) DEPARTMENT, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 4. THE DIRECTOR GENERAL CUM INSPECTOR GENERAL OF POLICE, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 5. THE DEPUTY INSPECTOR GENERAL OF POLICE (HUMAN RIGHT), GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 6. THE INSPECTOR GENERAL OF POLICE (HEADQUARTER AND ADMINISTRATION), GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 7. THE COMMANDANT, BIHAR MILITARY POLICE-16, PHULWARISHARIF, P.S.- PHULWARISHARIF, DISTT.- PATNA ----------- For the Petitioner: Mr.Atul Chandra, Advocate For the State : Mr.Sanjay Kumar, GP 15 ------ 2. 08.11.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner was initially appointed as a Sergeant in January 1970 when he was promoted as Sergeant Major in August 1982 and subsequently as Deputy Superintendent of Police on 1.11.1996 with effect from 1.6.1994. He has superannuated from service on 31.10.2007. The petitioner is stated to have represented commencing from January 2007 till January 2010 for grant of Second ACP benefits in the pay scale of Rs. 10,000-15,200/-. The representations having evoked no response he has moved this Court. Counsel for the petitioner submits from Annexures 7 & 8 to the writ application supported by pleadings in paragraph 12 that his juniors have been granted the benefits in the aforesaid pay scale causing hostile discrimination against the petitioner. Placing reliance on the Bihar State Employees Condition’s of 2 Service, Conditions Amendments (Assured Career Progression Scheme) Rules 2006 (hereinafter called “ACP Rules”), it is submitted from Clause 4(1) that the basic principle of the Rules was to prevent stagnation of a person who has been working in the same scale of pay including any relevant scale for the period of 12/24 years respectively. To insist upon the petitioner passing any departmental examination or confirmation of his service under the Bihar Police Manual, shall be defeating the very purpose of the ACP Rules an an anti stagnation measure. Counsel for the State from the counter affidavit submitted that the petitioner never came to be confirmed as Deputy Superintendent of Police till his superannuation. Strong reliance is placed on Rule 648(b) of the Bihar Police Manual which deals with confirmation. It is next submitted that the petitioner was required to pass the departmental accounts examination. Answering the assertions made in para 12 of the writ application of alleged hostile discrimination the counter affidavit in para 9 states that the juniors granted benefits have all cleared the Departmental Accounts Examination. An alternate submission is then made on behalf of the petitioner that he represented on 12.10.2007 for grant of exemption from passing the departmental examination. That is not a part of the pleadings and neither does any such representation form part of the record. Counsel for the State rightly submits that he is not in a position to make any submission with regard to any document/submission outside the records. 3 Rule 648(b) of the Bihar Police Manual provides that a person promoted as Deputy Superintendent of Police from the lower rank must pass the examination in accounts, but need not pass the other examinations prescribed in the “Rules for the Training and Departmental Examination of Officers serving in the State of Bihar”. He shall be on probation for one year. At the end of that period, if he has passed the examination in accounts and is fit to perform the duties of a Deputy Superintendent, he will be confirmed. If he has officiated as a Deputy Superintendent for one year or more he may be confirmed without further probation on his passing the examination in accounts. If he fails to pass the examination in accounts within one year, or if he be unfavorably reported on, he will be liable to be reverted to his substantive post. It is apparent that the probation is for one year. He shall be confirmed if he has passed the account examination. If he is officiating as a Deputy Superintendent for one year or more he may be confirmed without further probation after passing the examination in accounts. He could be reverted for failure to clear the examination or being unfavorably reported. The petitioner does not appear to have passed the departmental examination from his own pleadings. Nonetheless he has worked as Deputy Superintendent of Police for nearly 11 long years before superannuation without being unfavorably reported or reverted for having not passed the departmental accounts examination. The question of any reversion after superannuation does not arise. The petitioner shall therefore be deemed to have been confirmed as Deputy Superintendent of Police and retired from 4 that post. But that shall not answer his claim for benefits of the ACP scheme. The ACP schemes Rules have been framed under Article 309 of the Constitution of India and have statutory force. Even if the petitioner is deemed to have been confirmed as a Deputy Superintendent of Police under the Bihar Police Manual for other service purposes, if the ACP Rules specifically requires him to pass the departmental accounts examination before grant of ACP benefits, the benefits shall not be available to him unless he has passed the examination. The deemed confirmation on the post of Deputy Superintendent of Police and the grant of ACP benefits on that post shall be severable issues. If the statutory rules provide in Rule 4(5) that passing of the departmental examination shall be a condition for grant of ACP benefits after 12/24 years, this Court does not find it possible to re-write the rules or to ignore the rule to grant the benefits to the petitioner contrary to the same. The submission that Rule 4(1) shall have over-riding effect over Rule 4(5) so as to completely negate the provisions of Rule 4(5) is an interpretation which this Court shall not accept rendering the latter completely nugatory. Reading Rule 4(1) with Rule 4(5) harmoniously though both require the grant of ACP benefits to a person who has completed 12/24 years of service, the latter only limits it in certain cases. This Court therefore holds that the petitioner is not entitled to the grant of second ACP since he has not cleared the departmental examination. Nonetheless the failure to pass an examination and consequent denial of ACP is one issue of the matter. The right to represent for grant of exemption from 5 clearing of the examination under the relevant rules and the right to have that application considered in accordance with law is a separate issue. If the petitioner has represented or represents hereinafter for grant of exemption let the same be considered and disposed off expeditiously by a reasoned and speaking order within a maximum period of three months from the date of receipt and/or presentation of a copy of this order. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)