IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9098 of 2009 Krishna Kumar Sinha . Versus The State Of Bihar & Ors . ----------- For the petitioner:- Mr. Vivek Prasad, Adv. For the Respondent:- G.A.-1. ------------ 5. 27.09.2011 Heard learned counsel for the petitioner and the State. The petitioner superannuated on 31.7.2008 from the post of Executive Engineer. He is aggrieved by denial of second A.C.P. in the rank of an Assistant Engineer upon completion of 24 years of service. Learned counsel submits that the petitioner was originally appointed as a Junior Engineer on 11.1.1967. There were three promotional avenues for the next higher post of Assistant Engineer. 62% vacancies were to be filled up by direct recruitment. 35% by promotion and 3% by those having A.M.I.E. (equivalent to degree in Engineering) and completion of five years of service as a Junior Engineer. In the event that persons in the third category were not available for promotion it could not be filled up by persons from the 35% promotional quota but only from persons in the 62% category by direct recruitment. The petitioner is 2 thus an appointee on the post of Assistant Engineer in the category of direct recruitment by promotion. He does not fall in the 35% quota of promotion. It led to a change in cadre also. The respondents have wrongly denied him consideration for second A.C.P. suggesting that he may be eligible to be considered for the same in the rank of a Junior Engineer. It is submitted that under Rule 4(1) of the A.C.P Rules, 2003, the basic criteria for grant was completion of 12 or 24 years of service in the same pay scale including any revised pay scale for the same post. Therefore the petitioner on completion of 24 years of service is entitled for the same. Rule 4(2) Explanation (ii) cannot be a bar to the claim. The competitive examination mentioned therein shall stand substituted by the requirement of an A.M.I.E qualification. Reliance was also placed on a departmental resolution dated 24.5.1990. Counsel for the State submitted that the eligibility of the petitioner for second A.C.P as a Junior Engineer has also been considered and rejected. Having obtained a substantive promotion as Assistant Engineer against the promotion quota meant for Junior Engineers the petitioner is not entitled for grant of second A.C.P. It is next 3 contended that the petitioner is not entitled to the relief under Government notification dated 17.1.1979. The resolution dated 24.5.1990 relied upon is prospective from 28.2.1990. The petitioner was appointed as a Junior Engineer on 11.1.1967. He passed the A.M.I.E. examination equivalent to a degree in Engineering on 24.2.1975. He came to be promoted on 29.3.1979 as an Assistant Engineer against the 3% quota meant for such persons in the Bihar Engineering service Class-II. The A.C.P. Rules have been introduced in 2003. The substantive promotion from Junior Engineer to Assistant Engineer has led the respondents to grant him second A.C.P. in the rank of a Junior Engineer, in the pay scale of an Assistant Engineer. The petitioner contends that he is entitled to the second A.C.P. in the rank of a Superintending Engineer. The question for determination shall be whether the petitioner has been promoted as an Assistant Engineer from the rank of Junior Engineer against the 35% quota meant for the same or whether he has been appointed by promotion against the direct recruitment quota. In the former case no error can be found with the action of the 4 respondents. But if the petitioner is held to have been appointed against the direct recruitment quota, learned counsel for the petitioner shall be right in his submission that it was an appointment by way of promotion entitling him for second A.C.P. in the pay scale of Superintending Engineer. There is no contradiction between the resolutions dated 17.1.1990 and 24.5.1990. A bare perusal of the two reveals that both contemplate appointment by promotion in the 3% quota at par with direct recruitment. Rule 4 (2) of the A.C.P. Rules provides that selection through competitive examination shall be treated as direct recruitment for purposes of A.C.P. and the service rendered in the lower pay scale shall not be counted if there is provision for direct recruitment in the Rules. The acquiring of A.M.I.E. qualification shall be substituted by the words ‘competitive examination’ in the Rules. The proviso reads that if under the recruitment rules a promotion quota has been fixed (this shall apply to the 35% quota) it shall be treated as promotion for the purposes of A.C.P. and the past service (on the lower post) shall count. The scheme provides that if sufficient 5 number of persons in the 3% quota are not available it cannot be filled up from the 35% quota meant for promotional vacancy but shall have to be filled up by adding the same to the 62% quota for direct recruitment. That conclusively establishes that the petitioner has not been promoted under the 35% quota meant for promotional vacancies but has been appointed by promotion as an Assistant Engineer against the 3% quota at par with direct recruitment. The petitioner is held entitled to be considered for grant of second A.C.P. while holding the post of Assistant Engineer in the rank of Superintending Engineer. The monetary benefits to be paid have to be ascertained after adjustment of that paid to him in the lower scale. Let such consideration be done and the legitimate dues be paid within a maximum period of three months from the date of receipt/production of a copy of this order. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)