IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4607 of 2006 Rabindra Kumar Sharma @ Rabindra, Son of Surya Deo Singh, Resident of Jamalpura, Post Office Korba, Police Station Naubatpur, District Patna. -------- Petitioner Versus 1. The State of Bihar. 2. Civil Surgeon-cum-Chief Medical Officer, Buxar. 3. Incharge Medical Officer, Leprosy Control Unit, Buxar. ---------- Respondents ----------- 5 20.08.2010 Heard Mr. Pravin Kumar Gupta, learned counsel for the petitioner and counsel for the respondents. The prayer of the sole petitioner, namely, Rabindra Kumar Sharma @ Rabindra Sharma reads as follows:- “1. That this petition is being filed on behalf of the petitioners for issuance of appropriate writ, order or direction to the respondents as well as quashing of the office order issued by the Civil Surgeon- cum-Chief Medical Officer, Buxar contained in Memo No. 1388 dated 12.11.2005 by which direction was given to Incharge Medical Officer, Leprosy Control Unit, Buxar to recover the excess amount from difference of pay scale of those the petitioners on the ground that the petitioners have been promoted on the post of Medical Social Worker because first time bond promotion shall be deemed to be the date of promotion on the post of 2 Medical Social Worker from the post of Non-Medical Assistant and second time bond promotion shall be counted from the date of promotion on the post of Medical Social Worker which is not proper in law and unjustified.” Learned counsel for the petitioner, while assailing the impugned order, would submit that the Civil Surgeon has failed to understand the scope of the Government decision with regard to the Assured Career Progression (A.C.P.), inasmuch as, in the case of the petitioner, it cannot be said that when the petitioner was initially appointed on the post of Non-Medical Assistant in the year 1972 and was subsequently given promotion on the post of Medical Social Worker with effect from 1980 in the same cadre, he would stand deprived for counting his service from the date of his first appointment on the post of Non-Medical Assistant for the purpose of grant of second A.C.P. In other words, the petitioner wants his second A.C.P. to be dated on completion of 24 years of service from 1972 when he was appointed on the post of Non-Medical Assistant because if the interpretation given 3 by the Civil Surgeon is accepted, the petitioner’s entitlement could only commence from 1980, when he was given promotion on the post of Medical Social Worker. Counsel for the State on the other hand would submit that the Government Rule as with regard to the A.C.P. is as clear as day and in fact, would not brook two interpretations. He, accordingly, would submit that when a person is already given promotion, that would be treated to be first A.C.P. and the period of second A.C.P. would be counted from the date of grant of such promotion. As is well clear from the expression ‘A.C.P.’ itself that is by way of the policy of the Government to remove stagnation of an employee, who has not been promoted after holding that particular post. The concept of A.C.P. by replacing the concept of Time Bound Promotion was made applicable for the Government servant of Bihar from 1.1.1996 only by way of removal of ante-stagnation measure for a particular post. Thus, when on 1.1.1996 the petitioner was already holding 4 the promotional post of Medical Social Worker, he cannot be allowed to now take into account the period of service rendered by him on the post of Non-Medical Assistant or on which he was appointed in the year 1972 and got promoted from the said post to the post of Medical Social Worker in the year 1980. In this context, Rule 3 of the A.C.P. Rule 2003 is relevant and for the sake of clarity is quoted hereinbelow:- ^^3- Ldhe & ¼1½ bl ;kstuk ds v/khu jkT; ljdkj ds xzwi ^ch* ^lh* ,oa ^Mh* ds oSls fu;fer dfeZ;ksa dks] ftls vio`fr ds nkSjku fdlh forh; mUu;u dk ykHk ugha feyk gks] 12 o"kksZa dh lsok iwjh gksus ij izFke forh; mUu;u vkSj vkxkeh ckjg o"kksZa dh lsok dqy 24 o"kksZa dh fu;fer lsok iw.kZ gksus ij f}rh; forh; mUu;u dk ykHk fn;k tk;sxkA Li"Vhdj.k% ¼i½ nks Lrj ds inks ads lafoy;u (merger) ds QyLo:I gq, forh; mUu;u dks ,0lh0ih0 Ldhe ds fufer forh; mUu;u ekuk tk,xk vkSj Ldhe ds v/khu ykHk dh eatwjh ij fopkj.k ds le; bls /;ku esa j[kk tk,xkA ¼ii½ ;fn bl ;kstuk ds ykxw gksus dh frfFk dks fdlh dehZ dh lsok 12 o"kksZa ls vf/kd gks pqdh gks vkSj mls izFke forh; mUu;u eatwj fd;k tkrk gS rks f}rh; forh; mUu;u 24 o"kksZa ls lsokof/k iw.kZ gksus ij eatwj fd;k tk;sxk vkSj bl iz;kstukFkZ izFke forh; mUu;u dh frfFk ls 12 o"kksZa dh vfrfjDr vof/k dks iwjk fd;s tkus dh 'krZ ykxw ugha gksxhA ¼2½ forh; mUu;u] lacaf/kr ljdkjh lsod dks mlds laoxZ ds fy, fofgr fo|eku mRdze ds osruekuksa esa feysxk vkSj bl iz;kstukFkZ for foHkkx }kjk fofHkUu inks ads fy, eatwj osrueku gh lwlaxr gksaxsA tgkW izksUufr dk mRdze HkrhZ@lsok fu;ekoyh esa ifjHkkf"kr u gks ;k izksUufr ds mRdze esa nks fu;fer izksUufr ls de gks ogkW bl fu;ekoyh dh vulwph 5 ds vuqlkj mPprj osrueku esa ,-lh-ih- ;kstuk ds v/khu nks fofr; mUu;u fn;k tk,xkA Li"Vhdj.k % viqujhf{kr osrueku esa ewy Js.kh ds in :0 1200&1800 vkSj izFke izksUufr ds in :0 1320&2040 nksuks ds fy, ,d gh :0 4000&6000 eatwj iqujhf{kr osrueku gSA ,slh fLFkfr esa 4000&6000 dks ewy dksfV dk osrueku ekudj] izFke vkSj f}rh; forh; mUu;u] mPprj osruekuksa esas fn;k tk,xkA** From reading of the Rule, it would be clear that the stress has been given on ‘any financial up-gradation’ as a qualifying condition for grant of A.C.P. The moment the petitioner admits that while holding a lower post of Non-Medical Assistant, he got benefit of the promotion on the higher post of Medical Social Worker on the higher pay of scale, he would be automatically held to be disentitled for claiming that he did not receive any financial upliftment of his pay- scale in his service career. It is this aspect of the matter which has been clarified by the Civil Surgeon following strictly the 2003 Rule and in fact the impugned order is only a consequential order, the main order being the Bihar Rajya Kramchari (Sunishchit Vriti Unayan Yojna) Niyamawali, 2003 and its rule 3 as quoted above. Since the petitioner has not 6 challenged the main rule, his challenge to the consequential order must fail on this ground only. Mr. Gupta, learned counsel for the petitioner would, however, submit that in year 2006 certain amendments in the rule have come by which the petitioner would get benefit in the matter of dating back his second A.C.P. Though this Court is not very confident of such submission of Mr. Gupta but then having regard to the fact that this part of case has not been at least built up in the writ application, this Court would only give liberty to the petitioner to approach the competent authority with the help and aid of any 2006 Rules or amendment under which the petitioner may get benefit of dating back his 2nd A.C.P. It is, however, made clear that this Court has not finally decided this part of submission of Mr. Gupta because there are no sufficient materials available on record. In the event the petitioner would file a representation to the competent 7 authority for this very purpose by placing reliance on some 2006 Rules/amended Rules, the same will be considered in accordance with law by the competent authority, who would be under obligation to pass a reasoned order on the said representation of the petitioner within a period of six months of its being filed by him. With the aforementioned observation and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)