Bhubneshwar Prasad vs The State of Bihar and Another

Radha Mohan Prasad, J.—Heard learned counsel for the petitioner and the learned counsel appearing for the respondents. In this writ petition, the petitioner is aggrieved by the order, contained in Annexure 6, whereby and whereunder he has been given the benefit of Assured Career Progression (A.C.P.) under the Scheme. It is contended by the learned counsel for the petitioner that the said benefit has been given to the petitioner treating him as appointee of 1979 whereas he was appointed in 1977.

It appears that initially the petitioner was appointed as Copyist in the Copying Department of the Civil Court, Muzaffarpur, vide Order No. 62 of 1977, contained in Annexure 1. Later, he was given another appointment in Class III vide Appointment Order No. 92 of 1979, contained in Annexure A/1 to the counter affidavit filed on behalf of the State of Bihar and the District and Sessions Judgecum-Chairman Screening Committee, Muzaffarpur (respondents No. 1 and 2 respectively). From the writ petition it appears that the petitioner was given the benefit of initial appointment also in the matter of grant of time bound promotion, vide Annexure 3.

From the counter affidavit filed on behalf of respondents No. 1 and 2 it appears that the petitioner has been denied the benefit of his service under initial order of appointment on the plea that Explanation (ii) of Rule 4(4) of the A.C.P. Scheme Rules, 2003 provides that if an employee working temporarily or under the work charged establishment entered into the regular service, only the period of regular service or the period which starts from the date of regularisation will be calculated for sanction of the benefit of financial progression.

Learned counsel for the respondents has failed to show that by subsequent order of appointment (Annexure A/1) the petitioner''s initial appointment was regularized. Initially the petitioner was appointed on the post of Copyist in the Copying Department whereas vide Annexure A/1 he alongwith others has been appointed as temporary Clerk in the Civil Court, Muzaffarpur. As per proviso to Rule 4(1), the benefit of past service under such circumstances is to be denied only when a person is subsequently appointed on a higher scale. Insofar as Rule (4)(ii) of Rule 4 is concerned, it only deals with the cases where a person is regularised in service from his initial temporary appointment or appointment in the work charged establishment to whom the period is to be counted only from the date of regularisation.

Learned counsel for the respondents has fairly submitted that it is true that it is not a case of regularisation and, in fact, it is a case of fresh appointment but as per the provision contained in Rule 4(4) of the Scheme (Annexure 4), service rendered on ad hoc basis is not to be counted for the purpose of computation of qualifying service.

I am unable to appreciate the said submission of the learned counsel for the respondents. In fact, in the present case, learned counsel for the respondents has failed to show from any document that the initial appointment of the petitioner was on adhoc basis or in the grade lower than the grade in which he was appointed subsequently. Thus, in my opinion, his case is covered by proviso to Rule 4(1) of Annexure 4 and as by subsequent order he has not been appointed on higher post, he is entitled for counting his earlier service also for the purpose of grant of benefit under the scheme relating to A.C.P.

The writ application is, thus, allowed. The respondents are directed to issue fresh order of promotion of the petitioner under the Scheme relating to A.C.P. accordingly. As prayed by the learned Government Pleader No. IX, let a copy of this order be supplied to him.