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Judgment
Delay in filing the appeal is condoned.
I.A. No. 2173/2017 stands allowed and disposed of.
Substitution of legal heirs of respondent No. 3 is allowed. Let necessary corrections be made in the cause title.
I. A. No. 9272 of 2017 stands allowed and disposed of.
Seeking exception to an order dated 24.11.2016 passed by the learned Writ Court in CWJC No. 9071/2014, this appeal has been filed by the
appellants-State under Clause 10 of the Letters Patent.
Facts, in brief, necessary for decision on the appeal, are that the employees concerned were originally working in the Dairy Development
Corporation, a Corporation managed and controlled by the State of Bihar. However, the Corporation went into financial crisis and therefore, the entire
work of the Corporation was taken over by the Department of Animal Husbandry in the Government of Bihar and by a notification dated 7th March,
1986, Annexure-3 to the writ petition, the services of the respondents herein were absorbed and they became Government employees.
When their cases for grant of ACP/MACP under the ACP and MACP Rules were not considered, they represented and when the representation
was not properly decided, the matter came to this Court in the writ petition and before the Writ Court the question was as to whether the services
rendered by the employees in the erstwhile Corporation is to be counted for grant of benefit to them under the ACP and MACP Schemes. It was the
case of the Government before the Writ Court that the employees were appointed by the State Government after the Corporation was dissolved and
therefore the past service rendered by them in the Corporation cannot be counted. The Writ Court took note of all these aspects of the matter and in
paras 6 and 7 of the judgment considered the notification issue vide Annexure-3 on 7.3.1986, evaluated it and came to the conclusion that it is not a
case of appointment or induction to the service of the State Government after the Corporation was bound up, on the contrary, it was a case of
absorption of the services of the employees and therefore, once it was a case of absorption, the Writ Court allowed the writ petition.
Now, two new additional grounds are raised in support of the aforesaid contention. The first one, is that in the case of another employee, namely,
one Shri Anjani Kumar Sinha in CWJC No. 2 of 2013, in whose case similar issues were involved, another Bench of this Court on 4.3.2016 rejected
the contention of interpreting the provisions of the ACP and MACP Rules and held that the services rendered in the erstwhile Corporation or Public
Sector Undertaking cannot be counted.
Learned counsel invites our attention to the Bihar State Employees Service Condition (Assured Career Progression (ACP) Rules 2003 and Rule 10
and 22 of the Modified Assured Career Progression (MACP) Rules, 2010 to show that the services rendered in a Public Sector Undertaking or a
Government Corporation cannot be counted for the purpose of grant of benefits under the ACP and MACP Schemes. He further points out that in the
case of one Ram Bilas Thakur in CWJC No. 22355 of 2012 on remand of the matter by the Writ Court the matter was reconsidered by the
Department and on similar consideration the claim of said Ram Bilas Thakur was rejected and therefore, argued that the Writ Court has committed
grave error in allowing the writ petition.
We have considered the submissions made and we deem it appropriate to take note of the provisions of Assured Career Progression Rules, 2003
and Modified Assured Career Progression Rules, 2010. In the ACP Scheme of 2003 the provisions and eligibility conditions are contemplated under
Rules 3 and 4 sub rule (3) Explanation (3) which reads as under:
(iii)
।
Similarly, in the MACP Rules, 2010, Rules 10 and 22 reads as under:-
10.
।
22.
।
Rule 4 sub-rule (3) Explanation 3 thereof in the ACP Rules as reproduced hereinabove, indicates that if an employee of the Public Sector
Undertaking or Autonomous Body enters into regular service of the State Government, the period of service rendered from the date of his entry into
Government Service alone shall be counted for the purpose of sanction of financial progression under the Scheme. If the explanation part of this rule is
taken note of, it deals primarily with service rendered by an employee as a casual, daily wages, temporary, work charge or contingency paid
establishment and these eventualities that are indicated clearly show that the provision applies in the case of an employee who enters into the regular
service of the State Government meaning thereby that prior to entry into regular service of the State Government, he may not have been a regular
employee in the Autonomous Body or the Corporation that seems to be and is the only intention of the Rule maker. The provision is applicable only in
case where the employees were working in the Autonomous Body or the Corporation in any capacity other than regular service and their services
were taken up in the regular establishment by the State Government. On the contrary, if in a case the employee was already employed by the
Corporation or the Autonomous Body as a regular employee and then absorbed in Govt. service this rule will not apply. In this case all the employees
of the Corporation vide notification dated 7.3.1986 (Annexure-3) were absorbed in the services of the State. It is not a case of appointment,
regularization in service or inducting the employees into the service of the State Government afresh. It is a case of absorbing the services of the
employees who were already in regular service and as held in the case of Priya Ranjan Sharma Vs. The State of Bihar and others: 2010 (2) PLJR
357, the services rendered in the Corporation has to be counted for grant of pensionary benefits, thus treated as regular service. That being the
position, we see no reason why services of the regular employee in the Corporation should not be calculated for the grant of ACP and the rule in
question does not come in the way of the employees in claiming the benefits.
Similarly, if Rules 10 and 22 of the MACP Rule, 2010 are taken note of, it speaks about appointment in the State Government service of an
employee, who had been working in a school as a teacher or in any other Public Sector Undertaking or Autonomous Body. The rule speaks about
induction and appointment of the employees into the service of the State Government and does not refer to a case where the services of the
employees working in the Corporation is absorbed in the State Government on winding up or closing of the Corporation. The case in hand is one
where the State by its own notification dated 7.3.1986 thought it appropriate to absorb the services of the employees and after such absorption when
for getting the benefit of pension and post retiral benefits, the services rendered by them in the Corporation is counted, we are of the considered view
that there should not be any impediment in counting the same services for grant of ACP or MACP. The interpretation given by the State Government
in our considered view, will only apply in the case of appointment of employee in the State Government service after following the selection process or
after his lien is terminated in the Corporation or Autonomous Body. The respondents were regular employees in service of Corporation and not
appointed in regular cadre service of the State Government after selection or termination.
We are of the considered view that the Writ Court has not committed any error in passing the order, as from para-6 onwards by holding that in the
case of absorption the principle applicable in the case of appointment or fresh appointment will not apply. In our considered view it is correct
interpretation and the same need not be interfered with. Accordingly, we find that the Writ Court has not committed any error and further hold that the
Single Bench in the case of Anjani Kumar Sinha (supra) has not considered the law correctly and has not interpreted the ACP Rules, 2003 and
MACP Rules, 2010 in its right perspective. With due respect, we disagree with the observation of the Writ Court in that case.
With the aforesaid, the appeal, is dismissed.