The State Of Bihar & Ors vs Mahendra Baitha

The State of Bihar is aggrieved by the order and judgement, dated 25.04.2016, passed by the Learned Single Judge in C.W.J.C. No. 13975 of 2011.

Writ Application of the private-respondent, who wasthe petitioner, was allowed by the Learned Single Judge with a direction upon the State

authorities to grant benefit of A.C.P., despite the accepted position that the private-respondent had never passed the departmental examination.

The decision of the Learned Single Judge was basedon an observation made in the case of Avinash Chandra Singh v. the

State of Bihar & ors., reported in 2012 (1) P.L.J.R. 663. Portions of the said observation has been quoted in the order, which formed basis for

allowing the writ application.

The learned Additional Advocate General,representing the State of Bihar submits that the Learned Single Judge missed out the basic essence of the

adjudication and the reliance placed by him on Avinash Chandra Singh’s case (supra), has been quoted out of context and the real essence of the

dispute whether the benefit of A.C.P. could be granted to an employee, contrary to the Rules, laid down under Article 309 by the State of Bihar, is

permissible. Learned Additional Advocate General No. 4 drew the attention of this Court to rule 4, sub-rule (5) of the Bihar ACP Rules, 2003,

wherein certain conditions have been laid down before an employee can claim benefit under the A.C.P. Rules.

Further, attention of this Court has been drawntowards an order / judgement passed by a Division Bench of thisHon'ble Court in the case of Uday

Shankar Prasad v. The State of Bihar& Ors., reported in 2017 (3) PLJR 824. The Division Bench, whiledealing with sub-rule (5) of rule 4, has this to

say in paragraph 8 of the said judgement :

“4 ¼5½---- Ldhe ds v/khu osru mUu;u dh eatwjh dh fufgr v/;is{kk,¡ ,oa izksUufr ds fy, fofgr fd;s x;s gksaA ;fn fdlh izksUufr ds fy, foHkkxh; ijh{kk ikl djuk ;k dksbZ vU; vgZrk fofgr dh x;h gS rks Ldhe ds v/khu ykHk dh

eatwjh ds fy, Hkh og vfuok;Z 'krZ gksxh ;fn os “krZsa fu;ekoyh@ifji=ksa@ladYiksa ds v/khu fofgr dh x;h gksa %

ijUrq Ldhe ds v/khu foÙkh; mUu;u 12@24 o""kksZa dh lsok iw.kZ gksus ds ckn ns; gksxk vkSj blds fy, fu;fer izksUufr ds fy, fu/kkZfjr dkykof/k

dksbZ ck/kk ugh gksxhA

Li""Vhdj.k % ¼i½ fdlh fu;ekoyh esa dfri; Jsf.k;ksa ds dfeZ;ksa dks fu;fer izksUurh ds fy, lsok dh dkyof/k esa f kfFkyu ds izko/kku†varfo""V jgus

ij Hkh Ldhe ds v/khu fofÙk; mUu;u ds ykHk ds fy, fofgr ik=rk gsrq

12@24 Ok""kksZ dh dkykof/k esa dksbZ f’kfFkyu ugh nh tk;xhA

¼ii½ ;fn ljdkjh lsod dks vuq’kklfud dk;Zokgh vkfn ds pyrs ;k izksUufr ds ;ksX; ugh ik, tkus ds pyrs ,0lh0ih0 ;kstuk ds v/khu izFke fofÙk;

mUu;u dk ykHk Bhd 12 o""kZ ds ckn u nsdj foyac ls fn;k tkrk gSa rks , 0lh0ih0 ;kstuk ds v/khu nwljk foÙkh; mUu;u] izFke foÙkh; mUu;u dh

frFkh ls 12 o""kksZa ckn fn;k tk;xkA

A perusal of the aforesaid rules clearly stipulates that the prescribed requirement and mode of sanction of financial progression under the scheme

shall be the same which are prescribed under theRecruitment/Service Rule for regularpromotion against the vacancy. It is, therefore, clear that for

getting benefit under the scheme in question, an employee has to fulfill all the conditions stipulated in the Recruitment or the Service Rules which is

prescribed for regular promotion from the post held to the next higher post. Admittedly, in the case in hand, for further promotion from the post of

Compilation clerk to a higher post, no Service Rules are prescribed as there is no further avenue for promotion from post of Compilation clerk to any

other higher post. That being so, sub rule 5 of Rule 4 and its interpretation would clearly show that for grant of ACP from the post of Compilation

Clerk no rules of promotion or recruitment being prescribed, this rule will not apply, i.e. 4(5). Thus, there are no prescribed statutory rules for

recruitment or promotion from the post of compilation clerk to any other post. That apart, we find that the rules of 2003 are the rules framed under

Article 309 of the Constitution of India and there is no stipulation in these rules that the rules contemplated under the Bihar Board Miscellaneous

Rules, 1958 would be applicable for grant of ACP. That being the position, the contention of the respondents that the appellant is not entitled to the

benefit under the scheme, is wholly misconceived and while rejecting the claim of the appellant the learned Writ Court has not taken note of this

factual or legal aspect of the matter. On going through the judgment referred to by the State in the case of Kusheshwar Nath Pandey (supra), we find

that it was a case pertaining to grant of time bound promotion under a particular scheme and the said case was pertaining to promotion of a Tracer to

some higher post and is not applicable to this appellant.â€​

No doubt, the A.C.P. Rules, 2003 was enacted by theState of Bihar on a similar kind of policy adopted by the Central Government, where

employees, who had not had avenues of promotion, or, had not been granted benefit of promotion for a long period of time and stagnating on the same

post, the policy extended a helping hand to them. The sum essence of the policy is anti-stagnation measure and, therefore, the broad frame-work of

the policy, laid down in 2003 Rules, is that the person must have remained in his post without promotion for 12 years and thereafter another 12 years,

which makes it 24 years for grant of A.C.P. The benefit under the A.C.P. does not give any substantive promotion to an employee, but holding his

post, he is given the benefit of pay of the next higher post, even though his responsibility and nature of duty does not change.

Merely because certain time-frames have beenindicated in the broad policy in the Rules of 2003, merely passing of 12 years or 24 years is not going

to be enough to demand and beget the benefit of A.C.P. That broad parameters have been curtailed by sub-rule (5) of rule 4, where the Rule

contemplates that any employee claiming benefit of A.C.P. must fulfill all the requirements, which are needed for substantive promotion and if it

includes passing of certain departmental examination etc. it is integral to the same.

With due respect, since the Division Bench, whiledealing with the Avinash Chandra Singh’s case (supra) did not deal with the entirety of the

scheme of the A.C.P. Rules, 2003, therefore, passing reference or observation as to the object behind the A.C.P. Rule and distinction between

substantive promotion, cannot become the basis for a direction for grant benefit of A.C.P. on the ground that it basically is an anti-stagnation measure

and as if mere passing of 12 years or 24 years is good enough for an employee to demand and beget benefit of A.C.P.

To that extent the judgement passed in AvinashChandra Singh’s case (supra) is not a good law on the question of entitlement of A.C.P.,

especially when the said Division Bench has no occasion to deal with the 2003 Rules, while passing the said order. Therefore, that judgement cannot

be used for the purpose to demand and beget A.C.P. on the principle enunciated therein.

It is not that the dispute of such kind has arisenbefore this Court for the first time. Cases of such nature and demand by various employees, who

have not passed departmental examination, seeking some kind of benefit despite knowing fully well as to the requirements of the Rules, have been

trickling into the High Court from time to time. There has been occasions for different Benches to deal with the principle and the object behind grant

of A.C.P., including the requirements thereof. Attention of this Court has been drawn to one of the decisions of the Division Bench rendered in the

case of The State of Bihar & ors. v. Anjani Kumar, reported in 2013 (2) PLJR. The relevant paragraphs are paragraph 5, 6 and 7, which reads as

under:

“5. It is not in dispute that the promotion in question is governed by the Bihar Board’s Miscellaneous Rules, 1958. Rule 157 of the said Rules

provides for passing of the Departmental Accounts Examination, a condition precedent for further promotion. The writ petitioner had not passed the

Departmental Accounts Examination. He was, therefore, not eligible for promotion. Consequently he was not entitled to the financial progression

under Assured Career Progression.

Four years afterretirement from service in 2008, the writ petitioner approached this Court to claim exemption from passing the Departmental

Accounts Examination and consequential promotion relying on the Government Circular dated 15th May, 1992. The writ petitioner claims that the writ

petitioner had passed in two of the three papers, he was, therefore, entitled to exemption as envisaged by the aforesaid Circular dated 15th May, 1992.

The learned single Judge, having observed that the exemption was not a matter of right, has issued direction as if the writ petitioner has been granted

exemption. We may note here that at no point of time the petitioner had been granted exemption as recorded by the learned single Judge; nor is there

a concept of deemed exemption referred to by the learned single Judge. Besides, the most disturbing factor is that the aforesaid Rules of 1958 do not

provide for exemption from passing the Departmental Accounts Examination. In absence of any provision for exemption, no government servant could

have been exempted from passing the said examination; nor would a government servant be entitled to promotion on attaining the age of 50 years

without passing the Departmental Accounts Examination. The Circular dated 15th May, 1992 offends the very basic principle that the statutory rules

cannot be improved or modified or altered by an executive order, the statutory rules shall prevail. The circular dated 15th May, 1992, being contrary to

the statutory rules, cannot be enforced. The claim for exemption based on the said Circular dated 15th May, 1992 cannot be countenanced.

A Full Bench of thisCourt has, as early as in 2000, in the matter of Maheshwar Prasad Singh vs. The State of Bihar and Ors. [2004(4) PLJR 262],

enunciated the said principle to hold that the government cannot amend, modify or supersede the statutory rules by administrative instructions. The

judgement in the matter of Dinesh Narayan Mishra (supra) is per incuriam the above refereed judgement in the matter of Maheshwar Prasad

Singh.â€​

This Court does not want to burden this order byrelying on one too many decisions on the principle and requirements in relation to grant of benefit

of A.C.P.. Let it be clarified that if a claim is made by any employee as to his entitlement under the A.C.P. Rules, such claim will have to be

considered in the entirety of the scheme of the Rule and not on the mere object behind the Rules. Since the conditions laid down in sub-rule (5) of rule

4 of the 2003 A.C.P. Rules are integral to the Rules, which has been notified under Article 309 of the Constitution of India, therefore, the Rule cannot

be truncated and directions cannot be issued for grant of benefit of A.C.P., merely because of passage of time, ignoring what is otherwise a must, in

terms of fulfilling the eligibility.

These grounds, therefore, are good grounds for thisCourt to set aside the impugned order, dated 25.04.2016, passed by the Learned Single Judge.

The impugned order stands quashed. The appeal is allowed.

It is made clear that the issue of recovery has not been dealt with by us, as that was not even the issue before the Learned Single Judge.