The State Of Jharkhand vs Sami-Ur Rahman @ S. Rahman
2021 Latest Caselaw 4970 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
               L.P.A. No. 354 of 2018

1. The State of Jharkhand
2. The Commissioner, Singhbhum (Kolhan) Division, Chaibasa
   officiating from Chaibasa, Post - Chaibasa, Police Station -
   Chaibasa, Dist.- West Singhbhum
3. The Secretary to the Commissioner, Singhbhum (Kolhan) Division,
   Chaibasa officiating from Chaibasa, Post - Chaibasa, Police
   Station - Chaibasa, Dist.- West Singhbhum
4. The Superintending Engineer, Rural Engineering Organization,
   Works Circle, Chaibasa, officiating from Chaibasa, P.O.-
   Chaibasa, P.S. - Chaibasa, Dist.- West Singhbhum
5. The Executive Engineer, Rural Engineering Organization, Works
   Division, Jamshedpur officiating from Jamshedpur, Post- Tata
   Nagar, Police Station- Parsudih, Dist.- East Singhbhum
                                       ..............    Respondents/Appellants
                              -Versus-
1. Sami-Ur Rahman @ S. Rahman, Son of Late Matiur Rahman,
   residing at REO Colony, Khas Mahal, Jamshedpur, Post- Tata
   Nagar, Police Station Parsudih, Dist. East Singhbhum.
                                        .............. Writ Petitioner/Respondent
2. The Accountant General, Jharkhand, Ranchi, Officiating from the
   Office of the Accountant General, Post- Doranda, P.S.- Doranda,
   Dist. Ranchi
                   .............. Proforma Respondent No.6/Respondent
3. The State of Bihar, through its Principal Secretary, Department of
   General Administrative Department, Govt. of Bihar, Office at Old
   Secretariat, Patna, Bihar
                                                             .............. Respondent
                              ---------
CORAM:                    HON'BLE THE CHIEF JUSTICE
              HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                              ---------
For the Appellants:           Mrs. Darshana Poddar Mishra, Addl. A.G.-I
For Resp. No.1:               Ms. Khalida Haya Rashmi, Advocate
For Resp. No.2:               Mr. Rupesh Singh, Advocate
For Resp. No.3:               Mr. S.P. Roy, G.A.-Bihar
                              ---------
Reserved on: 16.08.2021                          Pronounced on: 22 /12/2021

Per Sujit Narayan Prasad, J.

1) Matter has been heard through video conferencing and there is

no complaint whatsoever regarding audio and/or video quality.

2) This intra-court appeal filed by the State-appellants under

Clause 10 of the Letters Patent is directed against the judgment and

order dated 08.11.2017 passed by the learned Single Judge of this

Court in W.P. (S) No.3492 of 2016, whereby the decision of the

authority as contained in Office Order No.75 dated 09.02.2016 by

which the benefits of upgradation of 1st and 2nd Assured Career

Progression Schemes granted on 09.08.1999 and 10.03.2004 have

been cancelled, has been quashed and set aside with a direction to

pay the benefits of 1st and 2nd Assured Career Progression Schemes

in accordance with law with a further direction that if the writ petitioner

is found entitled to the 3rd MACP, the same shall also be considered

and granted to him in accordance with law within a period of six weeks

from the date of receipt/production of a copy of the order.

3) The brief facts of the case, which are required to be narrated,

are as under: -

The writ petitioner has joined as Correspondence Clerk on

10.03.1980 in the Works Division, Jamshedpur of the then Rural

Development Department (now Rural Development Department/Rural

Works Affairance). The writ petitioner has never been granted any

regular promotion, however, was granted the benefit of 1st Time

Bound Promotion on completion of 10 years of successful service, but

the same was withdrawn without prior information to the writ petitioner

in pursuance of Resolution No. 660 dated 08.02.1999 implemented

with effect from 1996. Even though the writ petitioner was entitled to

get the benefit of upgradation of pay scale vide resolution dated

14.08.2002 under which the scheme under the Assured Career

Progression Scheme has been floated which stipulates to grant of

upgradation of pay scale after completion of 12 years of service and

another on completion of 24 years of service. The concerned

competent authority, however, had constituted a Screening Committee

meeting of which was held on 01.12.2006 in which the writ petitioner

has been found eligible for the 1st and 2nd upgradation of pay scales

under the Assured Career Progression Scheme with effect from

09.08.1989 and 10.03.2004 i.e. on completion of 12/24 years of

service vide Office Order as contained in Memo No. 401 dated

05.12.2006 in which the name of the writ petitioner appeared at serial

No.1. The aforesaid decision of the benefits has also been approved

by the Divisional Commissioner.

The appellant No.4 herein vide Office Order No. 04 dated

09.02.2016 has cancelled the upgradation of pay scale under the 1st

Assured Career Progression Scheme granted with effect from

09.08.1999 and the 2nd upgradation of pay scale granted with effect

from 10.03.2004, against which the writ petitioner has approached this

Court by filing the present writ petition being W.P. (S) No.3492 of 2016

wherein the following grounds have been agitated -

(i) No departmental examination has ever been conducted by the

Works Division, while as per the decision of the Parent

Department, all the departmental examinations of the Clerks of

the Works Division will be conducted by the Works Department

and not by the Revenue Department as has been circulated

vide Circular dated 09.05.1991 and, therefore, even if the

departmental examination has been conducted by the Revenue

Department, it makes no difference since the writ petitioner has

not passed the departmental examination and as such, the

benefit of upgradation of pay scale will be held admissible as

because it is up to the Works Department to conduct the

examination in which the writ petitioner being an employee was

required to appear, but not in a departmental examination

conducted by the Revenue Department.

(ii) In the similar circumstances, the similarly situated employees of

the Department, namely Saryug Prasad in W.P. (S) No. 5579 of

2010 which was allowed vide order dated 06.01.2011 wherein

order of recovery was passed and in another writ petition

bearing W.P. (S) No. 3274 of 2014, the similar order has been

passed, then why this discrimination.

Learned Single Judge, after considering the aforesaid grounds,

has allowed the writ petition which is the subject matter of the present

Letters Patent Appeal.

4) Heard the learned counsels appearing for the perused and

perused the records as well as the written submissions filed by the

respective parties.

5) Mrs. Darshana Poddar Mishra, learned Addl. Advocate General-

I appearing on behalf of the appellants-State, has submitted that

passing of departmental examination is mandatory as per the

provision as stipulated under Rule 157(3)(J) of the Bihar Board's

Miscellaneous Rules, 1958 which has been clarified even by the Full

Bench in Maheshwar Prasad Singh vs. State of Bihar, 2000 (4)

PLJR 262 (FB), but admittedly the writ petitioner has not been passed

departmental examination on the date when the upgradation in the

pay scale has been granted under the Assured Career Progression

Scheme, however, such benefit has been granted from the date when

the writ petitioner has passed the departmental examination i.e. since

the year 2013. She has further submitted that the order passed by

another learned Single Judge of this Court in the cases of Saryug

Prasad and Kanu Kachhap cannot be held to be a good law taking

into consideration the law laid down in this regard by the Full bench of

the Patna High Court in Maheshwar Prasad Singh's case (supra).

She has further submitted that even the Works Department has also

conducted the examination simultaneously with the Revenue

Department of the State, but the learned Single Judge without

considering this aspect of the matter, more particularly, without

considering the provision of Rule 157(3)(J) of the Bihar Board's

Miscellaneous Rules, 1958 and the judgment rendered by the Full

Bench of the Patna high Court in Maheshwar Prasad Singh's case

(supra), has quashed the decision of the administrative authority

which cannot be said to be tenable in the eyes of law.

6) Per contra, Ms. Khalida Haya Rashmi, leaned counsel

appearing for the respondent-writ petitioner, defending the order

passed by the learned Single Judge, has submitted that there cannot

be any pick & choose policy and that too when in the similar

circumstances another learned Single Judge of this Court has passed

an order for grant of benefit of upgradation of pay scale even in the

case where the concerned employee has not passed the departmental

examination. The same decision ought to have been taken by the

State-appellants in the case of the writ petitioner also, but having not

done so, gross illegality has been committed and, thereby, the learned

Single Judge has quashed the impugned decision.

She further submitted that no departmental examination has

been conducted by the Works Division and whatever reference of

conducting of examination has been given by the State authorities,

that is by the Revenue Department of the State Government and since

the writ petitioner is working under the Works Department, therefore,

being the appointing authority, the Works Department ought to have

conducted the examination and since no examination has been

conducted by the Works Department, therefore, for the laches caused

by the concerned State authorities, the writ petitioner cannot be held

accountable. Hence, the order passed by the learned Single Judge

does not suffer from any illegality and hence, the instant Letters

Patent Appeal may be dismissed.

7) This Court, before appreciating the argument advanced by the

learned counsel appearing for the State as well as the writ petitioner,

requires to clarify about the conducting of examination by the

Revenue Department or the Works Department to consider the

submission to the effect that if no departmental examination has been

conducted, can the concerned employee be made accountable by

depriving the benefit of upgradation of pay scale under the Assured

Career Progression Scheme.

This Court, therefore, has impleaded the State of Bihar as

party to the proceedings and a copy has been directed to be served

upon the Retainer Counsel of the State of Bihar, namely, Sri S.P. Roy

with a direction to seek instruction from the competent authority of the

State of Bihar as would be evident from the order dated 08.02.2021

passed in this appeal. In pursuance to the aforesaid order, an affidavit

has been filed by the State of Bihar on 22.04.2021 stating inter alia

therein that the departmental examinations have been conducted in

the years 1972 to 2012 by the Board of Revenue. Besides the above,

the Water Resources Department, Government of Bihar, has

conducted the departmental examination on different dates. This

Court for appreciating this issue find it fit and proper to refer the

different dates on which the departmental examination was conducted

as under -

(i) From the year 1972 to 2012, the Board of Revenue had

conducted the departmental examination on the following

dates-

S.N. Date of Convening Examination

1. 25 and 26 June, 1972

2. 09 and 10 September, 1973

3. 29 and 30 September, 1974

4. 11 and 12 May, 1975

5. 16 and 17 November, 1975

6. 23 and 24 May, 1976

7. 29 and 30 December, 1976

8. 26 and 27 June, 1977

9. 17 and 18 December, 1977

10. 23 and 24 July, 1978

11. 27 and 28 December, 1978

12. 29 and 30 July, 1979

13. 24 and 25 February, 1980

14. 14 and 15 December, 1980

15. 12 and 13 July, 1981

16. 10 and 11 January, 1982

17. 08 and 09 August, 1982

18. 16 and 17 January, 1983

19. 03 and 04 July, 1983

20. 18 and 19 December, 1983

21. 10 and 11 June, 1984

22. 13 and 14 January, 1985

23. 14 and 15 July, 1985

24. 09 and 10 February, 1986

25. 04 and 05 January, 1987

26. 07 and 08 February, 1988

27. 23 and 24 April, 1989

28. 28 and 29 October, 1990

29. 03 and 04 November, 1991

30. 22 and 23 November, 1992

31. 09 and 10 October, 1993

32. 29 and 30 October, 1994

33. 28 and 29 January, 1996

34. 08 and 09 June, 1997

35. 05 and 06 September, 1998

36. 30 and 31 July, 1999

37. 16 and 17 September, 2000

38. 03 and 04 March, 2002

39. 20 and 21 March, 2004

40. 28 and 29 April, 2005

41. 09 and 10 December, 2005

42. 24 and 25 November, 2006

43. 11 and 12 October, 2007

44. 02 and 03 July, 2008

45. 15 and 16 January, 2010

46. 28 and 29 August, 2010

47. 30 and 31 December, 2010

48. 27 and 28 August, 2011

49. 26 and 27 May, 2012

50. 24 and 25 March, 2013

51. 22 and 23 February, 2014

52. 11 and 12 April, 2015

53. 18 and 19 June, 2016

54. 22 and 23 June, 2017

(ii) This besides, the Water Resources Department, Government

of Bihar had conducted the departmental examination on the

following dates-

S.N. Date of Convening Examination

1. 12 and 13 February, 1994

2. 11 and 12 November, 1995

3. 28 and 29 July, 1996

4. 12 and 13 July, 1997

5. 08 and 09 November, 1998

6. 15 and 16 January, 2000

7. 10 and 11 March, 2002

Thus, it is evident that the departmental examination has

been conducted even by the Water Resources Department on

different dates prior to bifurcation of the State.

Therefore, this Court is of the view that whatever has

been stated by the learned counsel appearing for the appellants that

no departmental examination has been conducted by the Water

Resources Department is incorrect.

8) With regard to the Second issue, which has been raised by the

learned counsel appearing for the writ petitioner by taking a reference

of the two orders passed by other learned Single Judges of this Court

being W.P. (S) No. 5579 of 2010 and W.P. (S) No. 3274 of 2014, this

Court, on its perusal, finds that that the learned Single Judges have

gone into the question of conducting of the departmental

examinations, but, since we have clarified the issue on fact from the

affidavit given in this regard by the State Government through its

General Administrative Department dated 22.04.2021 wherefrom it is

evident that the Water Resources Department has conducted the

examination and, therefore, on these facts, the judgments rendered by

other learned Single Judges of this Court in W.P. (S) No. 5579 of 2010

and W.P. (S) No. 3274 of 2014 are not applicable in the facts of this

case.

The said judgments are also not applicable on the ground

of provision of Rule 157(3)(J) of the Bihar Board's Miscellaneous

Rules, 1958, which reads as under: -

"(J)(a) Any clerk, who has not passed the preliminary examination in Accounts, will be neither confirmed nor be allowed to cross the efficiency bar;

(b) Any clerk, who has not passed the final examination, will not be promoted to the Selection grade;

(c) In case of non-availability of senior clerk, finally passed in Accounts Examination, any junior clerk, having passed the final Accounts Examination may be temporarily promoted to the Selection Grade;

Provided that the junior clerk temporarily promoted to the Selection grade shall be reverted to the post of clerk if the clerk senior to him passes the final Accounts examination within two years from the date of his first supersession and is promoted with effect from any date within the said two years, otherwise the senior clerk would be treated junior to all the clerks promoted to the Selection grade prior to him."

Thus, it prescribes passing of the Accounts Examination

for the purpose of promotion to the selection grade.

The aforesaid provision has fell for consideration in Md.

Samsuddin Vs. State of Bihar, 1983 PLJR 347, but this judgment

also fell for consideration before the Larger Bench of the Patna High

Court in Maheshwar Prasad Singh vs. State of Bihar, 2000 (4)

PLJR 262 (FB) wherein it has been laid down that clerks of the

Muffasil offices could/can not be promoted to the selection grade

posts without passing final examination in Accounts except during the

period 01.05.1980 and 29.03.1982. The aforesaid judgment admittedly

has not been brought to the notice either before the learned Single

Judges who had passed the judgment in W.P. (S) No.5579 of 2010

and W.P. (S) No.3274 of 2014 or before the learned Single Judge of

this case, otherwise, such orders could not have been passed.

9) It is settled position of law that the order passed by the Larger

Bench binds the Single Benches as also the Division Benches.

Reference is made in this regard to the judgment rendered in

Official Liquidator vs. Dayanand and Ors., (2008) 10 SCC 1,

paragraphs-84, 86 & 88 which read as under:-

"84. In State of Bihar vs. Kalika Kuer, the Court elaborately considered the principle of per incuriam and held that the earlier judgment by a larger Bench cannot be ignored by invoking the principle of per incuriam and the only course open to the coordinate or smaller Bench is to make a request for reference to the larger Bench.

86. In Central Board of Dwaoodi Bohra Community vs. State of Maharashtra, the Constitution Bench interpreted Article 141, referred to various earlier judgments including Bharat Petroleum Corpn. Ltd. vs. Mumbai Shramik Sangha and Pradip Chandra Parija vs. Pramod Chandra Patnaik and held that "the law laid down in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength and it would be inappropriate if a Division Bench of two Judges starts overruling the decisions of Division Benches of three Judges. The Court further held that such a practice would be detrimental not only to the rule of discipline and the doctrine of binding precedents but it will also lead to inconsistency in decisions on the point of law; consistency and certainty in the development of law and its contemporary status - both would be immediate casualty (Central Board of Dawoodi Bohra Community case, SCC p. 682, paras 12 & 10).

88. In U.P. Gram Panchayat Adhikari Sangh vs. Daya Ram Saroj, the Court noted that by ignoring the earlier decision of a

coordinate Bench, a Division Bench of the High Court directed that part-time tube-well operators should be treated as permanent employees with same service conditions as far as possible and observed:

"26. Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity."

10) As the Full Bench of the Patna High Court in Maheshwar

Prasad Singh's case (supra) has laid down a rule of passing the

departmental examination mandatory, there cannot be any relaxation

in grant of upgradation in the pay scale. However, matter would have

been different if the examination would not have been conducted by

the concerned authority and in such circumstances, such employee

would not have been made to suffer, but that is not the case herein as

would be evident from the detailed table as referred herein above that

the Water Resources Department has conducted the examination, but

the writ petitioner has chosen not to appear in the aforesaid

departmental examination, however, he has appeared in the

departmental examination held in the year 2013 from which date the

benefit of upgradation of pay scale has been granted.

11) Thus, it is evident that the proposition has been laid down that

the judgment passed by a Bench of larger strength is binding on any

Bench of lesser strength. Herein the judgment rendered by the Patna

High Court in Maheshwar Prasad Singh's case (supra) in this

context has not been relied upon by the learned Single Judge of this

Court while passing the impugned judgment or even has not been

relied upon in the orders passed by the other learned Single Judges

basing upon which the order impugned has been passed which is the

subject matter of the instant intra-court appeal.

12) This Court, therefore, is of the view that the learned Single

Judge has committed gross error in moving away from the ratio

decided by the Full Bench in Maheshwar Prasad Singh's case

(supra) and as such, the order passed by the learned Single Judge is

held to be not sustainable in the eyes of law. Accordingly, the same is

quashed and set aside.

13) Before parting with the order, it is required to refer herein that

the writ petitioner at the moment is getting the pay scale under the 7th

Pay Revision as also he has been granted benefits of 1st and 2nd

upgradation of pay scales from the date on which he has passed the

departmental examination and as such, the writ petitioner shall

continue to get the same.

14) With the aforesaid observations and directions, the instant

Letters Patent Appeal is allowed and the writ petition stands

dismissed.

(Dr. Ravi Ranjan, C.J.) I agree.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Manoj/

A.F.R.