[Cites 8, Cited by 0]
Jharkhand High Court
Krishna Nandan Singh vs The State Of Jharkhand on 28 November, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No.473 of 2017
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Krishna Nandan Singh, son of late Gauri Shankar Prasad Singh, R/o
Jagannath Basant, PO & PS Lalganj, District Vaishali, presently, residing
at: Lalkothi, Chakkar Road Mohalla- Rasulpur Gilani, PO & PS
Kazimohammadpur, District Muzaffarpur, State-Bihar.
... ... Appellant
Versus
1. The State of Jharkhand
2. Commissioner of Excise, Jharkhand Ranchi, PO: GPO, PS: Kotwali,
District: Ranchi.
3. Joint Secretary, Department of Personnel Administrative Reforms and
Rajbhasha, Government of Jharkhand having his office at: Project
Bhawan, Dhurwa, PO Project Bhawan, Dhurwa, PS: Dhurwa, District
Ranchi.
4. Assistant Commissioner, Excise, PO and PS Dhanbad, District
Dhanbad. ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant(s) : Mr. Samavesh Bhanj Deo, Advocate;
Mr. Raj, Advocate
For the Respondent(s): Mr. Rajiv Ranjan, Advocate General;
Mr. Prabhat Kumar, SC-II;
Mr. Shray Mishra, AC to AG;
Mr. Karan Shah Deo, AC to SC-II
------
CAV On: 11.11.2025 PRONOUNCED ON: 28.11.2025
[Per Se: Sujit Narayan Prasad J.]
1. The present appeal has been filed under Clause-10 of the Letters Patent
against the order dated 06.04.2017 passed by the learned Single Judge
of this Court in W.P.(S) No. 1934 of 2014, whereby and whereunder,
the learned Single Judge has been pleased to dismiss the writ petition
filed by the petitioner-appellant herein.
Factual Matrix
2. The brief facts of the case as per the pleadings made in the writ petition
needs to refer herein which reads as under:
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(I) The petitioner was appointed on the post of Excise Sub-Inspector
on temporary basis on 17.1.1973. The petitioner appeared in the
second half yearly departmental examination held in the year
1973 and passed the said examination. Thereafter, he has
appeared in the first half yearly departmental examination held
in June, 1974 and also passed the said examination.
(II) Then the petitioner appeared in the Hindi Upper-Level
Examination but he could not pass the same and therefore, on
crossing age of 50 years, he submitted an application for
exempting him from the requirement of passing the said Hindi
and Upper-Level Departmental Examination in accordance with
Government Circular/letter no. 11691 dated 09.11.1983 issued
by the Personnel and Administrative Reforms Department,
Bihar, Patna.
(III) By an order issued by the Excise Commissioner-cum-Secretary,
Jharkhand, Ranchi communicated vide memo no. 823 dated
20.06.2007, the petitioner along with other employees of the
Excise Department, Government of Jharkhand granted the 2 nd
Assured Career Progression financial upgradation (2nd Assured
Career Progression on recommendation of the Departmental
Screening Committee and in light of the provisions contained in
government resolution dated 14.08.2002 of Finance Department,
Government of Jharkhand with effect from 09.08.1999 in higher
pay scale of Rs. 6500-10500/-, the actual monetary benefit of
which was payable from 15.11.2000.
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(IV) In light of the aforesaid order granting 2nd Assured Career
Progression to the petitioner, the petitioner's pay was fixed in the
higher pay scale of Rs. 6500-200-10500 with effect from
09.08.1999 and increment of pay sanctioned/allowed by the
Superintendent Excise Palamau-cum-Garhwa-cum-Latehar and
the petitioner's pay was fixed at Rs.9700, as on 09.08.2007. The
petitioner has been granted the revised pay band, grade pay with
effect from 01.01.2006. Pursuant to re-organisation of the
erstwhile State of Bihar, the services of the petitioner was
allocated to newly created State of Jharkhand in the Jharkhand
State Cadre and petitioner gave joining in Palamau District on
08.08.2006. Thereafter, service of the petitioner was transferred
to Assistant Commissioner, Dhanbad where the petitioner joined
on 09.01.2008. The petitioner whose date of birth is 01.07.1948
retired from the services of the State on 30.06.2008 on attaining
the age of superannuation.
(V) The pension payment order no. 200914091753 of petitioner
issued by the Accountant General (A&E), Bihar, Patna and the
contains the service particulars etc. of the petitioner and from the
office of the Accountant General (A&E), Jharkhand, authority
for pension DCRG, CVP and family pension in favour of the
petitioner issued vide letter dated 17.03.2009 and the same sent
to the Accountant General (A&E), Bihar, Patna since the
petitioner opted for getting pension from Muzaffarpur Treasury
and, accordingly, thereafter from the office of the Accountant
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General (A&E), Bihar, Patna the Treasury Officer, Muzaffarpur
was requested to make arrangement for payment of commuted
value of pension, monthly pension to the petitioner.
(VI) The petitioner was allowed first time bound promotion with
effect from 17.01.1983 therefore the cancellation of 2 nd time
bound promotion is not legal because respondent cannot canvass
the plea that petitioner is not eligible for 2nd A.C.P. on account of
grant of 2nd Assured Career Progression, the petitioner's pay fixed
in pay scale of Rs.6500-200-10500 with effect from 09.08.1999
and entry to the said effect made in the petitioner's service book.
However, after about two years from the date of petitioner's
retirement, an order issued by the Commissioner, Excise
Jharkhand, Ranchi cancelling the 2nd Assured Career Progression
granted to the petitioner vide memo no. 1/Ni.Wo.astha.-40-
4/2009-1114 dated 15.06.2010 and by the said order, the 2 nd
Assured Career Progression granted to the petitioner during his
service tenure with effect from 09.08.1999 has been cancelled.
3. Being aggrieved, by order dated 15.06.2010 whereby 2nd ACP granted
to the petitioner has been cancelled, the petitioner has preferred a writ
petition being W.P.(C) No. 1934 of 2014 but the same was dismissed
by the learned writ court by observing that the petitioner who could not
pass the Final Level Departmental Examination and was not granted
exemption, was not eligible and to these facts the petitioner cannot
feign ignorance. The learned Single Judge has further observed that in
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the aforesaid facts, the decision in Rafiq Masih does not help the
petitioner.
4. Hence the present appeal.
5. It is evident that on 17.01.1973 the petitioner was appointed in the
services of the State on the post of Excise Sub-Inspector. In the year
1973 and 1974 the petitioner appeared in the 1 st and 2nd half yearly
departmental examination and passed both the examinations. The
petitioner appeared in the Hindi Upper-Level Examination but could
not pass the same. Thereafter the petitioner, on crossing the age of 50
years, submitted an application to the Department for exemption from
the requirement of passing of the said Hindi Upper-Level Examination
in accordance with Government Circular/ Letter No. 11691 dated
09.11.1983 issued by the Personnel and Administrative Reforms
Department, Bihar, Patna. On 20.06.2007 petitioner granted 2nd ACP
with effect from 09.08.1999 in higher pay scale of Rs. 6500-10,500/-.
6. The petitioner retired from service on 30.06.2008 while being posted
as Assistant Commissioner Excise, Dhanbad. However, after about two
years from the date of petitioner's retirement, an order issued by the
Commissioner, Excise Jharkhand, Ranchi cancelling the 2 nd Assured
Career Progression granted to the petitioner vide memo no.
1/Ni.Wo.astha.-40-4/2009-1114 dated 15.06.2010 and by the said
order, the 2nd Assured Career Progression granted to the petitioner
during his service tenure with effect from 09.08.1999 has been
cancelled.
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7. Being aggrieved, by order dated 15.06.2010 whereby 2nd ACP granted
to the petitioner has been cancelled, the petitioner has preferred a writ
petition being W.P.(C) No. 1934 of 2014 but the same was dismissed
by the learned writ court by observing that the petitioner who could not
pass the Final Level Departmental Examination and was not granted
exemption, was not eligible and to these facts the petitioner cannot
feign ignorance. The learned Single Judge has further observed that in
the aforesaid facts, the decision in Rafiq Masih does not help the
petitioner. Against the said order the present appeal has been preferred.
Arguments advanced on behalf of the appellant/writ petitioner:
8. The learned counsel for the appellant has taken the following grounds:
(i) It is submitted that the learned Single Judge has failed to
appreciate that the petitioner attained the age of 50 years and was
eligible to be considered for exemption from passing the Hindi
High Level Examination. It is also submitted that in terms of 1983
circular, there was no need to submit any application seeking
exemption and it was for the respondent to consider the same on
its own.
(ii) The petitioner has further submitted that the application for
exemption was submitted by him, however, this fact was denied
by the respondents, but the learned Single Judge did not consider
that even if the statements of the respondents are accepted to be
true, it will not disentitle the petitioner from getting exemption
from passing the said examination.
(iii)Further, it has been submitted that the impugned order cancelling
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and revoking the earlier order granting benefit of 2nd ACP to the
petitioner was passed in violation of the principles of natural
justice and is also in violation of the judgment of this court as no
notice was issued to the petitioner to allow him to avail the right
of hearing.
(iv) It has been submitted that the learned Single Judge has failed to
appreciate that the judgment of the Hon'ble Apex Court in the case
of State of Punjab vs. Rafiq Masih, (2015)4 SCC 334, in the right
perspective is fully applicable in the facts and circumstances of the
present case.
(v) Learned counsel for the appellant has further relied upon the
judgment passed by the Hon'ble Apex court in case of Amresh
Kumar Singh and others vs.State of Bihar and others reported
in 2023 SCC OnLine SC 496, wherein the same issue has been
considered and the Hon'ble Apex Court has come up with a view
that since the up-gradation in the pay-scale is not regular
promotion rather it is up-gradation in situ promotion and, as such,
there is no requirement to pass the said examination.
(vi) The learned counsel for the appellant based upon the aforesaid
grounds has submitted that the impugned judgment passed by the
learned Single Judge, therefore, suffers from an error and, hence,
it is fit to be quashed and set-aside.
Arguments advanced on behalf of the Respondents:
9. The learned counsel for the respondents has taken the following
grounds:
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(i) On 17.01.1973 the petitioner was appointed in the services of the
State on the post of Excise Sub-Inspector. In the year 1973 and
1974 the petitioner appeared in the 1st and 2nd half yearly
departmental examination and passed both the examinations. The
petitioner appeared in the Hindi Upper-Level Examination but
could not pass the same.
(ii) Thereafter, the petitioner alleges that on crossing the age of 50
years the petitioner submitted an application to the Department
for exemption from the requirement of passing of the said Hindi
Upper-Level Examination in accordance with Government
Circular/ Letter No. 11691 dated 09.11.1983 issued by the
Personnel and Administrative Reforms Department, Bihar,
Patna.
(iii)The petitioner did not fulfil the criteria as mentioned in the above
mentioned Government Circular/Letter as the circular states at
Clause 3 that only those candidates who on the successive
attempts have failed to pass the examination or on account of
official duty could not appear in the examination can be granted
exemption and also it was not mandatory for the Department to
grant exemption to every employee who could not pass the said
examination.
(iv) The decision regarding granting or not granting exemption is to
be decided by the Department.
(v) It is important to mention here that no application regarding
exemption for the said examination has ever been received by the
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Department from the petitioner and neither the petitioner has
annexed a copy of the said exemption application along with the
writ petition.
(vi) Learned counsel has relied on the following judgments-
(a) P. Suseela and others vs. University Grants Commission and others
reported in (2015) 8 SCC 129
(b) Saurabh Chaudri (Dr.) and others vs. Union of India and others
reported in (2004)5 SCC 618
(c) M.A. Murthy v. State of Karnataka reported in (2003) 7 SCC 517
Analysis:
10. Heard the learned counsel appearing for the parties and gone through
the materials available on records.
11.The following issues require consideration in the present case:
(i) Whether passing of the departmental examination is necessary
for the purpose of grant of upgradation either under ACP/MACP.
(ii) Whether the judgment passed by the Hon'ble Apex Court in the
case of Amresh Kumar Singh and others vs.State of Bihar and
others (supra) is applicable in the facts of the present case.
(iii) Whether the judgment passed by the Hon'ble Apex Court in case
of Amresh Kumar Singh and others vs.State of Bihar and
others will have prospective overruling.
(iv) Whether issue of the present case is coming under the fold of the
settled issue so that the judgment passed by the Hon'ble Apex
Court in the case of Amresh Kumar Singh and others vs. State
of Bihar and others is not to be made applicable.
12. Since all the aforesaid issues are inextricably co-related and, as such,
all are being taken up together but before considering the issues this
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court needs to point out certain admitted facts.
13.It is the admitted case of the petitioner that he has joined the services
on 17.01.1973 on the post of Sub-Inspector in Excise Department of
the State. The petitioner claims for upgradation under the MACP
Scheme seeking the pay-scale attached to the post of Superintendent,
the next hierarchical post to the post of inspector as per the cadre in the
Excise Department of the State. The petitioner has made
representation but the same has not been positively decided and, as
such, he has approached this court by filing WP(S) No. 1934 of 2014.
14.The State has made serious objection raising ground that the writ
petitioner has not passed the Hindi Upper-Level Examination which is
required to hold the post of Superintendent. It has also been pointed
out, as has been taken note by the learned single judge in the impugned
judgment that the petitioner has not been exempted in view of the
circular dated 09.11.1983. The learned Single Judge while accepting
the view of the State has dismissed the writ petition.
15.The writ petitioner, in course of argument, has relied upon the
judgment passed by the Hon'ble Apex Court in the case of Amresh
Kumar Singh and others vs.State of Bihar and others reported in
2023 SCC OnLine SC 496 wherein exactly the same issue has been
considered and the Hon'ble Apex Court has come up with a view that
since the upgradation in the pay-scale is not regular promotion rather
it is upgradation in situ promotion and, as such, there is no requirement
to pass the said examination.
16.The relevant paragraphs need to refer herein which reads as under:
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"15. In sum and substance, both ACP and MACP Schemes
are schemes devised with the object of ensuring that the
employees who are unable to avail of adequate promotional
opportunities, get some relief in the form of financial
benefits. Accordingly, the schemes provide for regular
financial upgradation on completion of 12-24 years and 10-
20-30 years of service without promotion. They are incentive
schemes for the employees who complete a particular period
of service but without getting promotion for lack of
promotional avenues. The effect of the schemes must be
judged keeping in view the object and the purport of the
scheme.
16. In Union of India v. G. Ranjanna reported in (2008) 14
SCC 721, the three-Judges Bench of this Court held that in
situ promotions are made to remove stagnation of grade C
and grade D employees by giving them certain monetary
benefits.
17. It was further observed that fulfilment of educational
qualifications prescribed under the recruitment rules for the
purposes of promotion are not necessary for non-
functional in situ promotion. In other words, educational
qualification required for the purposes of promotion is not
necessary for the grant of in situ promotion, i.e., only for
extending the monetary benefit where there are no
promotional avenues and the employees are likely to be
stagnated.
18. In the aforesaid case, the employees were working as
malis (Gardeners) and had claimed promotion in the higher
pay scale. The Central Administrative Tribunal seized of the
original applications observed that the employees cannot
claim the scale of the next higher post by way of in
situ promotion. On the matter being taken to the High Court
by way of a writ petition, the contention of the employees was
accepted and it was observed that the object of in
situ promotion on non-functional posts, is to ensure that the
group C and D employees are not stagnated in the same
cadre/pay scale and that they should be provided with certain
monetary benefits. Therefore, the rejection of the claim for
such nonfunctional in situ promotion on the ground that the
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employees do not possess the necessary minimum
qualification of matriculation as per the rules is not justified
and renders the order erroneous in law. The view so taken by
the Division Bench of the High Court was affirmed by this
Court in the above referred Civil Appeals holding that the
High Court has correctly analysed the object of the in
situ promotion and fixation of pay scales to Group C and D
employees to avoid stagnation.
19. In view of the aforesaid legal position coupled with the
fact that the qualification of graduation prescribed is for the
promotion to the post of Accounts Officer rather than for the
grant of in situ promotion on the non-functional post or for
extending the benefit of ACP which is purely and simply in
the nature of grant of monetary benefit without actually
effectuating any promotion to any higher post, we are of the
opinion that the judgment and order of the Division Bench of
the High Court impugned in the appeals cannot be sustained.
It is accordingly hereby set aside and that the judgment of
the writ court dated 28.11.2017 is restored. The appellants
are extended the benefit of ACP, as directed by the writ court.
20. We have not considered it necessary to deal with the two
cases on the basis of which the Single Judge has allowed the
writ petitions and granted the benefit of the ACP to the
appellants, as we have independently of those two decisions
have considered and held that the appellants are entitled to
financial upgradation under the ACP Scheme on completion
of requisite regular service ignoring the higher qualification
prescribed for the next higher post as grant of such benefit is
not actually a promotion but only financial upgradation and
if the higher qualification is insisted it would frustrate the
purpose of the entire scheme."
17. The learned Advocate General who represented the State
Government has submitted that the judgment passed by the Hon'ble Apex
Court which is binding precedents under Article 141 of the Constitution
of India and, therefore, we have its retrospective application unless
referred in the judgment specifically regarding its applicability.
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18. The learned Advocate General has relied upon the judgment
rendered by the Hon'ble Apex Court in the case of M.A. Murthy v. State
of Karnataka (supra) particularly in paragraph no. 8 thereof wherein it has
been held that "prospective overruling is a part of the principles of
constitutional canon of interpretation and can be resorted to by this Court
while superseding the law declared by it earlier. It is a device innovated
to avoid reopening of settled issues, to prevent multiplicity of proceedings,
and to avoid uncertainty and avoidable litigation. In other words, actions
taken contrary to the law declared prior to the date of declaration are
validated in larger public interest."
19. It has been contended by referring to the facts of the present case
that here the issue has already been settled by the State rejecting the claim
of the writ petitioner and, as such, applying the law laid down in the case
of M.A. Murthy v. State of Karnataka (supra) as referred in paragraph
no.8 that principles of prospective overruling although is a part of
principle of constitutional canon of interpretation and it is a device
innovated to avoid reopening of settled issues and, as such, in the facts of
the present case, the judgment passed by the Hon'ble Apex Court in the
case of Amresh Kumar Singh and others vs. State of Bihar and others
(supra) will not be applicable.
20. Now this court is to decide the issue as to whether the case of the
present petitioner can come under the settled issues in course of pending
litigation. The decision taken by the Commissioner of Excise Department
cancelling 2nd Assured Career Progression with effect from 09.08.1999
vide order dated 15.6.2010 was the subject matter before the writ court.
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Such decision was taken on the pretext of not passing the required
examination for holding the post of Superintendent. The learned Single
Judge has agreed to the objections so raised on behalf of the State
mandating the passing of the departmental examination as mandatory and
also held that the decision in State of Punjab & Ors. vs. Rafiq Masih &
Ors. (supra), does not help the petitioner.
21. We are only dealing with in the present appeal which has been
challenged by the writ petitioner regarding entitlement of upgradation
which has been recalled vide order dated 15.06.2010. The writ petition
was filed in the year 2014 and was decided on 06.04.2017 on merits and
against that order the present Letters Patent Appeal has been filed on
06.09.2017, after delay of 115 days. The delay was condoned vide order
dated 08.01.2018 passed by the coordinate Bench of this Court in I.A. No.
7372 of 2017. The issue which has been decided by the State therefore
came before this Court which is still pending for its adjudication.
22. Therefore, in course of pending proceeding, either writ petition
or Letters Patent Appeal, will it be proper to be said that the issue has
already been settled and it cannot be reopened.
23. The Court is still to adjudicate the right of the writ petitioner and
the day when the issue is being decided the Hon'ble Apex Court and has
laid down a law in the case of Amresh Kumar Singh and others vs.State
of Bihar and others (supra) stating therein that the upgradation since is a
situ promotion having no benefit of higher post and only the pay is being
upgraded and, as such, there is no requirement to pass the departmental
examination to hold the higher post as has been referred in paragraph nos.
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17 and 18 as quoted hereinabove.
24. So, when Writ Petition or Letters Patent Appeal is pending
before a court, then issue can be said to settled, can be answered by taking
an example of a case in which the State has passed an order taking decision
adverse to the interest of the litigant concerned. If the same has been
accepted fairly for a long period and, thereafter, if any law has been laid
down, then applicability of the said law will not be of any aid to the
concerned person who has accepted the decision so taken by the State
fairly for a long period.
25. The second situation, in a case where the State has taken
decision adverse to the interest of the public servant and he has approached
the court of law which attained it finality up to the highest level, then in
such circumstances, on the basis of the judgment passed subsequent to the
issue having been set at rest by the higher forum will not be reopened but
what will happen if a litigation is lying pending before a court, regarding
the decision taken adverse to the interest of the public servant as the facts
of the present case and in the meanwhile if any judgment has been
pronounced by the Hon'ble Apex Court on the similar issue then will it be
proper for this court to accept the view as has been agitated by the learned
Advocate General appearing for the State that the issue on the basis of the
decision so taken by the State, will be said to be settled.
26. This court is not in agreement with the said submissions, reason
being that the order which has been passed claiming that the issues have
been settled, is still to be assessed by the High Court under the power of
judicial review and, if for such a long period, the adjudication under the
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power of judicial review is pending before the High Court or even before
the Hon'ble Apex Court, then it will not be proper to say that the issues
have been settled and, in such circumstances, it will not be a case of
reopening the issues.
27. This Court is conscious that a Full Bench of Patna High Court
has passed an order in the case of "Maheshwar Prasad Singh vrs. State
of Bihar", reported in 2000 SCC OnLine pat 840 wherein passing of the
departmental examination has been held to be mandatory but since the
Hon'ble Apex Court has laid down a law in the case of Amresh Kumar
Singh and others vs. State of Bihar and others (supra) as such in view
of the principle as laid down under Article 141 of the Constitution of India
read with Article 144 thereof, the judgment passed by the Hon'ble Apex
Court is having binding precedent over the Full Bench of Patna High
Court even though it was binding since rendered prior to 15.11.2000 i.e.
the date of bifurcation of Bihar into two States, carving out the State of
Jharkhand and State of Bihar.
28. This Court, in view of the aforesaid discussions, is of the view
that all the issues have been answered in favour of the petitioner.
29. In the result, the order passed by the learned Single Judge needs
interference.
30. Accordingly, the order dated 06.04.2017 passed by the learned
Single Judge in W.P.(S) No. 1934 of 2014 is quashed and set-aside.
20. In consequence thereof, the writ petition is allowed. The petitioner
is held entitled to get all the consequential benefits.
21. The respondent No.2 is directed to disburse all the monetary
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benefits in favour of the writ petitioner along with its consequential
benefits within a period of four months from the date of receipt of copy of
this order.
22. The instant appeal stands allowed and accordingly disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
28/11/2025
KNR/A.F.R.
Uploaded on: 29.11.2025
