Patna High Court
Nagendra Paswan vs The State Of Bihar And Ors on 4 February, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.914 of 2018
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Nagendra Paswan Son of Late Jai Kishun Paswan Resident of Village-
Bishanpur Giddha, P.O. - Susta Madhopur, P.S. - Maniyari, District
Muzaffarpur (Bihar).
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Road Construction
Department, Government of Bihar, Patna.
2. The Principal Secretary, Road Construction Department, Government of
Bihar, Patna.
3. The Engineer-in-Chief-cum-Additional Special Secretary, Road
Construction Department, Government of Bihar, Patna
4. The Joint Secretary, Road Construction Department, Government of Bihar,
Patna.
5. The Superintending Engineer, National Highway Circle, Road Construction
Department, Muzaffarpur Bih
6. The Accountant General(A,G.), Bihar, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Raju Giri, Advocate
Mr. Santosh Kumar Mishra,Advocate
For the State : Mr. Balram Kapri, AC to SC 26
For the Accountant General : Mr.Satyendra Kumar Jha, Advocate
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CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN
ORAL JUDGMENT
Date : 04-02-2021
Heard learned counsel for the petitioner and learned
counsel for the respondents.
2. The following reliefs as formulated by the petitioner
have been claimed in the writ petition --
i) To issue an appropriate writ/order/direction in
the nature of mandamus commanding the
respondents to give effect the office order No. 5/
Stha (Vividh) Kshe-08-47/2014 129 dated
09.08.2016 (Annexure-4) whereby the petitioner
Patna High Court CWJC No.914 of 2018 dt.04-02-2021
had been granted with effect from 07.04.2010 the
benefit of third Modified Assured Career
Progression (M.A.C.P) of Grade Pay of Rs. 4,800/-
in Pay Band-2 of Head Assistant on completion of
30 years of service with entire consequential
benefits;
ii) To issue of writ in the nature of mandamus
and/or any other appropriate writ, order or
direction quashing and setting aside Letter No. 129
dated 10.02.2017 issued by the Superintending
Engineer, National Highway Circle, Muzaffarpur
(as contained in Annexure-7);
iii) To issue a writ in the nature of mandamus or
any other appropriate writ, order or direction
directing the respondent to pay arrears of pay and
allowance with effect from 07.04.2010 along with
interest at the rate of 18 percent per annum until
the date of payment on the grant of MACP benefits;
iv) To grant any other or further relief(s) as this
Hon'ble Court may deem fit in the facts and
circumstances of the case and in the interest of
justice."
3. The short facts of the case according to the petitioner
are that he was appointed as a correspondence clerk on
29.04.1980 and in course of his career he was granted two
regular promotions to the post of Head Clerk on 07.01.1992 and
on the post of Head Assistant on 05.11.2004 respectively. After
rendering about 35 years of service, he superannuated on
28.02.2015 from the Road Construction Department, N.H. Circle,
Muzaffarpur. As such, having remained on the post of Head
Assistant for more than 10 years prior to his retirement, he
became entitled to 3rd M.A.C.P. and his pay to be raised to the
Patna High Court CWJC No.914 of 2018 dt.04-02-2021
grade pay of Rs. 4,800/- in Pay Band-2.
4. Mr. Raju Giri, learned counsel for the petitioner states
that the claim for 3rd M.A.C.P. has been denied for the sole reason
that the petitioner has not cleared the accounts examination. It is
submitted that the matter stands squarely covered by a decision
of the Hon'ble Division Bench of this Court dated 19.03.2018
passed in LPA No. 599 of 2015 (Ramadhar Thakur vs. The State of
Bihar and others) (Annexure-8 to the rejoinder) which was a case
decided under the erstwhile ACP Rules. It is further submitted
that the new M.A.C.P. Rules have been issued in terms of
resolution dated 14.07.2010 effective from 01.01.2009
(Annexure-1 to the writ petition), which do not contemplate
passing of departmental accounts examination for the purposes
of grant of 3rd M.A.C.P.
5. Learned counsel for the State appears and has been
heard. He reiterates the stand taken in the supplementary
counter affidavit that the petitioner has not passed the
departmental accounts examination.
6. Having heard the parties and on consideration of
materials on record, this Court finds merit in the contention of
the petitioner. The judgment of the Division Bench relied upon by
the petitioner delivered in the context of the earlier ACP Scheme
categorically held as follows --
"12. In our view, thus, the Full Bench does not
support the case of the respondents rather it helps
the Appellant's case as it is clear from what has
been laid down by the Full Bench that Rule 157(3)
(J) requires passing of accounts examination for
promotion to selection grade only.
18. ... since we have clearly held that passing of
departmental Accounts Examination is not a
condition precedent for grant of Assured Career
Patna High Court CWJC No.914 of 2018 dt.04-02-2021
Progression under 'the ACP Rules' nor does Rule 157
(J)(3) of the Bihar Boards Miscellaneous Rules
conceive of such a requirement........"
7. Learned counsel for the State has not disputed that
the new M.A.C.P. Rules would be applicable to the case of the
petitioner and do not require passing of departmental accounts
examination for the purpose of grant of 3rd M.A.C.P.
8. In the above view of the matter, the impugned letter
No. 129 dated 10.02.2017 (Annexure-7) is hereby quashed with
the observation that the petitioner would be entitled to grant of
3rd M.A.C.P. with consequential benefits.
9. The writ petition stands allowed.
(Vikash Jain, J)
Chandran/-
AFR/NAFR NAFR
CAV DATE -
Uploading Date 05.02.2021
Transmission Date -
