Patna High Court
Krishnadeo Mishra vs The State Of Bihar And Ors on 3 August, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18967 of 2014
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Krishnadeo Mishra Son of Late Sukhdeo Mishra Resident of Village - Mishra
Bigha, P.S. - Atri, District - Gaya.
... ... Petitioner/s
Versus
1. The State Of Bihar through Principal Secretary, Water Resources
Department, Government of Bihar, Patna.
2. Dy. Secretary, Water Resources Department, Government of Bihar, Patna.
3. Chief Engineer, Water Resources Department, Government of Bihar, Patna.
4. Executive Engineer, Water Resources Department, Ways Division,
Sheikhpura.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Ram Prawesh Kumar, Advocate
For the Respondent/s : Mr.P.K. Verma, AAG 3
: Mr. Saroj Kr. Sharma, AC to AAG 3
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CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
Date : 03-08-2023
1. The present petition has been filed seeking the
following relief :-
"(i) For issuance of a writ in the nature of
mandamus for giving direction to grant
benefits of 2nd and 3rd A.C.P. along with its
arrear of salary to the petitioner and further
direct the authorities to fix the pension and
other retiral benefits after grant of 2 nd and 3rd
A.C.P. benefits and pay its arrear. "
2. The learned counsel for the petitioner submits that
non-passing of the Accounts/ Departmental Examination cannot
Patna High Court CWJC No.18967 of 2014 dt.03-08-2023
be an impediment for grant of benefits of A.C.P./ M.A.C.P.
Scheme. In this regard, the learned counsel has referred to a
judgment rendered by the learned Division Bench of this Court
dated 25.04.2022, passed in L.P.A. no. 372 of 2019 (The State
of Bihar and others v. Sri Krishna Singh and another),
paragraphs no. 2 to 7 whereof, are reproduced hereinbelow :-
" 2. The brief facts giving rise to the present
Appeal are that the writ petitioner had been
denied benefit of Assured Career Progression
(hereinafter referred to as "ACP") on
account of non-passing of the departmental
accounts examination vide letter dated
22.02.2011 issued by the Executive Engineer,
Water Resources Department, Kaimur,
Bhabua, which was challenged by the writ
petitioner in the aforesaid writ petition
bearing CWJC No. 19307 of 2013. The
learned Single Judge, by the impugned
judgment dated 20.12.2017, has referred to
the authorities on the subject matter and has
held that the writ petitioner was not required
to pass any departmental examination for
consideration of his case for grant of ACP
especially in view of the fact that his case is
squarely covered by a Division Bench
judgment of this Court rendered in the case
of Uday Shankar Prasad vs. The State of
Bihar & Ors., reported in 2017(3) PLJR 824.
Patna High Court CWJC No.18967 of 2014 dt.03-08-2023
3. At this juncture it would be relevant to
reproduce the relevant portion of the
impugned judgment dated 20.12.2017 passed
in CWJC No. 19307 of 2013 herein below:-
Patna High Court L.P.A No.372 of 2019
dt.25-04-2022 "3. The petitioner is aggrieved
by non-grant of ACP which has been denied
on the ground that he has not cleared the
Departmental Examination. With regard to
non-consideration of his total working days
as 1719 as a seasonal employee, the
authorities have restricted it to only 431 days
on the ground that no records are available
in the Department. Learned counsel for the
petitioner submitted that with regard to ACP,
the stand of the respondents is totally
erroneous. It was submitted that passing of
Departmental Examination is required as per
the conditions of promotion only where the
promotional post is existing. It was submitted
that ACP Rules only talk about the person
being otherwise eligible for regular
promotion and also fulfilling the conditions
of passing the Departmental Examination, if
such condition exists for granting of
promotion. Learned counsel submitted that in
the present case, the petitioner was
appointed as Seasonal Clerk and there is no
promotional avenue available from that post.
It was submitted that once there is no
Patna High Court CWJC No.18967 of 2014 dt.03-08-2023
promotional post available, there cannot be
any condition of any requirement or
eligibility criteria, much less, any
requirement for passing any Departmental
Examination. Learned counsel submitted that
the issue has finally been settled by a
Division Bench in the case of Uday Shankar
Prasad vs. The State of Bihar and others
reported as 2017(3) PLJR 824 in which it has
been held Patna High Court L.P.A No.372 of
2019 dt.25-04-2022 that if there is a post
without any promotional avenue, there
cannot be any requirement for passing any
Departmental Examination. He further
submitted that the petitioner has given
sufficient proof of him having worked from
1719 days as a seasonal employee but due to
laches of the authorities, who are not looking
into their own records, the benefit due to the
petitioner is illegally being denied.
4. Learned counsel for the State submitted
that the order passed in the case of Uday
Shankar Prasad (supra) has not taken into
consideration the earlier Division Bench
judgment in the case of Gorakh Nath
Choudhary vs. The State of Bihar and others
in C.W.J.C. No.11713 of 2010 dated
27.09.2012 by which it has been held that all
eligibility criteria required for regular
promotion also applies for giving benefit of
Patna High Court CWJC No.18967 of 2014 dt.03-08-2023
ACP, including passing of Departmental
Examination. Learned counsel submitted that
in such view of the matter, the judgment in
the case of Uday Shankar Prasad (supra)
without noticing the judgment in the case of
Gorakh Nath Choudhary (supra) is per
incuriam. With respect to the number of days
for having worked as seasonal employee, it
was submitted that the same has been duly
considered as per the available official
records as well as materials submitted by the
petitioner.
5. Having considered the matter, the Court
finds that the petitioner is entitled for
consideration of Patna High Court L.P.A
No.372 of 2019 dt.25-04-2022 grant of ACP.
The ACP Rules provide that all eligibility
criteria, which may otherwise be prescribed
for promotion, have to be adhered to and
further, if, for regular promotion, passing of
any Departmental Examination is required,
then that shall also be a requirement for
grant of ACP. The scheme itself is in
contemplation of there being stagnation on
account of lack of vacancies or want of
promotional avenues. In the present case, it
is not denied that there is no promotional
post from the post of seasonal clerk and,
thus, to that extent, any further promotion to
the petitioner was not available in the
Patna High Court CWJC No.18967 of 2014 dt.03-08-2023
existing scheme. Therefore, the requirement
under the ACP Rules is satisfied to the extent
that in the case of the petitioner, the scheme
would be applicable for want of promotional
avenue. Coming to the second aspect for
grant of ACP, which relates to the person
satisfying all the eligibility criteria provided
for grant of regular promotion, the same is
not a blanket term for the reason, that only
when there is any promotional post
available, the question of fixing eligibility
criteria for such promotion would arise. In
the present case, there being no promotional
post available, there is no question of there
being any Rules or eligibility criteria
prescribed for such promotion. Moreover,
the ACP Rules itself contemplate that if in
the promotional Rules, passing of
Departmental Examination is necessary, the
same shall also Patna High Court L.P.A
No.372 of 2019 dt.25-04-2022 apply while
giving benefit of ACP. In the present case,
when there are no promotional posts
available and thus no promotional Rules in
the matter, obviously there cannot be any
prescription or eligibility for passing any
Departmental Examination. Thus, in that
context, the petitioner was not required to
pass any Departmental Examination for
considering his case for grant of ACP. The
Patna High Court CWJC No.18967 of 2014 dt.03-08-2023
Court is fortified in its view by the order of
the Division Bench of this Court in the case
of Uday Shanker Prasad (supra). As far as
the stand of the learned counsel for the
State, that the same has not considered the
earlier Division Bench judgment in the case
of Gorakh Nath Choudhary (supra) is
concerned, the Court would only note the
fact that the same was passed under a
different factual background. In the case of
Gorakh Nath Choudhary (supra), he was a
Lower Division Clerk which clearly
indicates that there were promotional
avenues available to him and in that
background, the Court had held, that all
requirements for grant of regular promotion,
passing of Departmental Examination being
one of them, were required to be fulfilled
before grant of ACP. In the present case and
in the case of Uday Shankar Prasad (supra),
the person did not have any promotional
avenue and in that background, it has been
clarified that there being no promotional
avenue, the question of there being any
promotional Rules lying down any eligibility
Patna High Court L.P.A No.372 of 2019 dt.
25-04-2022 criteria, passing of any
Departmental Examination could not be a
condition precedent for considering grant of
benefit under the ACP Scheme. Such view
Patna High Court CWJC No.18967 of 2014 dt.03-08-2023
has been reiterated in a subsequent
judgment of a Division Bench dated
20.09.2017 in L.P.A. No.1138 of 2014 in the
case of Shio Chand Gupta vs. The State of
Bihar and others.
6. Accordingly, the Court holds the petitioner
entitled for consideration for grant of ACP
under the scheme. The same shall be done
within two months from the date of receipt of
a copy of this order by the respondents no.3,
4 and 5.
7. Coming to the issue of the counting of the
number of days the petitioner has claimed to
have worked as seasonal employee, he shall
be at liberty to file a detailed representation
enclosing all supporting documents/
materials available with him in support of
his contention before the respondents no.3, 4
and 5 within four weeks from today. Upon
the same being done, the authorities shall
look into the matter and verify it with the
official records. If the contention of the
petitioner is found to be correct, necessary
orders shall be passed and benefit granted to
him within two months thereafter."
3. Having regard to the facts and circumstances of the
case, I deem it fit and proper to dispose off the present writ
Patna High Court CWJC No.18967 of 2014 dt.03-08-2023
petition with a direction to the Chief Engineer, Water Resources
Department, Government of Bihar, Patna to consider the case of
the petitioner for grant of benefits of the A.C.P./M.A.C.P.,
without being impeded by the issue of non-passing of the
Accounts/ Departmental Examination, as has been held by the
learned Division Bench of this Court in the case of Sri Krishna
Singh (supra) and pass a reasoned and a speaking order, within
a period of four weeks of receipt/ production of a copy of this
order.
4. The writ petition stands disposed off on the
aforesaid terms.
(Mohit Kumar Shah, J)
rinkee/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 04.08.2023
Transmission Date NA
