Patna High Court
Mauleshwar Chaudhary vs The State Of Bihar on 4 January, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2539 of 2021
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Mauleshwar Chaudhary Son of Late Butti Chaudhary Resident of Village-
Babraha, Dumaria Bujurg, P.o.- Aguani, P.s.- Perbatta, District- Khagaria,
Bihar-851216
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Water Resources
Department, Sinchai Bhawan, Patna-15
2. The Principal Secretary, Water Resources Department, Sinchai Bhawan,
Patna-15
3. The Engineer-in-Chief Water Resources Department, Sinchai Bhawan,
Patna-15
4. The Chief Engineer Water Resources Department, Irrigation Creation,
Dehri-821307
5. The Superintending Engineer, Water Resources Department, Sone Canal
Circle, Ara-802301
6. The Executive Engineer, Water Resources Department, Sone Canal Division,
Khagaul-801105
7. The Accountant General Virchand Patel Path, Patna-01
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rajendra Narayan, Sr. Advocate
Mr. Manish Sahay, Advocate
Mr. Anil Kumar Sinha, Advocate
Mr. Siddharth Aditya, Advocate
For the Respondent/s : Mr. Vivek Prasad, GP-7
Mr. Binod Kumar Sinha, AC to GP-7
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 04-01-2024
Heard Mr. Rajendra Narayan, learned senior counsel
along with Mr. Manish Sahay, learned counsel for the petitioner
and Mr. Vivek Prasad, learned GP-7.
2. With the consent of the parties, the matter is heard
and being disposed of at the stage of "Admission" itself.
Patna High Court CWJC No.2539 of 2021 dt.04-01-2024
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3. The petitioner, who superannuated on 31.12.2011,
as a Muharrir, from the office of the Executive Engineer, Sone
Canal Division, Khagaul, Patna, has filed the present writ
petition seeking a direction upon the respondents to ensure the
benefit under the Assured Career Progression (ACP) Scheme, in
the light of the decision of the learned Division Bench of the
Hon'ble Court in the case of The State of Bihar & Ors. Vs.
Smt. Jivachi Devi, since reported in 2020 (2) BLJ 471.
4. It is submitted on behalf of the petitioner that
despite having been superannuated in the year 2011, when the
petitioner has not been accorded admissible retiral benefits, he
was compelled to approach before this Court by filing CWJC
No. 23058 of 2012, and thereupon, the petitioner has been
accorded admissible retiral benefits, with a liberty that, in case,
the petitioner disputes the amount, it would be open to him to
file representation before the appropriate authority.
5. The petitioner, having found that nonetheless, he
being entitled for the benefit under the Assured Career
Progression (ACP) Scheme, the authority concern has not
accorded such benefit, he filed several representation before the
authorities concern, but to no avail, and lastly the present writ
petition.
Patna High Court CWJC No.2539 of 2021 dt.04-01-2024
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6. Learned senior counsel confining his submission to
the entitlement of the petitioner for grant of benefit under the
Assured Career Progression (ACP) Scheme, w.e.f. the date,
when he became entitled for ACPs, submitted that, passing of
accounts examination or departmental examination, as the case
may be, under Bihar Boards' Miscellaneous Rule, 1958 would
be necessary for crossing efficiency bar, confirmation and for
promotion to selection grade, but not for general promotion. He
further referring to the judgment rendered by the Division
Bench in the case of Smt. Jivachi Devi (supra) has vehemently
submitted that in any view of the matter, the State is not justified
in refusing benefits of the financial progression to the petitioner
on the ground that he did not pass the account or departmental
examination. Heavy reliance has been made on paragraph no. 7,
thereof, which reads as follows:
7. Recently, a Division Bench
of this Court in case of Ramadhar
Thakur (supra), after extensive analysis
and discussion of the provision of rule
157(3) (J) of the Bihar Boards
Miscellaneous Rules 1958 and Rule 4
(clause 5) of the Bihar State Employees
Service Condition (Assured Career
Progression Scheme) Rules, 2003,
conclusively held after referring to
various judgments, viz.,Mithilesh Kumar
Sinha Vs. The State of Bihar & Ors.
[2006(1) PLJR 282]; Syed Mozammil
Ashraf Vs. The State of Bihar & Ors.
Patna High Court CWJC No.2539 of 2021 dt.04-01-2024
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[2007(1) PLJR 438]; Shashi Shekhar
Ambasta Vs. The State of Bihar & Ors.
[2011(3) PLJR 474];Maheshwar Prasad
Singh & Ors. Vs. The State of Bihar
[2000(4) PLJR 262]; Rameshwar Roy
Vs. The State of Bihar & Ors. [2017(2)
PLJR 127]; Daya Shankar Singh Vs.
The State of Bihar & Ors. [2010(3)
PLJR 220] and Md.Shamsuddin & Ors.
Vs. The State of Bihar [1983 PLJR 347]
that Rule 157 (3) (J) of the Bihar Boards
Miscellaneous Rules 1958 makes the
passing of the departmental accounts
examination a condition precedent for
promotion to the selection grade, but not
for general promotion and for not
passing such exam, the benefits of the
A.C.P. Rules, 2003, also cannot be
withheld, unless there is a departmental
rule for promotion. In other words, the
Bench held that passing of departmental
accounts examination is not a condition
precedent for grant of A.C.P. Rules nor
does Rule 157 (3) (J) of the Bihar Boards
Miscellaneous Rules, 1958 conceive of
such a requirement. The same issue is
also been involved in the case of
Masomat Indu Devi Vs. State of Bihar
and others, reported in 2019(2) PLJR
241 in which the learned Single Judge of
this Court has reiterated the same view
and held that passing of accounts
examination or departmental
examination, as the case may be, under
the Bihar Boards Miscellaneous Rules,
1958 would be necessary for crossing
efficiency bar, confirmation and for
promotion to election grade, but not
general promotion. I also find that the
provisions of the Bihar Water Resources
Department Field Steno Typist's Cadre
(Recruitment and Service Condition)
Patna High Court CWJC No.2539 of 2021 dt.04-01-2024
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Rules, 2014 does not apply in the
respondent's case as respondent's
husband superannuated from service in
the year 2011. I do not find any reason to
differ with the decision passed by co-
ordinate benches of this Court.
7. It is to be noted that during pendency of the writ
petition, the Chief Engineer vide his letter contained in Memo
No. 2571 dated 14.12.2020, has exempted the petitioner from
passing departmental accounts examination, w.e.f. the date on
which the petitioner superannuated, i.e. on 31.12.2011, in terms
of Government Notification dated 12.08.1992. Consequent,
thereupon, the Executive Engineer, Water Resources
Department, vide Letter No. 510 dated 24.03.2021, accorded the
benefit of 1st ACP to the petitioner, w.e.f. the date of such
exemption, i.e., on 31.12.2011, causing serious prejudice to the
right and entitlement of the petitioner.
8. The petitioner being aggrieved assailed the Letter
No. 510 dated 24.03.2021, read with Memo No. 2571 dated
14.12.2020
, so far it relates to the petitioner, whereby, he has
been deprived to get the benefit of ACP, w.e.f. the due date of
his entitlement, by filing I.A. No. 01 of 2021.
9. Learned senior counsel, while assailing the
aforenoted orders, submitted that, any exemption granted by the
State Government to the petitioner, was/is only for the purposes
Patna High Court CWJC No.2539 of 2021 dt.04-01-2024
of promotion which shall be effective w.e.f. the date of passing
of the order and in no circumstances for granting the benefit of
financial progression, there was even any need of exemption
from passing accounts or departmental examination.
10. Per contra, Mr. Vivek Prasad, learned counsel for
the State referring to the averments made in the counter affidavit
submits across the Board that admittedly, the petitioner has
submitted application for exemption of passing departmental
examination, which was duly considered by the department and
the petitioner has been exempted from passing departmental
examination, vide order as contained in Memo No. 2571 dated
14.12.2020, with effect from the date of his retirement and, as
such, the petitioner shall be accorded financial benefit, with
effect from the date, when, he has been exempted from passing
the departmental examination. He further relies upon the
judgment rendered by the Division Bench of this Court in the
case of The State of Bihar & Ors. Vs. Mahendra Baitha, in
LPA No. 332 of 2017, disposed of vide order dated 04.05.2018,
wherein, the Division Bench of this Court has held in paragraph
no. 11, as follows:
11. This Court does not
want to burden this order by
relying on one too many decisions
on the principle and requirements
Patna High Court CWJC No.2539 of 2021 dt.04-01-2024
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.
11. Learned counsel for the State next submitted that
from the record, it is evident that the petitioner superannuated in
the year 2011, itself and earlier, he had also approached before
this Court for the retiral benefit, but he never raised any claim
for benefit under the Assured Career Progression (ACP) Scheme
and now the writ petition has been filed after a decade for such
relief.
12. This Court having anxiously heard the
submissions advanced on behalf of the learned counsel for the
respective parties and after perusing the materials as well as
judgments referred by the learned counsels, prima facie, finds
Patna High Court CWJC No.2539 of 2021 dt.04-01-2024
substance in the submissions made on behalf of the petitioner
that passing of departmental accounts examination, is not a
condition precedent, for grant of benefit under the Assured
Career Progression (ACP) Rules and the issue involved in this
regard, has already been given quietus by the learned Division
Bench of this Court in the case of Smt. Jivachi Devi (supra)
which has also been affirmed by the highest Court of the land in
the SLP No. 782 of 2022, preferred by the State of Bihar on
being aggrieved by the order passed in LPA No. 833 of 2017.
13. This Court further finds that the order of
exemption from passing a departmental examination has been
passed in the year 2020, in terms of government notification
dated 12.08.1992, which specifically says that it shall be
effective, w.e.f. the date of passing of the order, though the
petitioner superannuated on 31.12.2011, itself. Further, once the
Court held that passing of any examination is not sine quo non
for financial progression, then any exemption by the State
Government, may be required for any other purpose but
certainly not for the benefit of ACP. Thus, in any view of the
matter, a vested right to get the financial progression with due
date cannot be diluted by passing order for exemption, which
has no concern for the benefit of ACP.
Patna High Court CWJC No.2539 of 2021 dt.04-01-2024
14. So far the submission of the petitioner based upon
the judgment in the case of Mahendra Baitha (supra) is
concerned, the judgment was taken note of by the subsequent
Division Bench in the case of Smt. Jivachi Devi (supra) and
now the same has affirmed by the Apex Court in SLP No. 782 of
2022.
15. Further submission of the learned counsel for the
State with regard to delay is of no help, as it was incumbent
upon the respondent authorities to consider the claim of the
petitioner for grant of benefit under ACP Rules, when it became
due and if in case the same has not been done, the petitioner can
not be blamed. It would be appropriate to quote the relevant
paragraph of a celebrated judgment, in the case of All India
Groundnut Syndicate Ltd. Vs. Commissioner of Income Tax,
Bombay City, AIR 1954 Bombay 232.
"9. But the most surprising
contention is put forward by the
Department that because their own
officer failed to discharge his statutory
duty, the assessee is deprived of his right
which the law has given to him under
sub-section (2) of S. 24. In other words,
the Department wants to benefit from and
wants to take advantage of its own
default. It is an elementary principle of
law that no person--we take it that the
Patna High Court CWJC No.2539 of 2021 dt.04-01-2024
Income-tax Department is included in
that definition--can put forward his own
default in defence to a right asserted by
the other party. A person cannot say that
the party claiming the right is deprived of
that right because "I have committed a
default and the right is lost because of
that default."
16. In view of the aforesaid discussions and the
observation, the present writ petition stands disposed of with a
direction to the respondent no. 4 to consider the claim of the
petitioner for grant of benefit of Assured Career Progression, in
the light of the mandate of this Court in the case of Smt. Jivachi
Devi (supra) and accord all the financial benefits, w.e.f. the due
date, preferably within a period of twelve weeks, from the date
of receipt/production of a copy of this Order, without being
swayed by the order of exemption as contained in Memo No.
2570 dated 14.12.2020 and the consequential Letter No. 510
dated 24.03.2021.
(Harish Kumar, J)
shivank/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 09.01.2024.
Transmission Date NA
