Patna High Court
Bimal Narain Pandey vs The State Of Bihar on 18 September, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 20503 of 2021
======================================================
Bimal Narain Pandey, S/o Paras Pandey, R/o Village-Dhankutwa, P.O.-
Dhankutwa via Chanpatiya Dhankutwa, P.S.-Dhankutwa, District-West
Champaran, Bihar-845449.
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Deputy Secretary, Water Resources Department, Government of Bihar,
Patna.
3. The Chief Engineer, Water Resources Department, Motihari, East
Champaran.
4. The Executive Engineer, Water Drainage Division, Bettiah, West
Champaran.
5. The Accountant General A and E, Bihar, Birchand Patel Path, Patna-1.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 14907 of 2022
======================================================
Basant Kumar Singh, son of Shri Shiv Ji Singh, resident of G- 6, Surya Prasad
Lane, Niromani Place, Jhauwa Kothi West, Choti Khanjarpur, P.O. and P.S.-
Jagdishpur, District- Bhagalpur, Pin Code- 812001
... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Law Department, Bihar, Patna.
2. District Accounts Officer, Bhagalpur
3. District and Sessions Judge, Bhagalpur
4. Registrar-cum- Judge In- Charge, Accounts, Civil Court, Bhagalpur.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 13481 of 2023
======================================================
Nand Kishore Singh, Son of Late Vidhata Singh, Resident of Village -
Danwar, Police Station - Kachhama, District - Rohtas.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Water Resource Department,
Government of Bihar, Patna.
2. The Principal Secretary, Water Resource Department, Government of Bihar,
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
2/32
Patna.
3. The Chief Engineer, Central Design, Research and Quality Control, Water
Resource Department, Anishabad, Patna.
4. The Executive Engineer, Quality Control (Irrigation Creation), Dehri.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 5786 of 2024
======================================================
Rambabu Singh, Son of Chandeshwar Singh Resident of Village and P.O.-
Bharwari, via Silaut, P.S.- Silaut, District- Muzaffarpur.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Public Health Engineering
Department, Government of Bihar, Patna.
2. The Engineer-in-Chief-cum-Special Secretary, Public Health Engineering
Department Government of Bihar, Patna.
3. The Chief Engineer (Mechanical), Public Health Engineering Department,
Bihar, Patna.
4. The Regional Chief Engineer (Mechanical), Public Health Engineering
Department, Muzaffarpur.
5. The Superintending Engineer, Public Health Engineering Department,
Mechanical Circle, Muzaffarpur.
6. The Executive Engineer Public Health Engineering Department, Mechanical
Division, Muzaffarpur.
7. The Treasury Officer, Muzaffarpur.
8. The Accountant General, Bihar, Patna.
9. The Secretary (Expense), Department of Finance, Govt. of Bihar, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 6360 of 2024
======================================================
Uma Charan Rajak, Son of Bullak Rajak, Resident of Village- East Ashok
Nagar, Road No.-11, P.S.- Kankarbagh, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Old
Secretariat, Patna.
2. The Principal Secretary, General Administrative Department, Govt. of Bihar,
Old Secretariat, Patna.
3. The Principal Secretary, Minor Irrigation Department, Govt. of Bihar,
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
3/32
Vikash Bhawan, Patna.
4. The Engineer-in-Chief, Minor Irrigation Department, Biseshwariya Bhawan,
Bailey Road, Patna.
5. The Chief Engineer, Minor Irrigation Department, Sheikhpura, Patna.
6. The Superintending Engineer, Minor Irrigation Circle, Patna-1.
7. The Executive Engineer, Minor Irrigation Division, Patna- Near West side of
Patna High Court null/pane Tanki.
8. The Accountant General, Bihar, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 8727 of 2024
======================================================
Azhar Hussain, Son of Md. Akabar Husaain, Resident of Milki Anaith, Ara
Police Station - Ara, District- Bhojpur, Ara.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary. Water Resource Department,
Government of Bihar, Patna.
2. The Principal Secretary, Water Resource Department, Government of Bihar,
Patna.
3. The Chief Engineer, Irrigation Creation, Water Resource Department, Dehri.
4. The Executive Engineer, Sone Canal Division, Khagaul, Patna.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 20503 of 2021)
For the Petitioner/s : Ms. Roona, Advocate
For the Respondent/s : Mr. Vinay Kirti Singh (GA2)
(In Civil Writ Jurisdiction Case No. 14907 of 2022)
For the Petitioner/s : Mr. Abhinav Srivastava, Advocate
For the State : Mr. S.K. Mandal (SC3),
Ms. Neelam Kumari, AC to SC-3
For the PHD : Mr. Satyabir Bharti, Advocate
Mr. Abhishek Anand, Advocate
(In Civil Writ Jurisdiction Case No. 13481 of 2023)
For the Petitioner/s : Mr. Ravindra Kumar Singh, Advocate
For the Respondent/s : Mr. Vikash Kumar ( SC 11 )
(In Civil Writ Jurisdiction Case No. 5786 of 2024)
For the Petitioner/s : Mr. Sunil Kumar, Advocate
For the Respondent/s : Mr. Sarvesh Kumar Singh, A.A.G. - 13
(In Civil Writ Jurisdiction Case No. 6360 of 2024)
For the Petitioner/s : Mr. Anil Kumar Choudhary, Advocate
For the Respondent/s : Mr. Standing Counsel (18)
For the AG Bihar : Mr. Chaitanya Swaroop, Advocate
(In Civil Writ Jurisdiction Case No. 8727 of 2024)
For the Petitioner/s : Mr. Ravindra Kumar Singh, Advocate
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
4/32
For the Respondent/s : Smt. Anuradha Singh, SC-21
Mr. Rakesh Prabhat, AC to SC-21
Ms. Shatabdi Sinha, AC to SC-21
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL JUDGMENT
Date : 18-09-2024
1. These cases, with some factual differences,
ultimately relate to same prayer of granting pay-scale under
Assured Career Progression or Modified Assured Career
Progression, which were denied to the petitioners. Therefore,
this Court takes up all the writ petitions, captioned above, and
proposes to dispose them of in a common judgement, albeit
factual differences.
2. Since the facts of each case is different, the same is
narrated separately hereinbelow:
3. The petitioner was initially appointed as Class-IV
employee in Water Resources Department, Government of
Bihar. Subsequently, on 22nd of May, 1981, the petitioner along
with 101 persons were promoted to the post of Junior Accounts
Clerk. Subsequently, by a government order, the posts of Junior
Accounts Clerk were merged with the Sr. Accounts Clerk and
they are commonly designated as Accounts Clerk. In 2003, rules
relating to Assured Career Progression (A.C.P.) under the name
and style of Bihar State Employees Services Conditions
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
(Assured Career Progression Scheme) Rules, 2003 came into
force, giving retrospective effect on and from 9th of August,
1999. The petitioner was entitled to 1st A.C.P. on 9th of August,
1999. He retired from service on 30th of June, 2002, attaining the
age of superannuation. On 14th of November, 2002, the
petitioner was informed by the Respondents that he was not
granted the benefit of A.C.P. as he failed in departmental
examination. It is also contended by the petitioner that the
Finance Department by its notification, dated 25 th of March,
2015, declared that the employees, who were appointed in
between 1st of May, 1980 to 27th of September, 1999, as
Accounts Clerk, shall be entitled for pay-scale of Rs. 4500-
7000/-. The said benefit was also not granted to the petitioner.
4. So is the instant writ.
5. In the instant case, the petitioner was appointed as a
Clerk in the judgeship of Bhagalpur. In 1986, 1994 and 2003, he
participated in the departmental examination and passed all the
said examinations conducted by the district judiciary of District-
Bhagalpur. On 25th of June, 2003, Bihar State Employees
Service Conditions (Assured Career Progression Scheme)
Rules, 2003 was notified, extending the benefit of 1 st financial
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
progression under A.C.P. Scheme w.e.f. 9th of August, 1999. On
27th of November, 2008, the District and Sessions Judge,
Bhagalpur issued an order, extending the benefits of financial
progression in favour of the petitioner w.e.f. 14th June, 2008.
Further case of the petitioner is that on 14 th of July, 2010,
M.A.C.P. Scheme was notified and implemented w.e.f. 1 st of
January, 2009 and it was decided under the said scheme that the
government employees would get M.A.C.P. in the State of Bihar
upon completion of 10, 20 and 30 years of service.
6. On the said fact, the petitioner moved this Court in
C.W.J.C. No. 879 of 2013. While the said representation was
pending, the Division Bench of this Court in a connected appeal
bearing L.P.A. No. 806 of 2014 was pleased to held that an
employee cannot be made to suffer on account of non-holding
of examination by the Respondents. Subsequently, on 23rd of
February, 2018, the writ petition, filed by the petitioner, was
allowed, directing the petitioner to submit a fresh representation.
The petitioner, accordingly, submitted a representation before
the learned District and Sessions Judge, Bhagalpur but no action
was taken by him which prompted the petitioner to file a
contempt petition bearing M.J.C. No. 890 of 2021.
7. Subsequently, on 21st of September, 2021, the
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
petitioner was directed to repay an amount of Rs. 12,84,443/-,
failing which it was directed to be recovered from his salary.
The petitioner submitted a representation on 24th of September,
2021. On 7th of May, 2022, the learned District and Sessions
Judge, Bhagalpur passed an order bearing Memo No. 3954,
(Annexure- R-3/A to the counter affidavit) stating, inter alia,
that the petitioner was not entitled for grant of similar benefits
admissible under the Assured Career Progression Scheme. The
contempt application filed by the petitioner was disposed of on
8th of August, 2022 by a Co-ordinate Bench of this Court giving
liberty to the petitioner to challenge the said Memo No. 3954,
dated 7th May, 2022 in a separate writ petition.
8. Hence, the instant writ.
9. A counter affidavit has been filed on behalf of the
Respondent Nos. 3 and 4. It is stated on behalf of the
Respondents that the employees of the District Judiciary in the
State of Bihar are governed by Bihar Civil Courts Staff (Class-
III and Class-IV) Rules, 1998 and Bihar Civil Courts Staff
(Class-III and Class-IV) Rules, 2009. Rules 21 and 22,
respectively, of the said Rules mandate that the employees shall
not be promoted to the junior selection grade or to a super time
scale in service unless they qualify in the examination specified
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
by the High Court. It is also stated that in order to get financial
progression, a Clerk posted in a Civil Court shall have to pass
examinations in: -
(i) Civil Court and Criminal Court Rules framed by
the High Court;
(ii) Accountancy;
(iii) Knowledge of drafting of correspondence and
order-sheet; and
(v) Practice and procedure.
10. The petitioner passed the said departmental
examination held in the year 2008 and he was granted A.C.P.
w.e.f. 14th of June, 2008, i.e., the date on which he appeared in
the second part of the examination. It is further stated by the
Respondents that the petitioner had joined Bhagalpur Judgeship
on 5th of September, 1985 and he has been granted A.C.P.
benefit vide order No. 85, dated 27th of November, 2008. The
petitioner's pay was fixed and service book was sent to the
District Accounts Officer, Bhagalpur for verification. The
Accounts Officer also mentioned that the petitioner was entitled
to get A.C.P. on the date of his appearing / passing the
departmental examination and not from the date when the A.C.P.
Rules had come into force.
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
11. The petitioner was appointed as a Correspondence
Clerk in Water Resources Department, Government of Bihar on
28th of May, 1992. He retired from service on attainment of 60
years of age on 31st of July, 2022. During his period of service,
he was not promoted to any higher post. He was entitled to get
1st A.C.P. w.e.f. 3rd of February, 2004, 2nd M.A.C.P. w.e.f. 3rd of
February, 2012 and 3rd M.A.C.P. w.e.f. 3rd of February, 2022. It
is also contended on behalf of the petitioner that he passed the
departmental examination on 2nd of February, 2010 and then
only he was granted 1st A.C.P. w.e.f. 29th of August, 2010. He
was subsequently granted 2nd A.C.P. on 3rd of March, 2012.
However, the petitioner was not granted 3 rd M.A.C.P. He
submitted a representation on 18th of April, 2023, for grant of
A.C.P. and M.A.C.P. w.e.f. above-mentioned dates but the
prayer was not considered.
12. So is the instant writ petition.
13. The Respondent Nos. 1 to 4 filed a counter
affidavit, stating, inter alia, that the petitioner passed the
departmental accounts examination on 2nd of December, 2010
and he was granted the benefits of 1 st A.C.P. w.e.f. 5th of August,
2011. The petitioner was also granted 2nd M.A.C.P. w.e.f. 18th of
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
November, 2013 and he was not eligible for grant of 3rd
M.A.C.P. as he was superannuated on 31st of July, 2022. The
Respondents contend that Rule 157(3)(J)(kha) of the Bihar
Board Miscellaneous Rules provides in specific terms that the
Clerks who do not pass the final accounts departmental
examination will not be given promotion to the higher scale. In
concurrence with the said rule, the Finance Department,
Government of Bihar, had reiterated that an employee is entitled
to get financial benefit by way of A.C.P. after he, being
successful in departmental examination. A.C.P. and M.A.C.P.,
which granted to the petitioner, were only after he being
successful in departmental examination. So there is no illegality
in granting A.C.P. / M.A.C.P. to the petitioner.
14. In the instant case, the petitioner was appointed /
absorbed as a Typist by an order passed by the Chief Engineer,
Mechanical, Public Health Engineering Department,
Government of Bihar, dated 25th of May, 1987. He joined his
service on 27th of May, 1987. Again on 10th of July, 1987, his
service was terminated on the ground of excess employees in
the cadre. Thereafter, on 28th of February, 1990, the petitioner
and other employees, whose services were terminated on the
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
ground of excess employees, were again taken back in the
service on the same post vide order dated 28th of February,
1990, issued by the Secretary, Public Health Engineering
Department, Government of Bihar. On 31st of October, 1990, the
petitioner passed Hindi Noting and Drafting Examination. On
3rd of June, 2006, the petitioner was extended the benefit of 1st
A.C.P. vide Office Order No. 44, dated 3rd of June, 2006. On 30th
of September, 2008, the Respondents postponed the benefit of
1st A.C.P. on account of not passing Accounts Examination.
Again by an order dated 17th of February, 2009, the petitioner
was granted the benefit of 1st A.C.P. That on 16th of January,
2010, the petitioner passed the final level departmental accounts
examination and he was promoted to the post of Head Clerk on
1st of September, 2010. Thereafter, he was extended the benefit
of 2nd A.C.P. w.e.f. 1st of January, 2009.
15. It is the case of the petitioner that 3rd M.A.C.P. of
the petitioner was due w.e.f. 27th of May, 2017. However, the
said 3rd M.A.C.P. was not granted and in the meantime, the
petitioner retired from service on 31 st of January, 2020. After his
retirement, the petitioner received a letter dated 26 th of February,
2020, issued by the Superintending Engineer, Public Health
Mechanical Circle, Muzaffarpur, whereby earlier office orders
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
were modified and the petitioner was directed to repay the
excess amount disbursed to him by way of arrears of salary /
pension and other allowances. The Respondent No. 5 issued
another order on 19th of March, 2020, whereby he revised the
pay of the petitioner, modifying all office orders and directed
the petitioner to repay the excess amount. On 13 th of June, 2020,
the Respondent No. 5 wrote a letter to the Accountant General
(A & E), Bihar, Patna, requesting him to adjust the amount of
Rs. 7,32,487/- from the amount of gratuity of the petitioner and
accordingly it was recovered.
16. The petitioner has filed the instant writ petition for
quashment of the order dated 19th of March, 2020, issued by the
Respondent No. 5, revising his pay and arrears of salary as well
as the letter dated 13th of June, 2020, by virtue of which an
amount of Rs. 7,32,487 was recovered.
17. The petitioner is a retired employee of Minor
Irrigation Department, Government of Bihar, Patna. He was
initially appointed as an Accounts Clerk on 12 th of December,
1973. On 10th of May, 1988, the petitioner was given 1st time-
bound-promotion w.e.f. 12th of December, 1983. On 6th of June,
2009, he was extended the benefit of 2nd A.C.P. vide letter No.
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
759, dated 6th of August, 2009 w.e.f. 9th of August, 1999. The
petitioner was also extended the benefit of 3rd M.A.C.P. w.e.f. 1st
of January, 2009, vide order dated 28th of September, 2011. On
16th of January, 2010, the petitioner has passed departmental
accounts examination. He retired from service on
superannuation on 29th of February, 2016. Subsequently, by a
letter, dated 25th of January, 2017, the Respondent No. 5
withdrew and modified the order of extending the benefit of 1 st
time-bound-promotion to the petitioner w.e.f. 16th of January,
2010. Thereafter, an amount of Rs. 11,10,694/- was recovered
from the account of gratuity and unutilized earned leave vide
order dated 12th of October, 2017. The petitioner submitted a
representation to the Principal Secretary, Minor Irrigation
Department, Government of Bihar, Patna, which was rejected by
the Respondent No. 3.
18. So is the instant writ.
19. The petitioner was appointed vide order bearing
no. 1692, dated 23rd of June, 1986 as a Clerk on compassionate
ground in Water Resources Department. He joined his service
on 25th of June, 1986. The petitioner retired from service on
superannuation on 31st of December, 2019. He passed his
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
departmental examination on 22nd of February, 2014. Only after
passing the departmental examination, he was granted 1 st and 2nd
A.C.P. by an order dated 26th of May, 2016 w.e.f. 22nd of
February, 2014. Subsequently, on 6th of March, 2020, he was
directed to submit a reply showing cause as to why the order of
grant 2nd A.C.P. in favour of the petitioner would not be
cancelled. The petitioner accordingly submitted his reply but
vide order dated 18th of May, 2020, the 2nd A.C.P. granted to the
petitioner was cancelled. Subsequently, on 11th of September,
2020, the Respondent No. 4 directed the Treasury Officer to
recover an amount of Rs. 3,58,136/- and the same was
recovered from his retiral dues. The petitioner moved this Court
by filing C.W.J.C. No. 7346 of 2022, which was disposed of by
a Co-ordinate Bench vide order dated 19th of June, 2023,
directing the Respondent Authority to pass a reasoned order in
the light of the judgement passed by the High Court on
submission of a representation, to be filed by the petitioner. The
petitioner submitted his representation on 4th of July, 2023. The
said representation was rejected vide impugned order dated 21st
of July, 2023 by the Executive Engineer. In his order dated 21st
of July, 2023, the Executive Engineer considered that the
petitioner was appointed on 25th of June, 1986 in pay-scale of
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
Rs. 580-860/- as a Clerk in the department. On 22 nd of February,
2014, he passed the departmental examination. Subsequently,
vide order dated 26th of May, 2016, he was granted 1st and 2nd
M.A.C.P. w.e.f. 22nd of February, 2014. Subsequently, 7th Pay
Commission was introduced w.e.f. 1st of January, 2016 and vide
Finance Department Notification No. 10936, dated 27 th of
November, 2014, the benefit of 2nd A.C.P. in favour of the
petitioner was stopped.
20. Being aggrieved by the said order, the petitioner
has filed the instant writ petition.
21. From the pleadings of the parties. The following
issues are framed for adjudication of the disputes: -
(i) In C.W.J.C. No. 20503 of 2021 - Whether it is
incumbent upon an employee to pass the departmental
examination in order to get the benefit of A.C.P.?
(ii) In C.W.J.C. No. 14907 of 2022 - Whether the
Bihar State Employees Services Conditions (Assured Career
Progression Scheme) Rules, 2003 and subsequently Modified
Assured Career Progression Rules, 2010 are applicable in
respect of employees of the District Judiciary in the State of
Bihar in view of Bihar Civil Courts Staff (Class-III and Class-
IV) Rules, 1998 and Bihar Civil Courts Staff (Class-III and
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
Class-IV) Rules, 2009?
(iii) In C.W.J.C. No. 13481 of 2023 - Whether the
petitioner is entitled to the benefit of A.C.P. and M.A.C.P. only
from the date of appearance and / or passing of departmental
examination?
(iv) In C.W.J.C. No. 5786 of 2024 - Whether the
date of granting A.C.P. / M.A.C.P. can be modified subsequently
by the Respondents and the petitioner ought to be directed to
make repayment of excess amount by deducting the same from
gratuity of the petitioner?
(v) In C.W.J.C. No. 6360 of 2024 - Whether the
benefit of 1st time-bound-promotion granted to the petitioner can
be withdrawn after a lapse of 23 years and excess salary ought
to be deducted from the amount of gratuity and unutilized
earned leave of the petitioner?
(vi) In C.W.J.C. No. 8727 of 2024 - Whether after
superannuation of the petitioner, the Respondents are entitled to
recover portions of pay and allowances on the plea that the same
was granted on wrong calculation of A.C.P. / M.A.C.P.
22. This Court has considered all the issues together.
23. The Hon'ble Supreme Court in Amresh Kumar
Singh & Ors. v. State of Bihar & Ors., reported in 2023 (2)
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
PLJR (SC) 423 had the occasion to review Bihar Accounts
Service Rules, 2000, as modified on 28 th of March, 2000, which
provided for minimum graduation qualification for promotion to
the Bihar Accounts Service as also the A.C.P. Rules of 2003,
which spelled out that the beneficiary ought to fulfill the same
conditions as would be required for promotion, held that
fulfillment 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.
24. While coming to the said conclusion, the Hon'ble
Supreme Court has noted that the ACP scheme was enforced on
the recommendation of the Fifth Central Pay Commission in
context with Group C and D employees and it provided
monetary benefit to the employees on completion of 12 years
and 24 years of regular service who were not able to get
promotion. The scheme as such was anti-stagnation and
envisages merely placement of the employees in the higher pay
scale for the grant of financial upgradation only without grant of
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
actual promotion. The benefit of the ACP as such is like
granting non-functional in situ promotion.
25. In Amresh Kumar Singh (supra), the appellants
were appointed as Accounts Clerks, where the minimum
qualification was Intermediate. The cadre of Junior Accounts
Clerk and Senior Accounts Clerk, which existed prior to 1980,
merged w.e.f. 1st May, 1980 and a common cadre of Accounts
Clerk came into existence. In 1999, the demerger of the cadre
took place and the Clerks came to be retained in their respective
cadres without any promotional avenues. Those Clerks were
extended the benefit of A.C.P. by the Writ Court, but in appeal,
the contention of the State was accepted by the Division Bench
and for the purposes of grant of A.C.P.s, as per the Rules, the
qualification of graduation was sine qua non, which was not
possessed by the appellants. The order of the Writ Court,
extending the benefit of A.C.P. to the appellants was,
accordingly, set aside. Under such factual circumstances, the
Hon'ble Supreme Court decided as aforesaid in Amresh Kumar
Singh (supra).
26. On this subject or the issues involved in the
above-mentioned writ petitions, there were divergent opinion
passed by different Hon'ble Benches of this Court. In order to
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
set the principle of law at rest as many as five writ petitions
were referred to the Full Bench and in the case of Kamlanand
Thakur v. State of Bihar & Ors. (C.W.J.C. No. 18727 of 2017)
along with other cases, the Full Bench, relying upon the
decision of the Hon'ble Supreme Court in Amresh Kumar Singh
(supra), decided the issue in paragraph 47, which is as under: -
"47. The effect of scheme, the
Supreme Court went on, must be judged
keeping in view the object and purport of the
scheme. In that context, it was further held that
the fulfillment of educational qualifications
prescribed under the Recruitment Rules for the
purposes of promotion are not necessary for
non-functional in situ promotion like grant of
ACP."
27. The learned Advocate on behalf of the
Respondents in C.W.J.C. No. 14907 of 2022 submits that the
employees of the Civil Courts in Bihar is governed by the Bihar
Civil Courts Staff (Class-III and Class-IV) Rules, 2009. Rule 22
of the said Rules deals with promotion of an employee to a
higher grade. Rule 22 runs thus: -
"22. Promotion. (1) A candidate shall
not be promoted to the higher scale in service
unless he qualifies in the examination as
prescribed by the High Court.
(2) Appointment to the higher grade of
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
the ministerial establishment should ordinarily
be made by seniority from lower grade provided
they possess the prescribed educational and
other qualification as laid down in these Rules
or any other existing law that may be applicable
and are otherwise fit to perform the duties
attached thereto and pass the test, if any,
prescribed under these Rules.
(3) Typist before his promotion to the
higher scale must pass another test of typing;
the minimum speed of typing would be 50 words
per minute in English or 35 words per minute in
Hindi. Mistakes at the rate of 1½ words per
hundred words shall only be allowed and he will
have to pass an examination in practice and
procedure and in such other paper for next
promotion in higher scale as may be prescribed
by the High Court form time to time.
(4) Before a Stenographer is promoted
to the higher scale he will have to pass the test
of stenography at the rate of 120 words per
minute in English and 80 words per minute (in
Hindi sic?] and only 5% mistakes shall be
allowed and he will also have to pass the
examination of practice and procedure and such
other papers for next promotion in higher scale,
which may be specified by the High Court from
time to time.
(5) Before a clerk is promoted to the
category 2 or he gets financial progression in
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
the same scale by any other reason he will have
to pass an examination in:-
(i) Civil Court and Criminal Court
Rules framed by the High Court.
(ii) Accountancy.
(iii) Knowledge of drafting of
correspondence and order sheet and
(iv) Practice and Procedure.
(6) A Clerk before his promotion in
Category 1 or he gets financial progression in
next higher scale by any other reason shall have
to pass an examination on procedure (Civil and
Criminal) Stamp Act, Court-fees Act, Suits
Valuation Act, Correspondence and Noting and
Drafting. Typists/Stenographers may be
transferred to the post of Clerks on completion
of period of 10 years. if they pass the necessary
examination as mentioned hereinbefore.
(7) If suitable persons are not
available for promotion to the Category 1 of
Clerk, it would be open to an Appointing
Authority to fill up the said posts by direct
recruitment, subject to the prior concurrence of
the High Court. The qualification for direct
recruitment in the posts of Supertime Scale shall
be B.A., B.Sc. and B.Com. or an equivalent
degree from the recognized University and also
degree in Bachelor of Law."
28. The learned Advocate for the Respondents
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
especially refers to Sub-clause-(6) of Rule 22. This provision
states that a Clerk before his promotion in Category 1 or he gets
financial progression in next higher scale by any other reason,
shall have to pass a departmental examination. It is submitted by
him that A.C.P. or M.A.C.P. Rules promulgated by the State
Government under Article 309 of the Constitution of India is not
applicable in case of the employees of the Civil Courts for
getting financial benefit in situ.
29. I am not in a position to accept such contention
raised by the learned Advocate appearing on behalf of the
Respondents. While Rule 22 of 2009 Rules deals with
promotion, A.C.P. and M.A.C.P. Rules deal with granting
financial benefit to an employee whose position is stagnated for
not being promoted to the higher scale. Therefore, the Civil
Court staff in the State of Bihar are governed by A.C.P. and
M.A.C.P. Rules, when the concerned employee does not get
promotion due to one reason or the other.
30. In C.W.J.C. No. 5786 of 2024, it is found that the
petitioner was appointed as Typist initially on 25th of May, 1987.
He joined his service on 27th of May, 1987. He was terminated
on the ground of excess employees in the cadre. Again on 25th of
February, 1990, they were taken back in the service. Since then,
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
the petitioner had been working in Public Health Engineering
Department. Therefore, the date of service of the petitioner
ought to be held w.e.f. 28th of February, 1990. The petitioner
was entitled to 1st A.C.P. after 12 years of his service. Thus, he
was entitled to get 1st A.C.P. on or from 28th of February / 1st of
March, 2002. The petitioner, however, was granted the 1st A.C.P.
vide office order no. 44, dated 3rd June, 2006. The said benefit
was cancelled vide order dated 30th of September, 2018 on
account of the petitioner's not passing accounts examination.
The said order, dated 30th of September, 2008 was unjust and
illegal as this Court holds that the petitioner was entitled to 1 st
A.C.P. on completion of his 12 years of service. Thereafter, the
petitioner was entitled to get 2nd A.C.P. on completion of 20
years of service. However, as the petitioner was promoted to the
post of Head Clerk, he was granted 2nd A.C.P. w.e.f. 1st January,
2009. The petitioner is entitled to get 3rd M.A.C.P. on
completion of 30 years of service, meaning thereby, he was
entitled to get 3rd M.A.C.P. on and from 28th of February, 2020.
This Court fails to understand as to how the 3rd M.A.C.P. of the
petitioner was due w.e.f. 29th of May, 2017. The petitioner
counted his service from his initial appointment which was
terminated on 10th of July, 1987. He cannot claim 3rd M.A.C.P.
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
from 27th of May, 2017. As he retired from service on 31 st of
January, 2020, he was not entitled to get 3rd M.A.C.P.
31. In such view of the matter, this Court holds that
the petitioner of C.W.J.C. No. 5786 of 2024 was entitled to 1 st
A.C.P. w.e.f. 28th February / 1st of March, 2002 and the 2nd
M.A.C.P. w.e.f. 28th of February / 1st of March, 2012. However,
since he got 2nd A.C.P. w.e.f. 1st of January, 2009 on his
promotion to the post of Head Clerk, he was entitled to get 2 nd
A.C.P. w.e.f. 1st January, 2009.
32. With regard to C.W.J.C. No. 6360 of 2024, the
petitioner was given 1st time-bound-promotion w.e.f. 12th of
December, 1983, i.e., after the expiry of 10 years of his service.
He was granted the 2nd A.C.P. on 6th of June, 2009 w.e.f. 9th of
August, 1999. The petitioner was also extended the benefit of 3 rd
M.A.C.P. w.e.f. 1st of January, 2009. After his retirement, the
petitioner was directed to make repayment of a sum of Rs.
11,10,694/- on the ground that he was not entitled to get the
benefit of 1st time-bound-promotion on 10th of May, 1988 and
the benefit of 1st time-bound-promotion was granted w.e.f. 16th
of January, 2010.
33. This Court fails to understand how the previous
order of granting time-bound-promotion was modified and the
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
benefit of the said promotion was extended w.e.f. 16th of
January, 2010. After granting promotion and subsequent A.C.P.
and M.A.C.P. along with financial benefit, the petitioner cannot
be directed to make repayment of the amount from his retiral
dues.
34. The same is the case in respect of C.W.J.C. No.
8727 of 2024.
35. In the State of Punjab & Ors. v. Rafiq Masih,
reported in (2014) 8 SCC 883, the question of law for
consideration before the High Court of Punjab and Haryana was
whether the government is entitled to recover from an employee
any payment made in excess of what the employee is otherwise
entitled to in the absence of any fraud or misrepresentation on
the part of the employee. The High Court of Punjab and
Haryana, relying on a Full Bench decision in the case of Budh
Ram v. State of Haryana, reported in 2009 (122 FLR) 1053,
directed not to recover the excess amount from the Respondents.
36. In Shyam Babu Verma & Ors. v. Union of India
& Ors., reported in (1994) 2 SCC 521, the Hon'ble Supreme
Court held that since the amount has already been paid to the
petitioner for no fault of theirs, the said amount shall not be
recovered by the Respondent-Union of India. The same view
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
was taken in Sahib Ram v. State of Haryana & Ors., reported
in 1995 Supp (1) SCC 18.
37. In a subsequent decision in the case of Chandi
Prasad Uniyal & Ors. v. State of Uttarakhand & Ors., reported
in (2012) 8 SCC 417, question was raised as to whether the
appellant can retain the amount received on the basis of
irregular/wrong pay fixation in the absence of any
misrepresentation or fraud on his part. The Court after taking
into consideration the various decisions, had come to the
conclusion that even if by mistake of the employer, the amount
is paid to the employee and on a later date if the employer after
proper determination of the same discovers that the excess
payment is made by mistake or negligence, the excess payment
so made can be recovered.
38. In Rafiq Masih (supra), it was held by the Hon'ble
Supreme Court in paragraphs 8 to 14 as under:
"8. In our view, the law laid down in
Chandi Prasad Uniyal case [(2012) 8 SCC
417 : (2012) 4 SCC (Cri) 450] , no way
conflicts with the observations made by this
Court in the other two cases. In those decisions,
directions were issued in exercise of the powers
of this Court under Article 142 of the
Constitution, but in the subsequent decision this
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
Court under Article 136 of the Constitution, in
laying down the law had dismissed the petition
of the employee. This Court in a number of
cases had battled with tracing the contours of
the provision in Articles 136 and 142 of the
Constitution of India. Distinctively, although
the words employed under the two aforesaid
provisions speak of the powers of this Court, the
former vest a plenary jurisdiction in the
Supreme Court in the matter of entertaining and
hearing of appeals by granting special leave
against any judgment or order made by a court
or tribunal in any cause or matter. The powers
are plenary to the extent that they are
paramount to the limitations under the specific
provisions for appeal contained in the
Constitution or other laws. Article 142 of the
Constitution of India, on the other hand is a
step ahead of the powers envisaged under
Article 136 of the Constitution of India. It is the
exercise of jurisdiction to pass such enforceable
decree or order as is necessary for doing
"complete justice" in any cause or matter.
9. The word "complete justice" was
fraught with uncertainty until Article 142 of the
Constitution received its first interpretation in
Prem Chand Garg v. Excise Commr. [AIR 1963
SC 996] which added a rider to the exercise of
wide extraordinary powers by laying down that
though the powers are wide, the same is an
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
ancillary power and can be used when not
expressly in conflict with the substantive
provisions of law. This view was endorsed by a
nine-Judge Bench in Naresh Shridhar Mirajkar
v. State of Maharashtra [AIR 1967 SC 1 :
(1966) 3 SCR 744] reiterated by a seven-Judge
Bench in A.R. Antulay v. R.S. Nayak [(1988) 2
SCC 602 : 1988 SCC (Cri) 372] and finally
settled in Supreme Court Bar Assn. v. Union of
India [(1998) 4 SCC 409]
10. Article 136 of the Constitution of
India, confers a wide discretionary power on
the Supreme Court to interfere in suitable cases.
Article 136 is a special jurisdiction and can be
best described in the words of this Court in
Ramakant Rai v. Madan Rai [(2003) 12 SCC
395 : 2004 SCC (Cri) Supp 445] : (SCC p. 403,
para 14)
"14. ... It is a residuary power; it is
extraordinary in its amplitude, its limits, when it
chases injustice, is the sky itself."
11. Article 136 of the Constitution of
India was legislatively intended to be exercised
by the Highest Court of the land, with
scrupulous adherence to the settled judicial
principle well established by precedents in our
jurisprudence. Article 136 of the Constitution is
a corrective jurisdiction that vests a discretion
in the Supreme Court to settle the law clear and
as forthrightly forwarded in Union of India v.
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
Karnail Singh [(1995) 2 SCC 728] , it makes
the law operational to make it a binding
precedent for the future instead of keeping it
vague. In short, it declares the law, as under
Article 141 of the Constitution.
12. Article 142 of the Constitution of
India is supplementary in nature and cannot
supplant the substantive provisions, though they
are not limited by the substantive provisions in
the statute. It is a power that gives preference to
equity over law. It is a justice-oriented
approach as against the strict rigours of the
law. The directions issued by the Court can
normally be categorised into one, in the nature
of moulding of relief and the other, as the
declaration of law. "Declaration of law" as
contemplated in Article 141 of the Constitution:
is the speech express or necessarily implied by
the highest court of the land. This Court in
Indian Bank v. ABS Marine Products (P) Ltd.
[(2006) 5 SCC 72] , Ram Pravesh Singh v. State
of Bihar [(2006) 8 SCC 381 : 2006 SCC (L&S)
1986] and in State of U.P. v. Neeraj Awasthi
[(2006) 1 SCC 667 : 2006 SCC (L&S) 190] has
expounded the principle and extolled the power
of Article 142 of the Constitution of India to
new heights by laying down that the directions
issued under Article 142 do not constitute a
binding precedent unlike Article 141 of the
Constitution of India. They are direction issued
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
to do proper justice and exercise of such power,
cannot be considered as law laid down by the
Supreme Court under Article 141 of the
Constitution of India. The Court has
compartmentalised and differentiated the relief
in the operative portion of the judgment by
exercise of powers under Article 142 of the
Constitution as against the law declared. The
directions of the Court under Article 142 of the
Constitution, while moulding the relief, that
relax the application of law or exempt the case
in hand from the rigour of the law in view of the
peculiar facts and circumstances do not
comprise the ratio decidendi and therefore lose
its basic premise of making it a binding
precedent. This Court on the qui vive has
expanded the horizons of Article 142 of the
Constitution by keeping it outside the purview
of Article 141 of the Constitution and by
declaring it a direction of the Court that
changes its complexion with the peculiarity in
the facts and circumstances of the case.
13. Therefore, in our opinion, the
decisions of the Court based on different scales
of Article 136 and Article 142 of the
Constitution of India cannot be best weighed on
the same grounds of reasoning and thus in view
of the aforesaid discussion, there is no conflict
in the views expressed in the first two judgments
[(1994) 2 SCC 521 : 1994 SCC (L&S) 683 :
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
(1994) 27 ATC 121] , [1995 Supp (1) SCC 18 :
1995 SCC (L&S) 248] and the latter judgment
[(2012) 8 SCC 417 : (2012) 4 SCC (Cri) 450] .
14. In that view of the above, we are
of the considered opinion that reference was
unnecessary. Therefore, without answering the
reference, we send back the matters to the
Division Bench for their appropriate disposal.
Ordered accordingly."
39. For the reasons, stated above, this Court holds that
grant of A.C.P. / M.A.C.P. does not depend upon passing
departmental examination and getting promotion by an
employee. The A.C.P. Rules was promulgated in the year 2003,
which was made effective w.e.f. 09.08.1999. So the cut-off date
of granting 1st A.C.P. was 09.08.1999, whatever be the length of
service. It is stated in the Rule that the A.C.P. will be provided
after 12 and 24 years of service. So, on 09.08.1999, if an
employee completes 12 years of service, he is entitled to get 1 st
A.C.P. The A.C.P. Rule was modified by M.A.C.P. Rules where
modified assured career progression was decided to be granted
after expiry of 10, 20 and 30 years of service. M.A.C.P. Rules
came into force on 1st of January, 2009. Therefore, on the cut-off
date, if an employee completes 10/20/30 years of service, he is
entitled to get 1st, 2nd and 3rd M.A.C.P. on the basis of his length
Patna High Court CWJC No.20503 of 2021 dt.18-09-2024
of service.
40. Secondly, when authority / employer granted the
benefit of A.C.P. and M.A.C.P. to an employee, such financial
benefit cannot be taken away by way of adjustment after his
superannuation from his pensionary benefit.
41. Thirdly, the employees of the Civil Courts in the
State of Bihar are governed by A.C.P. / M.A.C.P. Rules and
where an employee is not promoted after stipulated period of
time, he is entitled to get A.C.P. / M.A.C.P. as per the Rules. The
provision for promotion will not curtail the right of the Civil
Court employees to claim A.C.P. / M.A.C.P.
42. With the aforesaid directions, all the writ petitions
stand disposed of, on contest, however, without costs.
(Bibek Chaudhuri, J)
skm/-
AFR/NAFR A.F.R.
CAV DATE N/A
Uploading Date 24.09.2024
Transmission Date N/A
