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2014 DIGILAW 973 (PAT)

Hanumant Lall v. State of Bihar

2014-09-10

RAMESH KUMAR DATTA, RAVI RANJAN

body2014
RAMESH KUMAR DATTA, J.:–Heard learned counsel for the appellant, learned Government Advocate No.9 for the State and learned counsel for respondent No.5. 2. The appeal is directed against the judgment and order dated 27.9.2005 passed by the writ court by which the writ petition had been dismissed holding that no relief could be granted to the petitioner for grant of senior selection grade scale with effect from 1.3.1986 and so far the other prayer of the petitioner-appellant with regard to super time scale and promotion to the post of Head Assistant is concerned, he may represent his case before the respondent authorities, which would be considered and disposed of in accordance with law. 3. The appellant and the private respondents were appointed as Clerks in the then Public Works Department, (now Road Construction Department) from 10.11.1956 till 11.8.1961. It may be pointed out that so far as the respondent Nos. 8 and 10 are concerned, the appeal stood dismissed as against them and they have been deleted by the order of this Court dated 2.7.2013 and, therefore, the cases of the petitioner-appellant viz-a-viz those respondents are not under consideration. Thereafter the petitioner-appellant and the respondents were granted junior selection grade and senior selection grade on different dates. The respondent Nos. 5, 6 & 9 were also granted the super time scale on different dates and the respondent No.9 further received the promotion as Head Assistant on 4.11.1994. The stand of the petitioner-appellant is that he was alone among those employees, of what subsequently upon bifurcation became the Road Construction Department, in the office of Superintending Engineer, Road Construction Circle, Darbhanga, who were parties to the writ petition, who has passed final accounts examination in the month of February, 1986 and thus he became eligible for grant of senior selection grade with effect from 1.3.1986. It is also the contention of the writ petitioner, according to learned counsel, that since the vacancies arose on 1.10.1986 when the said respondent No.5 was granted the senior selection grade, he ought to have been granted the same on 1.10.1986, as according to him, none of the respondents had passed the final accounts examination which was a sine qua non for any promotion, including those to senior selection grade, super time scale and on the post of Head Assistant. Accordingly, the petitioner also claims that he ought to have been granted super time scale with effect from 1.3.1989, the date on which it was granted to respondent No.9, and further that he should have been promoted to the post of Head Assistant with effect from 4.11.1995, the date on which the said promotion was granted to respondent No.9. 4. The aforesaid stand of the petitioner-appellant is based upon the amendment brought into force by Rule 157(3)(J) of Bihar Boards Miscellaneous Rules vide correction slip No. 30 dated 29.3.1982 by administrative instruction which provides that clerks of the Muffasil offices could not/cannot be promoted to the selection grade posts without passing final examination in accounts. The said administrative instruction was finally made into a statutory rule under Article 309 of the Constitution by Notification dated 29.4.1985. 5. So far as the respondents are concerned, it is the stand of the petitioner that while they have been given the benefit of junior selection grade prior to 1982 when the amendment was brought in making it compulsory to pass the final accounts examination from 29.3.1982 but the promotion to senior selection grade or Head Assistant could not have been given to them without having passed the final accounts examination. It is stated that respondent No.5 despite having not passed the final accounts examination was granted senior selection grade on 1.10.1986 and super time scale on 1.9.1991. Similarly respondent No.6 was granted senior selection grade on 1.7.1987 and super time scale on 1.10.1996, respondent No.7 was granted senior selection grade on 1.3.1988 and respondent No.9 was granted senior selection grade on 1.4.1982, super time scale on 1.3.1989 and for the promotion to the post of Head Assistant on 4.11.1994. The petitioner-appellant retired on 30.11.1999 and the respondents also have since retired on different dates from 29.2.1996 till 29.2.2000. When all the representations of the petitioner could be of no avail, he ultimately approached this Court by filing the writ petition which has been dismissed with the aforesaid result. 6. In support of his stand learned counsel for the appellant relies upon a Full Bench decision of this Court in the case of Maheshwar Prasad Singh & Ors. Vs. The State of Bihar & Ors. : 2000(4) PLJR 262 , in paragraphs 13 to 16 of which it has been held as follows :— “13. 6. In support of his stand learned counsel for the appellant relies upon a Full Bench decision of this Court in the case of Maheshwar Prasad Singh & Ors. Vs. The State of Bihar & Ors. : 2000(4) PLJR 262 , in paragraphs 13 to 16 of which it has been held as follows :— “13. On the basis of the above discussion I have no hesitation in holding that the State Government was fully competent to amend rule 157(3) (J) of the Board’s Miscellaneous Rules by executive instructions and the amendment made vide correction slip no. 30 dated 29.3.82 was a valid amendment. Thus, clerks were required to pass the final examination in Accounts as a condition for promotion to the selection grades after 29.3.82. 14. The above discussion, however, covers the period between 29.3.82 and 29.4.85. So far as the period between 1.5.80 and 29.3.82 is concerned, I am inclined to agree with the petitioners that after amalgamation of the posts of L.D. and U.D. clerks, the absence of any provision requiring the clerks to pass Accounts examination for promotion to selection grade, and the erstwhile provision having become redundant or otiose, the promotion could not be denied to them on account of non-passing of the Accounts examination during that period. The amendment dated 29.3.82 was result of administrative instruction and could not have any retrospective effect. To that extent, I would also endorse the decision of this Court in Shamsuddin’s case. 15. As regards the period from 29.4.85; counsel for the petitioners fairly agreed that the amendment having been brought under Article 309 of the Constitution, the statutory nature of which cannot be doubted, the clerks could not be promoted to the selection grade posts without passing the Accounts examination. In view of the fair stand of the counsel for the petitioners it is not necessary to discuss the case with respect to the period from 29.4.85 onwards. 16. The result of the above discussion is that the clerks of the Muffasil offices could/can not be promoted to the selection grade posts without passing final examination in Accounts except during the period between 1.5.80 and 29.3.82. Any promotion due to the clerk during that period, thus, cannot be denied on the ground that they had not passed the said examination.” 7. Any promotion due to the clerk during that period, thus, cannot be denied on the ground that they had not passed the said examination.” 7. The stand of the State, on the other hand, is based essentially on the Finance Department Circular dated 12.8.1992 along with the Finance Department’s letter dated 13.2.1995. By Circular dated 12.8.1992 issued by the Finance Department which was addressed to all Secretaries of the Public Works Department, it was stated that the clerks in the works department who had been given promotion before 1.9.1983 would not be reverted only on the ground that they have not passed the final accounts examination because they had been given the benefit of not passing the said examination prior to 1.9.1983 and therefore because of the said benefit granted if they fulfilled the other conditions for promotion then they can be granted promotion. The said Circular dated 12.8.1992 was subsequently clarified by the Circular dated 21.6.1993 of the Finance Department in which it was stated that the relaxation was granted only for the purpose of the first promotion and for getting further promotion the condition of passing the departmental examination would be compulsory. However, another clarification was issued by the Finance Department on 13.2.1995 in which it was stated that the clarification dated 21.6.1993 was contradictory to the Circular dated 12.8.1992 and therefore it was decided that the benefit of relaxation having been granted once for the first promotion the passing of departmental examination would not be compulsory for further promotions. 8. In support of the Circulars dated 12.8.1992 and 13.2.1995 learned Government Advocate No.9 seeks to reply upon the Scope mentioned at the beginning of the Bihar Boards Miscellaneous Rules, 1958 which states that the same shall be applicable to all subordinate offices under the State Government to the extent the Rules are not inconsistent with any instruction specially issued by the department concerned in relation to any particular office. It is submitted by learned counsel for the State that the Circular dated 12.8.1992 along with the final clarification dated 13.2.1995 although inconsistent with Rule 157(3)(J) of the Boards Miscellaneous Rules yet in view of the provisions made in the Scope of the said Rules it was open to the department to have issued such executive instruction overriding the statutory rules framed under Article 309 of the Constitution. For the said reason, according to learned counsel for the State, the grant of senior selection grade, super time scale and the post of Head Assistant to the concerned respondents was justified. 9. Learned counsel for the respondent No.5, on the other hand, while admitting that the respondent had not passed the final accounts examination at any stage, submits that there was no provision for passing the accounts examination prior to 29.4.1985 and thus the respondent was rightly granted the promotion on the post of junior selection grade and was entitled to subsequent promotions also in view of the law laid down by this Court in several decisions, including the case of Md. Shamsul Hoda Vs. The State of Bihar and others : 2003(3) PLJR 252 decided by a learned Single Judge of this Court, as also the case of Lala Devendra Prasad Vs. The State of Bihar and others : 2000(1) PLJR 228 . Learned counsel has placed reliance upon another decision of another learned Single Judge of this Court in the case of Yadunath Verma Vs. The State of Bihar & Ors.: 1996(1) PLJR 750 . He has also cited a Division Bench decision in the case of Mohammad Shamsuddin & others Vs. State of Bihar & others : 1983 PLJR 347 . 10. In reply to the aforesaid submissions of learned counsel for the respondents, apart from reiterating the reliance upon the Full Bench decision in Maheshwar Prasad Singh’s case (supra), learned counsel for the appellant has further cited a Division Bench decision of this Court in the case of State of Bihar & Ors. Vs. Kusheshwar Nath Pandey & Anr. : 2013(1) PLJR 939 , in paragraphs 11 and 12 of which it has been held as follows :— “11. Pursuant to the aforesaid Rule 157, the State Government has issued the above referred Circular dated 1st April, 1980. The officers concerned have been instructed to follow the aforesaid Rule 157 scrupulously in matters of grant of time bound promotion and that any order which is not approved by the Finance Department be reconsidered. Under the above referred Circular dated 26th December, 1985, detailed instructions have been issued for grant of time bound promotion to the Government servants under Government Resolution dated 30th December, 1981. Under the above referred Circular dated 26th December, 1985, detailed instructions have been issued for grant of time bound promotion to the Government servants under Government Resolution dated 30th December, 1981. The said Circular, inter alia, enjoins the concerned authority to forward the proposal for approval of the time bound promotion granted by the competent authority. The approval would be granted by the Finance Department. In case the approval is not granted or it is wrongly made, the amount paid in excess of the due salary shall be recovered. The above referred instructions dated 12th August, 1992 were issued by the Finance Department, Government of Bihar to all departments of the Secretariat. The said instructions reiterated that all Clerks in the subordinate offices were required to pass the Accounts Examination. It further provided that the Clerks who are granted time bound promotion after 1st April, 1983, without passing the Accounts Examination, be reverted. It also provided that in case adequate number of qualified Clerks were not available, the Clerks who were not qualified (had not passed the Accounts Examination) may also be granted ad hoc promotion on condition that the concerned Clerk will pass the next Accounts Examination. 12. Thus, it is evident that all along the rule makes passing of the Accounts Examination a condition precedent for promotion to a higher post including the promotion to a higher grade under the “Time Bound Promotion Scheme”. Admittedly, the writ petitioner had not passed the Accounts Examination in 1991, the date from which he has been given the benefit of time bound promotion or in 1998, the date on which such promotion was granted. His promotion was not even approved by the Finance Department as required. Evidently, the writ petitioner received the benefit of time bound promotion to which he was not entitled to under the rules. His passing of Accounts Examination in 2007 will not validate the promotion granted to him with effect from 1st September, 1991 nor would it validate the order dated 13th November, 1998.” 11. We have considered the submissions of learned counsels for the parties. His passing of Accounts Examination in 2007 will not validate the promotion granted to him with effect from 1st September, 1991 nor would it validate the order dated 13th November, 1998.” 11. We have considered the submissions of learned counsels for the parties. Factually it is not disputed that on the dates on which the petitioner-appellant claims promotion to senior selection grade, super time scale and on the post of Head Assistant the concerned respondents would be directly affected, namely, respondent No.5 with regard to senior selection grade and respondent No.9 with regard to super time scale and on the post of Head Assistant. None of the respondents had passed the said examination till the filing of the writ petition in the year 1993. The Full Bench in Maheshwar Prasad Singh’s case (supra) has clearly held that from 29.3.1982 when by executive instruction the Rule 157(3)(J) of the Boards Miscellaneous Rules had been amended was a valid amendment and thus clerks were required to pass the final accounts examination as a condition of promotion to the selection grade after 29.3.1982. The said position was further strengthened by making the said amendment under Article 309 of the Constitution from 29.4.1985 and thus the clerks could not be promoted to the selection grades without passing the final accounts examination from 29.3.1982 onwards and such benefit to the said clerks of Muffasil offices was permissible only during the period from 1.5.1980 to 29.3.1982. 12. In view of the aforesaid clear proposition laid down by the Full Bench which has discussed the Division Bench decision in Shamsuddin’s case (supra) also it is evident that no benefit can be derived by the respondents from the Finance Department’s Circular dated 12.8.1992 and 13.2.1995 which in fact were not even in existence when the senior selection grade or super time scale promotion had been granted to the respondents and had only come prior to 4.11.1994 when the promotion to the post of Head Assistant was granted to respondent No.9. Moreover, such executive instruction could not have overridden the statutory provisions brought about by amendment of Rule 157(3)(J) of the Boards Miscellaneous Rules, since executive instructions are permissible only to the extent that they fill the gap in the statutory rules but not in contravention of the provisions of such statutory rules or the rules framed under Article 309 of the Constitution. 13. 13. The reliance in this regard by learned counsel for the State on what has stated in the Scope to the Boards Miscellaneous Rules, 1958 appears to be wholly misconceived as the said portion apart from not forming part of the statutory structure of the Boards Miscellaneous Rules and having been laid down before coming into force of the Constitution when the Boards Miscellaneous Rule was merely an executive instruction, would not affect the overriding statutory effect of the Boards Miscellaneous Rules after coming into force of the Constitution and only by specific statutory rules such exclusion can be permitted. 14. Moreover, the Scope itself speaks about the instructions to the contrary issued by the department concerned in relation to any particular office whereas the Circulars of the Finance Department dated 12.8.1992 and 13.2.1995 are not by the concerned department, i.e., the Road Construction Department, but by the Finance Department and are of general nature applicable to all departments of the Government. 15. So far the submissions of learned counsel for the respondent No.5 are concerned, they are contrary to what has been held by the Full Bench in Maheshwar Prasad Singh’s case (supra). The cases relied upon by him also do not appear to have laid down the correct law in view of the law laid down in the Full Bench decision. 16. Thus, in the light of the aforesaid discussions, the appeal is allowed. The order dated 27.9.2005 passed by the writ court is set aside. The respondents are directed to grant the promotion of senior selection grade to the appellant with effect from 1.10.1996 and also grant him the super time scale and promotion to the post of Head Assistant either from 1.3.1989 and 4.11.1994 respectively or from any dates on which as per the Kalawadhi fixed with respect to the posts held by the petitioner he would be eligible. Let the aforesaid benefits along with all consequential financial benefits be granted to the appellant-petitioner within three months from the date of receipt/production of a copy of this order.