JUDGMENT : 1. The matter has been taken up through Video Conferencing with the consent of learned counsel for the parties. They have no complaint whatsoever regarding audio/visual quality. I.A. No. 5180 of 2020 2. This application has been filed for condoning the delay of about six months, which has occurred in preferring the present appeal. However, the office has reported that in view of the order dated 23.03.2020 and 06.05.2020 passed in suo-moto Writ Civil No. 03 of 2020 by the Hon’ble Supreme Court, the appeal is to be treated to have been filed within time. 3. Ordered accordingly. 4. Thus, there will be no requirement of condoning the delay, because the appeal has to be treated to have filed within time. 5. This Interlocutory Application, accordingly, stands disposed of. 6. However, this order would be subject to any objection raised in future by any of the party or the aggrieved person. L.P.A. No. 299 of 2020 7. The instant intra-court appeal preferred under Clause-10 of Letters Patent is directed against the order/judgment dated 13.02.2020 passed by the learned Single Judge of this Court in W.P. (S) No. 424 of 2018, by which, the direction sought for by the writ petitioner, upon the respondents to consider and grant him benefits under 2nd Assured Career Progression Scheme (ACP) and Modified Assured Career Progression Scheme (MACP) from the due date with all consequential benefits, has been refused to be granted by dismissing the writ petition. 8. The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, are as hereunder. 9. The writ petitioner was appointed as a Clerk on 28.07.1983 in the Project Girls High School, Tenughat. He was confirmed to the said post on 30.01.1986. He was superannuated from service on attaining the age of 60 years i.e. on 30.06.2013. The grievance of the writ petitioner was that in spite of several representations for grant of benefits under the Assured Career Progression Scheme as also under the Modified Assured Career Progression Scheme, the same was not granted, therefore, the writ petition being W.P. (S) No. 424 of 2018 has been filed for seeking the aforesaid direction. The grievance of the writ petitioner was that in spite of several representations for grant of benefits under the Assured Career Progression Scheme as also under the Modified Assured Career Progression Scheme, the same was not granted, therefore, the writ petition being W.P. (S) No. 424 of 2018 has been filed for seeking the aforesaid direction. The writ petitioner took the ground that although, he was not passed the departmental examination but since he has completed 50 years of age, as such, was entitled for exemption and even without passing the departmental examination, he ought to have been granted benefit of 2nd Assured Career Progression Scheme as also the Modified Assured Career Progression Scheme. The respondent has taken the plea before the writ Court that, the writ petitioner since has not passed the departmental examination, which is mandatorily to be passed, therefore, the financial benefit by way of granting 2nd Assured Career Progression Scheme and Modified Assured Career Progression Scheme have not been granted. 10. So far as the ground taken on behalf of the writ petitioner that he has already attained the age of 50 years, therefore, was entitled for exemption from passing departmental examination, submission has been made, in rebuttal to the same, that merely because one or the other employees have completed the age of 50 years, does not ipso-facto entitled such employee for grant of such monetary benefit, rather, the benefit of exemption is only to be given if any application is being filed on behalf of one or the other employee making reference therein that due to not conducting departmental examination, such employee could not be able to appear therein, and therefore, on the ground of laches on the part of the State authority, the financial benefit under the aforesaid scheme cannot be denied. Moreover, the exemption can be sought for under the Government Circular, if up to the age of 50 years and if such examination could not have been conducted, then only in that circumstances, the Government is required to pass an order exempting such employee for passing in the departmental examination for getting the benefit of upgradation in pay-scale under Assured Career Progression Scheme and Modified Assured Career Progression Scheme. But, the writ petitioner has not filed any such application on attaining the age of superannuation, rather, he has superannuated from service on attaining the age of 60 years and thereafter, he has made representation for grant of financial benefit on the ground that the benefit of exemption be granted on attaining the age of 50 years without any order by the competent authority with respect to grant of exemption. 11. Therefore, the learned Single after taking into consideration the rival submission advanced on behalf of the parties, has dismissed the writ petition, against which, the present intra-court appeal has been filed. 12. Mr. Ajit Kumar, learned counsel appearing for the writ petitioner has submitted that since the writ petitioner has attained the age of 50 years, and as such, as per the circular of the Government, there is no requirement to pass departmental examination, rather, the writ petitioner ought to have been treated to be exempted for passing departmental examination for grant of benefit of upgradation under Assured Career Progression Scheme and Modified Assured Career Progression Scheme. But the State authority has not taken such decision for grant of upgradation, therefore, the writ petition has been filed before this Court by invoking the jurisdiction conferred to this Court under Article 226 of the Constitution of India. But, the learned Single Judge, while dismissing the writ petition, has not considered the aforesaid aspect of the matter in the right perspective. Therefore, the order passed by the learned Single Judge suffers from material irregularity, as such, not sustainable in the eye of law. 13. Per contra, learned counsel appearing for the State-respondent has submitted that there is no dispute that there is circular of the State Government for grant of exemption in passing the departmental examination, if an employee attains the age of 50 years but in the meantime, if the department has not conducted any departmental examination. Under the said circular, an application is required to be filed by the concerned employee showing the reason of not appearing in the departmental examination and due to non-conducting of the said examination with a request for grant of exemption. But, no such application has been filed by the writ petitioner for seeking exemption. Under the said circular, an application is required to be filed by the concerned employee showing the reason of not appearing in the departmental examination and due to non-conducting of the said examination with a request for grant of exemption. But, no such application has been filed by the writ petitioner for seeking exemption. The writ petitioner, after superannuation from service i.e. on attaining the age of 60 years, has made representation for grant of upgradation in pay-scale under Assured Career Progression Scheme and Modified Assured Career Progression Scheme. Since the writ petitioner has not passed the departmental examination, which is mandatorily to be passed by one or the other employee for grant of benefit of upgradation in pay-scale, therefore, the learned Single Judge after considering the aforesaid admitted fact is correct in dismissing the writ petition, hence, the order impugned may not be interfered with. 14. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order. 15. The undisputed facts of this case is that the writ petitioner has joined as a Clerk in the Project Girls High School, Tenughat on 28.07.1983. He superannuated from service w.e.f. 30.06.2013 i.e. on attaining the age of 60 years. The writ petitioner, thereafter, has filed representation for grant of upgradation in pay-scale under the 2nd Assured Career Progression Scheme and Modified Assured Career Progression Scheme. The State authority has not granted such benefit due to the reason that the writ petitioner did not passed departmental examination. The writ petitioner, being aggrieved with the action of the State authority, in not granting such benefit, has approached to this Court by filing the writ petition being W.P. (S) No. 424 of 2018. The writ petition has been dismissed on the ground that the writ petitioner since has not passed the departmental examination, therefore, he is not entitled for upgradation in pay-scale under Assured Career Progression Scheme and Modified Assured Career Progression Scheme. 16. The writ petition has been dismissed on the ground that the writ petitioner since has not passed the departmental examination, therefore, he is not entitled for upgradation in pay-scale under Assured Career Progression Scheme and Modified Assured Career Progression Scheme. 16. This Court, in the backdrop of this fact, is required to consider first, as to whether without passing the departmental examination, the writ petitioner is to be granted the benefit of upgradation in the pay-scale or not and Secondly that merely on attaining the age of 50 years, can the writ petitioner be held entitled for exemption under the circular of the State Government? 17. Since, both the issues are interlinked, therefore, the same are being considered together and are being heard and answered together. 18. So far as the issue of passing of departmental examination is concerned, the same is mandatorily to be passed, in view of the provision of Rule 157(3)(J) of the Bihar Board’s Miscellaneous Rules, 1958. 19. The issue of passing of departmental examination has been considered by the Full Bench of the Patna High Court, rendered in the case of Maheshwar Prasad Singh vs. State of Bihar, 2000 (4) PLJR 262 . The same issue fell first for consideration before the Division Bench of Patna High Court in the case of Md. Shamsuddin and Others vs. State of Bihar, 1983 PLJR 347 , wherein the question has been answered in the negative holding that after amalgamation of the posts of Lower Division and Upper Division clerks and creation of new cadre, the clerks are not required to pass the Accounts examination for promotion to the selection grades. It further appears that when some of these cases came up for hearing on 25.02.1994 the correctness of the said decision was doubted and the cases were referred to the Division Bench. The Division Bench, before which the cases were placed for hearing, noticed that the point at issue had already been referred to the Full Bench in C.W.J.C. No. 989 of 1989 but the aforesaid writ petition was withdrawn by the concerned writ petitioners and thus the cases of the petitioners in C.W.J.C. Nos. 2995 of 1990 and analogous cases survived for decision. It further appears from the aforesaid judgment that the judgment rendered in the case of Md. 2995 of 1990 and analogous cases survived for decision. It further appears from the aforesaid judgment that the judgment rendered in the case of Md. Shamsuddin (supra) has been reversed by laying down the proposition of law that the clerks of the Muffasil offices could/cannot be promoted to the selection grade posts without passing final examination in Accounts except during the period between 01.05.1980 and 29.03.1982. Any promotion due to the clerks during that period, thus, cannot be denied on the ground that they had not passed the said examination. The relevant paragraph 16 of the judgment rendered in the case of Maheshwar Prasad Singh (Supra) is reproduced hereunder as: “16. The result of the above discussion is that the clerks of the Muffasil offices could/cannot be promoted to the selection grade posts without passing final examination in Accounts except during the period between 1.5.1980 and 29.3.1982. Any promotion due to the clerks during that period, thus, cannot be denied on the ground that they had not passed the said examination.” This Court, going across the judgment rendered by the Hon'ble Full Bench of the Patna High Court in the case of Maheshwar Prasad Singh (Supra), has found that rules relating to examination in accounts, as contained in Rule 157 of the Bihar Board's Miscellaneous Rules, 1958 has been dealt with at paragraph 4. For ready reference, paragraph 4 of the said judgment is quoted hereunder as: “4. The rules relating to examination in accounts are contained in Rule 157 of the Boards Miscellaneous Rules, and the relevant provisions requiring the clerks to pass the examination as condition for his confirmation and promotion is contained in clause (J) of sub-rule (3) thereof. The said clause has undergone changes from time to time, and having regard to its importance it would be useful to quote the clause as it stood at different times in ex-tenso. The rule/clause, as it originally stood in the Boards Miscellaneous Rules, 1947 (as the Rules were earlier called) was as under: “No clerk who has not passed the preliminary examination will be allowed to cross the efficiency bar and no clerk who has not passed the final examination will be appointed in the Upper Division.” The rule was amended by correction slip no. 5 dated 14.3.1963 and correction slip no. 5 dated 14.3.1963 and correction slip no. 6 dated 23.8.63 and so amended, it reads as under: “No clerk who has not passed the preliminary examination will be allowed to cross the efficiency bar and no clerk who has not passed the final examination will be appointed in the Upper Division.” When no clerk having passed the final examination in accounts is available to fill up any Upper Division post, the U.D. post may be kept in abeyance and a clerk in the Lower Division employed against it until a clerk having passed the final examination is available again when the Upper Division post should be revived.” The rule was again amended vide correction slip no. 30 dated 29.3.1982. The English text of the said amended rule is not available in the records. As English text of the rule in its earlier forms has been quoted, I would give a translation of the Hindi text as under: It will be essential for the clerks to pass the preliminary examination in accounts for crossing the Efficiency Bar or confirmation and the final examination in accounts for promotion to the selection grade. When no clerk having passed the final examination in accounts is available to fill up any selection grade post, then the Selection Grade post may be kept in abeyance and a senior clerk may be kept on that post in his scale by the appointing authority until a clerk having passed the final examination is available. On such examination pass clerk becoming available he may be confirmed in the selection grade post. The clause was amended yet again, this time under proviso to Article 309 of the Constitution of India, vide Statutory Order 431 dated 29.4.1985 as under: “(a) Any clerk, who has not passed the preliminary examination in Accounts, will be neither confirmed nor be allowed to cross the efficiency bar. (b) A clerk, who has not passed the final examination, will not be promoted to the Selection Grade. (b) A clerk, who has not passed the final examination, will not be promoted to the Selection Grade. (c) In case of non-availability of senior clerk, finally passed in Accounts Examination, any junior clerk, having passed the final Accounts Examination may be temporarily promoted to the Selection Grade: Provided that the junior clerk temporarily promoted to the Selection Grade shall be reverted to the post of clerk if the clerk senior to him passes the final Accounts examination within two years from the date of his first super-session and is promoted with effect from any date within the said two years, otherwise the senior clerk would be treated junior to all the clerks promoted to the Selection Grade prior to him. Explanation: Under proviso to (c), the date of passing the examination of Accounts would be the date on which the examination was held and the post of selection grade held by the junior clerk shall be deemed to be vacant from that very date for the purpose of promoting senior clerk. But, for the fixation of pay etc. the junior clerk shall be deemed to have been reverted from the date with effect from which the senior clerk will be promoted. The seniority of the reverted junior clerk shall be effective from the date on which he will again be promoted permanently to the Selection grade.” 20. Thus, it is evident that after the rule laid down by the Hon’ble Full Bench of the Patna High Court in Maheshwar Prasad Singh (supra), the passing of the departmental examination is mandatory. 21. So far as the issue of deemed exemption is concerned, reference is required to be made with respect to the Circular of the State of Bihar (undivided) as contained under departmental letter no. 11691 dated 09.11.1983, wherein, the decision has been taken for granting exemption in passing departmental examination for grant of upgradation in pay-scale. 22. It is evident from the said circular that certain conditions have been laid down for grant of exemption, one of which is, that exemption can only be granted to such public servants who have not been participated in the examination in spite of their sincere efforts but have failed or the departmental examination could not have been conducted. 23. 22. It is evident from the said circular that certain conditions have been laid down for grant of exemption, one of which is, that exemption can only be granted to such public servants who have not been participated in the examination in spite of their sincere efforts but have failed or the departmental examination could not have been conducted. 23. The condition of the aforesaid circular is reproduced herein-below: ^^funsZ'kkuqlkj mi;qZDr fo"k;d dkfeZd ,oa Á'kklfud lq/kkj foHkkx ds ifji= 11925 fnukad 26-6-1978 ds Øe esa dguk gS fd lHkh fcUnqvksa dk mDr ifji= esa Li"Vrk ugha jgus ds dkj.k vk;s fnuksa ljdkj dks dfBukbZ;ksa dk lkeuk djuk iM+rk gSA vr% ljdkj us bl ekeys ij HkyhHkkafr fopkj djus ds i'pkr~ fuEukafdr fu.kZ; fy;k gS%& 1- foHkkxh; ijh{kk esa foeqfDr dk vkns'k mu jktif=r@vjktif=r lHkh ljdkjh lsodksa ij ykxw gksxk ftUgksaus 50 o"kZ dh vk;q iwjh dj yh gSA 2- ftl frfFk ls foeqfDr dk vkns'k fuxZr fd;k tk;sxk] ml frfFk ls foeqfDr dk vkns'k ÁHkkoh gksxkA 3- foeqfDr mUgha ljdkjh lsodksa dks nh tk ldsxh ftUgksaus ijh{kk esa Hkkx ysus dk yxkrkj Á;Ru fd;k ijUrq vlQy jgs vFkok ljdkjh dkj.kksa ds pyrs ijh{kk esa Hkkx ugha ys ldsaA 4- ijh{kk ls cjh djus dk Áfrdwy ÁHkko dk;Z{kerk ij ugha iM+s] bls /;ku esa j[kdj foeqfDr oSls gh vH;FkhZ dks nh tk; ftudh pfj=&iqfLr vfHk;qfDr;ka vPNh gks] dk;Z lUrks"kÁn jgk gks] dksbZ Hkh foHkkxh; ;k vuq'kklfud dk;ZokbZ yfEcr ugha gks rFkk ftUgsa lsokdky esa dksbZ n.M ugha feyk gksA 5- foHkkxh; ijh{kk ls foeqfDr Ánku djus dk vf/kdkj ,sfPNd gksxk vfuok;Z ughaA 6- foeqfDr dk vkns'k foHkkxh; eU=h ds vkns'k ls ikfjr gksxkA 7- foHkkx }kjk foeqDr vkns'k ikfjr djus ds iwoZ dkfeZd ,oa Á'kklfud lq/kkj foHkkx dh lgefr dh vko';drk ugha gksxhA d`i;k mfYyf[kr dk;Z&fof/k ds vuqlkj ljdkjh lsodksa ds foHkkxh; ijh{kk ls foeqfDr lEcU/kh vkosnu ij fopkj fd;k tk; ,oa bl vk'k; dh lwpuk lHkh v/khuLFk inkf/kdkfj;ksa dks ns nh tk;A** The aforesaid circular has subsequently been modified vide letter no. 11971 dated 03.11.1998, wherein, it has been decided that without passing departmental examination, it would not be proper to grant promotion to one or the other employee. 11971 dated 03.11.1998, wherein, it has been decided that without passing departmental examination, it would not be proper to grant promotion to one or the other employee. Further, one other circular was issued on 14.11.2000, in which also, the decision taken as on 01.09.1983, has been reiterated holding therein that without passing the departmental examination, the case of one or the other employee, cannot be considered for grant of promotion. Thus, it is evident that the provision of exemption from passing the departmental examination has been provided but depending upon the certain conditions, as would appear from the reference of the policy decisions as quoted and referred hereinabove. It also requires to refer herein that the upgradation in pay-scale either under Assured Career Progression Scheme or Modified Assured Career Progression Scheme, as per the circular issued on 14.08.2002, so far as it relates to benefit of upgradation under the Assured Career Progression Scheme is concerned and the circular issued on 01.09.2009, so far as it relates to consideration of benefit under the Modified Assured Career Progression Scheme is concerned, one or the other employee is to be considered for such upgradation who are eligible to get regular promotion. Thus, for getting upgradation in pay-scale also one or the other employee is required to possess the eligibility condition which is required for getting regular promotion. 24. As per the Rule 157(3)(J), the passing of the departmental examination (Hindi and Noting Drafting) is mandatorily to be passed by one or the other employee, therefore, since passing of the departmental examination is required to be possessed by one or the other employee under the aforesaid provision of law for grant of regular promotion, as such, for upgradation in pay-scale also passing of such examination is necessary, as has been held by the Hon’ble Full Bench of Patna High Court in Maheshwar Prasad Singh (supra). 25. However, the Government has come with the policy decision for grant of exemption of one or the other employee for consideration of upgradation in pay-scale but such exemption can only be granted, subject to fulfilment of certain conditions, as referred hereinabove. The condition as stipulated therein also contains a condition that if the public servant in spite of sincere endeavour, could not able to succeed in the examination or due to inaction on the part of the Government, the examination could not have been conducted. 26. The condition as stipulated therein also contains a condition that if the public servant in spite of sincere endeavour, could not able to succeed in the examination or due to inaction on the part of the Government, the examination could not have been conducted. 26. Therefore, there is no dispute about the fact that the employee is required to make an application for grant of exemption on attaining the age of 50 years and if such application is being filed, it is incumbent upon the State authority to take decision after taking into consideration the condition of circular of the year, 1983, as referred hereinabove for grant of exemption. But, in the case in hand, it is the admitted case of the writ petitioner that no such application was filed, rather, the specific case of the writ petitioner is that because the writ petitioner attained the age of 50 years, therefore, exemption in passing the departmental examination ought to have been granted by the State Government. 27. We are not in agreement with such submission/ground agitated by the learned counsel appearing for the appellant-writ petitioner after going through the circular of the year, 1983 which does not contain any such provision/condition that merely because of one or the other employee has attained the age of 50 years, exemption in passing departmental examination, will be granted. 28. We after having discussed the factual aspect as also the legality as above, has gone across the finding recorded by the learned Single Judge, wherefrom, we have found that the learned Single Judge has considered that aspect of the matter as also considered about the fact that passing of the departmental examination, is mandatory. 29. The learned Single Judge has further considered that merely because the writ petitioner has attained the age of 50 years, there cannot be deemed exemption from passing departmental examination, therefore, came to the conclusive finding and rejecting the plea of the writ petitioner, dismissed the writ petition. 30 This Court, therefore, is of the considered view that the learned Single Judge while dismissing the writ petition, has committed no error. 31. In the result, the instant appeal fails and is, dismissed.