JUDGMENT : Sujit Narayan Prasad, J.: Prayer: 1. The intra-court appeal, under Clause 10 of the Letters Patent, is directed against order/judgment dated 30.07.2024 passed by learned Single Judge in W.P.(S) No. 6006 of 2023 whereby and whereunder the prayer for quashing office order dated 02.04.2022, in which it has been mentioned that monetary benefit under ACP Scheme shall be given to the petitioner after passing of the final Accounts Examination i.e., on 25.08.2010, the date when the petitioner has passed the final Accounts Examination and further prayer for direction upon the respondents to upgrade the pay-scale of the petitioner under the ACP Scheme in pursuance to Circular dated 14.08.2002, has been refused to be interfered with by dismissing the writ petition. Brief facts of the case : 2. Brief facts of the case, as per the pleadings made in the writ petition, which is required for adjudication of lis reads as under: 3. The petitioner has joined the services in forest department as Assistant on 01.12.1992 on compassionate ground in the pay-scale of Rs. 1200-1800 and retired from services on attaining the age of superannuation w.e.f. 31.01.2022 from the office of Divisional Forest Officer, West Division, Giridih. At the time of joining of services, he was having the degree of Intermediate (Arts). 4. While serving as such, the appellant passed the noting and drafting examination on 20.11.1994 and also passed the departmental accounts examination in part on 29.01.1996 and passed finally the accounts examination in first paper on 25.08.2010. 5. It is stated that the petitioner during the entire service period was not granted any regular promotion, as such he was granted up-gradation in the pay-scale by virtue of circular dated 14.08.2002 w.e.f. 25.08.2010 but it is the case of the petitioner that since the petitioner has completed 12 years of required service for grant of ACP/MACP on 01.12.2004, as such he was entitled to get the benefit of ACP w.e.f. 01.12.2004 in place of 25.08.2010 since the appellant has passed the departmental preliminary examination on 29.01.1996. But the screening committee vide office order dated 02.04.2022, held that monetary benefit under ACP Scheme shall be given to the appellant after passing of the final Accounts Examination i.e., on 25.08.2010. 6. It has further been stated that even the second MACP, which was to be granted w.e.f. 01.12.2012 has been granted w.e.f. 25.08.2018 after delay of more than five years. 6. It has further been stated that even the second MACP, which was to be granted w.e.f. 01.12.2012 has been granted w.e.f. 25.08.2018 after delay of more than five years. 7. Aggrieved thereof, the appellant submitted series of representation before the authority concerned but it did not evoke any response, hence, the petitioner approached this Court by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India for redressal of his grievance. 8. Learned counsel for the petitioner-appellant has taken the ground before the writ court that as per the scheme of ACP/MACP, it is evident that the person who is not granted regular promotion is entitled for ACP/MACP, which is actually financial up-gradation and even the similarly situated persons who have also passed the final departmental examination after much delay, as the appellant herein, have been granted the benefit of ACP after completion of 12/24 years of MACP, as such the petitioner-appellant is also entitled to get the same benefit. 9. While on the other hand, the respondents-State has taken the ground that since the appellant has finally passed the departmental examination on 25.08.2010, as such as per the decision taken in the meeting of Screening Committee, the petitioner has been granted benefit of 1st ACP w.e.f. 25.08.2010 and accordingly has been granted second ACP. 10. The writ court, taking into consideration the submission advanced on behalf of parties, held that when the appellant has actually passed the final Departmental Examination, he became entitled for 1st ACP, therefore, refused to interfere with the decision taken by the Screening Committee, against which the present intra-court appeal has been preferred. Submission advanced on behalf of appellant : 11. Learned counsel for the appellant has taken the following ground in assailing the impugned order/judgment passed by the learned Single Judge: I. The learned Single Judge has not appreciated the fact that it is not required to pass the departmental examination to the benefit of ACP/MACP, rather, the requirement is that the departmental examination is to be passed and irrespective of the date of passing of such examination the one or the other public servant will be entitled to get the benefit of up-gradation in the pay-scale after completion of period of 12 years of service, as per resolution dated 14.08.2002 but the learned Single Judge has not appreciated the aforesaid fact while passing the impugned order/judgment. II. II. Learned Single Judge has also not appreciated the fact that in the year 1996, the appellant has passed the first part of the examination, however, admittedly the appellant passed the examination in entirety only on 25.08.2010 and as such the date of passing of the examination will be said to be the day when the petitioner-appellant has passed the first examination i.e., on 29.01.1996 and in view of that aspect of the matter, the appellant will be said to be eligible to get the benefit as per resolution dated 14.08.2002 even if the plea of the State will be taken into consideration. III. Learned Single Judge has failed to appreciate that the Hon’ble Apex Court in the case of Amresh Kumar Singh & Ors Vs. State of Bihar & Ors [2023 SCC OnLine SC 496] as also in the case of Shambhu Baitha Vs. State of Bihar [2023 SCC OnLine Pat 4676 ] passed by Patna High Court, wherein reliance of Amresh Kumar Singh & Ors Vs. State of Bihar & Ors (supra) has been taken, directed the respondent-State to grant the benefit of ACP/MACP without being impeded by the issue of non-passing of the departmental examination. IV. Further submission has been made that requirement of regular promotion is not necessarily required to be fulfilled for the purpose of grant of ACP/MACP. 12. Learned counsel for the appellant based upon the aforesaid ground has submitted that the impugned order passed by learned Single Judge suffers from error and requires interference by this Court. Submission on behalf of respondents: 13. Mr. Yogesh Modi, learned AC to AAG-IA appearing for the respondents-State has defended the impugned order passed by the learned Single Judge by taking the following grounds: I. It has been contended by referring to clause 3 (VIII) of resolution dated 14.08.2002 of Finance Department, Government of Jharkhand wherein stipulation has been made that the up-gradation in the pay-scale is to be given to one or the public servant who have completed 12 years of service and is shown to be eligible for getting regular promotion. The criteria for regular promotion, so far as the post of the appellant is concerned, are of passing of departmental examination. But the appellant admittedly had not passed the departmental examination the day when he completed 12 years of service. The criteria for regular promotion, so far as the post of the appellant is concerned, are of passing of departmental examination. But the appellant admittedly had not passed the departmental examination the day when he completed 12 years of service. As such the Screening Committee has taken correct decision in denying the up-gradation in pay- scale immediately after completion of 12 years of service rather the State has taken into consideration by granting up-gradation in the pay-scale from the date when the appellant has passed the departmental examination in entirety. II. It has been contended that so far as the contention of the learned counsel for the appellant that since he has passed one part of the departmental examination as such it is to be construed to be passing of the departmental examination the day when he passed the one part of examination i.e., on 29.01.1996, cannot be said to be correct reason being that the departmental examination is required to be passed in entirety for consideration of the matter of grant of ACP/MACP. III. It has been submitted that from bare perusal of official guideline as contained in memo dated 14.08.2002 particularly clause 3(IV) and 3(VII), it is evident from the ACP Scheme that only those candidates who fulfil the criteria for regular promotion are entitled to get the benefit of ACP/MACP, thus, the decision of screening committee is in accordance with the ACP Scheme. IV. Further submission has been made that first MACP/ACP of the petitioner was delayed by about 5 years and 8 months from the due date i.e., 01.12.2004 because of late passing of departmental examination, hence, as per resolution dated 21.05.2014 of the Finance Deptt., Govt. of Jharkhand, the date of second ACP was also delayed by the same time period and taking into consideration these resolutions of the Finance Deptt., the screening committee has decided to grant second MACP. w.e.f. 25.09.2018, which cannot be faulted with. 14. The learned AC to AAG-IA appearing for the State based upon the aforesaid ground has submitted that the impugned judgment passed by the learned Single Judge suffers from no error, hence the instant appeal is fit to be dismissed. 15. We have heard learned counsel for the parties, perused the material available on record and rival submissions advanced on behalf of parties and finding recorded by learned Single Judge in the impugned order. 16. 15. We have heard learned counsel for the parties, perused the material available on record and rival submissions advanced on behalf of parties and finding recorded by learned Single Judge in the impugned order. 16. The core issue involved in this case is as to whether passing of the departmental examination is necessary for the purpose of grant of ACP/MACP? 17. This Court before answering the aforesaid issue needs to refer herein the circular under which the up- gradation in the pay-scale by way of ACP/MACP is to be granted, which is the resolution dated 14.08.2002, whereby and whereunder the decision has been taken by the State for grant of up-gradation in the pay-scale subject to fulfillment of condition as provided under clause 3 thereof. One of the conditions is that up- gradation in the pay-scale is although not the substantive promotion but the same is to be given in favour of one or the other public servant who has completed 12 years of continuous service and are found to be eligible for grant of regular promotion. 18. Appellant herein is holding the class III post, which is governed by rule of promotion as provided under Bihar Board’s Miscellaneous Rules, 1958 [hereinafter referred to as ‘Rules, 1958’], which was adopted by the State of Jharkhand, containing a provision as under Rule 157(3)(J) whereby and whereunder it has been provided that for the purpose of getting promotion, passing of departmental examination is necessary. For ready reference, Rule 157(3)(J) of the Rules, 1958 is quoted as under: 157 . Rules for the Examination in Accounts. For ready reference, Rule 157(3)(J) of the Rules, 1958 is quoted as under: 157 . Rules for the Examination in Accounts. - (J)( 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; (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 supersession 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 permanent to the selection grade.] 19. The said aspect of the matter is in dispute that for the purpose of grant of up-gradation in the pay-scale eligibility for getting the regular promotion is required in view of Rule 3(VII) of the resolution dated 14.08.2002, the same is being referred hereunder as: 20. Admittedly, herein as per the pleading made in the memo of appeal, the writ petitioner-appellant did not pass the departmental examination on the day when he has completed 12 years of continuous service. Since it is the argument that sometimes in the year 1996, i.e., on 29.01.1996 the appellant has passed the first part of the departmental examination. It is further admitted case of the appellant that he has passed the departmental examination in entirety on 25.08.2010. Since it is the argument that sometimes in the year 1996, i.e., on 29.01.1996 the appellant has passed the first part of the departmental examination. It is further admitted case of the appellant that he has passed the departmental examination in entirety on 25.08.2010. However, the appellant claims that irrespective of the date of passing of the departmental examination, the day when the appellant has passed the departmental examination the appellant became entitled to get the benefit of ACP/MACP from the date when he has completed 12 years of continuous service. But the State authority granted the ACP to the appellant when the appellant has passed the departmental examination in entirety. Hence, prayer has been made by the appellant for shifting of the date of grant of up-gradation from 01.12.2004 in place of 25.08.2010, the day when he completed 12 years of continuous service. 21. The said claim of the appellant has been placed before the screening committee which was rejected vide office order dated 02.04.2022, aggrieved therefore, the appellant challenged the same before the learned Single Judge, which was refused to interfere with, hence, the instant appeal. 22. The fact about passing of the departmental examination has been considered by the Division Bench of the Patna High Court in the case of Mohammad Shamsuddin Vs. State of Bihar [ 1983 PLJR 347 ] wherein it has been laid down by holding the provision of law as contained under Rule 157 (3) (J) not to be mandatory one. 23. Subsequent thereto, the matter travelled to the larger Bench of the Patna High Court in Maheshwar Prasad Singh vs. The State of Bihar and Ors. [2000 SCC OnLine Pat 840] and while dealing with the mandate of the provision as contained under Rule 157 (3) (J) of the Rules, 1958 it has been laid down as under paragraph- 17, 18 and 19 holding the provision of Rule 157 (3) (J) of the Rules, 1958 to be mandatory. It is also by way of upgradation to be a nature of promotion, as such, it has been mandated that since passing of the account’s examination is necessary for getting promotion from lower hierarchy to higher hierarchy, will also be applicable for the purpose of consideration of selection grade. For ready reference, paragraphs- 17, 18 and 19 of the said judgment is quoted as under: “17. For ready reference, paragraphs- 17, 18 and 19 of the said judgment is quoted as under: “17. The question as to the legal effects of the amendment dated 29.3.82 has to be considered in the light of the law laid down by the Apex Court. When the amendment was made on 29.3.82 the situation was that the posts of Lower Division and Upper Division clerks stood amalgamated with effect from 1.5.80 and 10% of the clerical posts had been earmarked as senior selection grade posts vide Government order dated 18.12.81 with effect from 1.4.81 in the light of the recommendation of the Fourth Pay Revision Committee, in addition to the selection grade created vide Government Order dated 24.1.69 with effect from 1.4.64. After the amalgamation of the L.D./U.D. posts the provision of rule 157(3)(J) had apparently become redundant, there was no question of any promotion to the Upper Division and, therefore, the question of the L.D. clerk passing examination in Accounts for his promotion to the Upper Division did not arise when the selection grade and senior selection grades had come into existence. By the said amendment the State Government simply made the erstwhile provisions meant for promotion to the Upper Division applicable to promotion to the selection grades. As I have observed above, though rule 157(3)(J) has undergone changes at different times, passing the Accounts examination has always been treated as an essential qualification for promotion of the clerical staff. In fact, when there were „efficiency bars' in the pay scales such a qualification was treated as essential even for crossing the efficiency bar. Thus, by amendment dated 29.3.82 nothing new was done. A provision which already existed, though in different terminology in the sense that it was applicable to the Upper Division posts, made applicable to selection grade posts which had come into existence in the meantime. With the amalgamation of the Lower Division and Upper Division posts the rule as it stood having become redundant, and there being no provision holding the field regarding promotion to the selection grades, the State Government was certainly competent to issue administrative instructions. Had the field been occupied by statutory rules it could not have done so as it might constitute encroachment upon an occupied field. Had the field been occupied by statutory rules it could not have done so as it might constitute encroachment upon an occupied field. The ratio of the decision in Sant Ram Sharma’s case is that if the statutory rule and the executive instruction can stand side by side, such instruction cannot be said to be invalid or illegal. The test thus would be whether the administrative instructions are inconsistent or repugnant to the statutory rule. In the instant case, the statutory rule having become redundant and inapplicable there was no question of repugnancy or inconsistency. As a matter of fact, as stated above, the amendment was to the same effect as the erstwhile rule, the only material difference is that the provision was made applicable to selection grades in place of the Upper Division posts. It must be pointed out, in fairness to the respondents, that no attempt was made on the side of the petitioners to submit that the amendment dated 29.3.82 was repugnant to or inconsistent with the erstwhile rule, the thrust of their argument was that without framing statutory rules with respect to the selection grade posts, passing the Accounts examination could not be made essential for promotion to the Selection Grades by administrative instructions. 18. At this stage, I would like to point out the distinction between promotion to higher posts and promotion to selection grade. „Promotion? normally implies promotion to the higher posts with a higher pay. The concept of „selection grade? was evolved by the Central Pay Commission with the object of providing incentive to employees who have no outlets or very limited outlets for promotion to higher posts, carrying a “somewhat” higher scale of pay without change in the duties. Such posts which were normally not to exceed 10% of the total posts were described as “selection grades” as distinct from higher posts in the hierarchy. After noticing the recommendation of the Central Pay Commission the Supreme Court in the case of Lalit Mohan Deb v. Union of India (supra) observed, “It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same-post. After noticing the recommendation of the Central Pay Commission the Supreme Court in the case of Lalit Mohan Deb v. Union of India (supra) observed, “It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same-post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency”. 19. If passing the Accounts examination was an essential condition for promotion of the Lower Division clerks to the Upper Division, a higher post, I fail to appreciate as to how a similar qualification with respect to promotion to the “selection grade posts” laid down by amendment dated 29.3.82 can in any manner be said to be repugnant to or inconsistent with the rule as it stood earlier. Unfortunately, the distinction between Upper Division posts as a promotional post and selection grade was not pointed out to this Court in Shamsuddin’s case with the result that this Court treated both the posts at par. The concession of the State Government was limited to promotion to the Upper Division vide paragraph 7 of the judgment. The post of Upper Division clerks being no more in existence there was no question of a clerk passing any departmental examination in Accounts for his promotion to such post, but treating the post of Upper Division clerk at par with selection grade the Court gave a general direction (sic) the cases of the petitioners for their promotion to the “selection grade post” have to be considered on merits from the due date without requiring them to pass examination in Accounts. If the amendment dated 29.3.82 had been brought to the notice of the Court, perhaps, such a finding/observation might not have been made.” 24. The judgment of the Full Bench has clarified the clause about the mandatory feature of provision as contained under Rule 157 (3) (J), therefore, it is not in dispute that passing of the account’s examination is mandatory for getting the promotion either hierarchal promotion or the selection grade. 25. The judgment of the Full Bench has clarified the clause about the mandatory feature of provision as contained under Rule 157 (3) (J), therefore, it is not in dispute that passing of the account’s examination is mandatory for getting the promotion either hierarchal promotion or the selection grade. 25. This Court, therefore, in any way is not in misconception that passing of the departmental examination is not necessary, and it is the case of the appellant that he has passed the departmental examination in entirety only on 25.08.2010 and not before the date of completion of 12 years of service and, therefore, he has prayed for shifting of date of up- gradation in pay-scale, which has been granted in favour of appellant after passing of the departmental examination in entirety i.e., on 25.08.2010 which he has sought for to be shifted to the date when he completed 12 years of service. 26. But the moment the appellant has admitted the fact about passing of departmental examination is necessary, then the claim which is being made of shifting of the date of grant of such up-gradation on the date when the appellant has completed 12 years of service cannot be said to be acceptable reason being that if the one or the other has passed the departmental examination after completion of 12 years of service and after passing such examination if the claim is to be reverted on the date when such public servant has completed 12 years of service then passing of the departmental examination will be meaningless reason being that consideration either of the regular promotion of up-gradation in pay-scale by way of grant of ACP/MACP, which is to be granted by the screening committee is to be assessed on the basis of eligibility on the due date of consideration. 27. Herein, the due date of consideration would be 12 years of continuous service as per the condition stipulated under the relevant rules i.e., resolution dated 14.08.2002. 28. The consideration of eligibility is required to be seen in the matter of regular promotion and as such in view of the condition stipulated under Clause 3(VII) such condition is also applicable in the matter of up-gradation in the pay-scale. 29. 28. The consideration of eligibility is required to be seen in the matter of regular promotion and as such in view of the condition stipulated under Clause 3(VII) such condition is also applicable in the matter of up-gradation in the pay-scale. 29. It needs to refer herein that the eligibility is required to be considered in the matter of promotion and in absence of the eligibility condition no such promotion can be granted, as has been held by the Hon’ble Apex Court in the case of R. Prabha Devi v. Govt. of India, (1988) 2 SCC 233 wherein the Hon’ble Apex Court has held that a person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. For ready reference the relevant paragraph is being quoted as under: 15. ------ When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. --- 30. Herein, admittedly the appellant has not passed the departmental examination the day when he completed 12 years of continuous service and as such claim of the appellant that he is entitled to get the up- gradation in the pay-scale on the date he completed 12 years of service cannot be said to be acceptable, accordingly, the screening committee after due consideration did not accept the same and rejected the claim of the appellant, which was challenged before the learned Single Judge. 31. The learned Single Judge, after consideration of relevant provision of law and law laid down by Patna High Court and Hon’ble Supreme Court, dismissed the writ petition by refusing to interfere with the decision taken by the screening committee. 32. 31. The learned Single Judge, after consideration of relevant provision of law and law laid down by Patna High Court and Hon’ble Supreme Court, dismissed the writ petition by refusing to interfere with the decision taken by the screening committee. 32. Admittedly, the resolution has been issued by the State Government by way of executive instruction in view of power conferred under Article 166 (3) of the Constitution of India and when the said resolution contains a condition as under clause 3(VII) that up- gradation in the pay-scale is to be considered by the screening committee only to such person who is eligible to get the regular promotion then the decision is to be taken by the State strictly on the basis of said condition and if one or the other public servant is complying with such condition then only such public servant will be entitled to get the benefit otherwise it will be said that the decision taken by the State is being flouted and such decision will be said to be in defiance to the State decision. 33. This Court, after having discussed the aforesaid fact and adverting to the order passed by the learned Single Judge, has found that the learned Single Judge has given thoughtful consideration with respect to the condition stipulated as under Clause 3(VII) and as also the passing of the departmental examination has been considered to be mandatory, which according to our considered view has rightly been considered in view of settled position of law as mentioned herein above, having been upheld by larger Bench of the Patna High Court in case of Maheshwar Prasad Singh vs. The State of Bihar and Ors(supra). 34. Therefore, this Court, on the basis of discussion made herein above, is of the view that the order passed by the learned Single Judge requires no interference. 35. Accordingly, the instant appeal fails and is dismissed. 36. Pending Interlocutory Application, if any, stands disposed of.