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2025 DIGILAW 264 (PAT)

Arun Kumar v. State of Bihar

2025-03-05

ARVIND SINGH CHANDEL

body2025
Arvind Singh Chandel, J. – This petition has been preferred by the petitioner seeking the following reliefs: – “(i) For issuance of an appropriate writ in the nature of certiorari for quashing the Memo No 364 dated 13.04.2024 issued under the signature of respondent No 4 by which ACP & MACP given to the petitioner has been cancelled mere on complaint filed by one teacher making allegation that the petitioner has not passed 2nd paper of departmental examination, whereas the petitioner has declared successful in the departmental examination and letter to this effect has been issued by respondent No 5 on 29.06.2006 and after due verification the committee constituted for granting the benefit of ACP & MACP to the petitioner and same is recorded by the authority in the service book, moreover in view of law laid down by the Hon’ble Division Bench judgment reported in 2008, V-III PLJR, 344 by which without conducting any enquiry no adverse comment can be made. (ii) For issuance of an appropriate writ in the nature of Mandamus commanding and directing the respondent authority to not disturb the petitioner in smooth functioning as Head Clerk in the office of respondent No 5 as he has declared successful in the departmental examination which has been admitted by the authorities on several occasions, apart from this factual aspect it is also settled law by the Hon’ble High Cout and the Hon’ble Apex Court that passing of the departmental examination is not needed for granting benefit of ACP & MACP moreover there is also exemption clause – 4 in notification contained in Memo No 3127 dated 06.03.2018 by which after attaining the age of 50 years. (iii) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner shall be found entitled under the facts and circumstances of the case.” 2. Facts of the case, as per the pleadings, are that the petitioner was appointed as Clerk on 20.03.1990 and subsequently transferred to various places and lastly in the year, 1997 – 1998, he was posted at the office of Respondent No 4. During that period, he appeared in the Hindi Noting Drafting Examination in the year, 1996 and was declared successful. The same has been recorded in his service book also. During that period, he appeared in the Hindi Noting Drafting Examination in the year, 1996 and was declared successful. The same has been recorded in his service book also. Departmental examination was also conducted in the year, 1999 and Respondent No 3 vide its Letter No 773 dated 28.08.2002 communicated the District Education Officer that the petitioner has come successful in the departmental examination. Respondent No 5 has also issued a certificate to this effect on 29.06.2006. Subsequently, first ACP has been granted to the petitioner in the year 2004 and second ACP was also granted to him vide Memo No 1529 dated 10.11.2016. Thereafter, he has been granted MACP vide Memo No 2389 dated 31.11.2022. Vide Memo No 2177 dated 02.11.2023, the petitioner has been promoted as Head Clerk. At that time, on the basis of one complaint filed by one Birendra Kumar Ojha, retired Headmaster against the petitioner mentioning that the petitioner has not emerged successful in the departmental examination paper 2 even then he has been declared successful and has been granted ACP and MACP. Show cause notice has been issued to the petitioner which has been replied by him. Certain queries were also made which have also been replied by him. Finally, the impugned order (Annexure P/13 dated 13.04.2024) has been passed whereby the first and second ACP and MACP has been cancelled with immediate effect and also direction was issued for initiation of departmental proceeding and also direction was issued for recovery of paid amount on account of first and second ACP and MACP in one installment. Hence, this petition. 3. Learned counsel for the petitioner would submit that though the petitioner has cleared both the papers in the departmental examination even after that if it is found that he has not cleared any paper then also he is entitled to get benefit of first and second ACP and the MACP as the passing of such type of examination is not a condition precedent for grant of ACP and the MACP. Reliance has been laced by the counsel on the judgment passed by a Division Bench of this Court in the case of Ramadhar Thakur vs. The State of Bihar & Others, LPA No 599 of 2015 (Annexure P/15). Reliance has been laced by the counsel on the judgment passed by a Division Bench of this Court in the case of Ramadhar Thakur vs. The State of Bihar & Others, LPA No 599 of 2015 (Annexure P/15). Reliance has also been placed by the learned counsel for the petitioner on the judgment passed by the Hon’ble Apex Court in the case of Amresh Kumar Sinha & Others vs. The State of Bihar & Others, SLP (C) No 8219 – 8226 of 2019. 4. Learned counsel for the respondent-State opposes the argument raised by the learned counsel for the petitioner. 5. I have heard learned counsel for the parties, perused the impugned order as well as the entire documents annexed with the petition as well as rejoinder. 6. Undisputedly, after completion of requisite period of service, the petitioner has been granted the benefit of first and second ACP and the benefit of MACP. Vide impugned order dated 13.04.2024, the above granted ACPs and MACP have been cancelled on the ground that the petitioner has not cleared the second paper of the departmental examination and wrong information has been given by him to the effect that he has cleared the second paper. In the case of Ramadhar Thakur (supra), the Division Bench categorically held that passing of departmental Accounts Examination is not a condition precedent for grant of assured career progression under the ACP Rules. The Division Bench in paragraph 8 of the said judgment categorically held as under: – “8. As has already been noticed, the sole plea which is being taken by the respondents, State of Bihar, to deny the appellant’s claim for grant of Assured Career Progression is that the provision under sub-rule (5) of Rule 4, which has already been quoted above, has not been satisfied. It is clear from the language of sub-rule (5) that the requirements for sanction of financial progression under the scheme of rules is the same as prescribed under the recruitment/service rules for regular promotion against the vacancies. It is the plea of the respondents that for grant of regular promotion, passing of the departmental Accounts Examination is a condition precedent. It is clear from the language of sub-rule (5) that the requirements for sanction of financial progression under the scheme of rules is the same as prescribed under the recruitment/service rules for regular promotion against the vacancies. It is the plea of the respondents that for grant of regular promotion, passing of the departmental Accounts Examination is a condition precedent. However, no rule governing the service of the appellant nor any notification has been brought to our notice to show that for grant of regular promotion against the vacancies, in the service/cadre to which the appellant belonged, passing of departmental Accounts Examination was a condition precedent.” 7. The Hon’ble Supreme in the case of Amresh Kumar Sinha (supra) also observed and held in paragraph 19 as under: – “19. In view of the aforesaid legal position coupled with the fact that the qualification of graduation prescribed is for the promotion to the post of Accounts Officer rather than for the grant of in situ promotion on the non-functional post or for extending the benefit of ACP which is purely and simply in the nature of grant of monetary benefit without actually effectuating any promotion to any higher post, we are of the opinion that the judgment and order of the Division Bench of the High Court impugned in the appeals cannot be sustained. It is accordingly hereby set aside and that the judgment of the writ court dated 28.11.2017 is restored. The appellants are extended the benefit of ACP, as directed by the writ court.” 8. In the light of above judgments passed by this Court as well as the Hon’ble Supreme Court, it is clear that for grant of ACP and MACP, there is no requirement of passing the departmental examination. Therefore, on this ground alone, the impugned order is liable to be set aside. 9. Accordingly, the impugned order dated 13.04.2024 is hereby set aside. 10. However, the respondents are at liberty to continue with the departmental enquiry against the petitioner, if so advised in accordance with rules and laws. 11. The writ petition is allowed.