BINAY SHANKAR SHUKLA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioner has superannuated from the post of Lower Division Clerk from Civil Court, Bhagalpur. He was appointed on the said post and thereafter joined on 2.3.1979. Since the petitioner did not get any avenues of promotion, he demanded and claimed benefit of stagnation in terms of the Assured Career Progression Scheme, 2003, Petitioner was given benefit of 1st A.C.P. with effect from 9.8.1999 and the 2nd A.C.P. with effect from 2.3.2003. He drew advantage thereof monetarily but when the matter was placed before District Accounts Officer, a serious objection was raised therein that since the petitioner had not passed the requisite departmental examination, in terms of Rule 4(5) of the A.C.P. Rules, 2003, he was not entitled for such benefit as passing of departmental examination was a must. Petitioner has passed the departmental examination only on 29.6.2003. Even an order of recovery as per Annexure-5 has been issued, which has led to filing of the present writ application. Besides the recovery and re-fixation, which has been ordered in terms of Annexure-5, for which petitioner is aggrieved and is seeking quashing, petitioner is also looking for payment of arrears of salary of the 6th Pay Revision Committee recommendation which has come into effect from 1.4.2007 as well as the benefit of Modified A.C.P. Rules, 2010, which is loosely termed as 3rd A.C.P.

(2.) It is the stand of the petitioner that his right to beget benefit of stagnation flowing from the A.C.P. Rules cannot be contested by the respondents looking at the number of years petitioner had put in on the post without any substantive orders of promotion. He was granted 1st and 2nd A.C.P. and the corresponding pay scale flowing from the said benefits. There has been no objection from any of the authorities till Annexure-5 came to be passed in the year 2011 on an objection raised by the District Accounts Officer.

(3.) Learned counsel for the petitioner was confronted with Rule 4(5) of A.C.P. 2003 provision where it is clearly indicated that every employee has to fulfill the same requirements, which are laid down for substantive promotions even for benefit of A.C.P.. He does not quarrel with the Rules but his contention is that there was no occasion and requirement of passing of departmental examination. He relies on Rule 21(1) of Bihar Civil Court Staff (Class-III and Class-IV) Rules, 1998 in support of such a proposition and contention. The Rule is quoted hereinbelow:--