Atter Singh vs State Of Haryana & Ors.

“I am directed to invite your attention to the Haryana Government instructions issued vide letter No.34/93/78-5GS-I dated 16.06.1979 in which it was decided that if a candidate possesses higher qualifications in the same line as prescribed in the minimum qualifications applicable to a particular post, then he should be considered as eligible for that post. It has come to the notice of the Government that the provisions of these instructions are not being followed in an appropriate manner while sending the requisition to HSSC/HPSC for the posts in question. After due consideration, it has again been decided that if a candidate possesses higher qualifications in the same line as prescribed in the minimum qualifications applicable to a particular post, then he should be considered as eligible for that post. It is, therefore, directed that the provision, that if a candidate possesses higher qualifications in the same line as prescribed in the minimum qualifications applicable to a particular post, then he should be considered as eligible for that post, be inserted in the Service Rules and if not inserted in the Service Rules, then it should be clarified in the requisitions being sent to HSSC/HPSC. These instructions should be followed meticulously.”

“8.

Other general conditions of eligibilities of ACP Level. – The following general conditions shall also be fulfilled by a Government employee for availing benefit of ACP Level:-

(a)

after completing the respective prescribed period for eligibility for the grant of any of 1st, 2nd or 3rd ACP Level the Government employee shall be fit to be promoted to the immediate next higher post only in the functional hierarchy in his cadre, but despite of fitness he could not be functionally promoted due to lack of vacancy or otherwise on the promotional post in the hierarchy to which he is eligible to be promoted;

(b)

if such promotion involved passing of any departmental or other test, acquisition of higher educational qualification, etc., INDU such condition shall also be fulfilled by the Government employee.

Exception. The condition of educational qualification and departmental test, if any, shall not be applicable to Group D employees while determining the eligibility for ACP Level where there is no promotional post in the hierarchy other than the post for which educational qualification of Matriculation or above is essential.

Note 1. – When a Government employee is not fit for promotion due to departmental/judicial proceedings pending against him or otherwise on the date of eligibility for grant of ACP Level, he shall not be granted the benefit of ACP Level until he is declared fit for promotion, it has also consequential effect on subsequent ACP upgradation.

Note 2. – Where a Government employee is denied for grant of benefit of ACP Level due to departmental”

S.No. Designation of Posts Academic Academic qualification qualifications and and experience, if any

		experience, if any, for direct recruitment on contract basis	for appointment other than by direct recruitment on contract basis
1	2	3	4

1.

Elementary School By promotion:- (i) Head Master B.A/B.Sc. and 2-year Diploma in Elementary Education OR (ii) B.A./B.Sc. with at least 50% marks and 1-year Bachelor in Education (B.Ed.); with at least 45% marks and 1-year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard; OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor in Elementary Education (B.El.Ed.); OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.A. Ed.; OR B.A./B.Sc. with at least 50% marks and 1-year B.Ed. (Special Education); 5 years experience in regular capacity as Hindi/Sanskrit/Punjabi Teacher/TGT, (iii) Atleast 3 weeks in-service training in administrative and accounts module.

“25.

Arguing on the same line Mr. Khosla has strenuously argued that the persons possessing any qualification other than C.P.Ed are not eligible. With a view to appreciate the applicability of the aforesaid judgment, it is deemed appropriate to examine the rule position as prescribed under 1955 rules for the post of P.T.I. From the rule noticed in earlier part of this judgment, it appears that educational qualification like matric or 10+2 is not prescribed therein. Though in the advertisement, Senior Secondary Certificate or Intermediate or its equivalent basic qualification is an essential component for the post. Similarly, for professional qualifications, certificate in Physical Education C.P.Ed of a duration of not less than two years or its equivalent is prescribed. However, by virtue of the corrigendum dated 24.10.2006, even a candidate with one year duration course of C.P.Ed is made eligible for recruitment in question. Similarly, in the rule, no equivalent qualification of C.P.Ed is referred to, though in the advertisement C.P.Ed or its equivalent qualification is also recognised as professional qualification. It cannot be ignored that the qualification prescribed under the rule and the advertisement is always the minimum qualification. It is not for us to identify any course which can be termed as equivalent to C.P.Ed course. At the same time, the curriculum of B.P.Ed and other higher courses, if include almost all the components of curriculum of C.P.Ed should not be construed to be a totally different and distinct qualification. In the case of Multan (supra), a Division Bench of this Court has clearly observed that D.P.Ed, B.P.Edc and M.P.Ed are higher qualifications in the same line. From the curriculum of courses like C.P.Ed, B.P.Ed, D.P.Ed, it is found that almost all components of C.P.Ed course of one year or two years are taught in D.P.Ed course in almost all the Universities in the States of Punjab and Haryana. In sum and substance, the controversy revolves around the curriculum of two types of courses, one prescribed in the advertisement i.e. C.P.Ed and higher courses acquired by the petitioners. On facts, we are of the considered opinion that the curriculum of B.P.Ed, B.P.E, D.P.Ed includes the curriculum prescribed for C.P.Ed in major universities in the States of Punjab and Haryana. Higher qualifications being in the same subject and line cannot be ignored and candidates possessing higher qualification cannot be denied consideration for selection.

26.

The distinction sought to be created to deny eligibility is arbitrary and illusory. It goes without saying that the higher qualification provides better knowledge, better sense and in sight and equip the person with better understanding of the issues and problems. It cannot be a "bane" but has to be a "boon". The Hon'ble Supreme Court in the case of Mohd. Riazul Usman Gani and others v. District & Sessions Judge, Nagpur, 2000(2) S.C.T. 10 : (2000) 2 SCC 606 had the occasion to consider whether the higher qualification than 8th standard prescribed for the post of Peon renders a candidate ineligible. Examining the issue, it is observed as under:

"21.

A criterion which has the effect of denying a candidate his right to be considered for the post on the principle that he is having higher qualification than prescribed cannot be rational. We have not been able to appreciate as to why those candidates who possessed qualifications equivalent to SSC Examination could also not be considered. We are saying this on the facts of the case in hand and should not be understood as laying down a rule of universal application.”

“32.

Reading the language of the statutory provision in a literal sense and applying the golden rule of interpretation, this is the only logical and permissible interpretation. Hence, we have no hesitation in concluding that if a candidate, having undertaken a degree course in "Chemistry" subject, desires to apply for the post of FSO, he must possess a master's degree in that subject. However, if a candidate has taken college education in the subjects of food technology; dairy technology; biotechnology; oil technology; agricultural science; veterinary science; biochemistry or microbiology, then such a candidate would be qualified for the FSO post, if he holds any one of the degrees, i.e., either graduation, post-graduation or doctorate degree in any of these subjects. There is no logic or rationale behind excluding the candidates having master's or a doctorate degree in these subjects from staking a claim to the post of FSO because such an interpretation would be totally unjust, arbitrary and unconstitutional.” (emphasis added)

“8.

Upon hearing the rival contentions of the parties, the sole question which arises for our reconsideration in these appeals is whether the qualification of graduation prescribed for promotion to the next higher post of Accounts Officer from that of Accounts Clerk is necessary even for the purpose of extending the benefit of ACP.

9.

The Bihar Accounts Service Rules, 2000 as notified on 28th March, 2000 vide Rules 17 and 20 read with Schedule I thereof provides for recruitment by way of promotion. The aforesaid Rule 17, inter alia, provides that for promotion on the basis of grade of service, candidates must possess qualifications mentioned in Schedule I which, inter alia, provides that for promotion to Bihar Accounts Service, the minimum educational qualification shall be graduation.

10.

At the same time Bihar State Employees Service Condition (Assured Career Progression Scheme) Rules, 2003 vide sub-Rule (5) of Rule 4 lays down that if the rules prescribe passing of the departmental examination or any qualification for promotion that shall also be an essential condition for sanction of benefit under the scheme. In other words, possession of essential qualification prescribed under the rules is necessary for grant of benefit under the scheme, i.e., ACP.

11.

It is in view of the above rules, the contention of the State is that until and unless the Accountant Clerks possess the minimum educational qualifications of graduation, they are not entitled to promotion in the grade of Bihar Accounts Service that is the Accounts Officer.

12.

It may be worth noting that the ACP scheme was enforced on the recommendation of the Fifth Central Pay Commission in context with Group C and D employees and it provided monetary benefit to the employees on completion of 12 years and 24 years of regular service who were not able to get promotion. The scheme as such was anti-stagnation and envisages merely placement of the employees in the higher pay scale for the grant of financial upgradation only without grant of actual promotion. The benefit of the ACP as such is like granting non- functional in situ promotion.

13.

At the cost of repetition, it must be borne in mind that the object of ACP is to avoid stagnation where no promotional avenues are available. The grant of ACP is not technically a grant of promotion but increase in the pay scale to the next higher grade retaining the employee on the post held by him. This is only to accord monetary benefit without disturbing any seniority or actually effectuating promotion to any higher post to avoid stagnation on a particular post or pay scale for a very long period. xx xx xx

16.

In Union of India and Anr. v. G. Ranjanna and Ors. reported in (2008) 14 SCC 721, the three-Judges Bench of this Court held that in situ promotions are made to remove stagnation of grade C and grade D employees by giving them certain monetary benefits.

17.

It was further observed that fulfilment of educational qualifications prescribed under the recruitment rules for the purposes of promotion are not necessary for non- functional in situ promotion. In other words, educational qualification required for the purposes of promotion is not necessary for the grant of in situ promotion, i.e., only for extending the monetary benefit where there are no promotional avenues and the employees are likely to be stagnated.

18.

In the aforesaid case, the employees were working as malis (Gardeners) and had claimed promotion in the higher pay scale. The Central Administrative Tribunal seized of the original applications observed that the employees cannot claim the scale of the next higher post by way of in situ promotion. On the matter being taken to the High Court by way of a writ petition, the contention of the employees was accepted and it was observed that the object of in situ promotion on non-functional posts, is to ensure that the group C and D employees are not stagnated in the same cadre/pay scale and that they should be provided with certain monetary benefits. Therefore, the rejection of the claim for such nonfunctional in situ promotion on the ground that the employees do not possess the necessary minimum qualification of matriculation as per the rules is not justified and renders the order erroneous in law. The view so taken by the Division Bench of the High Court was affirmed by this Court in the above referred Civil Appeals holding that the High Court has correctly analysed the object of the in situ promotion and fixation of pay scales to Group C and D employees to avoid stagnation.

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.” (Emphasis added)

“6.

Explicitly, the object of framing the Rules of 1998 as well as the Rules of 2008 was to ensure that no Government servant stagnates without any financial upgradation for more than 10 years unless he has already availed 03 financial upgradations in his career. It goes undisputed between the parties that these Rules are applicable to the respondents. The appellants have also not disputed the factum of the completion of requisite service tenure by the respondents for grant of 2nd/3rd ACP Scales, as the case may be. The sole objection, as set-forth by the appellants to deny the above-said benefit to the respondents, is that they had not cleared/passed the departmental test/exam for the post of 'Kanungo'. However, they (appellants) have not denied the fact that some similarly placed 'Patwaris' were granted ACP Scales by exempting them from clearing/passing the departmental test.

7.

In Amresh Kumar Sinha & Ors (supra), Hon'ble the Supreme Court has relied upon the observations made by the Three Judges' Bench of the Apex Court in Union of India & Anr (supra) and has held that "the qualification of graduation was prescribed for the promotion to the post of Accounts Officer rather than for grant of in-situ promotion on the nonfunctional post or for extending the benefit of ACP which was purely and simply in the nature of grant of monetary benefit without actually effectuating any promotion to any higher post and the appellants were to be extended the benefit of ACP".

8.

It is worth-while to mention here that while answering the reference in Kamlanand Thakur v. The State of Bihar and others, 2025(1) SLR 695, the Full Bench of Patna High Court has also relied upon the afore-quoted verdict of the Apex Court and has observed as under:-

"48.

Thus, the questions stand answered as follows :-

(A.) Rule 157(3)[J] of the Bihar Board's Miscellaneous Rules, 1958, requiring passing of Departmental Accounts Examination for promotion, is not applicable in case of grant of A.C.P. benefits under the A.C.P. Rules, 2003;

(B.) Rule 157(3)[J] of the Bihar Board's Miscellaneous Rules, 1958 is confined to passing of preliminary examination/final examination in Accounts only for the purpose of confirmation, crossing the efficiency bar and promotion to Selection Grade only and not for regular promotion;

(C.) Rule 4(5) of the A.C.P. Rules, 2003 even though provides that the prescribed requirements and mode of sanction of financial progression under the scheme (A.C.P. scheme) shall be the same which are prescribed under the Recruitment/Service Rules for regular promotion against vacancies and if the Rules/Resolutions prescribe passing of Department Examination or any qualification for promotion, that shall also be an essential condition for sanction of benefit under the scheme will not affect the claim for grant of A.C.P. after completion of twelve/twenty four years of service for the reason that such financial progression under the A.C.P. scheme is only in situ promotion and nothing more. This is even notwithstanding any such requirement of passing any Departmental Examination or acquiring any educational qualification for promotion under the Service/ Recruitment/Promotion Rules."

The above-quoted observations, as made by Hon'ble Supreme Court in Amresh Kumar Sinha & Ors (supra) and by the Full Bench of the Patna High Court in Kamlanand Thakur (supra), are fully applicable to the instant appeals and in view of these observations and also the fact that some 'Patwaris', who were similarly placed, have been exempted from passing the afore-referred exam/test and have been granted the benefit of ACP Scales, it is held that the respondents-writ petitioners cannot be deprived of the benefit of ACP Scales on account of their not having cleared/passed the departmental test/ exam for the post of 'Kanungo'.

9.

As a sequel to the fore-going discussion and in view of the findings as recorded by learned Single Judge(s), we are of the considered opinion that there is no cogent and valid reason/ground to interfere with the impugned judgments. Resultantly, the appeals in hand, being sans any merit, stand dismissed accordingly.” (Emphasis added)