Raja Ram Singh vs The State Of Bihar & Ors.

Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State-respondents.

The present writ application has been filed for issuance of writ in the nature of mandamus directing the respondents to grant second time bound promotion as well as benefit of second Assure Career Progression (in short ‘ACP) and its consequential benefit to the petitioner for which he is legally entitled.

Brief facts of the case, as borne out from the pleadings, are that the petitioner was appointed as a Jail Warder on 31.12.1963 in Central Jail, Buxar and was subsequently promoted to the post of Clerk with effect from 08.06.1972. On completion of ten years' satisfactory service as Clerk, the petitioner was granted the 1st Time Bound Promotion with effect from 08.06.1982. Upon completion of twenty-four years of regular service on the post of Clerk, the petitioner became entitled to the 2nd Time Bound Promotion with effect from 08.06.1996. However, despite eligibility, the said benefit was never extended to him. The petitioner superannuated from service on 31.07.2002 without receiving the aforesaid promotional benefit.

After retirement, the petitioner repeatedly approached the authorities by filing representations. The Jail Superintendent, Central Jail, Buxar, also forwarded favourable recommendations vide Memo No. 512 dated 25.09.2003 (Annexure-1), Memo No. 354 dated 30.07.2005 (Annexure-2) and Memo No. 437 dated 09.09.2005 (Annexure-3) recommending grant of the 2nd Time Bound Promotion. Thereafter, further representations dated 23.12.2011, 02.07.2012, 16.11.2015, 05.08.2016, 22.11.2016 and 24.01.2017 were submitted before the competent authorities, but no effective decision was taken.

The respondents filed a counter affidavit stating that although the petitioner had been granted the first Time Bound Promotion with effect from 08.06.1982, he was not entitled to the second Time Bound Promotion since he had failed to qualify the mandatory departmental accounts examination. Reliance was placed upon Letter No. 03.07.301-80-02 dated 10.03.1980, issued by the Revenue Board, and on that basis the Departmental Screening Committee, in its meeting held on 31.07.2015, rejected the petitioner's claim. A copy of the said circular was annexed as Annexure-A to the counter affidavit.

The learned counsel for the petitioner submitted that the issue is no longer res integra. It was argued that this Court in Upendra Sah v. State of Bihar (CWJC No.13144 of 2008) has categorically held that passing of the departmental accounts examination is not a condition precedent for grant of Time Bound Promotion.

Per contra, learned State Counsel supported the impugned action and submitted that the petitioner admittedly did not qualify the departmental accounts examination and, therefore, in view of the Government Circular dated 10.03.1980, the respondents rightly declined the benefit of the second Time Bound Promotion. It was submitted that the decision of the Departmental Screening Committee dated 31.07.2015 is legal, valid and requires no interference by this Court.

Having heard learned counsel for the parties and upon perusal of the pleadings and materials available on record, the principal question which falls for consideration is whether the petitioner could have been denied the benefit of the second Time Bound Promotion/ACP solely on the ground of non-passing of the departmental accounts examination despite completion of the requisite qualifying service?

The facts of the present case unmistakably reveal that the petitioner had completed the prescribed period of service and had become entitled to the second Time Bound Promotion with effect from 08.06.1996. The recommendation of the Jail Superintendent was repeatedly forwarded to the higher authorities, and there is no allegation of misconduct, adverse service record or any other legal impediment disentitling the petitioner from the promotional benefit. The denial of such benefit merely because the petitioner did not qualify the departmental accounts examination is contrary to the law declared by this Court. The issue is no longer res integra.

In Upendra Sah v. State of Bihar (CWJC No.13144 of 2008, decided on 26.07.2016), this Court, after considering the departmental Circular No.10770 dated 30.12.1981, held that there is no statutory requirement of passing the departmental accounts examination for grant of time bound promotion.

The Court relied upon Bishwa Nath Prasad v. State of Bihar, 2011 (2) PLJR 136, wherein it was held that time bound promotion is governed by the conditions contained in the circular itself and not by any separate requirement of passing the departmental examination.

The Court further noticed that the contrary view expressed by the Division Bench in State v. Kusheshwar Nath Pandey, 2013 (1) PLJR 939, had ceased to hold the field after the Supreme Court stayed/set aside the judgment in the Special Leave Petition bearing SLP (Civil) No. 4307 of 2013. Consequently, the cancellation of the petitioner’s time bound promotion merely because he had not passed the departmental accounts examination was held to be unsustainable. The Court accordingly quashed the order cancelling the promotion, restored the time bound promotion with effect from the original date, directed refund of the amount recovered from the petitioner and granted all consequential monetary and service benefits.

Accordingly, in the matter before us, this court is of the view that the impugned order proceeds entirely on the premise that the petitioner had not passed the departmental accounts examination. The issue is squarely covered by the judgment in Upendra Sah, which in turn follows Bishwa Nath Prasad. In this case it was laid down that,

The petitioner served the Department continuously from 1963 until his superannuation on 31.07.2002. The recommendations for his second time-bound promotion/ACP were repeatedly initiated and forwarded by the local administrative authority (Jail Superintendent, Buxar) between 2003 and 2014.

The rejection of his claim in 2015 (thirteen years after his retirement) on the technical ground of not passing the accounts examination suffers from administrative delay and non-consideration of settled principles governing financial progression schemes designed to alleviate stagnation.

The requirement of passing departmental examinations for financial upgrading under ACP/time-bound schemes after an employee has already superannuated without receiving notice or opportunity during service cannot stand as a valid ground to withhold retiral entitlements due decades prior.

Therefore, cancellation of the petitioner’s promotion on that sole ground is legally unsustainable.

The decision of the Departmental Screening Committee dated 31.07.2015, insofar as it denies the second time-bound promotion/ACP to the petitioner, is hereby set aside. The petitioner is entitled for restoration of the 2^nd time bound promotion with all consequential benefits, including refund of any recovery already made, within a period of three months from the passing of the order.

The writ petition is, accordingly, allowed.

There shall be no order as to costs.