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Judgment
Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State- respondents.
The present writ application has been filed by the petitioner seeking interalia for the following reliefs: -
a) Quashing of the order dated 23.02.2018 contained in Memo No. 182 Anu, passed by the Screening Committee, wherein and whereunder, the claim of the petitioner for grant of the 3rd financial upgradation under the Modified Assured Career Progression (MACP) Scheme has been rejected (Annexure- 8 to the writ petition);
b) For commanding the concerned respondent authorities to grant 3rd MACP benefits to the petitioner;
For commanding the respondents to calculate the arrears of salary of the Petitioner on the basis of the 3rd MACP and pay the same to the petitioner;
For commanding the respondents to pay interest on the arrears of salary at the rate of 12% per annum;
Any other relief which the petitioner is found entitled to.
Brief facts emerging from the pleadings are that the petitioner was appointed as Junior Accounts Clerk in P.W.D of Bihar Government on 12.02.1972, and he was posted as Junior Accounts Clerk in Flood Division, Sonepur, Saran. The service of the Petitioner was transferred to N.H. Wing of P.W.D (now R.C.D) on lien and he continued in service thereafter. He was subsequently, granted the 2nd ACP/MACP benefit with effect from 26.11.2009, vide memo no. 95 dated 31.01.2013 and memo no. 500 dated 16.05.2013 (Annexure- 2 and 3 to the writ petition respectively), upon obtaining an exemption from passing the mandatory departmental accounts examination vide memo no. 1057 dated 07.05.2011 (Annexure- 1 to the writ petition). The petitioner superannuated from service on 31.01.2012.
Following his retirement, the petitioner submitted representations for the grant of the 3rd MACP, which were left unattended. Aggrieved by the inaction of the respondent authorities, the petitioner approached before the Hon’ble Court in CWJC No. 691 of 2018, for commanding the respondents to grant the benefit of 3rd MACP to the petitioner. This Hon’ble Court, thereafter, disposed of the said writ application vide order dated 15.01.2018, directing respondent no. 3 to consider and dispose of the fresh representation, if filed by the petitioner, by giving a reasoned and a speaking order.
Pursuant to the direction given by this Hon’ble Court, the petitioner filed a fresh representation before respondent no. 3, i.e. the Superintending Engineer, N.H. Division, Purnea (Annexure- 7 to the writ application). The same was placed before the Screening Committee and the same was ultimately rejected vide the impugned order dated 23.02.2018. It is this rejection order which is under challenge in the present writ application.
Learned counsel appearing on behalf of the petitioner submits that the delay in granting the 2nd ACP/MACP was not due to the fault of the petitioner but was on account of administrative delays done by the state authorities in granting the exemption. Reliance was also placed upon the decisions of this Hon’ble Court in Ramadhar Thakur vs. State of Bihar having LPA No. 599 of 2015; Kamlanand Thakur vs. State of Bihar reported in 2020(2) PLJR 623, and Mala Devi vs. State of Bihar having CWJC 3861 of 2023, wherein it has been held categorically that passing of the departmental accounts examination is not a condition precedent for the grant of financial progression under ACP/MACP.
It was submitted that the petitioner's 2nd ACP/MACP should have taken effect automatically upon completion of the requisite service years and not merely from the date of exemption, consequent to which, he should have been held eligible for the grant of 3rd MACP.
Per contra, the learned Counsel for the State has supported the impugned order and has submitted that the representation of the Petitioner was rightly rejected in light of clause 14 of Appendix 1 of the Finance Department, Bihar, Patna, Memo No. 7566 dated 14.07.2010, in which it is expressly given that the grant of 3rd MACP is admissible only after 10 years of receiving 2nd MACP.
It has been further contended that since the 2nd ACP/MACP was granted with effect from 26.11.2009, the grant of 3rd MACP shall be only applicable with effect from 26.11.2019. It has been submitted that since the Petitioner superannuated on 31.10.2012, which is the date falling before the date of grant of 3rd MACP, he shall not be entitled for the same. Therefore, the petitioner failed to satisfy the mandatory 10 year time-gap criteria as prescribed under the statutory rules. The counsel for the respondents in the counter affidavit has categorically submitted that the 2nd MACP was granted to the Petitioner on the eligibility date i.e. 26.11.2009, and that the same was delayed due to the fault of Petitioner inasmuch as, he failed in passing the departmental examination. It was only after getting an exemption from competent authority, he had been granted the 2nd MACP, and the third MACP was not admissible to him as per the aforesaid clause 14.
Having heard learned counsel for the parties and having perused the materials on record, the core issues which requires consideration of this Court, are enunciated hereunder:
Whether passing of departmental accounts examination was essential for grant of MACP?
Whether the period of 10 years for granting the benefit of 3rd MACP would be computed from the date of grant of 2nd MACP, which has been given with effect from the date of exemption of passing of departmental examination?
Having regards to the first issue, the law has been settled in catena of judgements of this Hon’ble Court. For instance, in the case of Ramadhar Thakur vs. State of Bihar and Ors. having LPA No. 599 of 2015, it has been held that passing of departmental Accounts Examination is not a condition precedent for grant of Assured Career Progression under the ACP Rules nor Rule 157(3)(J) of the Bihar Board’s Miscellaneous Rules conceives of such requirement.
Furthermore, in State of Bihar & Ors. vs. Smt. Jivachi Devi reported in 2020 (2) BLJ 471, this Court has held that the State is not justified by denying (refusing) benefits of financial progression to the employee on the ground that he did not pass the accounts examination or departmental accounts examination.
It is not out of place to mention herein that the Hon’ble Apex Court, in SLP (C) No. 8219-8226 of 2019 Amresh Kumar Sinha & Ors. Vs. The State of Bihar & Ors., has held that “fulfillment 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 purpose of promotion is not necessary for 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.
In view of the aforesaid backdrop, it is axiomatic that passing of departmental accounts examination is not a precondition for grant of benefits of financial progression of an employee. The contention of the State respondents, in holding that 2nd MACP was granted to the petitioner on the eligibility date i.e. 26.11.2009, and that the same was delayed due to the fault of petitioner inasmuch as, he failed in passing the departmental examination, is thus rejected.
At this, juncture, the Learned Counsel for the State respondents vehemently opposes the prayer of the Petitioner, stating that the petitioner never challenged that benefits of 2nd MACP which was granted to him with effect from 26.11.2009, while he was in service, and the same was only challenged belatedly when the benefit of 3rd MACP was denied to him on the pretext of his superannuation on 31.01.2012.
11. So as to meet, the objection raised by the Learned Counsel for the State respondents, this Court deems it appropriate to place the precedent laid down in the case of M.R. Gupta vs. Union of India, reported in 1995 SCC (5) 628, wherein the Hon’ble Supreme Court has explained it succinctly that in service jurisprudence there is distinction between a continuing wrong and a recurring one. The appellant before the court in that case was a workman, whose grievance was that his wage fixation was not in accordance with the applicable rules. He asserted that the wrong was a continuous one. The court held that his cause of action was a recurring cause of action rather than a continuous one. Each time he was paid a salary which was not computed in accordance with the rules, a cause of action accrued unto him.
It is pertinent to state that the Hon’ble Apex Court in the case of Union of India vs. Tarsem Singh arising out of SLP (C) Nos. 3820-3821 of 2008 [2008 INSC 930], it has been categorically held that:
“ 5. To summarise, normally, a belated service-related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service-related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/ limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/ successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the Writ Petition.”
Applying the aforesaid ratio, to the case at hand, it is pertinent to state that the grant of 3rd MACP, is a claim which is based on a continuing wrong and the same does not affect the settled rights of third parties, therefore, the claim can be raised with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. The case at hand undoubtedly, fits into the issue pertaining to payment, where no third-party rights has been created.
Insofar, as the objection raised by the counsel for the respondent State is concerned, with regards to not challenging the grant of 2nd MACP which was given with effect from 26.11.2009, in a timely fashion and thus challenging it belatedly, it is expedient to state that, in the considered opinion of this Court, the same is fit to be rejected and is untenable in view of the afore-mentioned decisions rendered by the Hon’ble Supreme Court.
Lastly, this Court comes to address the second issue involved in the instant writ application, which essentially is that whether the period of 10 years for granting the benefit of 3rd MACP would be computed from the date of grant of 2nd MACP, which has been given with effect from the date of exemption of passing of departmental examination. The coordinate bench of this Hon’ble Court in the case of Mala Devi vs. State of Bihar & Ors. having CWJC No. 3861 of 2023, it was held:
“10.…. that the grant of ACP/MACP to the petitioner from the date of exemption of passing of departmental examination is erroneous and is not sustainable in law.
11.The grant of ACP or MACP is in situ promotion in which only financial upgradation is given to the employees for a long period of service and in order to avoid stagnation, as such, withdrawal of the second ACP granted to the petitioner by the respondent is also not sustainable.
12.Accordingly, the impugned letter no 1100 dated 11.10.2022 at Annexure 4 is set aside and the petitioner shall be entitled for payment of actual monetary benefit from the date of first MACP granted to her w.e.f. 02.06.2009 and second MACP w.e.f. 02.06.2019. Accordingly, the respondent is directed to pay the consequential benefit to the petitioner w.e.f. 02.06.2009 and 02.06.2019 within a period of four weeks from the date of production/ receipt of the copy of this order.
13.In the result, this writ application is allowed.”
The law relating to the interpretation of statutory schemes for financial upgradation is well settled. The primary objective of ACP/MACP schemes is to alleviate stagnation in services, where regular promotional avenues are unavailable. The objective of this scheme was reiterated in the case of Ramadhar Thakur vs. The State of Bihar & Ors. having LPA No. 599 of 2015, wherein the Division Bench of the Patna High Court examined the core nature and object of the ACP scheme vis-à-vis departmental exam requirements, stating that the Assured Career Progression Scheme is a safety net scheme to deal with genuine stagnation and hardship faced by employees due to lack of promotional avenues. Financial upgradation under the ACP Scheme is purely 'in-situ' and does not involve functional promotion or creation of a post. The object of the scheme is not to grant a promotion to a higher cadre, but merely to grant the financial scale attached to the next higher pay band to prevent stagnation.
The petitioner argues that his 2nd ACP/MACP should have taken effect automatically upon completing 24 years of service, i.e., in 1996/2002, without waiting him, to get a formal departmental exam exemption 26.11.2009. If the 2nd ACP/MACP date is shifted back conceptually under Ramadhar Thakur(supra), the petitioner argues he completed 30 years of total service prior to his superannuation on 31.01.2012, making him eligible and entitled for the 3rd MACP.
Having heard the parties, this Court holds that there is force made in the submission of the Petitioner and that grant of ACP/MACP to the petitioner from the date of exemption of passing of departmental examination is erroneous and is not sustainable in law.
19. The grant of ACP or MACP is in situ promotion in which only financial upgradation is given to the employees for a long period of service and in order to avoid stagnation, as such, denying the benefits of the 3rd MACP granted to the petitioner by the respondent is also not sustainable. Accordingly, the impugned order dated 23.02.2018 contained in Memo No. 182 Anu (Annexure- 8 to the writ petition) is set aside, and the petitioner shall be entitled for payment of actual monetary benefit from the date of first MACP granted to him. Accordingly, this Court directs the respondent state to pay all the consequential benefits to the petitioner within a period of three months from the date of production/ receipt of the copy of this order.
20. The writ application, therefore, stands allowed.