IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.4015 of 2006
MANI SHANKAR son of late Phulena Prasad Verma, resident of
Mohalla - Chandmari, P O - Motihari, District - East Champaran,
presently posted A/C Road Construction Division, Dhaka, P.O. Dhaka,
District - East Champaran.
Versus
1. THE STATE OF BIHAR.
2. The Secretary, Road Construction Department, Bihar, Patna.
3. The Engineer-in-Chief cum Administrative Commissioner cum
Special Secretary, Road Construction Department, Bihar, Patna.
4. The Superintending Engineer, Road Construction Department,
North Bihar Circle, Muzaffarpur.
5. The Executive Engineer, Road Construction Department, Road
Division Dhaka, East Champaran.
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02. 29.10.2010 The reason for refusal to grant benefit of second time bound
under the ACP scheme on completion of 24 years of service to the
petitioner is non passing of the departmental examination. Annexure-3
states that position. The letter is dated 30.9.2005 where the name of the
petitioner also figures.
Contention of the learned counsel for the petitioner is that
for many a years the departmental examination has not been conducted
by the concerned department and that is the reason why the petitioner
could not have a go in the examination after having failed in a paper or
two in the earlier examination. There is a duty cast upon the State to
hold examination annually but if there is a failure on the part of the
State authorities to conduct the examination, then it can not be said that
the employee would be debarred from the benefit because he had not
passed the examination. The question of passing or failure would only
arise provided examination is held regularly.
Stand of the State in the counter affidavit is in similar terms
that under the scheme of the ACP passing of a departmental
2
examination is a must.
There cannot be any quarrel with the policy but then the
obligation which has been created under the rules is also required to be
shouldered by the State authorities.
Either the State should take steps for holding the
examination and give opportunity to all those persons who would like to
participate in the said examination or may consider granting waiver
since the failure has been theirs and it is not attributable to the petitioner
on this count.
The Court is informed that in some cases such waiver has
been granted keeping in mind that the departmental examination could
not be conducted for many a years.
Be that as it may, the matter is being relegated back to the
concerned authority with a direction that either a departmental
examination ought to be held forthwith where petitioner would be
given an opportunity to appear and clear the papers or appropriate
indulgence by way of waiver may be considered in this regard.
The writ application stands disposed of with the above
direction.
rkp ( Ajay Kumar Tripathi, J.)