IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1366 of 2011
In
Civil Writ Jurisdiction Case No. 3733 of 2011
With
Interlocutory Application No. 6673 of 2011
In
Letters Patent Appeal No.1366 of 2011
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Ganesh Jha, son of Late Maharaj Jha, Resident of Village+P.O.-Karanpur,
P.S.+District-Supaul, at present residing in Lalita Bhawan, Sarahi road at
Naya Bazar, Saharsa, District-Saharsa.
.... .... Petitioner-Appellant
Versus
1. The State of Bihar through the Principal Secretary, Department of Water
Resources, Government of Bihar, Patna.
2. The Engineer-in-Chief (Establishment), Department of Water
Resources, Government of Bihar, Patna.
3. The Chief Engineer, Department of Water Resources, Government of
Bihar, at Birpur, District-Supaul.
4. The Superintending Engineer, Department of Water Resources,
Embankment Circle, District Saharsa.
5. The Executive Engineer, East Embankment Division Chandrayan, Dist-
Saharsa, Department of Water Resources, Government of Bihar.
.... .... Respondents-Respondents
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Appearance :
For the Appellant : Mr. Sharda Nand Mishra, Advocate
For the Respondents No.1to5: Mr. Rajesh Kr.Verma, S.C.-27
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
2 Patna High Court LPA No.1366 of 2011 (2) dt.23-09-2011
2/3
2. 23-09-2011 Interlocutory Application No. 6673 of 2011:
Delay of one day occurred in filing the Letters Patent
Appeal is condoned.
Interlocutory Application stands disposed of.
Letters Patent Appeal No.1366 of 2011:
Feeling aggrieved by the judgment and order dated
12th July 2011 passed by the learned single Judge in above
C.W.J.C. No. 3733 of 2011, the writ petitioner has preferred the
present Appeal under Clause 10 of the Letters Patent.
The appellant is a retired Junior Engineer. In above
C.W.J.C. No. 3733 of 2011, the appellant challenged the order
dated 30th December 2010 made by the Chief Engineer (Central) in
respect of grant of benefit of the Assured Career Progression
(A.C.P.) to the appellant. The Chief Engineer, considering the 5
punishments of „Censure‟ imposed upon the appellant from 1998
to 2008 and the effect thereof, has rejected the claim of the
appellant for A.C.P. The challenge to the said order before the
learned single Judge has failed. Therefore, the present Appeal.
The benefit of higher pay has been extended to the
Government servants under the Bihar State Employees Conditions
of Service (“Assured Career Progression Scheme”) Rules, 2003.
Sub-rule (5) of Rule 4 of the said Rules provides that benefit of
higher pay under the A.C.P. will be granted in the same manner as
promotion. The pre-requisites for promotion shall be complied
with for benefit of A.C.P. also.
The impugned order has been made in accordance
with the Explanation-II to Rule 14 of the Bihar Government
Servants (Classification, Control & Appeal) Rules, 2005 to deny
the benefit of first A.C.P. to the appellant. We may note here that
the aforesaid Explanation-II has been added to the Rules under the
3 Patna High Court LPA No.1366 of 2011 (2) dt.23-09-20113/3
amendment Rules of 2010. The said explanation, therefore, could
not have been applied to the case of the appellant, who has retired
from service prior to the date of the amendment.
Nevertheless, we are of the opinion that considering
five „Censure‟ imposed upon the appellant over a period of 10
years from 1998 to 2008 the appellant cannot be said to be fit for
promotion to the higher post. Unless the appellant were fit for
promotion to the higher post he could not have been granted the
benefit of A.C.P.
In our opinion, though the reliance placed on above
referred Explanation-II inserted under the Bihar Government
Servants (Classification, Control & Appeal) (Third Amendment)
Rules, 2010 is illegal and uncalled for; having regard to his service
record for 10 years preceding the date of retirement, the appellant
cannot be said to be fit for promotion. Consequently, the appellant
cannot be granted the benefit of A.C.P.
For the reasons recorded hereinabove, the Appeal is
dismissed in limine.
(R.M. Doshit, CJ)
(Birendra Prasad Verma, J)
Pawan/-