IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.10368 of 2010
1. RAGHUBANSH NARAIN SINGH S/O LATE JAGDISH SINGH R/O VILL.- MOHABBAT
PARSA, P.S. AND P.O.- RIVILGANJ, DISTT.- CHAPRA (SARAN) AT PRESENT
RESIDING AT ARYA NAGAR PATNA-RANCHI ROAD, HAZARIBAGH, DISTT.-
HAZARIBAGH, JHARKHAND, PIN- 825301
Versus
1. THE STATE OF BIHAR
2. THE PRINCIPAL SECRETARY, HOME (POLICE) DEPARTMENT, GOVT. OF BIHAR,
OLD SECRETARIAT, PATNA
3. THE JOINT SECRETARY, HOME (POLICE) DEPARTMENT, GOVT. OF BIHAR, OLD
SECRETARIAT, PATNA
4. THE DIRECTOR GENERAL CUM INSPECTOR GENERAL OF POLICE, GOVT. OF
BIHAR, OLD SECRETARIAT, PATNA
5. THE DEPUTY INSPECTOR GENERAL OF POLICE (HUMAN RIGHT), GOVT. OF
BIHAR, OLD SECRETARIAT, PATNA
6. THE INSPECTOR GENERAL OF POLICE (HEADQUARTER AND ADMINISTRATION),
GOVT. OF BIHAR, OLD SECRETARIAT, PATNA
7. THE COMMANDANT, BIHAR MILITARY POLICE-16, PHULWARISHARIF, P.S.-
PHULWARISHARIF, DISTT.- PATNA
-----------
For the Petitioner: Mr.Atul Chandra, Advocate
For the State : Mr.Sanjay Kumar, GP 15
——
2. 08.11.2010 Heard learned Counsel for the petitioner and the learned
Counsel for the State.
The petitioner was initially appointed as a Sergeant in
January 1970 when he was promoted as Sergeant Major in
August 1982 and subsequently as Deputy Superintendent of
Police on 1.11.1996 with effect from 1.6.1994. He has
superannuated from service on 31.10.2007. The petitioner is
stated to have represented commencing from January 2007 till
January 2010 for grant of Second ACP benefits in the pay scale
of Rs. 10,000-15,200/-. The representations having evoked no
response he has moved this Court.
Counsel for the petitioner submits from Annexures 7 & 8
to the writ application supported by pleadings in paragraph 12
that his juniors have been granted the benefits in the aforesaid
pay scale causing hostile discrimination against the petitioner.
Placing reliance on the Bihar State Employees Condition’s of
2
Service, Conditions Amendments (Assured Career Progression
Scheme) Rules 2006 (hereinafter called “ACP Rules”), it is
submitted from Clause 4(1) that the basic principle of the Rules
was to prevent stagnation of a person who has been working in
the same scale of pay including any relevant scale for the period
of 12/24 years respectively. To insist upon the petitioner passing
any departmental examination or confirmation of his service
under the Bihar Police Manual, shall be defeating the very
purpose of the ACP Rules an an anti stagnation measure.
Counsel for the State from the counter affidavit submitted
that the petitioner never came to be confirmed as Deputy
Superintendent of Police till his superannuation. Strong reliance
is placed on Rule 648(b) of the Bihar Police Manual which deals
with confirmation. It is next submitted that the petitioner was
required to pass the departmental accounts examination.
Answering the assertions made in para 12 of the writ application
of alleged hostile discrimination the counter affidavit in para 9
states that the juniors granted benefits have all cleared the
Departmental Accounts Examination.
An alternate submission is then made on behalf of the
petitioner that he represented on 12.10.2007 for grant of
exemption from passing the departmental examination. That is
not a part of the pleadings and neither does any such
representation form part of the record. Counsel for the State
rightly submits that he is not in a position to make any
submission with regard to any document/submission outside
the records.
3
Rule 648(b) of the Bihar Police Manual provides that a
person promoted as Deputy Superintendent of Police from the
lower rank must pass the examination in accounts, but need not
pass the other examinations prescribed in the “Rules for the
Training and Departmental Examination of Officers serving in
the State of Bihar”. He shall be on probation for one year. At the
end of that period, if he has passed the examination in accounts
and is fit to perform the duties of a Deputy Superintendent, he
will be confirmed. If he has officiated as a Deputy
Superintendent for one year or more he may be confirmed
without further probation on his passing the examination in
accounts. If he fails to pass the examination in accounts within
one year, or if he be unfavorably reported on, he will be liable to
be reverted to his substantive post.
It is apparent that the probation is for one year. He shall
be confirmed if he has passed the account examination. If he is
officiating as a Deputy Superintendent for one year or more he
may be confirmed without further probation after passing the
examination in accounts. He could be reverted for failure to clear
the examination or being unfavorably reported. The petitioner
does not appear to have passed the departmental examination
from his own pleadings. Nonetheless he has worked as Deputy
Superintendent of Police for nearly 11 long years before
superannuation without being unfavorably reported or reverted
for having not passed the departmental accounts examination.
The question of any reversion after superannuation does not
arise. The petitioner shall therefore be deemed to have been
confirmed as Deputy Superintendent of Police and retired from
4
that post. But that shall not answer his claim for benefits of the
ACP scheme.
The ACP schemes Rules have been framed under Article
309 of the Constitution of India and have statutory force. Even if
the petitioner is deemed to have been confirmed as a Deputy
Superintendent of Police under the Bihar Police Manual for other
service purposes, if the ACP Rules specifically requires him to
pass the departmental accounts examination before grant of ACP
benefits, the benefits shall not be available to him unless he has
passed the examination. The deemed confirmation on the post of
Deputy Superintendent of Police and the grant of ACP benefits
on that post shall be severable issues. If the statutory rules
provide in Rule 4(5) that passing of the departmental
examination shall be a condition for grant of ACP benefits after
12/24 years, this Court does not find it possible to re-write the
rules or to ignore the rule to grant the benefits to the petitioner
contrary to the same. The submission that Rule 4(1) shall have
over-riding effect over Rule 4(5) so as to completely negate the
provisions of Rule 4(5) is an interpretation which this Court shall
not accept rendering the latter completely nugatory. Reading
Rule 4(1) with Rule 4(5) harmoniously though both require the
grant of ACP benefits to a person who has completed 12/24
years of service, the latter only limits it in certain cases.
This Court therefore holds that the petitioner is not
entitled to the grant of second ACP since he has not cleared the
departmental examination. Nonetheless the failure to pass an
examination and consequent denial of ACP is one issue of the
matter. The right to represent for grant of exemption from
5
clearing of the examination under the relevant rules and the
right to have that application considered in accordance with law
is a separate issue. If the petitioner has represented or
represents hereinafter for grant of exemption let the same be
considered and disposed off expeditiously by a reasoned and
speaking order within a maximum period of three months from
the date of receipt and/or presentation of a copy of this order.
The writ application stands disposed.
Snkumar/- (Navin Sinha,J.)