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Patna High Court
Manohar Kumar vs The State Of Bihar And Ors on 17 April, 2025
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3019 of 2018
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Manohar Kumar Son of Late Ghanshyam Singh, resident of Mohalla-
Dahiyawan- Jagdamba Road, Chapra, P.S.- Chapra Town, District- Saran.
... ... Petitioner/s
Versus
1. The State Of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The District Magistrate, Saran at Chapra.
3. The Deputy Collector, Establishment, Saran at Chapra.
4. The Senior Deputy Collector, District Legal Section, Saran at Chapra.
5. The Block Development Officer, Sonepur, Saran.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Sanjay Kumar Singh, Advocate
For the State : Mr. Sheo Shankar Prasad (SC-8)
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 17-04-2025
Heard Learned Counsel for the petitioner and
Learned Counsel for the State.
2. The present writ petition has been filed for the
following relief/s:-
"I. For directing the Respondent no.2 to
grant the 1st and 2nd time bound promotion
as well as benefits of A.C.P which came in
the year 2003 w.e.f 09.08.1999 with all
consequential benefits to the father of the
petitioner who died in harness in the year
2000.
II. For quashing of the letter dated
Patna High Court CWJC No.3019 of 2018 dt.17-04-2025
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15.04.2017
contained in Memo No.465
(annexed as Annexure-9) issued by
Respondent no.3 whereby the claim of the
petitioner has not been allowed stating that
father of the petitioner not fulfill the
condition stipulated in Letter No.3/R-1-101-
91-Ka-4674 dated 15.05.1992 which is
without application of mind and cannot be
sustained in the eyes of law.
III. For grant of any other relief or reliefs
for which petitioner is entitled.”
3. Learned Counsel for the petitioner submits that
the petitioner’s father was initially appointed as Lower Division
Clerk and joined the post on 10.05.1965 in the office of Block
Development Officer, Siwan and he served in the department
with full devotion, honesty and integrity to the satisfaction of
the authority. Counsel submits that when petitioner’s father was
posted as Assistant under Sonepur prakhand of Saran District,
he died on 07.10.2000 during course of his service. Petitioner’s
father rendered his service for more than 35 years in the
aforesaid department of the State Government. Counsel submits
that the service condition applicable upon the petitioner’s father
is Bihar State Employees Conditions of Service Condition
(Assured Career Progression Scheme) Rules, 2003 and the said
Patna High Court CWJC No.3019 of 2018 dt.17-04-2025
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scheme came into existence w.e.f 09.08.1999. Counsel submits
that though, petitioner’s father died in the year 2000, but being
the son, he filed representation before the District Magistrate,
Saran on 22.12.2010 stating that his father had passed Hindi
Noting & Drafting examination as per law and therefore, he was
entitled for 1st time bound promotion w.e.f. 01.04.1981 and 2 nd
time bound promotion w.e.f. 10.05.1990 after completion of 25
years of his service which has not been granted to him. Counsel
further submits that when the claim of petitioner’s father was
not settled by the respondent authorities, then the petitioner
moved before this Hon’ble Court in Civil Writ Jurisdiction Case
No.20801 of 2012 (Manohar Kumar Vs. The State of Bihar &
Ors.) in which vide order dated 26.11.2012, the writ petition was
dismissed in view of inordinate delay in approaching the Court
and it was also observed that the Court has not expressed any
opinion on the merits of the case but liberty was granted to the
petitioner to pursue his representation, if so advised, and if
done, the concerned authority may dispose of the same in
accordance with law on its own merits.
4. Learned Counsel for the petitioner further
submits that the petitioner has filed several representations
before Respondent no.2 for redressal of his grievances vide
Patna High Court CWJC No.3019 of 2018 dt.17-04-2025
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Annexure-4 series and thereafter, petitioner has filed legal
notice. Counsel submits that subsequently, in the year 2017 vide
letter dated 15.04.2017 contained in Memo No.465 (annexed as
Annexure-9), claim of the petitioner has not been considered
and rejected without application of mind and the petitioner has
challenged the said letter in this writ petition. Counsel submits
that the said letter is basically a non-jurisdictional error, as it has
been passed by the Deputy Collector, Establishment, Saran at
Chapra and it ought to be passed by the District Magistrate,
Saran only. Counsel further submits that this Hon’ble Court vide
order dated 16.04.2003 passed in Civil Writ Jurisdiction Case
No.1453 of 2003 has allowed the benefit of promotion to one
other employee namely, Md. Shamsul Hoda. Counsel submits
that petitioner’s father has entitlement to receive the ACP and
therefore, relief may be granted to the petitioner by setting aside
Annexure-9 which is a letter dated 15.04.2017 contained in
Memo No.465.
5. Learned Counsel for the State on the other hand
submits that it is a clear cut stand of the petitioner that his father
was initially appointed as Lower Division Clerk and joined the
post in the year 1965 and after completion of 35 years, he died
on 07.10.2000 during course of his service. Counsel submits
Patna High Court CWJC No.3019 of 2018 dt.17-04-2025
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that this Hon’ble Court has not considered the petitioner’s
application in CWJC No.20801 of 2012 on merit but, liberty
was granted to the petitioner to pursue the representation before
the authority concerned. Counsel further submits that according
to the then rule, petitioner’s father has to appear repeatedly in
the departmental examination, but become unsuccessful or due
to Government reason, he could not appear in the examination
or after completion of 50 years of age particularly when,
examination could not be completed for earlier 5 years, then
only exemption has been provided to the State employee and
petitioner’s father was entitled for the benefit. Counsel further
submits that the petitioner’s father did not fulfill the said criteria
which was available at that very period of time and as such, his
case was not considered for promotion. Counsel relied on
Annexure-E to the counter affidavit which categorically
indicates that for exemption from departmental examination, no
letter was present. It could not be ascertained that whether in the
departmental examination, the father of the petitioner appeared
continuously. It has also been mentioned that during service, 50
years of age was completed by petitioner’s father on
04.01.1994. Counsel submits that it has also come that there was
no restriction from the Government’s side due to which he has
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been stopped for appearing in the examination and it has been
acknowledged that the departmental examination used to take
place every year.
6. In the light of the submission made and after
hearing the parties as well as perusal of the documents, it
transpires to this Court that the cause of action for the petitioner
to sue has arisen after death of his father, as the said scheme i.e.
Bihar State Employees Conditions of Service Condition
(Assured Career Progression Scheme) has come in the year
2003 w.e.f 1999. It also transpires to this Court that the
petitioner after his father’s death, has moved before this Hon’ble
Court in the year 2012 and this Hon’ble Court has refused to
interfere on merit of the case and only liberty was granted to the
petitioner to pursue the representation before the authority
concerned. Petitioner thereafter, filed representation before the
authority concerned and they verified and rejected the claim of
the petitioner with reasons assigned in the counter affidavit.
7. This Court hereby acknowledge the order no.3
dated 19.09.2023 passed in this case in which it was directed
that the matter be taken up after disposal of L.P.A No.1609 of
2019 (State of Bihar & Ors. Vs. Manzar Hassan) which was to
be decided by the Hon’ble Full Bench of this Court. The said
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judgment has been decided by the Hon’ble Full Bench of this
Court on 28.06.2024 in case of Kamlanand Thakur Vs. The
State of Bihar & Ors. in Civil Writ Jurisdiction Case No.18727
of 2017 with other analogous cases in which, the question was
answered whose relevant paragraph is 48 which states as
follows:-
“48. Thus, the questions stand answered as
follows:-
(A.) Rule 157(3)[J] of the Bihar Board’s
Miscellaneous Rules, 1958, requiring
passing of Departmental Accounts
Examination for promotion, is not
applicable in case of grant of A.C.P. benefits
under the A.C.P. Rules, 2003;
(B.) Rule 157(3)[J] of the Bihar Board’s
Miscellaneous Rules, 1958 is confined to
passing of preliminary examination/final
examination in Accounts only for the
purposes of confirmation, crossing the
efficiency bar and promotion to Selection
Grade only and not for regular promotion;
(C.) Rule 4(5) of the A.C.P. Rules, 2003 even
though provides that the prescribed
requirements and mode of sanction of
financial progression under the scheme
(A.C.P. scheme) shall be the same which are
prescribed under the Recruitment/Service
Rules for regular promotion against
Patna High Court CWJC No.3019 of 2018 dt.17-04-2025
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prescribe passing of Departmental
Examination or any qualification for
promotion, that shall also be an essential
condition for sanction of benefit under the
scheme will not affect the claim for grant of
A.C.P. after completion of twelve/twenty
four years of service for the reason that such
financial progression under the A.C.P.
scheme is only in situ promotion and
nothing more. This is even notwithstanding
any such requirement of passing any
Departmental Examination or acquiring any
educational qualification for promotion
under the Service/Recruitment/Promotion
Rules.”
8. It transpires to this Court that on any earlier
occasion, the authorities have no opportunity to go through the
aforesaid judgment decided by the Hon’ble Full Bench of this
Court and without consideration by the authority of the
aforesaid judgment, it shall not be appropriate for this Court to
pass any order.
9. As such, this writ petition is hereby disposed off
granting liberty to the petitioner to file a fresh representation
before the District Magistrate, Saran at Chapra (Respondent
no.2) and the Respondent no.2 shall decide the petitioner’s
Patna High Court CWJC No.3019 of 2018 dt.17-04-2025
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representation afresh within 90 days thereafter in the light of the
decision of Hon’ble Full Bench of this Court in case of
Kamlanand Thakur Vs. The State of Bihar & Ors. (supra).
10. It is made clear this Court has not decided
anything on merit, rather, referring this issue to decide
completely in accordance with law with the applicability of the
General Clauses Act, 1897 (Act no.10 of 1897) as well as the
decision rendered by the Hon’ble Full Bench of this Court in
case of Kamlanand Thakur Vs. The State of Bihar & Ors.
(supra).
(Dr. Anshuman, J)
Divyansh/-
AFR/NAFR CAV DATE NA Uploading Date 23/04/2025 Transmission Date NA
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