Learned Counsel Appearing On Behalf Of Therespondents Submits That The Petitioner Has Not Completed Tenyears From The Date Of Grant Of First Acp And Hence He Wa v. Commissioner Of Incometax, Bombay City, Reported In Air 1954 Bombay 232. Therelevant Part Of The Judgment Is Quoted Hereinabove

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.10228 of 2019 ====================================================== Bimal Krishna Kundu, Son of Late Gopi Ballabh Kundu, Resident of “RamKrishna Pally”, Abdalpur, P.S.-Madhyam Gram, District-Kolkata, WestBengal. ... ... PetitionerVersus 1.The State of Bihar through the Principal Secretary, Road ConstructionDepartment, Government of Bihar, Patna.Department, Government of Bihar, Patna. 2.The Engineer in Chief Road Construction Department, Government ofBihar, Patna.Bihar, Patna. 3.The Chief Engineer North Wing, Road Construction Department,Darbhanga, District- Darbhanga.Darbhanga, District- Darbhanga. 4.The Superintending Engineer, Road Construction Department, Road Circle,Saharsa.Saharsa. 5.Executive Engineer, Road Construction Department, Road Division,Khagaria, District- Khagaria.Khagaria, District- Khagaria. ... ... Respondents ====================================================== Appearance :For the Petitioner: Mr. Suman Kumar Mishra, Advocate For the Respondents: Mr. Ravi Bhardwaj, AC to GA13 ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAYORAL JUDGMENTDate : 18-12-2019 Heard learned counsel appearing on behalf of thepetitioner and learned counsel appearing on behalf of the State. 2. The grievance of the petitioner in the present writpetition is that after serving for more than three decades, secondand third ACPs have not been granted. 3. Learned counsel for the petitioner submits thatscheme of ACP/MACP was introduced to do away stagnation inservice. He submits that the respondents themselves have failedto conduct the departmental examination and in absence of conduct of departmental examination, denial of the benefits ofsecond and third ACPs amounts to illegal and arbitrary action.The petitioner has now superannuated. 4. Learned counsel appearing on behalf of therespondents submits that the petitioner has not completed tenyears from the date of grant of first ACP and hence he was notgranted second and third ACPs. The petitioner superannuatedon 31[st] December 2019. 5. Law is well settled that the respondents cannot takeadvantage of its own wrong, if the respondents failed toconduct the departmental examination which, according tothem, was the condition precedent for grant of ACP/MACP ,the petitioner cannot be made to suffer the loss. All IndiaGroundnut Syndicate Limited Vs. Commissioner of IncomeTax, Bombay City, reported in AIR 1954 Bombay 232. Therelevant part of the judgment is quoted hereinabove:- “But the most surprising contention is putforward by the Department that because their ownofficer failed to discharge his statutory duty, theassessee is deprived of his right which the law hasgiven to him under Sub-section (2) of Section 24.In other words, the Department wants to benefitfrom and wants to take advantage of its owndefault. It is an elementary principle of law that noperson--we take it that the Income-tax Departmentis included in that definition--can put forward hisown default in defence to a right assert -ed by theother party. A person cannot say that the party claiming the right is deprived of that right because"I have committed a default and the right is lostbecause of that default." 6. In addition thereto, in the case of Masomat Indu Devi Vs. State of Bihar & Ors. [2019 (2) PLJR 241], the Co-ordinate Bench of this Court had occasion to examine the effectof non-passing of departmental examination for grant of ACP.The judgment of the Co-ordinate Bench of this Court isreproduced hereinbelow: “20. A bare reading of the three judgments,referred to above, makes the followingpropositions absolutely clear, leaving no scope ofany confusion, unless the judgments are viewedand analyzed with a myopic vision. The commonthread running in all the three judgments, referredto above, is as follows:- claiming the right is deprived of that right because"I have committed a default and the right is lostbecause of that default." 6. In addition thereto, in the case of Masomat Indu Devi Vs. State of Bihar & Ors. [2019 (2) PLJR 241], the Co-ordinate Bench of this Court had occasion to examine the effectof non-passing of departmental examination for grant of ACP.The judgment of the Co-ordinate Bench of this Court isreproduced hereinbelow: “20. A bare reading of the three judgments,referred to above, makes the followingpropositions absolutely clear, leaving no scope ofany confusion, unless the judgments are viewedand analyzed with a myopic vision. The commonthread running in all the three judgments, referredto above, is as follows:- (A) The A.C.P. Rules of 2003 do not providean avenue of promotion, but only financialprogression in case of no promotion having beengiven to an employee; (B) The recipient/beneficiary of suchscheme has to be an employee who is otherwiseeligible for being promoted to the higher post; (C) Passing of Accounts Examination orDepartmental Examination, as the case may be,under the Bihar Boards Miscellaneous Rules, 1958would be necessary for crossing efficiency bar,confirmation and for promotion to selection grade,but not general promotion; (D) The requirement of passing the exam.can only be thrust upon and made applicable to anemployee in view of the Service Rules of theDepartment. 21. A further condition can be gleaned fromthe aforesaid judgments for being eligible forgetting the benefits of financial progression underthe A.C.P. Rules of 2003, which is that, if there are no promotional avenues available in the Cadre. 22. Applying the aforesaid principles in thecase of the late employee, it can safely be statedthat he was absorbed and regularized ingovernment service on 09.07.1981 on the post ofAccounts Clerk in the Irrigation Department onwhich, he joined on 10.07.1981 at a pay- scale ofRs. 730-1080. Admittedly, he has not been paid the1st time bond promotion and the benefits of A.C.P.Rules of 2003. The late employee died in harnesson 04.09.2009, while was posted as AccountsClerk. The Departmental Rules, framed only in theyear 2014, has provided for 3-tier in the Cadre ofAccounts Clerk and the requirement of passing theDepartmental Accounts Examination and attainingcomputer knowledge for confirmation andpromotion. The petitioner died much before theaforesaid rules came into effect. 23. Under such circumstances, in theconsidered opinion of this Court, the respondentsare not justified in withholding the benefits of 1 sttime bond promotion and financial progressionunder the A.C.P. Rules of 2003 to the late husband(employee) of the petitioner. 24. Under the aforesaid circumstances, thepetitioner is directed to make a representationbefore the Principal Secretary, Water ResourcesDepartment, Govt. of Bihar, Patna (respondentNo. 2) within a period of four weeks from the dateof receipt/production of a copy of this order. Onreceipt of such representation, the PrincipalSecretary, Water Resources Department, Govt. ofBihar, Patna (respondent No. 2) shall dispose offsuch representation within a period of eight weeksthereafter, taking into account the position of lawas has been discussed in the present order. If thedues of the late husband (employee) of thepetitioner is found to be tenable, necessary sequelorders shall be or directed to be passed within theaforesaid stipulated period. 7. In view of the aforesaid decisions, the writ petition is disposed of with a direction to the respondents to consider the case of the petitioner for grant of second and third ACPs as therespondents cannot take advantage of their own lapses.Accordingly, the respondents are directed to take freshappropriate decision at the earliest. (Anil Kumar Upadhyay, J) BT/- AFR/NAFRNAFRCAV DATEN.AUploading Date27.12.2019Transmission DateN.A