Rejendra Menon, C.J.?Seeking exception to an order dated 24.8.2016 passed by the Writ Court in C.W.J.C. No. 6326 of 2016, this appeal has been filed under Clause 10 of the Letters Patent.

2. The facts in nutshell, which are relevant for consideration, are that the petitioner was appointed as Compilation Clerk in the road Construction Department, Government of Bihar in the year 1986. He joined and started working in the Department since 25.7.1986. As he was stagnating in the post without any promotion or grant of higher pay scale, the competent authority in accordance to the Bihar State Employees Service Condition (Assured Career Progression Scheme) Rules, 2003 (hereinafter referred to as ''''the Rule 2003'''') granted promotion to the appellant in the next higher pay scale after completing 12 years of service with effect from 9.8.1999 and the second promotion was also granted to him subsequently after completing 24 years of service with effect from 1.1.2009. However, by the order dated 16.2.2016 impugned in the writ petition, Annexure-4, the benefits granted to the appellant under the Rules of 2003, were withdrawn and the amount directed to be recovered, this has led to the appellant challenging the same in CWJC No. 6326 of 2016 before the Writ Court.

3. Reliance was placed by the Department on Sub-Rule (5) of Rule 4 of Rules, 2003 to say that passing of the departmental accounts examination is a condition precedent for grant of promotion and as the appellant had not passed this examination at the relevant time and he had passed the examination only in the year 2010, much after the benefit of ACP was granted to him, there being error in grant of ACP which was contrary to statutory rule, the impugned action was taken and the learned Writ Court being satisfied with the same and holding that for grant of ACP, an employee is required to fulfill all the prescribed conditions applicable for recruitment as per the Service Rule for promotion to the post, the petitioner having not fulfilled this condition, the respondents have not committed any error in taking the impugned action and the Writ Petition was dismissed.

4. When the matter was argued before us at length on the last date, i.e., 29th of June, 2017, two submissions were made by learned counsel for the appellant. His first contention was that the appellant was appointed on the post of Compilation Clerk and there was no further avenue for promotion from the post of Compilation Clerk to any other higher post. There is no provision for further promotion in the recruitment Rule. The petitioner was stagnating in the said post and in the absence of there being any service Rule providing for promotion to any higher post from the post of Compilation Clerk, the provision of said Sub-Rule (5) of Rule 4 of Rules 2003 are not applicable and in this case when there is no rule, the appellant is entitled to the next higher pay scale subject to his fulfilling the criteria of having an unblemished service record and fulfill the criteria of having 12 years and 24 years of service, not facing departmental enquiry or criminal proceedings. Once these conditions are fulfilled, the petitioner was entitled to grant of ACP and in denying such benefit, the State Government and the Writ Court in rejecting the writ petition without considering these aspects of the matter, it is argued that the State Government and the writ Court have committed error.

5. The second limb of submissions made by learned counsel for the appellant is that if there is error in promoting the appellant, the appellant was not at default and, therefore, recovery is unsustainable in view of the law laid down by the Supreme Court in the case of State of Punjab v. Rafique Masih (White Washer etc.) reported in (2015) 4 SCC 334.

6. Keeping in view the aforesaid contention, learned counsel for the State on 29th of June, 2017 argued that passing of the accounts examination is a condition precedent for getting efficiency bar and selection grade as this is the position of law laid down by a Division Bench of this Court in the case of State of Bihar v. Kusheshwar Nath Pandey, reported in 2013(1) PLJR 939 and the appellant having not passed the accounts examination, the learned Writ Court has not committed any error.

7. However, after going through the rule governing passing of the departmental examination, this Court finds that it was a rule provided under Bihar Board Miscellaneous Rules, 1958. There was some doubt as to whether this is the promotion rule or the recruitment for the higher post to which a Compilation Clerk is promoted. Learned counsel for the State was directed to indicate to this Court as to what is the further promotional avenue from the post of Compilation Clerk and further the rules for recruitment or promotion. Today, clearly learned counsel for the State has argued that there is no further rule for promotion or recruitment to any higher post from the post of Compilation Clerk. It is, therefore, clear that a Compilation Clerk has no further avenue for further promotion and recruitment to higher post. It is the post from which there is no promotional avenue. The question, therefore is, as to whether the law/ principles laid down in the case of Kusheshwar Nath Pandey (supra) and the rules referred to for the denial of ACP, according to the State Government, is justified or not. That being so, we may first consider the Rule governing grant of ACP, i.e., the ACP Rules of 2003. Rule 4 of Rules 2003 lays down the condition and scheme for grant of ACP as regulated and prescribes the criteria and condition for grant of financial progression under the ACP Scheme and sub-rule (5) of the aforesaid Rule 4 of 2003 Rules reads as under:-

4(5) & Ldhe ds v/khu osru mUu;u dh eatwjh dh fufgr v/;is{kk,a ,oa <+ax ogh gksxsa tks HkrhZ@lsok fu;ekoyh esa fjfDr;ksa ds fo:) fu;fer izksUufr ds fy, fofgr fd;s x;s gksaA ;fn fdlh izksUufr ds fy, foHkkxh; ijh{kk ikl djuk ;k dksbZ vU; vgZrk fofgr dh x;h gS rks Ldhe ds v/khu ykHk dh eatwjh ds fy, Hkh og vfuok;Z ''''krZ gksxh ;fn os''''krsZ fu;ekoyh@ifji=ksa@ladYiksa ds v/khu fofgr dh x;h gksa%

ijUrq Ldhe ds v/khu forh; mUu;u 12@24 o"kksZ dh lsok iw.kZ gksus ds ckn ns; gksxk vkSj blds fy, fu;fer izksUufr ds fy, fu/kkZfjr dkykof/k dksbZ ck/kk ugh gksxhA

Li"Vhdj.k%& 1 fdlh fu;ekoyh esa dfri; Jsf.k;ksa ds dfeZ;ksa dks fu;fer izksUufr ds fy, lsok dh dkyof/k esa f''''kfFkyu ds izko/kku varfo"V jgus ij Hkh Ldhe ds v/khu fofr; mUu;u ds ykHk ds fy, fofgr ik=rk gsrq 12@24 o"kksZ dh dkykof/k esa dksbZ f''''kfFkyu ugh nh tk;xhA

2 & ;fn ljdkjh lsod dks vuq''''kklfud dk;Zokgh vkfn ds pyrs ;k izksUufr ds ;ksX; ugh ik, tkus ds pyrs ,0lh0ih0 ;kstuk ds v/khu izFke fofr; mUu;u dk ykHk Bhd 12 o"kZ ds ckn u nsdj foyac ls fn;k tkrk gS rks ,0lh0ih0 ;kstuk ds v/khu nwlj forh; mUu;u] izFke forh; mUu;u dh frFkh ls 12 o"kksZ ckn fn;k tk;xkA

8. A perusal of the aforesaid rules clearly stipulates that the prescribed requirement and mode of sanction of financial progression under the scheme shall be the same which are prescribed under the Recruitment/Service Rule for regular promotion against the vacancy. It is, therefore, clear that for getting benefit under the scheme in question, an employee has to fulfill all the conditions stipulated in the Recruitment or the Service Rules which is prescribed for regular promotion from the post held to the next higher post. Admittedly, in the case in hand, for further promotion from the post of Compilation clerk to a higher post, no Service Rules are prescribed as there is no further avenue for promotion from post of Compilation clerk to any other higher post. That being so, sub rule 5 of Rule 4 and its interpretation would clearly show that for grant of ACP from the post of Compilation Clerk no rules of promotion or recruitment being prescribed, this rule will not apply, i.e. 4(5). Thus, there are no prescribed statutory rules for recruitment or promotion from the post of compilation clerk to any other post. That apart, we find that the rules of 2003 are the rules framed under Article 309 of the Constitution of India and there is no stipulation in these rules that the rules contemplated under the Bihar Board Miscellaneous Rules, 1958 would be applicable for grant of ACP. That being the position, the contention of the respondents that the appellant is not entitled to the benefit under the scheme, is wholly misconceived and while rejecting the claim of the appellant the learned Writ Court has not taken note of this factual or legal aspect of the matter. On going through the judgment referred to by the State in the case of Kusheshwar Nath Pandey (supra), we find that it was a case pertaining to grant of time bound promotion under a particular scheme and the said case was pertaining to promotion of a Tracer to some higher post and is not applicable to this appellant.

9. A perusal of the Rule, which is reproduced in para 10 of the judgment in the case of Kusheswar Nath Pandey (supra), goes to show that the rule is applicable for the purpose of crossing the efficiency bar, confirmation and for promotion to the selection grade. There is nothing in the said rule to show that it pertains to promotion of Compilation Clerk to any other higher post. Rules of 2003 is the rule framed under Article 309 of the constitution and the aims and objects of the scheme is to grant higher pay scale or grade to the employees who stagnate in particular post without any promotion, may be because no promotional posts are available or vacancies are not available and the scheme has been envisaged to grant only benefit of higher pay scale or grade to an employee who stagnates for 12 years or 24 years. Once we are convinced that there are no rules for promotion from the post of Compilation Clerk and the Boards Miscellaneous Rules of 1958 are not applicable, in the case in hand, there is no reason why the benefit claimed by the appellant cannot be granted. That being the position, the benefit of ACP was rightly granted to the appellant and there was no justification in withdrawing the same.

10. Keeping in view the aforesaid, we allow the appeal, quash the order of the Writ Court, and the order impugned in the writ petition, Annexure-4 dated 16.2.2016. The ACP and other benefits granted to the appellant before passing of the impugned order be restored.

11. The appeal stands allowed and disposed of.