Amresh Kumar Sinha vs The State Of Bihar

Non-reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. OF 2023 [Arising out of SLP(C)NOs.8219-8226 of 2019]

AMRESH KUMAR SINGH & ORS.ETC.ETC. … APPELLANTS

VERSUS

THE STATE OF BIHAR & ORS.ETC.ETC. … RESPONDENTS

WITH

CIVIL APPEAL NO. OF 2023 [Arising out of SLP(C)NO.9666 of 2019]

WITH

CIVIL APPEAL NOs. OF 2023 [Arising out of SLP(C)NOs.11772-11773 of 2019]

J U D G M E N T

PANKAJ MITHAL, J.

1. Leave granted.

2. Heard Shri Navniti Prasad Singh, learned Senior Signature Not Verified Digitally signed by NIRMALA NEGI Date: 2023.04.26 16:04:45 IST Reason: Advocate leading the arguments on behalf of the 2

appellants, Mr. Saket Singh and Mr.Samir Ali Khan,

learned counsel appearing for the State of Bihar.

3. These appeals have been preferred by the appellants

as against the common judgment and order dated

05.02.2019 of the Division Bench of the High Court

of Judicature at Patna whereby the Letter Patent

Appeals (LPAs) of the respondents have been allowed

and the judgment and order of the learned Single

Judge dated 28.11.2017 allowing the writ petitions

has been set aside.

4. The appellants were appointed as Accounts Clerks

where the minimum qualification was intermediate.

The cadre of Junior Accounts Clerk and Senior

Accounts Clerk which existed prior to 1980 merged

with effect from 1st May, 1980 and a common cadre of

Accounts Clerk came into existence. In 1999, the

demerger of the cadre took place and the Clerks came

to be retained in their respective cadres without

any promotional avenues.

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5. The appellants invoked the writ jurisdiction of the

court seeking benefit of Assured Career Progression

(ACP) on completion of 12 years of service to avoid

stagnation.

6. The writ court extended the benefit of ACP to the

appellants keeping in view the earlier decisions of

the High Court in CWJC Nos.18015/2011 Pramod Kumar

vs. The State of Bihar and Others and 16346/2011

Ashok Kumar & Ors. Vs. State of Bihar and Ors.

7. In appeals, the Division Bench accepted the

contention of the State of Bihar that for the

purposes of grant of ACP as per the rules, the

qualification of graduation is sine qua non which is

not possessed by the appellants. Therefore, it held

that the writ court committed an error in extending

the benefit of ACP to the appellants who were not

eligible and qualified for the purpose.

8. Upon hearing the rival contentions of the parties,

the sole question which arises for our

reconsideration in these appeals is whether the 4

qualification of graduation prescribed for promotion

to the next higher post of Accounts Officer from that

of Accounts Clerk is necessary even for the purpose

of extending the benefit of ACP.

9. The Bihar Accounts Service Rules, 2000 as notified

on 28th March, 2000 vide Rules 17 and 20 read with

Schedule I thereof provides for recruitment by way

of promotion. The aforesaid Rule 17, inter alia,

provides that for promotion on the basis of grade of

service, candidates must possess qualifications

mentioned in Schedule I which, inter alia, provides

that for promotion to Bihar Accounts Service, the

minimum educational qualification shall be

graduation.

10. At the same time Bihar State Employees Service

Condition (Assured Career Progression Scheme) Rules,

2003 vide sub-Rule (5) of Rule 4 lays down that if

the rules prescribe passing of the departmental

examination or any qualification for promotion that

shall also be an essential condition for sanction of 5

benefit under the scheme. In other words, possession

of essential qualification prescribed under the

rules is necessary for grant of benefit under the

scheme, i.e., ACP.

11. It is in view of the above rules, the contention of

the State is that until and unless the Accountant

Clerks possess the minimum educational

qualifications of graduation, they are not entitled

to promotion in the grade of Bihar Accounts Service

that is the Accounts Officer.

12. It may be worth noting that the ACP scheme was

enforced on the recommendation of the Fifth Central

Pay Commission in context with Group C and D

employees and it provided monetary benefit to the

employees on completion of 12 years and 24 years of

regular service who were not able to get promotion.

The scheme as such was anti-stagnation and envisages

merely placement of the employees in the higher pay

scale for the grant of financial upgradation only

without grant of actual promotion. The benefit of 6

the ACP as such is like granting non-functional in

situ promotion.

13. At the cost of repetition, it must be borne in mind

that the object of ACP is to avoid stagnation where

no promotional avenues are available. The grant of

ACP is not technically a grant of promotion but

increase in the pay scale to the next higher grade

retaining the employee on the post held by him. This

is only to accord monetary benefit without disturbing

any seniority or actually effectuating promotion to

any higher post to avoid stagnation on a particular

post or pay scale for a very long period.

14. The object and purpose of ACP/MACP Scheme has been

reiterated by this Court in Union of India & Others

Vs. C.R. Madhava Murthy & Anr. (2022) 6 SCC 183, as

one to relieve the frustration on account of

stagnation and it does not involve actual grant of

promotional post but merely monetary benefits in the

form of next higher grade subject to fulfilment of

qualifications and eligibility criteria. 7

15. In sum and substance, both ACP and MACP Schemes are

schemes devised with the object of ensuring that the

employees who are unable to avail of adequate

promotional opportunities, get some relief in the

form of financial benefits. Accordingly, the schemes

provide for regular financial upgradation on

completion of 12-24 years and 10-20-30 years of

service without promotion. They are incentive

schemes for the employees who complete a particular

period of service but without getting promotion for

lack of promotional avenues. The effect of the

schemes must be judged keeping in view the object

and the purport of the scheme.

16. In Union of India and Anr. Vs. G.Ranjanna and Ors.

reported in (2008) 14 SCC 721, the three-Judges Bench

of this Court held that in situ promotions are made

to remove stagnation of grade C and grade D employees

by giving them certain monetary benefits.

17. It was further observed that fulfilment of

educational qualifications prescribed under the 8

recruitment rules for the purposes of promotion are

not necessary for non-functional in situ promotion.

In other words, educational qualification required

for the purposes of promotion is not necessary for

the grant of in situ promotion, i.e., only for

extending the monetary benefit where there are no

promotional avenues and the employees are likely to

be stagnated.

18. In the aforesaid case, the employees were working as

malis (Gardeners) and had claimed promotion in the

higher pay scale. The Central Administrative

Tribunal seized of the original applications

observed that the employees cannot claim the scale

of the next higher post by way of in situ promotion.

On the matter being taken to the High Court by way

of a writ petition, the contention of the employees

was accepted and it was observed that the object of

in situ promotion on non-functional posts, is to

ensure that the group C and D employees are not

stagnated in the same cadre/pay scale and that they 9

should be provided with certain monetary benefits.

Therefore, the rejection of the claim for such non-

functional in situ promotion on the ground that the

employees do not possess the necessary minimum

qualification of matriculation as per the rules is

not justified and renders the order erroneous in law.

The view so taken by the Division Bench of the High

Court was affirmed by this Court in the above

referred Civil Appeals holding that the High Court

has correctly analysed the object of the in situ

promotion and fixation of pay scales to Group C and

D employees to avoid stagnation.

19. In view of the aforesaid legal position coupled with

the fact that the qualification of graduation

prescribed is for the promotion to the post of

Accounts Officer rather than for the grant of in situ

promotion on the non-functional post or for extending

the benefit of ACP which is purely and simply in the

nature of grant of monetary benefit without actually

effectuating any promotion to any higher post, we 10

are of the opinion that the judgment and order of

the Division Bench of the High Court impugned in the

appeals cannot be sustained. It is accordingly hereby

set aside and that the judgment of the writ court

dated 28.11.2017 is restored. The appellants are

extended the benefit of ACP, as directed by the writ

court.

20. We have not considered it necessary to deal with the

two cases on the basis of which the Single Judge has

allowed the writ petitions and granted the benefit

of the ACP to the appellants, as we have

independently of those two decisions have considered

and held that the appellants are entitled to

financial upgradation under the ACP Scheme on

completion of requisite regular service ignoring the

higher qualification prescribed for the next higher

post as grant of such benefit is not actually a

promotion but only financial upgradation and if the

higher qualification is insisted it would frustrate

the purpose of the entire scheme.

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21. The appeals are allowed in the above terms. There

shall be no order as to costs.

………………………………………………J. [B.R. Gavai]

………………………………………………J. [Pankaj Mithal] New Delhi;

April 25, 2023.