Educational qualifications required for promotion are not essential for non-functional in situ promotions under ACP schemes.

JUDGMENT :

PANKAJ MITHAL, J.

1. Leave granted.

2. Heard Shri Navniti Prasad Singh, learned Senior Advocate leading the arguments on behalf of the 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.

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 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 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 the ACP as such is like granting non-functional in situ promotion.

13. At the cost of repetitio