The requirement to pass the Accounts Examination for promotion to Selection Grade scale was not applicable to the petitioner since the merger of L.D.C. and U.D.C. posts had rendered the relevant rule redundant.

Headnote:
PROMOTION - TIME BOUND PROMOTION - RULE 157(J) OF BIHAR BOARDS MISC. RULES, 1958 - AMENDMENT - EXECUTIVE ORDER - VALIDITY - PROMOTION TO SELECTION GRADE SCALE - REQUIREMENT OF PASSING ACCOUNTS EXAMINATION - APPLICABILITY - INTERPRETATION.
Fact of the Case:

Petitioner, appointed as Lower Division Clerk (L.D.C.) in 1949, never received any promotion during his service and retired in 1986. In 1980, the post of L.D.C. merged with Upper Division Clerk (U.D.C.), resulting in a higher salary but no promotion. The State framed a time-bound promotion policy in 1981, but the petitioner was not considered due to his failure to pass the Departmental (Accounts) Examination. The petitioner challenged this decision, arguing that the requirement for the examination was no longer applicable after the merger of L.D.C. and U.D.C. posts.
Finding of the Court:

The court held that the petitioner was entitled to time-bound promotion to Junior Selection Grade scale with effect from 1981 and Senior Selection Grade scale from 1986. The court found that the requirement to pass the Accounts Examination for promotion to Selection Grade scale was not applicable to the petitioner since the merger of L.D.C. and U.D.C. posts had rendered the relevant rule redundant.
Issues: 1. Whether the petitioner was eligible for time-bound promotion under the State's policy despite not passing the Departmental (Accounts) Examination. 2. Whether the requirement to pass the Accounts Examination for promotion to Selection Grade scale was still applicable after the merger of L.D.C. and U.D.C. posts.
Ratio Decidendi: 1. The court interpreted Rule 157(J) of the Bihar Boards Misc. Rules, 1958, which prescribed the Accounts Examination for promotion to U.D.C., and held that it became redundant after the merger of L.D.C. and U.D.C. posts. 2. The court relied on the decision in Md. Samsuddin vs. State of Bihar (1983 P.L.J.R. 347), which held that an executive order cannot contravene the provisions of a statutory rule. 3. The court found that the petitioner had completed more than 10 years of service as of 1981 and was therefore entitled to the 1st time-bound promotion. He was also entitled to the 2nd time-bound promotion after completing 25 years of service in 1975.
Final Decision: The court directed the Respondents to consider the petitioner's case for promotion to Junior Selection Grade scale from 1981 and Senior Selection Grade scale from 1986, and to issue appropriate orders within three months. The petitioner was also entitled to consequential benefits such as arrears of salary and revised retiral benefits.

Judgment

S.J.Mukhopadhaya, J.

1. The petitioner has preferred the writ petition for direction on the Respondents to consider his case for 1st and 2nd Time bound promotions, the same having not granted.

2. The brief fact of the case is that the petitioner was initially appointed as Lower Division Clerk (L.D.C.) on 20th January, 1949 in the Office of Cane Officer, Samastipur. Subsequently, he was never promoted to any higher post and ultimately retired from service on 31st July 86.

3. During the service period, the post of L.D.C. was merged with the next higher post of Upper Division Clerk (U.D.C.) in 1980 whereinafter it was provided with common nomenclature of Clerk (commonly called as Assistant) and because of such merger, the petitioner merely got the higher salary on such merger.

4. The Respondent State framed policy for time bound promotion by Resolution dated 30th December 81 with effect from 1.4.1981, but petitioner was not provided with time bound promotion. Representation was filed by petitioner, lastly on 30th August 95, but no relief having granted, the writ petition has been preferred.

5. In the counter affidavit, the Respondents have taken plea that the petitioner never passed the requisite Departmental (Accounts) Examination, so he was not eligible for promotion to Senior Selection Grade scale.

6. Reliance has been placed on a Circular No. 2122 dated 1st April 80 (Annexure-A). In respect of similarly situated persons, it is stated that in their cases, exemptions were granted from passing departmental examination, but petitioner never represented before appropriate authority for exemption. The Circular dated 1st April 80 refers to appearance and passing of Accounts Examination for promotion from L.D.C. to U.D.C. Reference of Rule 157 of Bihar Boards Misc. Rules, 1958 has been given therein.

7. Previously under Rule 157(J) of Bihar Boards Misc. Rules, the State Govt. prescribed Accounts Examination, which was required to be passed for crossing Efficiency Bar and promotion to the higher post of U.D.C. However, since merger of the post of L.D.C. and U.D.C., the provision as was existing become redundant.

8. In the case of Md. Samsuddin vs. State of Bihar (1983 P.L.J.R. 347), a Division Bench of this Court taking into consideration an executive order relating to passing of examination for promotion to higher grade, held that the Boards Misc. Rules is statutory and no executive order can be passed in contravention of the provisions made under the statutory rule. After the decision in the case of Md. Samsuddin (supra), the State of Bihar amended Rule 157(J) by substituting the new provision, vide S.O.No. 431 dated 29th April 85. Subsequently, such provision was made under proviso to Article 309 of Constitution of India. On such substitution, stipulation was made for passing Accounts Examination for promotion to selection grade.

9. In the present case, it is not necessary to consider the question as to whether an statutory rule framed under proviso to Article 309 of Constitution can be amended and substituted by executive order as made vide S.O. No. 431 dated 29th April 85 or not.

10. Admittedly, the petitioner was appointed as L.D.C. on 20th January, 1949 and completed 10 years of service in January, 1959. The guidelines laying down time bound promotion policy came into effect from 1.4.1981 in pursuance of Resolution dated 30th December, 1981. The petitioner having completed more than 10 years of service as on 1.4.1981 and having not granted any promotion during his service career become entitled for consideration of his case for 1st time bound promotion to Junior Selection Grade scale of clerk at least with effect from 1.4.1981. On completion of 25 years of service as on 20th January, 1975, he also become entitled for 2nd time bound promotion to Senior Selection Grade scale, on completion of requisite Kalawadhi from the date of the 1st time bound promotion (1.4.1981).

11. As admittedly, there was no provision made to pas

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1999 Supreme(Pat) 1093

PATNA HIGH COURTS.J.Mukhopadhaya, J.Lala Devendra PrasadVersusState Of BiharCivil Writ Jurisdiction Case No. 6123 of 1998 ;Decided On : OCTOBER 11, 1999

The requirement to pass the Accounts Examination for promotion to Selection Grade scale was not applicable to the petitioner since the merger of L.D.C. and U.D.C. posts had rendered the relevant rule redundant.

Cases Referred (1)

PATNA HIGH COURT
S.J.Mukhopadhaya, J.
Lala Devendra Prasad
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 6123 of 1998 ;
Decided On : OCTOBER 11, 1999