The judgment established the principle that ACP is distinct from substantive promotion and clarified the entitlement to the basic pay scale of a promotional cadre post under the ACP Scheme.

1. Heard learned Counsel for the petitioners and the learned Counsel for the State in both the writ applications.

2. The petitioners were appointed as Accounts Clerk in the Road Construction Department. There is no next promotional post within that cadre. Consequently, they have been granted the next higher pay scale in their own cadre of Rs. 5,000- 8,000/- as 1st Assured Career Progression (hereinafter referred to as ACP). The contention on their behalf is that the post of Accounts Officer under the Bihar Accounts Service Rules, 2000, is the next promotional post for them which forms a different cadre and against which 25% vacancies are reserved for promotion of Accounts Clerk, subject to their passing the limited competitive examination. Therefore, they are entitled to the basic pay scale of the post of Accounts Officer as a part of their 1st ACP.

3. Learned Counsel for the petitioner strenuously relied upon the amended notification to the ACP Scheme published on 28.1.2008 amending Rule 3(2) of the ACP Scheme, 2003. He submits that the amendment in no uncertain terms states that if there was a provision for promotion from one cadre to another, they are entitled to the basic pay scale of the next higher promotional cadre post. It is submitted that the grant of ACP is not a promotion, but only an anti-stagnation measure. If the petitioners do not clear the limited competitive examination they do not get promotion to the post of Accounts Officer but shall remain in the cadre of Accounts Clerk in their own scale alongwith the benefit of ACP only. To urge that the benefit of ACP cannot be given to them unless and until they clear the limited competitive examination is defeating the very purpose for grant of ACP. If they clear the examination they are entitled to substantive promotion as Accounts Officer and the question of grant of basic minimum pay scale of the same does not arise.

4. Learned Counsel for the State submits that even if the petitioners have completed the qualifying period of service under the Bihar Accounts Service Rules, 2000 they do not acquire an automatic right to be promoted as Accounts Officer unless and until they clear the limited competitive examination. Therefore, the question of grant of basic minimum scale of the post of Accounts Officer to them as a part of their 1st ACP without clearing the examination does not arise. Since the promotion from Accounts Clerk to Accounts Officer is a promotion from Grade-Ill to Grade II, there is no right in the petitioner to demand minimum of the pay scale of Accounts Officer as also their 1st ACP benefit without clearing the examination.

5. Learned Counsel for the petitioners has also sought to draw parity in the action of the respondents by granting the basic minimum of the pay scale of Circle Inspector-curn-Kanungoh as ACP to Halka Karamchari by urging that they are also required to pass the departmental examination to be considered for promotion notwithstanding which they have been granted the minimum of the pay scale of the next promotional post in a separate cadre.

6. The Court presently does not consider it necessary to go into that aspect of the matter though it shall be open for the petitioners to agitate those issues before the respondents in the nature of the order to be passed.

7. Matters of pay scale are primarily for the Government to decide. Unless and until there is violation of any rule and/or instruction or the fixation of the pay scale is patently arbitrary on the face of it, it shall not be the domain of the writ court to interfere in the matter of fixation of pay scale. Conversely, if the Court finds that certain issues arising for consideration with regard to the fixation of pay scale remains unanswered by the respondents it shall be proper at the first instance to remand the matter to the employer to apply its mind afresh and pass a fresh appropriate order whereafter the question of judicial review may or may not arise.

8. There has to