Interlocutory Application No. 7659 of 2012.

The delay of 155 days occurred in filing the Letters Patent Appeal is condoned.

2. Interlocutory Application stands disposed of.

Letters Patent Appeal No. 1828 of 2012 and Interlocutory Application No. 7660 of 2012.

3. Feeling aggrieved by the order dated 6th April 2012 made by the learned single Judge in CWJC No. 4701 of 2012, the respondent State of Bihar has preferred this Appeal under Clause 10 of the Letters Patent.

4. The respondent-writ petitioner, a retired government servant, has approached this Court under Article 226 of the Constitution in above CWJC No. 4701 of 2012 for the reliefs that he be exempted from passing the Departmental Accounts Examination on his attaining the age of 50 years and to extend the benefit of Assured Career Progression. The learned single Judge has relied upon the judgment of this Court in the matter of Dinesh Narayan Mishra vs. The State of Bihar & Ors.[2006 (2) PLJR 169] to allow the Writ Petition. Therefore, this Appeal.

5. It is not in dispute that the promotion in question is governed by the Bihar Board’s Miscellaneous Rules, 1958 Rule 157 of the said Rules provides for passing of the Departmental Accounts Examination, a condition precedent for further promotion. The writ petitioner had not passed the Departmental Accounts Examination. He was, therefore, not eligible for promotion. Consequently he was not entitled to the financial progression under Assured Career Progression.

6. Four years after retirement from service in 2008, the writ petitioner approached this Court to claim exemption from passing the Departmental Accounts Examination and consequential promotion relying on the Government Circular dated 15th May 1992. The writ petitioner claims that the writ petitioner had passed in two of the three papers, he was, therefore, entitled to exemption as envisaged by the aforesaid Circular dated 15th May 1992. The learned single Judge, having observed that the exemption was not a matter of right, has issued direction as if the writ petitioner has been granted exemption. We may note here that at no point of time the petitioner had been granted exemption as recorded by the learned single Judge; nor is there a concept of deemed exemption referred to by the learned single Judge. Besides, the most disturbing factor is that the aforesaid Rules of 1958 do not provide for exemption from passing the Departmental Accounts Examination. In absence of any provision for exemption, no government servant could have been exempted from passing the said examination; nor would a government servant be entitled to promotion on attaining the age of 50 years without passing the Departmental Accounts Examination. The Circular dated 15th May 1992 offends the very basic principle that the statutory rules cannot be improved or modified or altered by an executive order, the statutory rules shall prevail. The Circular dated 15th May 1992, being contrary to the statutory rules, cannot be enforced. The claim for exemption based on the said Circular dated 15th May 1992 cannot be countenanced.

7. A Full Bench of this Court has, as early as in 2000, in the matter of Maheshwar Prasad Singh vs. The State of Bihar and Ors.[2000 (4) PLJR 262], enunciated the said principle to hold that the government cannot amend, modify or supersede the statutory rules by administrative instructions. The judgment in the matter of Dinesh Narayan Mishra (supra) is per incuriam the above referred judgment in the matter of Maheshwar Prasad Singh.

8. This matter has been considered by us in the matter of The State of Bihar & Ors. Vs. Kusheswar Nath Pandey [2013 (1) PLJR 939]. In our opinion, the impugned order made by the learned single Judge is contrary to the judgments in the matter of Maheshwar Prasad Singh (supra) and Kusheswar Nath Pandey (supra).

9. For the aforesaid reasons, the Appeal is allowed.

10. The impugned order dated 6th April 2012 made in CWJC No. 4701 of 2012 is set aside. CWJC No. 4701 of