The main legal point established is that the ACP scheme's conditions for financial progression must align with the conditions stipulated in the Recruitment or the Service Rules for regular promotion from the post held to the next higher post.

1. Seeking exception to an order dated 24.8.2016 passed by the Writ Court in C.W.J.C. No. 6326 of 2016, this appeal has been filed under Clause 10 of the Letters Patent.

2. The facts in nutshell, which are relevant for consideration, are that the petitioner was appointed as Compilation Clerk in the road Construction Department, Government of Bihar in the year 1986. He joined and started working in the Department since 25.7.1986. As he was stagnating in the post without any promotion or grant of higher pay scale, the competent authority in accordance to the Bihar State Employees Service Condition (Assured Career Progression Scheme) Rules, 2003 (hereinafter referred to as ‘the Rule 2003’) granted promotion to the appellant in the next higher pay scale after completing 12 years of service with effect from 9.8.1999 and the second promotion was also granted to him subsequently after completing 24 years of service with effect from 1.1.2009. However, by the order dated 16.2.2016 impugned in the writ petition, Annexure-4, the benefits granted to the appellant under the Rules of 2003, were withdrawn and the amount directed to be recovered, this has led to the appellant challenging the same in CWJC No. 6326 of 2016 before the Writ Court.

3. Reliance was placed by the Department on Sub-Rule (5) of Rule 4 of Rules, 2003 to say that passing of the departmental accounts examination is a condition precedent for grant of promotion and as the appellant had not passed this examination at the relevant time and he had passed the examination only in the year 2010, much after the benefit of ACP was granted to him, there being error in grant of ACP which was contrary to statutory rule, the impugned action was taken and the learned Writ Court being satisfied with the same and holding that for grant of ACP, an employee is required to fulfill all the prescribed conditions applicable for recruitment as per the Service Rule for promotion to the post, the petitioner having not fulfilled this condition, the respondents have not committed any error in taking the impugned action and the Writ Petition was dismissed.

4. When the matter was argued before us at length on the last date, i.e., 29th of June, 2017, two submissions were made by learned counsel for the appellant. His first contention was that the appellant was appointed on the post of Compilation Clerk and there was no further avenue for promotion from the post of Compilation Clerk to any other higher post. There is no provision for further promotion in the recruitment Rule. The petitioner was stagnating in the said post and in the absence of there being any service Rule providing for promotion to any higher post from the post of Compilation Clerk, the provision of said Sub-Rule (5) of Rule 4 of Rules 2003 are not applicable and in this case when there is no rule, the appellant is entitled to the next higher pay scale subject to his fulfilling the criteria of having an unblemished service record and fulfill the criteria of having 12 years and 24 years of service, not facing departmental enquiry or criminal proceedings. Once these conditions are fulfilled, the petitioner was entitled to grant of ACP and in denying such benefit, the State Government and the Writ Court in rejecting the writ petition without considering these aspects of the matter, it is argued that the State Government and the writ Court have committed error.

5. The second limb of submissions made by learned counsel for the appellant is that if there is error in promoting the appellant, the appellant was not at default and, therefore, recovery is unsustainable in view of the law laid down by the Supreme Court in the case of State of Punjab Vs. Rafique Masih (White Washer etc.) reported in (2015) 4 SCC 334 [:2015(1) PLJR (SC) 261.

6. Keeping in view the aforesaid contention, learned counsel for the State on 29th of June, 2017 argued that passing of the accounts examination is a condition precedent for getting efficiency bar and select