The main legal point established in the judgment is that individuals cannot be penalized for the default of the Government, and one cannot take advantage of their own default in the context of entitlement to employee benefits.

ANIL KUMAR UPADHYAY, J.

The instant Letters Patent Appeal has been filed by the appellant against the order dated 11.3.2014 passed by the Writ Court in CWJC No. 20676 of 2012.

2. The writ application was filed by the appellant on 2.11.2012 for directing the respondents to allow the actual monetary benefits of grant of 1st and 2nd ACP with effect from 09.08.1999 and 02.03.2003 respectively and to pay the arrears of such benefit. The appellant has also prayed for grant of benefits of Modified Assured Career Progression Scheme on completion of 30 years of service with effect from 2.3.2009, for payment of arrears of revised pay scale on account of 6th pay revision and also for quashing of the decision to recover the alleged excess amount drawn by the appellant prior to 29.6.2003. The writ petition was finally heard and decided on 11.03.2014. The Writ Court referring to the objection of the District Accounts Officer, as contained in Annexure-5 to the effect that in terms of Rule 4(5) of the ACP Rules, 2003 every employee has to fulfill the requirement as contemplated for grant of regular promotion, even for getting the benefit of ACP and in terms of Rule 21(1) of the Bihar Civil Court (Staff Class III and Class IV) Rules, 1998 the scale is admissible only on passing of examination as prescribed by the High Court. The Writ Court noticing the requirement of Rule 21(5) and 21(6) held out that passing of departmental examination is a condition precedent for grant of benefit of first and second ACP. The Writ Court as such held out that the monetary benefit accrued to the appellant only with effect from 29.6.2003 on passing of departmental examination and the past benefit, which the appellant has drawn, was contrary to the requirements of the rules and therefore, there was occasion to either re-fix as well as demand recovery of the benefit drawn by the appellant and relying upon the judgment of the Apex Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others: (2012) 8 SCC 417 the Writ Court concluded that there is no irregularity in the decision with regard to the recovery of excess amount. However, the Writ Court considering the claim of the appellant under Modified Assured Career Progression Scheme, 2010 directed that the case of the appellant would be examined taking into consideration the length of service as per the requirement under 2010 Rules within a period of three months from the date of production/communication of the order and the writ petition was allowed to the extent of payment of difference of salary as well as examination of entitlement of the appellant for 3rd ACP.

3. In this appeal, Mr. D.K. Sinha, learned Senior counsel appearing on behalf of the appellant has submitted that the Civil Court Rules was framed in 1998 and after framing of such rule the departmental examination was held for the first time in 2003 and in the very first attempt the appellant has passed the departmental examination and as such the appellant cannot be made to suffer on account of non-holding of the departmental examination as the law is well settled that one cannot take advantage of his own laches. If the departmental examination was not conducted by the respondents from the date of framing of the Bihar Civil Court (Staff Class III and Class IV) Rules, 1998, the appellant cannot be made to suffer. He further submits that the appellant retired on 28th of February, 2011 from the post of Clerk and as such, the decision to recover the alleged excess amount from the appellant is also unsustainable.

4. Learned counsel appearing on behalf of the respondents submitted that for grant of benefit under the ACP Scheme individual must be qualified for regular promotion as the ACP is anti-stagnation measure and it is only available in the event when despite fulfilling all the conditions for grant of regular promotion, if any individual is subjected to stagnation for lack of promotional avenue. In the instant the appel