JUDGMENT :

RAJAN GUPTA, J.

The present appeal has been filed against the judgment dated 20.12.2017 passed by a learned Single Judge of this Court in CWJC No. 19307 of 2013 whereby and where under the writ petitioner has been held entitled for consideration for grant of ACP under the scheme.

2. The brief facts giving rise to the present Appeal are that the writ petitioner had been denied benefit of Assured Career Progression (hereinafter referred to as “ACP”) on account of non-passing of the departmental accounts examination vide letter dated 22.02.2011 issued by the Executive Engineer, Water Resources Department, Kaimur, Bhabua, which was challenged by the writ petitioner in the aforesaid writ petition bearing CWJC No. 19307 of 2013. The learned Single Judge, by the impugned judgment dated 20.12.2017, has referred to the authorities on the subject matter and has held that the writ petitioner was not required to pass any departmental examination for consideration of his case for grant of ACP especially in view of the fact that his case is squarely covered by a Division Bench judgment of this Court rendered in the case of Uday Shankar Prasad vs. The State of Bihar & Ors., reported in 2017(3) PLJR 824.

3. At this juncture it would be relevant to reproduce the relevant portion of the impugned judgment dated 20.12.2017 passed in CWJC No. 19307 of 2013 herein below:-

“3. The petitioner is aggrieved by non-grant of ACP which has been denied on the ground that he has not cleared the Departmental Examination. With regard to non-consideration of his total working days as 1719 as a seasonal employee, the authorities have restricted it to only 431 days on the ground that no records are available in the Department. Learned counsel for the petitioner submitted that with regard to ACP, the stand of the respondents is totally erroneous. It was submitted that passing of Departmental Examination is required as per the conditions of promotion only where the promotional post is existing. It was submitted that ACP Rules only talk about the person being otherwise eligible for regular promotion and also fulfilling the conditions of passing the Departmental Examination, if such condition exists for granting of promotion. Learned counsel submitted that in the present case, the petitioner was appointed as Seasonal Clerk and there is no promotional avenue available from that post. It was submitted that once there is no promotional post available, there cannot be any condition of any requirement or eligibility criteria, much less, any requirement for passing any Departmental Examination. Learned counsel submitted that the issue has finally been settled by a Division Bench in the case of Uday Shankar Prasad vs. The State of Bihar and others reported as 2017(3) PLJR 824 in which it has been held that if there is a post without any promotional avenue, there cannot be any requirement for passing any Departmental Examination. He further submitted that the petitioner has given sufficient proof of him having worked from 1719 days as a seasonal employee but due to laches of the authorities, who are not looking into their own records, the benefit due to the petitioner is illegally being denied.

4. Learned counsel for the State submitted that the order passed in the case of Uday Shankar Prasad (supra) has not taken into consideration the earlier Division Bench judgment in the case of Gorakh Nath Choudhary vs. The State of Bihar and others in C.W.J.C. No.11713 of 2010 dated 27.09.2012 by which it has been held that all eligibility criteria required for regular promotion also applies for giving benefit of ACP, including passing of Departmental Examination. Learned counsel submitted that in such view of the matter, the judgment in the case of Uday Shankar Prasad (supra) without noticing the judgment in the case of Gorakh Nath Choudhary (supra) is per incuriam. With respect to the number of days for having worked as seasonal employee, it was submitted that the same has been