CAV JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 03-07-2024 The petitioners, who are retired employees and the wife of a retired employee, seek for Assured Career Progression (for brevity, ACP) and Modified Assured Career Progression (for brevity, MACP) for the period while they were in service. To this end, they also challenge the restriction in the Bihar State Employees Conditions of Service (Assured Career Progression Scheme) Rules, 2003, produced as Annexure-1, and the Modified Assured Career Progression Scheme, 2010, produced as Annexure-2, wherein such benefits have been declined to autonomous bodies and public enterprises fully or partially aided by the State Government. The grounds raised by the petitioners are of arbitrariness and discrimination in denying such benefits to the employees of autonomous bodies; which have been extended to government employees and some of the autonomous bodies under the Government.

2. Learned Senior Counsel Sri. Umesh Prasad Singh took us through the rules and pointed out from Annexure-3 that the Government had directed the Command Area Development Agency (for brevity, CADA), which in the present case is the Gandak CADA, to grant ACP if the CADA has its own source of income. It is pointed out that as early as in 1999, the Gandak CADA had by Annexure-5 decided to adopt the service conditions of the employees of the Government. Annexure-7 is again the decision of the Regional Development Commissioner-cum-Chairman of the Gandak CADA, assuring the benefit of ACP to its employees as approved by the Board of Directors. It is also pointed out that Annexure 10 series indicate that such benefits having been given to other autonomous institutions/public enterprises, which raises a valid ground of discrimination.

3. Learned Senior Counsel relied on Lala Nand Kumar v. The Bihar State Food & Civil Supplies Corporation Ltd 2008(1)PLJR 579 in which, by virtue of the adoption of the Bihar Service Code and the failure of the Corporation to frame any service code or financial rules for itself, led to directions requiring the retirement age as applicable to the government employees to be adopted for the employees of the Corporation. Even those retired before the age of 60 years, who could not be reinstated for having passed the age of superannuation, as applicable to the government employees, were directed to be paid the service benefits. A later Division Bench followed the aforecited decision in L.P.A. No. 778 of 2018 titled The Area Development Commissioner-Cum- Chairman, Gandak Area Development Agency, Muzaffarpur v. The State of Bihar Reliance is also placed on the The Commissioner, Patna Municipal Corporation v. Ruby Prasad; PMC 2018(3)PLJR 89, to further advance the case of arbitrariness in the denial of ACP to employees who have continued for long in the agency.

4. Sri. Anjani Kumar, learned Additional Advocate General-IV, opposed the contentions, pointing out that the agency is funded by the Central Government and the State Government, and without the approval of the funding governments, there could not have been any adoption of the rules. Annexure-3 is relied upon to submit that the Government had distanced itself from payment of any ACP or MACP to the employees of the agency. Since, the decision taken by the Board of Directors of the Agency was without the approval of the Government it is urged that there is no cause for challenging the policy of the Government in granting ACP and MACP to its employees, as distinguished from the employees of the public sector undertakings and autonomous bodies. There can be no interference, in judicial review, of the policy as framed by the Government as has been held by the Hon'ble Supreme Court in Secretary, Government (NCT of Delhi) v. Grade-I DASS Officers’ Association (2014) 13 SCC 296 and Union of India v. M.V. Mohanan Nair; (2020) 5 SCC 421. It is specifically pointed out that the petitioners had failed to challenge the rules and the restriction of ACP