9911796707
TMI Blog2017 (9) TMI 1874X X X X Extracts X X X X X X X X Extracts X X X X ..... ively 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 11.3.2014. 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 benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant for 3rd ACP. 2. 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 furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of Section 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person--we take it that the Income-tax Department is included in that definition --can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because "I have committed a default and the right is lost because of that default." 5. In fact the Apex Court in the case of State of Maharashtra vs. Jagannath Achyut Karandikar AIR 1989 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re scheme and the effect of other rules depends upon holding the examination. If examination is not held in any year, the Rule 2 cannot operate to the prejudice of a person who has not exhausted all his chances. The person who has not exhausted the available chances to appear in the examination cannot be denied of his seniority. It would be unjust, unreasonable and arbitrary to penalise a person for the default of the Government to hold the examination every year. That does not also appear to be the intent or purpose of the 1962 Rules. 10. If the examination is not held in any year, the person who has not exhausted all the permissible chances has a right to have his case considered for promotion even if he has completed 9 years' servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave passed the departmental examination with effect from the date the Scheme of ACP was introduced, firstly on the ground that Civil Court Rules was framed in 1998 wherein the requirement of passing departmental examination was introduced and secondly that in the very first departmental examination held on 29.6.2003 the appellant was declared successful. Even otherwise the decision of the Writ Court approving recovery is also not sustainable in the light of the judgment of the Apex Court in the case of State of Punjab vs. Rafiq Masih (2015) 4 SCC 334 : [2015 (1) PLJR (SC) 261]. 8. Accordingly, the present appeal is allowed. The judgment and order of the learned Writ Court to the extent of grant of ACP restricted from 29.6.2003 is set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
