Rathindra Kumar Bose vs The State Of Bihar and Ors

IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9271 of 2018
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Rathindra Kumar Bose Son of Late Tarapado Bose, Resident of Mohalla
Darshan Nagar, Town and P.O. Chapra, District Saran, at present resident of
N/6/1, Hari Nath Sen Road, Purva Pada, Barasak, Calcutta- 124.
... ... Petitioner/s
Versus
1. The State Of Bihar.
2. The Principal Secretary, Department of Road Construction, Government of
Bihar, Patna.
3. The Superintending Engineer, N.H. Division, Purnea.
4. The Executive Engineer, N.H. Division, Purnea.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Nagendra Rai, Advocate
For the Respondent/s : Mr. Ravi Bharadwaj, AC to GA- 13
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CORAM: HONOURABLE MR. JUSTICE KUMAR MANISH
CAV JUDGMENT
Date : 01-09-2026
1. Heard learned counsel for the petitioner and learned counsel appearing
on behalf of the State- respondents.
2. The present writ application has been filed by the petitioner seeking
interalia for the following reliefs: -
a) Quashing of the order dated 23.02.2018 contained in Memo No.
182 Anu, passed by the Screening Committee, wherein and
whereunder, the claim of the petitioner for grant of the 3rd
financial upgradation under the Modified Assured Career
Progression (MACP) Scheme has been rejected (Annexure- 8 to
the writ petition);

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b) For commanding the concerned respondent authorities to grant
3rd MACP benefits to the petitioner;
c) For commanding the respondents to calculate the arrears of
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salary of the Petitioner on the basis of the 3 MACP and pay the
same to the petitioner;
d) For commanding the respondents to pay interest on the arrears of
salary at the rate of 12% per annum;
e) Any other relief which the petitioner is found entitled to.
3. Brief facts emerging from the pleadings are that the petitioner was appointed as
Junior Accounts Clerk in P.W.D of Bihar Government on 12.02.1972, and he was
posted as Junior Accounts Clerk in Flood Division, Sonepur, Saran. The service of
the Petitioner was transferred to N.H. Wing of P.W.D (now R.C.D) on lien and he
continued in service thereafter. He was subsequently, granted the 2nd ACP/MACP
benefit with effect from 26.11.2009, vide memo no. 95 dated 31.01.2013 and
memo no. 500 dated 16.05.2013 (Annexure- 2 and 3 to the writ petition
respectively), upon obtaining an exemption from passing the mandatory
departmental accounts examination vide memo no. 1057 dated 07.05.2011
(Annexure- 1 to the writ petition). The petitioner superannuated from service on
31.01.2012.
Following his retirement, the petitioner submitted representations
for the grant of the 3rd MACP, which were left unattended. Aggrieved by the
inaction of the respondent authorities, the petitioner approached before the

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Hon’ble Court in CWJC No. 691 of 2018 , for commanding the respondents to
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grant the benefit of 3 MACP to the petitioner. This Hon’ble Court, thereafter,
disposed of the said writ application vide order dated 15.01.2018, directing
respondent no. 3 to consider and dispose of the fresh representation, if filed by the
petitioner, by giving a reasoned and a speaking order.
Pursuant to the direction given by this Hon’ble Court, the
petitioner filed a fresh representation before respondent no. 3, i.e. the
Superintending Engineer, N.H. Division, Purnea (Annexure- 7 to the writ
application). The same was placed before the Screening Committee and the same
was ultimately rejected vide the impugned order dated 23.02.2018. It is this
rejection order which is under challenge in the present writ application.
4. Learned counsel appearing on behalf of the petitioner submits that the delay in
granting the 2nd ACP/MACP was not due to the fault of the petitioner but was on
account of administrative delays done by the state authorities in granting the
exemption. Reliance was also placed upon the decisions of this Hon’ble Court in
Ramadhar Thakur vs. State of Bihar having LPA No. 599 of 2015;
Kamlanand Thakur vs. State of Bihar reported in 2020(2) PLJR 623, and
Mala Devi vs. State of Bihar having CWJC 3861 of 2023, wherein it has been
held categorically that passing of the departmental accounts examination is not a
condition precedent for the grant of financial progression under ACP/MACP.
It was submitted that the petitioner's 2nd ACP/MACP should have
taken effect automatically upon completion of the requisite service years and not

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merely from the date of exemption, consequent to which, he should have been
held eligible for the grant of 3rd MACP.
5. Per contra , the learned Counsel for the State has supported the impugned order
and has submitted that the representation of the Petitioner was rightly rejected in
light of clause 14 of Appendix 1 of the Finance Department, Bihar, Patna, Memo
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No. 7566 dated 14.07.2010, in which it is expressly given that the grant of 3
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MACP is admissible only after 10 years of receiving 2 MACP.
It has been further contended that since the 2nd ACP/MACP was
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granted with effect from 26.11.2009, the grant of 3 MACP shall be only
applicable with effect from 26.11.2019. It has been submitted that since the
Petitioner superannuated on 31.10.2012, which is the date falling before the date
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of grant of 3 MACP, he shall not be entitled for the same. Therefore, the
petitioner failed to satisfy the mandatory 10 year time-gap criteria as prescribed
under the statutory rules. The counsel for the respondents in the counter affidavit
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has categorically submitted that the 2 MACP was granted to the Petitioner on the
eligibility date i.e. 26.11.2009, and that the same was delayed due to the fault of
Petitioner inasmuch as, he failed in passing the departmental examination. It was
only after getting an exemption from competent authority, he had been granted the
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2 MACP, and the third MACP was not admissible to him as per the aforesaid
clause 14.

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6. Having heard learned counsel for the parties and having perused the materials on
record, the core issues which requires consideration of this Court, are enunciated
hereunder:
i. Whether passing of departmental accounts examination was essential
for grant of MACP?
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ii. Whether the period of 10 years for granting the benefit of 3 MACP
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would be computed from the date of grant of 2 MACP, which has
been given with effect from the date of exemption of passing of
departmental examination?
7. Having regards to the first issue, the law has been settled in catena of judgements
of this Hon’ble Court. For instance, in the case of Ramadhar Thakur vs. State of
Bihar and Ors. having LPA No. 599 of 2015 , it has been held that passing of
departmental Accounts Examination is not a condition precedent for grant of
Assured Career Progression under the ACP Rules nor Rule 157(3)(J) of the Bihar
Board’s Miscellaneous Rules conceives of such requirement.
Furthermore, in State of Bihar & Ors. vs. Smt. Jivachi Devi
reported in 2020 (2) BLJ 471 , this Court has held that the State is not justified by
denying (refusing) benefits of financial progression to the employee on the ground
that he did not pass the accounts examination or departmental accounts
examination.
8. It is not out of place to mention herein that the Hon’ble Apex Court, in SLP (C)
No. 8219-8226 of 2019 Amresh Kumar Sinha & Ors. Vs. The State of Bihar &

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Ors., has held that “fulfillment of educational qualifications prescribed under the
recruitment rules for the purposes of promotion are not necessary for non-
functional in situ promotion. In other words, educational qualification required for
the purpose of promotion is not necessary for grant of in situ promotion, i.e., only
for extending the monetary benefit where there are no promotional avenues and
the employees are likely to be stagnated.
9. In view of the aforesaid backdrop, it is axiomatic that passing of departmental
accounts examination is not a precondition for grant of benefits of financial
progression of an employee. The contention of the State respondents, in holding
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that 2 MACP was granted to the petitioner on the eligibility date i.e. 26.11.2009,
and that the same was delayed due to the fault of petitioner inasmuch as, he failed
in passing the departmental examination, is thus rejected.
10. At this, juncture, the Learned Counsel for the State respondents vehemently
opposes the prayer of the Petitioner, stating that the petitioner never challenged
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that benefits of 2 MACP which was granted to him with effect from 26.11.2009,
while he was in service, and the same was only challenged belatedly when the
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benefit of 3 MACP was denied to him on the pretext of his superannuation on
31.01.2012.
11. So as to meet, the objection raised by the Learned Counsel for the State
respondents, this Court deems it appropriate to place the precedent laid down in
the case of M.R. Gupta vs. Union of India, reported in 1995 SCC (5) 628,
wherein the Hon’ble Supreme Court has explained it succinctly that in service

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jurisprudence there is distinction between a continuing wrong and a recurring one.
The appellant before the court in that case was a workman, whose grievance was
that his wage fixation was not in accordance with the applicable rules. He asserted
that the wrong was a continuous one. The court held that his cause of action was a
recurring cause of action rather than a continuous one. Each time he was paid a
salary which was not computed in accordance with the rules, a cause of action
accrued unto him.
12. It is pertinent to state that the Hon’ble Apex Court in the case of Union of India
vs. Tarsem Singh arising out of SLP (C) Nos. 3820-3821 of 2008 [2008 INSC
930] , it has been categorically held that:
“ 5. To summarise, normally, a belated service-related claim will be
rejected on the ground of delay and laches (where remedy is sought by
filing a writ petition) or limitation (where remedy is sought by an
application to the Administrative Tribunal). One of the exceptions to the
said rule is cases relating to a continuing wrong. Where a service-
related claim is based on a continuing wrong, relief can be granted even
if there is a long delay in seeking remedy, with reference to the date on
which the continuing wrong commenced, if such continuing wrong
creates a continuing source of injury. But there is an exception to the
exception. If the grievance is in respect of any order or administrative
decision which related to or affected several others also, and if the
reopening of the issue would affect the settled rights of third parties,

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then the claim will not be entertained. For example, if the issue relates
to payment or refixation of pay or pension, relief may be granted in spite
of delay as it does not affect the rights of third parties. But if the claim
involved issues relating to seniority or promotion, etc., affecting others,
delay would render the claim stale and doctrine of laches/ limitation will
be applied. Insofar as the consequential relief of recovery of arrears for
a past period is concerned, the principles relating to recurring/
successive wrongs will apply. As a consequence, the High Courts will
restrict the consequential relief relating to arrears normally to a period
of three years prior to the date of filing of the Writ Petition.”
13. Applying the aforesaid ratio, to the case at hand, it is pertinent to state that the
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grant of 3 MACP, is a claim which is based on a continuing wrong and the same
does not affect the settled rights of third parties, therefore, the claim can be raised
with reference to the date on which the continuing wrong commenced, if such
continuing wrong creates a continuing source of injury. The case at hand
undoubtedly, fits into the issue pertaining to payment, where no third-party rights
has been created.
14. Insofar, as the objection raised by the counsel for the respondent State is
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concerned, with regards to not challenging the grant of 2 MACP which was
given with effect from 26.11.2009, in a timely fashion and thus challenging it
belatedly, it is expedient to state that, in the considered opinion of this Court, the

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same is fit to be rejected and is untenable in view of the afore-mentioned decisions
rendered by the Hon’ble Supreme Court.
15. Lastly, this Court comes to address the second issue involved in the instant writ
application, which essentially is that whether the period of 10 years for granting
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the benefit of 3 MACP would be computed from the date of grant of 2 MACP,
which has been given with effect from the date of exemption of passing of
departmental examination. The coordinate bench of this Hon’ble Court in the case
of Mala Devi vs. State of Bihar & Ors. having CWJC No. 3861 of 2023, it was
held:
“10. …. that the grant of ACP/MACP to the petitioner from the date of
exemption of passing of departmental examination is erroneous and is
not sustainable in law.
11.The grant of ACP or MACP is in situ promotion in which only
financial upgradation is given to the employees for a long period of
service and in order to avoid stagnation, as such, withdrawal of the
second ACP granted to the petitioner by the respondent is also not
sustainable.
12. Accordingly, the impugned letter no 1100 dated 11.10.2022 at
Annexure 4 is set aside and the petitioner shall be entitled for payment
of actual monetary benefit from the date of first MACP granted to her
w.e.f. 02.06.2009 and second MACP w.e.f. 02.06.2019. Accordingly, the
respondent is directed to pay the

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consequential benefit to the petitioner w.e.f. 02.06.2009 and 02.06.2019
within a period of four weeks from the date of production/ receipt of the
copy of this order.
13. In the result, this writ application is allowed.”
16. The law relating to the interpretation of statutory schemes for financial
upgradation is well settled. The primary objective of ACP/MACP schemes is to
alleviate stagnation in services, where regular promotional avenues are
unavailable. The objective of this scheme was reiterated in the case of Ramadhar
Thakur vs. The State of Bihar & Ors . having LPA No. 599 of 2015 , wherein the
Division Bench of the Patna High Court examined the core nature and object of
the ACP scheme vis-à-vis departmental exam requirements, stating that the
Assured Career Progression Scheme is a safety net scheme to deal with genuine
stagnation and hardship faced by employees due to lack of promotional avenues.
Financial upgradation under the ACP Scheme is purely 'in-situ' and does not
involve functional promotion or creation of a post. The object of the scheme is not
to grant a promotion to a higher cadre, but merely to grant the financial scale
attached to the next higher pay band to prevent stagnation.
17. The petitioner argues that his 2nd ACP/MACP should have taken effect
automatically upon completing 24 years of service, i.e., in 1996/2002, without
waiting him, to get a formal departmental exam exemption 26.11.2009. If the 2nd
ACP/MACP date is shifted back conceptually under Ramadhar Thakur (supra), the

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petitioner argues he completed 30 years of total service prior to his superannuation
on 31.01.2012, making him eligible and entitled for the 3rd MACP.
18. Having heard the parties, this Court holds that there is force made in the
submission of the Petitioner and that grant of ACP/MACP to the petitioner from
the date of exemption of passing of departmental examination is erroneous and is
not sustainable in law.
19. The grant of ACP or MACP is in situ promotion in which only financial
upgradation is given to the employees for a long period of service and in order to
avoid stagnation, as such, denying the benefits of the 3rd MACP granted to the
petitioner by the respondent is also not sustainable. Accordingly, the impugned
order dated 23.02.2018 contained in Memo No. 182 Anu (Annexure- 8 to the writ
petition) is set aside, and the petitioner shall be entitled for payment of actual
monetary benefit from the date of first MACP granted to him. Accordingly, this
Court directs the respondent state to pay all the consequential benefits to the
petitioner within a period of three months from the date of production/ receipt of
the copy of this order.
20. The writ application, therefore, stands allowed.
(Kumar Manish, J)
sanjeev/-
AFR/NAFR AFR
CAV DATE 04.08.2026
Uploading Date 01.09.2026
Transmission Date