[2025:JHHC:35718-DB] 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A No.473 of 2017 ----- Krishna Nandan Singh, son of late Gauri Shankar Prasad Singh, R/o Jagannath Basant, PO & PS Lalganj, District Vaishali, presently, residing at: Lalkothi, Chakkar Road Mohalla- Rasulpur Gilani, PO & PS Kazimohammadpur, District Muzaffarpur, State-Bihar. … … Appellant Versus 1. The State of Jharkhand 2. Commissioner of Excise, Jharkhand Ranchi, PO: GPO, PS: Kotwali, District: Ranchi. 3. Joint Secretary, Department of Personnel Administrative Reforms and Rajbhasha, Government of Jharkhand having his office at: Project Bhawan, Dhurwa, PO Project Bhawan, Dhurwa, PS: Dhurwa, District Ranchi. 4. Assistant Commissioner, Excise, PO and PS Dhanbad, District Dhanbad. … … Respondents ------ CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI ------- For the Appellant(s) : Mr. Samavesh Bhanj Deo, Advocate; Mr. Raj, Advocate For the Respondent(s): Mr. Rajiv Ranjan, Advocate General; Mr. Prabhat Kumar, SC-II; Mr. Shray Mishra, AC to AG; Mr. Karan Shah Deo, AC to SC-II ------ CAV On: 11.11.2025 PRONOUNCED ON: 28.11.2025 [Per Se: Sujit Narayan Prasad J.] 1. The present appeal has been filed under Clause-10 of the Letters Patent against the order dated 06.04.2017 passed by the learned Single Judge of this Court in W.P.(S) No. 1934 of 2014, whereby and whereunder, the learned Single Judge has been pleased to dismiss the writ petition filed by the petitioner-appellant herein. Factual Matrix 2. The brief facts of the case as per the pleadings made in the writ petition needs to refer herein which reads as under: [2025:JHHC:35718-DB] 2 (I) The petitioner was appointed on the post of Excise Sub-Inspector on temporary basis on 17.1.1973. The petitioner appeared in the second half yearly departmental examination held in the year 1973 and passed the said examination. Thereafter, he has appeared in the first half yearly departmental examination held in June, 1974 and also passed the said examination. (II) Then the petitioner appeared in the Hindi Upper-Level Examination but he could not pass the same and therefore, on crossing age of 50 years, he submitted an application for exempting him from the requirement of passing the said Hindi and Upper-Level Departmental Examination in accordance with Government Circular/letter no. 11691 dated 09.11.1983 issued by the Personnel and Administrative Reforms Department, Bihar, Patna. (III) By an order issued by the Excise Commissioner-cum-Secretary, Jharkhand, Ranchi communicated vide memo no. 823 dated 20.06.2007, the petitioner along with other employees of the Excise Department, Government of Jharkhand granted the 2nd Assured Career Progression financial upgradation (2nd Assured Career Progression on recommendation of the Departmental Screening Committee and in light of the provisions contained in government resolution dated 14.08.2002 of Finance Department, Government of Jharkhand with effect from 09.08.1999 in higher pay scale of Rs. 6500-10500/-, the actual monetary benefit of which was payable from 15.11.2000. [2025:JHHC:35718-DB] 3 (IV) In light of the aforesaid order granting 2nd Assured Career Progression to the petitioner, the petitioner's pay was fixed in the higher pay scale of Rs. 6500-200-10500 with effect from 09.08.1999 and increment of pay sanctioned/allowed by the Superintendent Excise Palamau-cum-Garhwa-cum-Latehar and the petitioner's pay was fixed at Rs.9700, as on 09.08.2007. The petitioner has been granted the revised pay band, grade pay with effect from 01.01.2006. Pursuant to re-organisation of the erstwhile State of Bihar, the services of the petitioner was allocated to newly created State of Jharkhand in the Jharkhand State Cadre and petitioner gave joining in Palamau District on 08.08.2006. Thereafter, service of the petitioner was transferred to Assistant Commissioner, Dhanbad where the petitioner joined on 09.01.2008. The petitioner whose date of birth is 01.07.1948 retired from the services of the State on 30.06.2008 on attaining the age of superannuation. (V) The pension payment order no. 200914091753 of petitioner issued by the Accountant General (A&E), Bihar, Patna and the contains the service particulars etc. of the petitioner and from the office of the Accountant General (A&E), Jharkhand, authority for pension DCRG, CVP and family pension in favour of the petitioner issued vide letter dated 17.03.2009 and the same sent to the Accountant General (A&E), Bihar, Patna since the petitioner opted for getting pension from Muzaffarpur Treasury and, accordingly, thereafter from the office of the Accountant [2025:JHHC:35718-DB] 4 General (A&E), Bihar, Patna the Treasury Officer, Muzaffarpur was requested to make arrangement for payment of commuted value of pension, monthly pension to the petitioner. (VI) The petitioner was allowed first time bound promotion with effect from 17.01.1983 therefore the cancellation of 2nd time bound promotion is not legal because respondent cannot canvass the plea that petitioner is not eligible for 2nd A.C.P. on account of grant of 2nd Assured Career Progression, the petitioner's pay fixed in pay scale of Rs.6500-200-10500 with effect from 09.08.1999 and entry to the said effect made in the petitioner's service book. However, after about two years from the date of petitioner’s retirement, an order issued by the Commissioner, Excise Jharkhand, Ranchi cancelling the 2nd Assured Career Progression granted to the petitioner vide memo no. 1/Ni.Wo.astha.-40- 4/2009-1114 dated 15.06.2010 and by the said order, the 2nd Assured Career Progression granted to the petitioner during his service tenure with effect from 09.08.1999 has been cancelled. 3. Being aggrieved, by order dated 15.06.2010 whereby 2nd ACP granted to the petitioner has been cancelled, the petitioner has preferred a writ petition being W.P.(C) No. 1934 of 2014 but the same was dismissed by the learned writ court by observing that the petitioner who could not pass the Final Level Departmental Examination and was not granted exemption, was not eligible and to these facts the petitioner cannot feign ignorance. The learned Single Judge has further observed that in [2025:JHHC:35718-DB] 5 the aforesaid facts, the decision in Rafiq Masih does not help the petitioner. 4. Hence the present appeal. 5. It is evident that on 17.01.1973 the petitioner was appointed in the services of the State on the post of Excise Sub-Inspector. In the year 1973 and 1974 the petitioner appeared in the 1st and 2nd half yearly departmental examination and passed both the examinations. The petitioner appeared in the Hindi Upper-Level Examination but could not pass the same. Thereafter the petitioner, on crossing the age of 50 years, submitted an application to the Department for exemption from the requirement of passing of the said Hindi Upper-Level Examination in accordance with Government Circular/ Letter No. 11691 dated 09.11.1983 issued by the Personnel and Administrative Reforms Department, Bihar, Patna. On 20.06.2007 petitioner granted 2nd ACP with effect from 09.08.1999 in higher pay scale of Rs. 6500-10,500/-. 6. The petitioner retired from service on 30.06.2008 while being posted as Assistant Commissioner Excise, Dhanbad. However, after about two years from the date of petitioner’s retirement, an order issued by the Commissioner, Excise Jharkhand, Ranchi cancelling the 2nd Assured Career Progression granted to the petitioner vide memo no. 1/Ni.Wo.astha.-40-4/2009-1114 dated 15.06.2010 and by the said order, the 2nd Assured Career Progression granted to the petitioner during his service tenure with effect from 09.08.1999 has been cancelled. [2025:JHHC:35718-DB] 6 7. Being aggrieved, by order dated 15.06.2010 whereby 2nd ACP granted to the petitioner has been cancelled, the petitioner has preferred a writ petition being W.P.(C) No. 1934 of 2014 but the same was dismissed by the learned writ court by observing that the petitioner who could not pass the Final Level Departmental Examination and was not granted exemption, was not eligible and to these facts the petitioner cannot feign ignorance. The learned Single Judge has further observed that in the aforesaid facts, the decision in Rafiq Masih does not help the petitioner. Against the said order the present appeal has been preferred. Arguments advanced on behalf of the appellant/writ petitioner: 8. The learned counsel for the appellant has taken the following grounds: (i) It is submitted that the learned Single Judge has failed to appreciate that the petitioner attained the age of 50 years and was eligible to be considered for exemption from passing the Hindi High Level Examination. It is also submitted that in terms of 1983 circular, there was no need to submit any application seeking exemption and it was for the respondent to consider the same on its own. (ii) The petitioner has further submitted that the application for exemption was submitted by him, however, this fact was denied by the respondents, but the learned Single Judge did not consider that even if the statements of the respondents are accepted to be true, it will not disentitle the petitioner from getting exemption from passing the said examination. (iii) Further, it has been submitted that the impugned order cancelling [2025:JHHC:35718-DB] 7 and revoking the earlier order granting benefit of 2nd ACP to the petitioner was passed in violation of the principles of natural justice and is also in violation of the judgment of this court as no notice was issued to the petitioner to allow him to avail the right of hearing. (iv) It has been submitted that the learned Single Judge has failed to appreciate that the judgment of the Hon’ble Apex Court in the case of State of Punjab vs. Rafiq Masih, (2015)4 SCC 334, in the right perspective is fully applicable in the facts and circumstances of the present case. (v) Learned counsel for the appellant has further relied upon the judgment passed by the Hon’ble Apex court in case of Amresh Kumar Singh and others vs.State of Bihar and others reported in 2023 SCC OnLine SC 496, wherein the same issue has been considered and the Hon’ble Apex Court has come up with a view that since the up-gradation in the pay-scale is not regular promotion rather it is up-gradation in situ promotion and, as such, there is no requirement to pass the said examination. (vi) The learned counsel for the appellant based upon the aforesaid grounds has submitted that the impugned judgment passed by the learned Single Judge, therefore, suffers from an error and, hence, it is fit to be quashed and set-aside. Arguments advanced on behalf of the Respondents: 9. The learned counsel for the respondents has taken the following grounds: [2025:JHHC:35718-DB] 8 (i) On 17.01.1973 the petitioner was appointed in the services of the State on the post of Excise Sub-Inspector. In the year 1973 and 1974 the petitioner appeared in the 1st and 2nd half yearly departmental examination and passed both the examinations. The petitioner appeared in the Hindi Upper-Level Examination but could not pass the same. (ii) Thereafter, the petitioner alleges that on crossing the age of 50 years the petitioner submitted an application to the Department for exemption from the requirement of passing of the said Hindi Upper-Level Examination in accordance with Government Circular/ Letter No. 11691 dated 09.11.1983 issued by the Personnel and Administrative Reforms Department, Bihar, Patna. (iii) The petitioner did not fulfil the criteria as mentioned in the above mentioned Government Circular/Letter as the circular states at Clause 3 that only those candidates who on the successive attempts have failed to pass the examination or on account of official duty could not appear in the examination can be granted exemption and also it was not mandatory for the Department to grant exemption to every employee who could not pass the said examination. (iv) The decision regarding granting or not granting exemption is to be decided by the Department. (v) It is important to mention here that no application regarding exemption for the said examination has ever been received by the [2025:JHHC:35718-DB] 9 Department from the petitioner and neither the petitioner has annexed a copy of the said exemption application along with the writ petition. (vi) Learned counsel has relied on the following judgments- (a) P. Suseela and others vs. University Grants Commission and others reported in (2015) 8 SCC 129 (b) Saurabh Chaudri (Dr.) and others vs. Union of India and others reported in (2004)5 SCC 618 (c) M.A. Murthy v. State of Karnataka reported in (2003) 7 SCC 517 Analysis: 10. Heard the learned counsel appearing for the parties and gone through the materials available on records. 11. The following issues require consideration in the present case: (i) Whether passing of the departmental examination is necessary for the purpose of grant of upgradation either under ACP/MACP. (ii) Whether the judgment passed by the Hon’ble Apex Court in the case of Amresh Kumar Singh and others vs.State of Bihar and others (supra) is applicable in the facts of the present case. (iii) Whether the judgment passed by the Hon’ble Apex Court in case of Amresh Kumar Singh and others vs.State of Bihar and others will have prospective overruling. (iv) Whether issue of the present case is coming under the fold of the settled issue so that the judgment passed by the Hon’ble Apex Court in the case of Amresh Kumar Singh and others vs. State of Bihar and others is not to be made applicable. 12. Since all the aforesaid issues are inextricably co-related and, as such, all are being taken up together but before considering the issues this [2025:JHHC:35718-DB] 10 court needs to point out certain admitted facts. 13. It is the admitted case of the petitioner that he has joined the services on 17.01.1973 on the post of Sub-Inspector in Excise Department of the State. The petitioner claims for upgradation under the MACP Scheme seeking the pay-scale attached to the post of Superintendent, the next hierarchical post to the post of inspector as per the cadre in the Excise Department of the State. The petitioner has made representation but the same has not been positively decided and, as such, he has approached this court by filing WP(S) No. 1934 of 2014. 14. The State has made serious objection raising ground that the writ petitioner has not passed the Hindi Upper-Level Examination which is required to hold the post of Superintendent. It has also been pointed out, as has been taken note by the learned single judge in the impugned judgment that the petitioner has not been exempted in view of the circular dated 09.11.1983. The learned Single Judge while accepting the view of the State has dismissed the writ petition. 15. The writ petitioner, in course of argument, has relied upon the judgment passed by the Hon’ble Apex Court in the case of Amresh Kumar Singh and others vs.State of Bihar and others reported in 2023 SCC OnLine SC 496 wherein exactly the same issue has been considered and the Hon’ble Apex Court has come up with a view that since the upgradation in the pay-scale is not regular promotion rather it is upgradation in situ promotion and, as such, there is no requirement to pass the said examination. 16. The relevant paragraphs need to refer herein which reads as under: [2025:JHHC:35718-DB] 11 “15. In sum and substance, both ACP and MACP Schemes are schemes devised with the object of ensuring that the employees who are unable to avail of adequate promotional opportunities, get some relief in the form of financial benefits. Accordingly, the schemes provide for regular financial upgradation on completion of 12-24 years and 10- 20-30 years of service without promotion. They are incentive schemes for the employees who complete a particular period of service but without getting promotion for lack of promotional avenues. The effect of the schemes must be judged keeping in view the object and the purport of the scheme. 16. In Union of India v. G. Ranjanna reported in (2008) 14 SCC 721, the three-Judges Bench of this Court held that in situ promotions are made to remove stagnation of grade C and grade D employees by giving them certain monetary benefits. 17. It was further observed that fulfilment 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 purposes of promotion is not necessary for the 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. 18. In the aforesaid case, the employees were working as malis (Gardeners) and had claimed promotion in the higher pay scale. The Central Administrative Tribunal seized of the original applications observed that the employees cannot claim the scale of the next higher post by way of in situ promotion. On the matter being taken to the High Court by way of a writ petition, the contention of the employees was accepted and it was observed that the object of in situ promotion on non-functional posts, is to ensure that the group C and D employees are not stagnated in the same cadre/pay scale and that they should be provided with certain monetary benefits. Therefore, the rejection of the claim for such nonfunctional in situ promotion on the ground that the [2025:JHHC:35718-DB] 12 employees do not possess the necessary minimum qualification of matriculation as per the rules is not justified and renders the order erroneous in law. The view so taken by the Division Bench of the High Court was affirmed by this Court in the above referred Civil Appeals holding that the High Court has correctly analysed the object of the in situ promotion and fixation of pay scales to Group C and D employees to avoid stagnation. 19. In view of the aforesaid legal position coupled with the fact that the qualification of graduation prescribed is for the promotion to the post of Accounts Officer rather than for the grant of in situ promotion on the non-functional post or for extending the benefit of ACP which is purely and simply in the nature of grant of monetary benefit without actually effectuating any promotion to any higher post, we are of the opinion that the judgment and order of the Division Bench of the High Court impugned in the appeals cannot be sustained. It is accordingly hereby set aside and that the judgment of the writ court dated 28.11.2017 is restored. The appellants are extended the benefit of ACP, as directed by the writ court. 20. We have not considered it necessary to deal with the two cases on the basis of which the Single Judge has allowed the writ petitions and granted the benefit of the ACP to the appellants, as we have independently of those two decisions have considered and held that the appellants are entitled to financial upgradation under the ACP Scheme on completion of requisite regular service ignoring the higher qualification prescribed for the next higher post as grant of such benefit is not actually a promotion but only financial upgradation and if the higher qualification is insisted it would frustrate the purpose of the entire scheme.” 17. The learned Advocate General who represented the State Government has submitted that the judgment passed by the Hon’ble Apex Court which is binding precedents under Article 141 of the Constitution of India and, therefore, we have its retrospective application unless referred in the judgment specifically regarding its applicability. [2025:JHHC:35718-DB] 13 18. The learned Advocate General has relied upon the judgment rendered by the Hon’ble Apex Court in the case of M.A. Murthy v. State of Karnataka (supra) particularly in paragraph no. 8 thereof wherein it has been held that “prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest.” 19. It has been contended by referring to the facts of the present case that here the issue has already been settled by the State rejecting the claim of the writ petitioner and, as such, applying the law laid down in the case of M.A. Murthy v. State of Karnataka (supra) as referred in paragraph no.8 that principles of prospective overruling although is a part of principle of constitutional canon of interpretation and it is a device innovated to avoid reopening of settled issues and, as such, in the facts of the present case, the judgment passed by the Hon’ble Apex Court in the case of Amresh Kumar Singh and others vs. State of Bihar and others (supra) will not be applicable. 20. Now this court is to decide the issue as to whether the case of the present petitioner can come under the settled issues in course of pending litigation. The decision taken by the Commissioner of Excise Department cancelling 2nd Assured Career Progression with effect from 09.08.1999 vide order dated 15.6.2010 was the subject matter before the writ court. [2025:JHHC:35718-DB] 14 Such decision was taken on the pretext of not passing the required examination for holding the post of Superintendent. The learned Single Judge has agreed to the objections so raised on behalf of the State mandating the passing of the departmental examination as mandatory and also held that the decision in State of Punjab & Ors. vs. Rafiq Masih & Ors. (supra), does not help the petitioner. 21. We are only dealing with in the present appeal which has been challenged by the writ petitioner regarding entitlement of upgradation which has been recalled vide order dated 15.06.2010. The writ petition was filed in the year 2014 and was decided on 06.04.2017 on merits and against that order the present Letters Patent Appeal has been filed on 06.09.2017, after delay of 115 days. The delay was condoned vide order dated 08.01.2018 passed by the coordinate Bench of this Court in I.A. No. 7372 of 2017. The issue which has been decided by the State therefore came before this Court which is still pending for its adjudication. 22. Therefore, in course of pending proceeding, either writ petition or Letters Patent Appeal, will it be proper to be said that the issue has already been settled and it cannot be reopened. 23. The Court is still to adjudicate the right of the writ petitioner and the day when the issue is being decided the Hon’ble Apex Court and has laid down a law in the case of Amresh Kumar Singh and others vs.State of Bihar and others (supra) stating therein that the upgradation since is a situ promotion having no benefit of higher post and only the pay is being upgraded and, as such, there is no requirement to pass the departmental examination to hold the higher post as has been referred in paragraph nos. [2025:JHHC:35718-DB] 15 17 and 18 as quoted hereinabove. 24. So, when Writ Petition or Letters Patent Appeal is pending before a court, then issue can be said to settled, can be answered by taking an example of a case in which the State has passed an order taking decision adverse to the interest of the litigant concerned. If the same has been accepted fairly for a long period and, thereafter, if any law has been laid down, then applicability of the said law will not be of any aid to the concerned person who has accepted the decision so taken by the State fairly for a long period. 25. The second situation, in a case where the State has taken decision adverse to the interest of the public servant and he has approached the court of law which attained it finality up to the highest level, then in such circumstances, on the basis of the judgment passed subsequent to the issue having been set at rest by the higher forum will not be reopened but what will happen if a litigation is lying pending before a court, regarding the decision taken adverse to the interest of the public servant as the facts of the present case and in the meanwhile if any judgment has been pronounced by the Hon’ble Apex Court on the similar issue then will it be proper for this court to accept the view as has been agitated by the learned Advocate General appearing for the State that the issue on the basis of the decision so taken by the State, will be said to be settled. 26. This court is not in agreement with the said submissions, reason being that the order which has been passed claiming that the issues have been settled, is still to be assessed by the High Court under the power of judicial review and, if for such a long period, the adjudication under the [2025:JHHC:35718-DB] 16 power of judicial review is pending before the High Court or even before the Hon’ble Apex Court, then it will not be proper to say that the issues have been settled and, in such circumstances, it will not be a case of reopening the issues. 27. This Court is conscious that a Full Bench of Patna High Court has passed an order in the case of "Maheshwar Prasad Singh vrs. State of Bihar", reported in 2000 SCC OnLine pat 840 wherein passing of the departmental examination has been held to be mandatory but since the Hon’ble Apex Court has laid down a law in the case of Amresh Kumar Singh and others vs. State of Bihar and others (supra) as such in view of the principle as laid down under Article 141 of the Constitution of India read with Article 144 thereof, the judgment passed by the Hon’ble Apex Court is having binding precedent over the Full Bench of Patna High Court even though it was binding since rendered prior to 15.11.2000 i.e. the date of bifurcation of Bihar into two States, carving out the State of Jharkhand and State of Bihar. 28. This Court, in view of the aforesaid discussions, is of the view that all the issues have been answered in favour of the petitioner. 29. In the result, the order passed by the learned Single Judge needs interference. 30. Accordingly, the order dated 06.04.2017 passed by the learned Single Judge in W.P.(S) No. 1934 of 2014 is quashed and set-aside. 20. In consequence thereof, the writ petition is allowed. The petitioner is held entitled to get all the consequential benefits. 21. The respondent No.2 is directed to disburse all the monetary [2025:JHHC:35718-DB] 17 benefits in favour of the writ petitioner along with its consequential benefits within a period of four months from the date of receipt of copy of this order. 22. The instant appeal stands allowed and accordingly disposed of. I Agree (Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) (Arun Kumar Rai, J.) 28/11/2025 KNR/A.F.R. Uploaded on: 29.11.2025