Patna High Court
Jitendra Kumar Sinha vs The State Of Bihar on 25 March, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16143 of 2022
======================================================
Jitendra Kumar Sinha Son of Gopal Prasad R/o-Mohalla-Murarpur, P.O. and
P.S.-Murarpur Katari, Kamasi, District-Sheikhpura, Bihar-811105.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secreary, Water Resources Department,
Government of Bihar, Patna.
2. The Principal Secretary, Water Resources Department, Government of Bihar,
Patna.
3. The Joint Secretary (Management), Water Resources Department,
Government of Bihar, Patna.
4. The Deputy Secretary (Management), Water Resources Department,
Government of Bihar, Patna.
5. The Deputy Secretary (personal Claim Determiantion Cell), Finance
Department Government of Bihar, Patna.
6. The Superintending Engineer, Irrigation Circle Nawada
7. The Accountant General Bihar. Birchand Patel Path, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Alok Ranjan, Advocate
For the State : Mr. Vinay Kirti Singh, Sr. Adv ( Ga 2)
for the Accountant General : Dr. Anand Kumar
Mr. Rajan Prakash, Adv (AC to GA-2)
======================================================
CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
CAV JUDGMENT
Date : 25-03-2026
Heard the parties.
2. The present writ petition has been filed for the
following reliefs:-
"(i) For directing and commanding the
respondent authorities to grant six annual
pay increments, which has illegally been
with held on account of non-passing of
departmental examination, since 2012.
(ii). For directing and commanding the
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
2/23
respondent authorities for making payment
of consequential benefits ( including retiral
benefits) after granting six annual
increments and also for payment of entire
dues amount along with interest from the
date it had became due, till actual date of
payment.
(iii). For awarding cost of litigation in favor
of petitioner for unncessarily harassing him
mentally as well as physically and for non
grant of annual pay increments well within
time and withholding the same on nonest
grounds.
(iv). And, for any other relief, which may
deem fit and proper in the facts and
circumstances of the case."
3. The brief facts giving rise to the present writ
petition is that the petitioner was appointed as a Junior Engineer
and subsequent thereto gave his joining in the month of
February, 1979 on the post of Junior Engineer. Later on, he was
promoted to the post of Assistant Engineer and subsequently
superannuated after attaining the age of superannuation w.e.f.
30.09.2017
from the office of the Irrigation Cirle Nawada,. It is
the case of the petitioner that there is a provision for grant of
annual increment and for the same the employees needs to
appear and pass departmental examination and if an employee,
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
3/23
who has appeared thrice in the departmental examination and
has attained the age of fifty years, the annual increment cannot
be stopped and the same will be granted to the employees and
has been clarified by various resolutions and circulars issued by
the authorities of the State Government from time to time
including letter No. 4674 dated 15.05.1992 and letter No. 4368
dated 28.08.2009. The same were later on further clarified vide
notification contained in Memo No. 3127 dated 03.06.2018
issued by the General Administration Department Government
of Bihar, Patna.
4. The learned counsel for the petitioner submits
that in view of the provisions of the State Government, the
petitioner also participated in the Departmental examination,
thrice, held in different years, but he could not succeed.
Accordingly, as per the resolution of the State Government since
he had attained the age of fifty years, the petitioner filed
representation before the competent authority, with a request
that since he has attained the age of fifty years and pursuant to
departmental guidelines which provides that upon attaining the
age of fifty years, the employees will be exempted from passing
the departmental examination, he may be exempted from same.
The petitioner repeatedly approached the respondent authorities
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
4/23
with a request to grant him exemption from passing the
departmental examination, in view of different circulars issued
by the State Government from time to time, but no heed was
paid to the request of the petitioner and the respondent
authorities did not grant annual increment to the petitioner since
2012 and after attaining the age of superannuation the petitioner
superannuated from his service in the year 2017. The petitioner
again filed a representation on 29.06.2018, before the Assistant
Engineer Irrigation Sub Division Giddheswar, Jamui, with a
request that since he has attained the age of fifty eight years and
participated in the departmental examination in January, 2010
and further in July, 2010 and in view of different circulars of the
General Administration Department, which provides for
exemption from appearing in the departmental examination, on
attaining the age of fifty years, the exemption be granted to him
but the same has till date not been granted and in the meantime,
the petitioner superannuated on 30.09.2017, therefore,
appropriate order be passed on his representation. The petitioner
having got no other alternative again filed a representation
before the Joint Secretary, Administration, Water Resource
Department, Patna on 03.06.2022 with a request to consider his
representation for being exempted from appearing in the
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
5/23
departmental examination on attaining the age of fifty years in
view of letter No. 4674 dated 15.05.1992 and letter No. 4368
dated 28.08.2009 issued from the General Administration
Department, Government of Bihar, Patna. It was further
requested that since the same exemption has not been granted to
the petitioner his six increments have been withheld.
5. A counter affidavit has been filed on behalf of the
respondents No. 1 to 4 wherein it has been stated that the
petitioner was promoted on the post of Assistant Engineer
( Bihar Engineering Service, Class II) in the year 2009 and
superannuated from the said post on 30.09.2017. The mode of
recruitment in Bihar Engineering Service class II has been
provided in appendix 1 of the Bihar PWD Court (Volume II).
Rule, 1 part I provides that the service shall be recruited (i) by
direct recruitment in accordance with the rules in part II or (ii)
by the promotion or transfer of Officers already in government
service, permanent or temporary in accordance with the rules in
part III.
6. The learned counsel for respondent-State further
submits that the petitioner entered Bihar Engineering Service
Class II in year 2009 when he was granted promotion to the
post of Assistant Engineer under said Rule 1 (ii). Part I of
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
6/23
appendix IV of the Bihar PWD Code (Volume II) provides for
Rules dealing with departmental examination of Officers and
the sub-ordinates of the public works department (Roads &
building and Irrigation). As per Rule 3, an Officer who fails to
pass his departmental examination within the prescribed time
i.e. for languages within the period prescribed in Rule, 5 and for
law ( part A, B and C) within two years of joining his
appointment, will receive no further increment of pay until the
examination is passed. The said rule further provides that as per
part II of Appendix IV dealing with the professional
examination of Assistant Engineers. As per the Rule 1 all
Assistant Engineers of the PWD ( Building and Road), Public
Health Engineering Department, Irrigation and Electricity
Department, must pass the professional examination prescribed
in the Public Works Department Code, Paragraph No. 55 within
three years of joining their appointment in the State.
7. The learned counsel for the State further submits
that as per Rule 7, in the event of an Officer failing to pass the
examination within the period specified in Rule 1, his
increments will be withheld and arrears of increments so
withheld will not be granted to him on his passing the
examination, except in special cases where his failure to pass
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
7/23
has been due to circumstances beyond his control.
8. The learned counsel for the State further submits
that from the provisions contained therein it will transpire that
an Assistant Engineer is required to pass departmental
examination within a period of two years and professional
examination within a period of three years of his appointment/
promotion to the post of Assistant Engineer, otherwise he/ she
will not be entitled to get increment of pay after the said period.
In case of the petitioner, he was promoted to the post of
Assistant Engineer in the year 2009 but he neither passed the
departmental examination nor the professional examination,
within the aforementioned prescribed period, rather before lapse
of the said period he submitted an application in the years 2010
itself for exempting him from departmental examination as well
as professional examination in the light of the government
circular issued by the personal and Administrative Department,
Bihar, Patna and as such his application was premature,
therefore, the same was not considered. However, no increment
of the petitioner was withheld during the prescribed period of
three years i.e. till 2012.
9. The learned counsel for the respondent-State
further submits that clause 3 of Government circular dated
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
8/23
15.05.1992 provides that exemption from passing departmental
examination will be given to only those government servants,
who attempted the examination continuously but failed or could
not appear in the examination due to officials reasons or
departmental examination was not conducted during the last five
years, before attaining the age of fifty years. The petitioner
appeared in the departmental examination held in the year 2010,
twice and in the professional examination held in the year 2012
once. Therefore, it is clear that the petitioner did not make any
attempt, to clear the departmental examination and professional
examination, continuously, before attaining the age of fifty
years.
10. The learned counsel for the respondent State
further submits that clause 5 of the Government circular dated
15.05.1992 is clear that right to exemption from passing
departmental examination will be discretionary and not
mandatory. After his superannuation in September, 2017 the
petitioner again submitted an application on 29.06.2018 with a
request to exempt him from passing the departmental
examination, but since the order of exemption was to be
effective from the date of application, in view of the provisions
contained in Rule 3 of the Bihar Government Servants
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
9/23
exemption from passing the departmental examination Rule,
2018, as notified by the General Administration Department,
Government of Bihar, Patna vide notification No. 3127 dated
06.03.2018, there was no justification of passing such an order
after superannuation of the petitioner, therefore, the application
of the petitioner and some other such retired Assistant Engineers
were rejected by the competent authority and the said order was
communicated vide Memo No. 170 dated 31.01.2020.
11. The learned counsel for the State lastly
submitted that from the aforesaid facts it is clear that the
petitioner neither passed the departmental and professional
examination nor he was exempted from passing the said
examination during his service period, as such the petitioner has
not been granted the increment and is not entitled to get the
increment of pay after lapse of the prescribed period of three
years for passing the said examination, as provided in the Bihar
P.W.D. Code (Volume. II).
12. The learned counsel for the petitioner refers to
and relies on a judgment of the Co-ordinate Bench of this court
dated 22.09.2023 passed in CWJC No. 19193/2015 Ranjana
Devi Vs. State of Bihar and Others wherein in paragraph No. 2,
it has been held as follows:-
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
10/23“2. At the outset, the learned counsel for
the petitioner has referred to the judgment
rendered by the Hon’ble Apex Court in the
case of Amresh Kr. Singh and others vs. The
State of Bihar and others, reported in 2023
(2) PLJR (SC) 423 to submit that the
Hon’ble Apex Court has held that fulfilment
of education qualifications prescribed
under the recruitment rules for the purposes
of promotion are not necessary for non-
functional in-situ promotion, hence for
purposes of granting benefits of
A.C.P./M.A.C.P., passing of any exam is not
necessary. This aspect of the matter has
also been considered by a learned Division
Bench of this Court in the case of The State
of Bihar and others vs. Sri Ram Subhag
Singh, reported in 2022(2) PLJR 773,
wherein the learned Division Bench of this
Court has held that non-passing of
departmental exam shall not be an
impediments for grant of benefits of
A.C.P./M.A.C.P.”
13. The learned counsel petitioner further relies on
a judgment dated 13.04.2021 passed by the Co-ordinate Bench
of this Court in CWJC No. 4443 of 2021 Choudhary Bimal
Kumar Roy Vs. State of Bihar and Ors wherein in paragraph
Nos. 03 and 04, it has been held as follows:-
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
11/23“3. The for the learned counsel appearing
respondent-State has submitted that the issue
in question is no longer res integra,
inasmuch as the same has already been
adjudged by the learned Division Bench of
this Court in a judgment rendered in the case
of State of Bihar & Ors. vs. Smt. Jivachi
Devi, reported in 2020(2) BLJ 471,
paragraphs no. 5 to 9 whereof are
reproduced hereinbelow:-
“5. On the other hand, learned counsel
appearing for the respondent submits that
the issue involved in the appeal is no more
res integra as the same has already been
decided by the Division Benches of this
Court in the following decisions-
(i). Bishwanath Prasad v. The State of
Bi-har, reported in (2011) 2 PLJR 136
(ii). Avinash Chandra Singh v. The
State of Bihar, reported in (2012) 1
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
12/23PLJR 663.
(iii). Uday Shankar Prasad v. The
State of Bihar, reported in (2017) 3
PLJR 824.
(iv). Judgment dated 19.3.2018,
passed in LPA No. 599/2015
(Ramadhar Thakur v. The State of
Bihar)
6. Having heard learned counsel for
the parties and on-going through the
records, it appears that the facts are
not in dispute between the parties. The
only issue involved in the appeal is as
to whether passing of departmental
accounts exami-nation would be
necessary for grant of benefits of
Assured Career Progression, provided
under the Bihar State Employees
Conditions of Service (Assured Career
Progression Scheme) Rules, 2003 read
with Clause (J) of Sub-rule (3) of Rule
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
13/23157 of the Bihar Boards Miscellaneous
Rules, 1958. I am in agreement with
the submissions advanced by learned
counsel appearing on behalf of the
respondent that the issue, in hand, is
no more res integra as the same has
already been decided by different
Division Benches of this Court in a
catena of similar cases, mentioned
herein below-
ported in (2013) 2 PLJR 643
(ii). Uday Shankar Prasad v. The State
of Bihar, reported in (2017) 3 PLJR
824 and
(ii). Ramadhar Thakur v. State of Bi-
har, reported in LPA No. 599 of 2015.
7. Recently, a Division Bench of this
Court in case of Ramadhar Thakur
(supra), after extensive analysis and
dis-cussion of the provision of rule
157(3)(J) of the Bihar Boards
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
14/23
Miscellaneous Rules 1958 and Rule 4
(clause 5) of the Bihar State
Employees Service Condition (As-
sured Career Progression Scheme)
Rules, 2003, conclusively held after
referring to various judgments, viz.,
Mithilesh Kumar Sinha v. The State of
Bihar [(2006) 1 PLJR 282] Syed
Mozammil Ashraf v. The State of Bihar
[(2007) 1 PLJR 438]: Shashi Shekhar
Ambasta v. The State of Bihar [(2011)
3 PLJR 474]; Maheshwar Prasad
Singh v. The State of Bihar [(2000) 4
PLJR 262]; Rameshwar Roy v The
State of Bihar [(2017) 2 PLJR 127].
Daya Shankar Singh v. The State of
Bihar [(2010) 3 PLJR 220] and Md.
Shamsuddin v. The State of Bihar
[1983 PLJR 347] that Rule 157(3) (J)
of the Bihar Boards Miscellaneous
Rules 1958 makes the passing of the
departmental accounts examination a
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
15/23
condition precedent for promotion to
the selection grade, but not for general
promotion and for not passing such
exam, the benefits of the A.C.P Rules,
2003, also cannot be withheld, unless
there is a departmental rule for pro-
motion. In other words, the Bench held
that passing of departmental accounts
examination is not a condition
precedent for grant of ACP Rules nor
does Rule 157(3)(J) of the Bihar
Boards Miscellaneous Rules, 1958
conceive of such a re-quirement. The
same issue is also been involved in the
case of Masomat Indu Devi v. State of
Bihar, reported in (2019) 2 PLJR 241
in which the learned Single Judge of
this Court has reiterated the same view
and held that passing of ac-counts
examination or departmental
examination, as the case may be,
under the Bihar Boards Miscellaneous
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
16/23
Rules, 1958 would be necessary for
crossing efficiency bar, confirmation
and for promotion to selection grade,
but not general promotion. I also find
that the provisions of the Bihar Water
Resources Department Field Steno
Typist’s Cadre (Recruitment and
Service Condition) Rules, 2014 does
not apply in the respondent’s case as
respondent’s husband superannuated
from service in the year 2011. I do not
find any reason to differ with the
decision passed by co-ordinate
benches of this Court.
8. In the facts and circumstances of the
case and taking into account the law
laid down by the successive Division
Benches of this Court as discussed
above, I am of the considered view that
the appellants are not justified in
refusing benefits of the financial
progression to the husband of the
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
17/23
respondent on the ground that he did
not pass the account or departmental
examination. In view of the law
pronounced by the courts in the
similar cases as dis-cussed above, I do
not find any infirmity in the judgment
of the writ court, as such, the instant
appeal, being devoid of merit, is
accordingly dismissed.
9. Consequently, appellants are
directed to consider the case of the
respondent’s husband for grant of ACP
within eight weeks from the date of
receipt/produc-tion of a copy of this
order.”
4. Having regard to the judgment rendered
by the learned Division Bench of this Court
in the case of Smt. Jivachi Devi (supra), this
Court finds that the case of the petitioner is
required to be considered for the purposes
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
18/23
of grant of benefits of A.C.P./M.A.C.P., de
hors the fact that he has not passed the
departmental examination.
Accordingly, the Collector,
Samastipur is directed to consider the case
of the petitioner for grant of the benefits of
A.C.P./M.A.C.P. in light of the judgment
rendered by the learned Division Bench of
this Court in the case of Smt. Jivachi Devi
(supra) and pass appropriate orders within
a period of six weeks of receipt/ production
of a copy of this order.”
14. The learned counsel for the petitioner while
placing reliance on the judgments passed in the case of Ranjana
Devi (supra) and Choudhary Bimal Kumar Roy (supra)
submits, that passing the departmental examination is not
necessary for grant of increment and as such the petitioner is
entitled to be granted the said exemption and on the basis of the
exemption, he is entitled for being given annual increments.
15. Having heard the learned counsel for the parties
and after going through the materials available on record, it
appears that the petitioner appeared in the departmental
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
19/23
examination on different occasions, for three times, but not in
continuation, rather he appeared in the examination held in
different years. Further the petitioner after appearing in the
examination only once, filed the application for exemption from
passing departmental examination in 2010 itself, in view of the
circular of the State Government issued from time to time,
including Letter No. 4674 dated 15.05.1992 and Letter No. 4368
dated 28.08.2009. It appears from circular of the State
Government dated 15.05.1992, that the exemption is not to be
granted as a matter of right, rather the same is discretionary,
meaning thereby that if a candidate who appears in departmental
examination continuously and fails to qualify in the
examination, then in that case he may file the application before
the competent authority for granting exemption from passing the
departmental examination, in view of the circular of the State
Government dated 15.05.1992. There is no concept of deemed
exemption. The petitioner was required to pass the departmental
examination within a period of 2 years from the date of his
promotion and the professional examination within a period of
three years of his promotion i.e. from the year 2009.
16. Further the reliance placed by the learned
counsel for the petitioner on the different pronouncement of Co-
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
20/23
ordinate Benches of this Court relates to passing departmental
examination for grant of benefits of A.C.P./M.A.C.P. and the
said orders/judgments have been affirmed till the Hon’ble
Supreme Court of India in the case of Amersh Kumar Sinha
(supra). In the present case, the petitioner is an Assistant
Engineer and he has filed the present writ petition for grant of
annual increment which has been withheld on account of non-
passing of the departmental examination, in view of the circular
of the State Government dated 15.05.1992 and 28.08.2009. The
said circular of the State Government dated 15.05.1992 was
considered by a Hon’ble Division Bench of this Court in L.P.A.
No. 1828 of 2012 (the State of Bihar & Ors. Vs. Anjani
Kumar) wherein the Hon’ble Division Bench, although was
considering the matter relating to grant of A.C.P., after
considering different pronouncement of this Hon’ble Court, in
paragraph nos. 05 to 08 has held as follows and based on the
said consideration proceeded to allow the appeal filed by the
State.
“5. It is not in dispute that the promotion in
question is governed by the Bihar Board’s
Miscellaneous Rules, 1958. Rule 157 of the
said Rules provides for passing of the
Departmental Accounts Examination, a
condition precedent for further promotion.
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
21/23The writ petitioner had not passed the
Departmental Accounts Examination. He
was, therefore, not eligible for promotion.
Consequently he was not entitled to the
financial progression under Assured Career
Progression.
6. Four years after retirement from service in
2008, the writ petitioner approached this
Court to claim exemption from passing the
Departmental Accounts Examination and
consequential promotion relying on the
Government Circular dated 15th May, 1992.
The writ petitioner claims that the writ
petitioner had passed in two of the three
papers, he was, therefore, entitled to
exemption as envisaged by the aforesaid
Circular dated 15th May, 1992. The learned
single Judge, having observed that the
exemption was not a matter of right, has
issued direction as if the writ petitioner has
been granted exemption. We may note here
that at no point of time the petitioner had
been granted exemption as recorded by the
learned single Judge; nor is there a concept
of deemed exemption referred to by the
learned single Judge. Besides, the most
disturbing factor is that the aforesaid Rules
of 1958 do not provide for exemption from
passing the Departmental Accounts
Examination. In absence of any provision for
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
22/23exemption, no Government servant could
have been exempted from passing the said
examination; nor would a Government
servant be entitled to promotion on attaining
the age of 50 years without passing the
Departmental Accounts Examination. The
Circular dated 15th May, 1992 offends the
very basic principle that the statutory rules
cannot be improved or modified or altered
by an executive order, the statutory rules
shall prevail. The Circular dated 15th May,
1992, being contrary to the statutory rules,
cannot be enforced. The claim for exemption
based on the said Circular dated 15th May,
1992 cannot be countenanced.
7. A Full Bench of this Court has, as early as
in 2000, in the matter of Maheshwar Prasad
Singh v. The State of Bihar, Ors. [2000 (4)
PLJR 262], enunciated the said principle to
hold that the Government cannot amend,
modify or supersede the statutory rules by
administrative instructions. The judgment in
the matter of Dinesh Narayan Mishra
(supra) is per incuriam the above-referred
judgment in the matter of Maheshwar
Prasad Singh.
8. This matter has been considered by us in
the matter of The State of Bihar & Ors. vs.
Kusheswar Nath Pandey, [2013 (1) PLJR
939]. In our opinion, the impugned order
Patna High Court CWJC No.16143 of 2022 dt. 25-03-2026
23/23made by the learned single Judge is contrary
to the judgments in the matter of
Maheshwar Prasad Singh (supra) and
Kusheswar Nath Pandey (supra).”
17. Accordingly, from the consideration made
above, this Court finds that the petitioner did not appear in the
departmental examination continuously as provided in clause 3
of the circular dated 15.05.1992 and filed his application for
exemption from passing departmental examination on
27.07.2010 itself, i.e. prior to him appearing in the examination
continuously, as per the circular dated 15.05.1992.
18. Accordingly, I find no merit in the present writ
petition and the same is dismissed.
19. Pending applications, if any, shall also stands
disposed of.
(Ritesh Kumar, J)
krishnakant/-
AFR/NAFR NAFR CAV DATE 03.02.2026 Uploading Date 25.03.2026 Transmission Date NA
