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TMI Blog2017 (9) TMI 1874X X X X Extracts X X X X X X X X Extracts X X X X ..... n cause - In All India Groundnut Syndicate vs. Commissioner of Income Tax [ 1953 (9) TMI 19 - BOMBAY HIGH COURT ] Hon ble Mr. Justice Chagla, Chief Justice has laid down the principle that one cannot take advantage of his own default. Thus, the appellant cannot be made to suffer on account of non-holding of examination by the respondents and the appellant is entitled to grant of the benefit under ACP Scheme treating the appellant to have 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed by the High Court. The Writ Court noticing the requirement of Rules 21(5) and 21(6) held out that passing of departmental examination is a condition precedent for grant of benefit of first and second ACP. The Writ Court as such held out that the monetary benefit accrued to the appellant only with effect from 29.6.2003 on passing of departmental examination and the past benefit, which the appellant has drawn, was contrary to the requirements of the rules and, therefore, there was occasion to either re-fix as well as demand recovery of the benefit drawn by the appellant and relying upon the judgment of the Apex Court in the case of Chandi Prasad Uniyal and Others vs. State of Uttarakhand and Others (2012) 8 SCC 417 the Writ Court concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also unsustainable. 3. Learned counsel appearing on behalf of the respondents submitted that for grant of benefit under the ACP Scheme individual must be qualified for regular promotion as the ACP is anti-stagnation measure and it is only available in the event when despite fulfilling all the conditions for grant of regular promotion, if any individual is subjected to stagnation for lack of promotional avenue. In the instant the appellant who passed the departmental examination in 2003 is only entitled to the protection of anti-stagnation measure of ACP with effect from 29.6.2003 and the Writ Court has committed no illegality. 4. We have considered the rival submissions of the parties. We find substance in the submission of counsel ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces, could not be denied of his seniority as it is unreasonable and arbitrary to penalize such person for the default of the Government to hold examination every year. Paras 9 and 10 of the judgment is quoted below for ready reference:-- 9. This is a question of construction of the rules which form part of the scheme prescribing a condition for promotion. We do not have to reflect upon the rules of interpretation since they are well settled. They are now like the habits of driving which have become ingrained. They come to our assistance by instinct. We are to use the different rules meticulously to give effect to the scheme as we use the clutch, brake and accelerator for smooth driving. These rules are to be harmoniously construed. We sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he category of "Late Passing". To remove the hardship caused to them the Government wisely restored their legitimate seniority in the promotional cadre. There is, in our opinion, nothing improper or illegal in this action and indeed, it is in harmony with the object of the 1962 Rules. 6. The Apex Court has thus held out that one cannot be made to suffer for the default of the Government. The case of the appellant is squarely covered by the judgment of the Apex Court in the case of State of Maharashtra vs. Jagannath Achyut Karandikar (supra) as no departmental examination was held before 2003 and in first attempt itself the appellant has cleared the departmental examination and as such the appellant cannot be made to suffer on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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