Jharkhand High Court
Janmjay Prasad Singh vs The State Of Jharkhand Through The ... on 5 July, 2022
Author: S. N. Pathak
Bench: S.N. Pathak
1 W.P.(S) No. 1244 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1244 of 2021
Janmjay Prasad Singh .... .... Petitioner
Versus
1. The State of Jharkhand through the Secretary -cum- Commissioner
Commercial Taxes, Ranchi.
2. The Joint Commissioner, Commercial Taxes (Administration),
Jamshedpur.
3. The Deputy Commissioner, Sale Tax, Jamshedpur.
.... ... Respondents
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CORAM : HON'BLE MR. JUSTICE DR. S.N. PATHAK
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For the Petitioner : Mr. Prem Pujari Roy, Advocate
Mrs. Jyoti Nayan, Advocate
For the Respondent-State : Mr. Divyam, AC to SC-IV
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4/ 05.07.2022 Heard the parties.
2. The petitioner has approached this Court with the prayer for direction upon the respondents to extend the benefit of 1st, 2nd and 3rd ACP/MACP, as the petitioner has rendered forty years of service.
3. The case of the petitioner lies in a narrow compass. The petitioner, after following due process, was appointed on Class-III post on 18.6.1980 against the sanctioned and vacant post. Thereafter, the petitioner discharged his duty to the full satisfaction of his Controlling Officer, wherever he was posted, till his superannuation on 31.7.2020. It is the specific case of the petitioner that after retirement, he has received the post retiral benefits, but the ACP benefits were denied to him, though he has rendered almost forty years of service, on the ground that his service has not been confirmed. Aggrieved by the same, the petitioner has been constrained to knock the door of this Court.
4. Mr. Prem Pujari Roy, learned counsel assisted by Mrs. Jyoti Nayan, learned counsel appearing for the petitioner argues that the petitioner is entitled for ACP benefits, as he is continuously working for forty years on sanctioned and vacant post. The petitioner has been extended the retiral benefits and as such, it cannot be said that his services were not confirmed. Further it has been argued that similarly situated persons, namely, Yogendra Prasad and Sudhir Kumar, who had approached this Court, have been granted the benefits of ACP, but the petitioner has been denied the same benefit. Learned counsel further submits that the issue has 2 W.P.(S) No. 1244 of 2021 already been decided by this Court, as also by the Hon'ble Supreme Court in plethora of judgments that genuineness of service cannot be questioned after the employee has retired and is receiving the pension in view of Rule 58 of the Pension Rules and as such, a direction be given to the respondents to consider his case for grant of ACP/MACP benefits.
5. Mr. Divyam, learned AC to SC-IV, opposing the contention of learned counsel for the petitioner, submits that since the service of the petitioner has not been confirmed till date, he is not entitled for grant of ACP benefits. Learned counsel drawing the attention of this Court towards several paragraphs of the counter affidavit submits that already the post retiral benefits have been paid to the petitioner and no benefits towards ACP/MACP has been extended to him, as he is not entitled for the same.
6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the view that the case of the petitioner needs consideration. It is not in dispute that the petitioner has rendered almost forty years of service. It is also not in dispute that all retiral benefits have been extended to him, which he was entitled to, in accordance with law. Only ACP/MACP benefits have not been extended to him because his service has not been confirmed. Confirming the service of an employee is bounded duty of the respondent-Department. It was the respondents, who ought to have confirmed the services of the petitioner, if he fulfilled the requirement of confirmation of service. Nothing has been brought on record that any illegality or irregularity was there in appointment of the petitioner, so as not to confirm the service of the petitioner. Law is well settled that even regular promotion cannot be denied to the employee, if his/her service is not confirmed by the employer. Here, the petitioner is not claiming regular promotion, rather, he is claiming the benefits of ACP/MACP, which accrued to him on serving the Department for a long forty years as per Assured Career Progression Scheme.
7. In catena of judgments including the judgment of a Constitution Bench of the Hon'ble Supreme Court of India, in the case of Ajit Singh Vs. State of Punjab, reported in (1999) 7 SCC 209, it has been held that if a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his 3 W.P.(S) No. 1244 of 2021 fundamental right to be considered for his promotion, which is his personal right. Again this legal position was reiterated by the Hon'ble Supreme Court in the case of Union of India & Anr. vs. Major General Manoj Luthra & Ors, in Civil Appeal No. 9390 of 2014 decided on September 29, 2015 that right to be considered for promotion is a fundamental right enshrined under Article 14 and 15 of the Constitution of India.
8. In the case at hand, not a single promotion has been given to the petitioner in the entire service career though he has rendered almost forty years, only on the ground of confirmation of service. Law is well settled that illegality of appointment cannot be questioned at the fag end of service. Similar issue fell for consideration before this Court in W.P.(S) No. 4631 of 2017 (Surendra Choudhary Vs. State of Jharkhand & Ors), wherein also, neither any regular promotion nor any benefits of ACP/MACP was given only on the ground of non-confirmation of service. After hearing the parties, this Court directed the respondents to pay the benefit of ACP/MACP as per entitlement. The aforesaid propositions of law held in W.P.(S) No. 4631 of 2017, has been upheld by the Division Bench of this Court in L.P.A. No. 171 of 2021 (State of Jharkhand & Ors. Vs. Surendra Choudhary), decided on 18.10.2021, which has also been affirmed by the Hon'ble Supreme Court in Special Leave to Appeal No. 5742 of 2022.
9. Even in the case of regularization, the Hon'ble Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors., reported in (2006) 4 SCC 1, as also in the case of State of Karnataka Vs. M.L. Kesari, reported in (2010) 9 SCC 247, has clearly held and observed that "the employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years".
10. In the instant case, it has been admitted by the respondents themselves that the petitioner has continuously worked on sanctioned and vacant post for forty years and he fulfills the requisite qualification and his appointment was not illegal and even irregular. Since the petitioner has worked for almost forty years and has been paid post retiral benefits, the 4 W.P.(S) No. 1244 of 2021 respondents are directed to consider his case for grant of ACP/MACP benefits in accordance with law and if, there is no legal impediment, other than confirmation of service. The petitioner should be considered and granted the benefits of ACP/MACP within a period of eight weeks from the date of receipt / production of a copy of this order.
11. The writ petition stands disposed of, with the aforesaid observations and directions.
(Dr. S. N. Pathak, J.) R.Kr.