Jharkhand High Court
Joseph Horo vs Police on 9 November, 2017
Author: S.N. Pathak
Bench: S.N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3296 of 2013
.....
Joseph Horo .... Petitioner
Versus
1. The State of Jharkhand.
2. Director General of Police, Jharkhand, having its office at
Project Building, Ranchi.
3. Additional Director General of Police, Jharkhand Armed Police,
having its office at Project Building, Ranchi.
4. Inspector General of Police, Jharkhand Armed Police, having its
office at Raja Rani Kothi, Nepal House, Ranchi.
5. Deputy Inspector General of Police, Jharkhand Armed Police,
having its office at Raja Rani Kothi, Nepal House, Ranchi.
6. Commandant, Jharkhand Armed Police 10, Mahila Battalion,
Hotwar, Ranchi. .... Respondents
CORAM: HON'BLE MR. JUSTICE DR. S.N. PATHAK
For the Petitioner : Mr. Dhananjay Kumar Dubey, Advocate
For the Respondents : Mr. Anshuman Kumar, J.C to AAG
th
13 / Dated 9
November, 2017
Petitioner has approached this court with a prayer for quashing
the Range Order no. 211 of 2013, issued vide memo no. 755 dated
15.5.2013, as contained in Annexure3 to this writ application whereby benefit of Modified Assured Career Progression Scheme given to the petitioner has been withdrawn and an order has been passed to ensure recovery of the amount paid to the petitioner on account of granting the benefit of MACP with effect from 1.9.2008. Further prayer has been made to restrain the respondents from recovering the amount of benefit of MACP with effect from 1.9.2008.
2. The factual exposition as has been delineated in the writ application is that the petitioner was appointed as a constable in the year 1976 and accordingly joined on the said post on 8.11.1976. It has been further stated that since the education qualification of the petitioner was Intermediate, he was absorbed as Literate Constable in the year 1988 and from that date, his category was bifurcated from general constable and known as literate constable. In terms of seniority and performance rendered by the petitioner, he was promoted to the rank of Assistant Sub Inspector with effect from 6.6.2004. It has been further stated that after getting promotion to 2 the rank of Assistant Sub Inspector, he performed his duty with full care and caution and also to the satisfaction of all concerned authorities. In terms of the scheme floated by the Government of Jharkhand known as "Assured Career Progression Scheme" in the year 2002 by resolution dated 14.8.2002, the case of the petitioner was considered and accordingly, on completion of 12 years of regular service, benefit of first ACP has been given to the petitioner with effect from 8.11.2002 and second ACP with effect from 8.11.2006 and after granting of the same the pay was accordingly fixed. The petitioner was also considered for promotion in the rank of Sub Inspector in the year 2009, and functioning as Sub Inspector in Jharkhand Armed Police10, Hotwar. In view of the modification in the ACP scheme as a new Scheme has been floated in the name of Modified Career Progression (MACP) in which provision has been made for giving financial upgradation up to three stages on completion of 10 years, 20 years and 30 years of regular service. It is the case of the petitioner that in the month of July, 2012, a meeting of Director General of Police was held for granting the benefit of third MACP. The case of the petitioner along with others was duly considered and after considering all aspect of the matter the petitioner was found fit for granting the benefit of 3 rd MACP and accordingly, the same was granted to him in compliance of the Minutes of the said meeting an order was issued from the office of the Director General of Police vide memo no. 2228 dated 26.7.2012 and in compliance thereof, JAP Range Order No. 303/2012 was issued vide Memo no. 1090 dated 7.8.2012, whereby the benefit of third MACP has been given to the petitioner in which his name stands at Sl. No. 97 and in front of his name in remarks column it has been clearly mentioned that third MACP has been given to the petitioner and it has also been mentioned that he has been found fit for granting the benefit of MACP w.e.f 1.9.2008. It is stated that pursuant to grant of benefit of third MACP, case of the petitioner along with other persons were sent to the Home Department for confirmation of the said financial upgradation in terms of the Scheme known as 3 MACP and the Home Department in its turn vide letter no. 4536 dated 29.9.2012 has confirmed the benefit of third MACP granted to the petitioner w.e.f 1.9.2008 in the pay scale of Rs. 930034,800, Grade Pay Rs. 4600/. In pursuant to the said confirmation even the salary of the petitioner was fixed and accordingly current salary as well as arrears of about Rs. 70,000/ were given to the petitioner. It is specific case of the petitioner that all of a sudden in third weeks of May, 2013 the petitioner came to know that one Range Order no. 211 of 2013 has been issued vide memo no. 755 dated 15.5.2013 under the signature of the Deputy Inspector General of Police, Jharkhand Armed Police Respondent no. 4, whereby benefit of MACP given to the petitioner has been withdrawn and an order has been passed to ensure recovery of the amount paid to the petitioner on account of granting the benefit of MACP w.e.f 1.9.2008. After the order of recovery the petitioner immediately represented before the respondent no. 3 vide his representation dated 18.5.2013 stating inter alia that in terms of the order issued by the Inspector General, Training, Jharkhand, Ranchi vide his memo no. 79 dated 23.1.2006, the petitioner has been exonerated from the said training and the same has already been recorded in the service book of the petitioner. In the said representation it was the specific stand of the petitioner that since he has already crossed 50 years of age, the order dated 15.5.2013 may kindly be recalled/cancelled in special circumstance in terms of Jharkhand Service Code and Police Order no. 99(5). The said representation of the petitioner was duly forwarded by the office of the Respondent no. 5 vide letter no. 1252 dated 23.5.2013 till date no orders have been passed and as such the petitioner has knocked the door of this Hon'ble court.
3. Learned counsel for the petitioner, Ms. Ruchi Rampuriya strenuously urges that the order at Annexure 3 is not tenable in the eyes of law in view of the fact that already an exemption order has been granted vide order dated 15.5.2013 on the ground that the petitioner has crossed 50 years of age and which finds place in the service book. The order is also not tenable on the ground that in view 4 of the police Order no. 99(5) a person who has crossed 50 years of age is entitled for exemption from any training or passing of the departmental examinations. The said order of the department which finds place in the service book also has never been considered by the respondents and illegally and arbitrarily an order has been issued at Annexure 3. Learned counsel further argues that petitioner was not even noticed, neither any showcause was issued nor any reasons were assigned in the impugned order before passing the order of recovery. The learned counsel emphatically argues that the provisions of natural justice is targeted, the same has not been adhered to in the present order and as such order is fit to be quashed and set aside. The learned counsel further argued that even no decision has been taken on the pending representation of the petitioner.
4. Per contra, counteraffidavit has been filed. Mr. Anshuman Kumar, J.C. to AAG vehemently opposes the contention of the learned counsel for the petitioner and submits that as the petitioner has not fulfilled the requisite criteria for grant of 3 rd MACP, the same has been ordered to be recovered. The learned counsel fairly submits that an opportunity was given to the petitioner to clear the departmental exams or to undergo training, if required, for grant of 3rd MACP but the same has not been done and as such there is no illegality or any infirmity in the impugned order.
5. Be that as it may having gone through the rival submissions of the parties this court is of the considered view that case of the petitioner needs consideration. The respondents while passing the impugned order have not at all considered that petitioner has already been exempted from passing the departmental examination/training in the year 2006 itself i.e vide order dated 23.01.2006 which finds place in the service excerpt of the petitioner. It is also settled principle of law that any order visiting civil consequences cannot be passed without affording any opportunity of hearing or without adhering to the principles of natural justice the same is lacking in the instant case, even the order of recovery was stayed by the order of this court dated 12.6.2013. Now that the petitioner has retired, even if, the 5 petitioner was in service, in view of the decision of the Apex Court in case of State of Punjab & Ors. Vs. Rafiq Masih (white washer) 2015 (4) SCC 334, no recovery could have been made from the petitioner, who is at the fag end of the service. Even no order has been passed on the representation of the petitioner.
6. As a cumulative effect of the aforesaid rules/guidelines/judicial pronouncements, I hereby quash and set aside the order at Annexure 3, since the petitioner has already superannuated after 40 years of regular service, a direction is given to the respondents, not to give effect to Annexure3 dated 15.5.2013 issued by the Deputy Inspector General of Police, Jharkhand Armed Police, Ranchi. The respondents are also directed to fix the pension of the petitioner accordingly.
7. Resultantly, the writ petition stands allowed.
(Dr. S.N. Pathak, J.) Pallavi/