Patna High Court - Orders
Azhar Hussain vs The State Of Bihar on 25 September, 2020
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7346 of 2020
Along with
Interlocutory Application No. 1 of 2020
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Azhar Hussain, Male, aged about 60 years, son of Md. Akabar Hussain,
Resident of Milki Anaith, Ara Police Station-Ara, District-Bhojpur, Ara
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Water Resource Department,
Government of Bihar, Patna
2. The Principal Secretary, Water Resource Department, Government of Bihar,
Patna
3. The Chief Engineer, Irrigation Creation, Water Resource Department, Dehri
4. The Executive Engineer, Sone Canal Division, Khagaul, Patna
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ashok Kumar, Advocate
For the Respondent/s : Mr. Anjani Kumar, AAG 4 with
For the Respondent/s : Mr. Sanjay Kumar, AC to AAG 4
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL ORDER
2 25-09-2020The matter has been heard via video conferencing due to circumstances prevailing on account of the COVID-19 pandemic.
2. Mr. Ashok Kumar, learned counsel for the petitioner and Mr. Anjani Kumar, learned AAG 4 along with Mr. Sanjay Kumar, learned AC to AAG 4, for the State, have assisted the Court.
3. The petitioner has moved the Court for the following reliefs:
"I. Issuance of writ in the nature of mandamus for a direction to the Respondent authority to pay the final Patna High Court CWJC No.7346 of 2020(2) dt.25-09-2020 2/6 pension to the Petitioner as only provisional pension is being paid to the Petitioner.
II. Issuance of writ in the nature of certiorari for quashing the order contained in Memo No. 1024 dated 18.05.2020 passed by the Chief Engineer, Irrigation Creation, Water Resource Department, Dehri whereby and where under the Respondent authority had cancelled the grant of benefits of 2nd ACP without considering that the Division Bench of this Hon'ble Court had already settled the law in the case of Ramadhar Thakur Vs The State of Bihar and others) L.P.A. No. 599/2015) that passing of departmental examination is not a condition precedence for grant of Assured Career Profession under the ACP Rules.
III. Issuance of writ in the nature of certiorari for quashing the order contained in Memo No. 1458 dated 26.05.2016 to the extent the benefits of 1st ACP had been granted to the Petitioner w.e.f. 22.02.2014 i.e. from the date passing of the departmental examination, instead of 09.09.1999 without considering that this Hon'ble Court had already settled the law that passing of departmental examination is not a condition precedence for grant of Assured Career Profession under the ACP Rules 2003.
IV. Issuance of direction to the Respondent authority to grant the benefits of 1st ACP w.e.f. 09.08.1999 and the benefits 2nd ACP w.e.f. 25.06.2010 and the Patna High Court CWJC No.7346 of 2020(2) dt.25-09-2020 3/6 benefits of 3rd MACP w.e.f. 25.06.2016 to the Petitioner along with consequential benefits like revision of pension and other retiral benefits as the Petitioner became eligible for above mentioned ACP/MACP benefits since he was appointed on 25.06.1986 in the Water Resource Department, Government of Bihar and the Respondent authority had granted the said benefits to a number of employee in the zone of Chief Engineer, Irrigation Creation, Water Resource Department, Dehri as well as in other zone of the Water Resource Department, Government of Bihar Patna without taking into account the passing of departmental accounts examination.
V. Issuance of direction to the Respondent authority to restrain from making any recovery from the Petitioner in consequence of order contained in Memo No. 1024 dated 18.05.2020 passed by the Chief Engineer, Irrigation Creation, Water Resource Department, Dehri in the light of full bench judgment of this Hon'ble Court.
VI. Issuance of further direction to the Respondent authority to grant the similar benefits to the Petitioner as granted to the similarly situated persons in the light of Bihar State Litigation Policy as well as in the light of judgment passed in the case of 2008 (4) PLJR 125 and 2011 (3) PLJR 588 & ((2006) 2 SCC 747) by the Hon'ble Courts. VII. Issuance of declaration that the Respondent Patna High Court CWJC No.7346 of 2020(2) dt.25-09-2020 4/6 authority namely Chief Engineer, Irrigation Creation, Water Resource Department, Dehri has discriminated the Petitioner as the similarly situated person namely Nnageshwar Yadav had been granted the benefits of 1st ACP and 2nd ACP/MACP on the basis of his date of initial appointment by the Chief Engineer, Irrigation Creation, Water Resource Department, Dehri vide order contained in Memo No.528 dated 05.03.2020 without taking into account the date of passing of the departmental examination but in the case of Petitioner taking different parameter and thus the said discrimination is violative of the fundamental right guaranteed under Article 14 of the Constitution of India."
4. The grievance of the petitioner is that he has been granted the benefit of 1st ACP on 22.02.2014, though it should have been with effect from 09.09.1999 and further that he has fulfilled the requirement of grant of 2nd ACP on 25.06.2010 and 3rd MACP on 25.06.2016, but even the 2nd ACP granted earlier has been cancelled.
5. Learned counsel for the petitioner submitted that he has filed Interlocutory Application No. 1 of 2020 for amendment of the writ petition seeking quashing of the order of recovery from his salary on the ground that excess payment has been made which has been communicated to the Treasury Patna High Court CWJC No.7346 of 2020(2) dt.25-09-2020 5/6 Officer concerned, without any show cause or notice to the petitioner.
6. Learned counsel for the State submitted that the petitioner is relying on a judgment of a coordinate bench of this Court in CWJC No. 18144 of 2010 (Nageshwar Prasad Yadav vs. The State of Bihar and Others) dated 21.06.2018, in which, according to him, the stand of the State that the matter with regard to grant of 1st ACP w.e.f. 09.08.1999 had been referred to the Finance Department for concurrence, a mandamus was issued to grant the same, though such claim was not sustainable in law, as has been held by the Division Bench of this Court in LPA No. 332 of 2017 dated 04.05.2018. Thus, it was submitted that the petitioner cannot ask for parity based on such judgment. However, with regard to his claim of 2nd ACP and 3rd MACP, he submitted that he is required to take instructions and then file a detailed affidavit.
7. In view thereof, as prayed for by learned counsel for the State, to file a detailed response, both with regard to the main writ petition as well as the Interlocutory Application filed by the petitioner, the matter be listed on 21st October, 2020, among the top five cases.
8. Learned counsel for the petitioner shall forward Patna High Court CWJC No.7346 of 2020(2) dt.25-09-2020 6/6 another copy of his Interlocutory Application to learned State Counsel on his e-mail latest by tomorrow.
9. Having regard to the fact that the petitioner has made a specific statement in the Interlocutory Application with regard to recovery being directed of Rs. 3,58,136/- from his retiral benefits under Letter No. 1140 dated 11.09.2020 of the respondent no. 4 to the Treasury Officer, Ara, Bhojpur without issuance of any show cause notice to him, in the interest of justice, the Court deems it appropriate to grant him interim protection.
10. Accordingly, during the pendency of the writ application, there shall be stay of Letter No. 1140 dated 11.09.2020 of the respondent no. 4 to the Treasury Officer, Ara, Bhojpur directing for recovery of Rs. 3,58,136/- from the retial benefits of the petitioner on account of him having been paid excess salary.
11. Let the name of Mr. Anjani Kumar, learned AAG 4 be printed in the cause list in the column of the respondents.
(Ahsanuddin Amanullah, J) Anjani/-
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