Jharkhand High Court
Shivendu Pathak vs Road Construction on 15 September, 2017
Author: S.N. Pathak
Bench: S. N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2059 of 2014
Shivendu Pathak ... Petitioner
Versus
State of Jharkhand & Ors. ... ..... Respondents
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CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
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For Petitioner : Mr. Rajendra Krishna, Advocate
Mr. Neeta Krishna, Advocate
Mr. J.S. Tiwary, Advocate
For Respondents : Mr. D.K. Dubey, Sr. SC-I
Mr. Vishal Kr. Roy, JC to AG
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13/ 15.09.2017The petitioner has approached this Court with a prayer for a direction upon the respondents to grant him benefits of 2 nd ACP on completion of 24 years of his services i.e. from 09.12.2005 in the revised scale of Rs. 34,700-67000/- + GP 8700/- and MACP on completion of 30 years of service i.e. from 09.12.2011 in the grade pay of 8900/- in light of the Resolution dated 27.05.2013 (Annexure-21) issued by the Govt. of Bihar as the same forms part of the conditions of service of the petitioner under proviso of Section 73 of Bihar Reorganization Act, 2000 as the same benefit has been given to similarly situated persons of the earstwhile State of Bihar.
Petitioner has further prayed for a direction upon the respondents to grant him second ACP on completion of 24 years of service reckoning his service rendered on muster roll/ adhoc basis in the erstwhile Bihar from 09.12.1981 to 14.06.1982 and from 15.06.1982 to 24.07.1987 served by the petitioner under the Central Government in light of Resolution No. 2393 dated 11.09.2013, issued by the Finance Department, Government of Jharkhand whereby notional appointment is required to be counted in the period of service for granting benefits of ACP/ MACP.
It is submitted that petitioner was appointed on 10.10.1980 to the post of Junior Engineer on muster roll basis and he continued to work for eight months. A policy decision was taken to appoint graduate Civil Engineers and pursuant thereto steps were taken to appoint junior engineers in daily-wages in NREP in each block, preferably who had worked on daily-wages. After his appointment to the post of Junior Engineer on muster roll, petitioner joined his service on 09.12.1981 and continued thereafter till 14.06.1982. Later on petitioner was appointed on probation on the post of Supervisor, Civil on the Sone River Commission, Patna for two years vide letter no. 1052 - 58, dated 05.05.1982 in the scale of Rs.425 - 700. Thereafter, he was posted at Dehri-on-sone, Rohtas, Bihar by letter no. 1344 - 46, dated 21.05.1982.
On 15.06.1982, petitioner thereafter joined his services as Supervisor (Civil) at Sone River Commission, C.W.C., Ministry of Water Resources, Delhi on Sone, Rohtas (Bihar) and worked there from 15.06.1982 to 09.10.1985. After completing probation period, he was appointed as Assistant Engineer (Adhoc) and was posted as Supervisor (Civil) by the Under Secretary, Central Water Commission, Government of India, New Delhi. On 03.10.1985, he was transferred to New Delhi, Narmada Sagar Design Cell, Central Water Commission, New Delhi. Vide letter dated 21.11.1996, he was transferred to Ganga Flood Control; Commission, Patna. Thereafter, vide letter dated 14.08.1986, the Under Secretary, Central Water Commission, Government of India, New Delhi regularised services of the petitioner with effect from 10.06.1986 in the pay scale of Rs.650 - 1,200.
Pursuant to the advertisement no. 93/1985, petitioner applied through proper channel for the post of Assistant Engineer, Government of Bihar and was declared successful. After acceptance of his resignation, petitioner joined his service on 25.07.1987 as Assistant Engineer in Road Construction Department, Bihar (Patna). After cadre division, he has been allocated State of Jharkhand and he served there till his date of retirement i.e. 28.02.2014.
Learned counsel for the petitioner submits that petitioner is entitled for the benefits of ACP on completion of 12/24 years of his services and also benefits of MACP on completion of 30 years of regular services. Learned counsel for the petitioner further submits that any benefits has to be considered in accordance with law and as such a direction may be given to the respondents to consider case of the petitioner regarding benefits of ACP and MACP. Learned counsel further submits that the resignation of the petitioner was accepted vide office order dated 06.08.2017 from the post of Extra Assistant Director/ Assistant Engineer, Central Water Commission with effect from the date he handed over the charge of his duties in the Ganga Flood Control Commission, Patna to enable him to join the post of Assistant Engineer in Road Construction Department, Government of Bihar. Learned counsel further submits that the letter dated 21.08.1987 will show that pursuant to the said office order, petitioner has relinquished charge of the office of Extra Assistant Director/ Assistant Engineer on resignation. Learned counsel further submits that the office order dated 22.09.1987 would show that petitioner has relinquished charge of the post of Extra Assistant Director, Ganga Flood Central Commission, Patna on afternoon of 24.07.1987. Learned counsel further submits that the office memo dated 04.10.2012, issued by the Ministry of Personnel, Public Grievances and Pension will show that the Department's order dated 01.11.2010 provides that in case of transfer including unilatral transfer on request, regular service rendered in previous organisation/ office shall be counter alongwith regular service in the new organisation/ office for the purpose of getting financial upgradation under the MACPs. Learned counsel further draws attention towards resolution passed by the Finance Department, Government of Bihar, Patna dated 27.05.2013 which says "Niyamit Niyukti Ke Purb Tadarth Roop Se Ki Gayi Seva Ki Ganna Karte Hue Inhen Witya Unnayan Anumauya Hoga"
Learned counsel further submits that in view of resolution of the Government, the period of working of the employees of the State of Bihar working on adhoc/contractual basis, shall be counted for granting benefits of financial upgradation under the scheme of MACP 2010. Learned counsel further points out that the similarly situated employees are already getting such benefits in the State of Bihar whereas petitioner and others are being deprived for the same. Learned counsel submits that petitioner is originally an employee of State of Bihar and as such, is entitled for such benefits in view of Section 73 of the Bihar Reorganization Act, 2000. Petitioner has already completed more than 30 years of his service in the year 2011 and retired on 28.02.2014. Though he was entitled for promotion but the same has not been given to him. Petitioner has completed 24 years of service on 19.12.2005 and 30 years of service on 19.12.2011 and therefore, is entitled for 2nd ACP on 19.12.2005 (30 years).
Per contra, counter-affidavit has been filed by the respondents. Mr. D.K. Dubey, learned counsel appearing on behalf of the respondents draws attention of this Court towards paragraph 13 to the counter- affidavit and submits that the Department has already taken advise from Finance Department, Jharkhand in the matter of petitioner and grievance to calculate his service from 09.12.1981 to grant him 2nd ACP and 3rd MACP, and Finance Department has advised that in view of the policy decision of the State Government, the petitioner is not entitled for benefits of ACP and MACP by calculating the services from 09.12.1981 as there is no provision of calculating the service period of Central Government or other State Government for the purpose of ACP/MACP and case of the petitioner does not come under the matter of transfer mentioned in clarification of Government of India issued on 04.10.2012.
Be that as it may, having gone through rival submissions of the parties, this Court is of the considered view that no case is made out by the petitioner for calculating his service period rendered in the Central Government as well as State Government for the purpose of ACP/MACP. In view of policy decision of the State Government, the petitioner is not entitled for the benefits of ACP/MACP by calculating his services from 09.12.1981.
As a cumulative effect of the aforesaid rules, guidelines and legal propositions, this Court is not inclined to grant any relief to the petitioner. Resultantly, the writ petition devoid of any merit and such merits dismissal.
(Dr. S.N. Pathak, J.) punit/