Jharkhand High Court
Arbind Mishra vs Water Resources Department on 6 December, 2017
Author: S.N. Pathak
Bench: S. N. Pathak
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1601 of 2014
Arbind Mishra, son of Late Ishwar Mishra ... ... Petitioner
VERSUS
1. The State of Jharkhand through its Secretary, Water Resources Department,
Government of Jharkhand, Ranchi;
2. The Engineer-in-Chief, Water Resources Department, Deoghar
3. The Superintending Engineer, Irrigation Circle, Dumka.
4. The Accountant General, Jharkhand, Ranchi
... ... Respondents
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
For Petitioner : Mr. Dilip Kumar Prasad, Advocate
Mr. Umesh Pathak, Advocate.
Mr. Ajay Kumar Pathak, Advocate.
For the State: Mr. Sarvendra Kumar, JC to SC (L & C)
For Respondent No. 4: Ms. Richa Sanchita, SC-III
C.A.V. On 08/08/2017 Pronounced on 06/01/2017
Dr. S.N.Pathak, J. Heard learned counsel for the parties.
2. Petitioner has approached this Court with a prayer for quashing the
office order bearing no. 148, dated 30.09.2013, communicated under Memo
No. 2148, dated 30.09.2013 of the Chief Engineer, Water Resources
Department, Deoghar whereby his claim for benefits under Time Bound
Promotion/ ACP/ MACP Scheme has been rejected on the ground that he has
not passed Departmental Accounts Examination and he has not been
exempted from the same. Petitioner has further prayed for a direction upon
the respondents to grant him benefits of Time Bound Promotion/ ACP/
MACP Scheme, as was given to his counter parts.
3. The factual exposition as has been delineated in the instant writ
petition is that petitioner joined the post of Work Sarkar (ClassIII post) on
24.11.1973in the office of Executive Engineer, Mahgawan Irrigation Division, Bhagalpur in pursuance to the order no. 2953, dated 24.11.1973 of the Superintending Engineer, Irrigation Circle, Bhagalpur. The services of the petitioner was absorbed under the regular establishment as Correspondence Clerk in the pay scale of Rs.284 - 372 vide order no. 139, dated 24.09.1981 of the Chief Engineer, Deoghar. Upon his absorption with effect from 01.03.1981, petitioner joined the post of Correspondence Clerk on 10.01.1983 at Irrigation Circle No. II, Jamui. He was thereafter transferred to the office of Superintending Engineer, Western Koshi Canal Circle in Nirmali RC 2 Darbhanga. Thereafter, upon his transfer to Irrigation Circle, Dumka on 16.08.2000, petitioner joined there on 20.08.2000. Upon attaining the age of 60, petitioner superannuated from service as Correspondence Clerk on 31.07.2013.
4. It is case of the petitioner that he was declared pass in Hindi Noting and Drafting Examination on 10.08.1986 duly conducted by the Rajbhasha Vibhag, Bihar. The services rendered by the employees under work charge establishment has to be taken into account for the purposes of benefits under Time Bound Promotion/ ACP/ MACP Scheme consequent upon their absorption under the regular establishment. Under the policy of the State, though petitioner is entitled for two Time Bound Promotion i.e. 1st Time Bound Promotion on completion of 10 years of service with effect from 01.04.1981 and 2nd Time Bound Promotion on completion of 25 years of service, but he has been denied the 2nd Time Bound Promotion though said benefits has already been extended to his counterparts.
5. After bifurcation of the State, petitioner was allocated State of Jharkhand. Pursuant to Resolution bearing No. 3/M6 (Promotion) 02/2002
- 5207 (F), Dated 24.08.2002, a Scheme under the Assured Career Progression Scheme was introduced by the Finance Department, Government of Jharkhand which came into force with effect from 09.08.1999. According to the said Scheme, every employee of the State Government was to be extended benefits of 1st ACP on completion of 12 years of service and 2nd ACP on completion of 24 years of service and monetary benefits has been ordered to be given with effect from 15.11.2000 but the petitioner has not yet been given benefits of financial upgradation either under the Time Bound Promotion Scheme or benefits under the ACP Scheme though the same has been extended to his counterparts. Though petitioner made various representations, but the respondents did not pay any heed to the same.
It is further case of the petitioner that upon recommendation of 6th Pay Revision, Modified Assured Career Progression Scheme came into force with effect from 01.01.2006 which provides that every employee of the State Government is entitled to get benefits of financial upgradation under the said Scheme on completion of every 10 years of service i.e. 1st on completion of 10 years of service, 2nd on completion of 20 years of service and 3rd on completion of 30 years of service, but petitioner has been deprived of the same though the same has been extended to his counterparts.
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6. Being aggrieved by the aforesaid, petitioner preferred writ petition in W.P.(S) No. 331 of 2013 which was disposed of on 18.07.2013 with liberty to file representation. Petitioner however superannuated from the service on 31.07.2013 but he has been denied the benefits of MACP and as such, in view of order passed in W.P.(S) No. 331 of 2013, he filed representations before the respondents for grant of benefits under Time Bound Promotion/ ACP/ MACP as was given to his counterparts and similarly situated persons. However, claim of the petitioner for grant of benefits under Time Bound Promotion/ ACP/ MACP has been rejected vide office order no. 148, dated 30.09.2013, issued under Memo No. 2148, dated 30.09.2013 of the Chief Engineer, Water Resources Department, Deoghar on the ground that petitioner has not passed Departmental Accounts Examination and he has not been granted exemption from passing Departmental Accounts Examination.
7. Mr. Dilip Kumar Prasad assisted by Mr. Umesh Pathak and Ajay Kumar Pathak, learned counsel for the petitioner strenuously urges that action of the respondents is not tenable in the eyes of law. The respondents authorities, without adhering to principles of natural justice, have passed the impugned order. Learned counsel submitted that petitioner has been denied the benefits on the alleged ground that he has not passed Departmental Accounts Examination and he has not been granted exemption from passing Departmental Accounts Examination on the contrary his counterparts and similarly situated persons Shyam Govind Sah, Krishna Mohan Prasad Singh and Lal Deo Mishra have been extended benefits of Time Bound Promotion and ACP which has subsequently been approved by the competent authority i.e. Divisional Commissioner, Santhal Pargana Division, Dumka. Learned counsel further submitted that pursuant to Resolution of the Finance Department, Government of Jharkhand dated 05.02.2007, services rendered by an employee under work charge establishment has to be taken into account for the purpose of grant of benefits of ACP. Learned counsel further submitted that petitioner has 39 years of long and unblemished service record even then he has not been granted benefits of any financial upgradation on account of Time Bound Promotion/ ACP/ MACP Scheme despite the order passed by this Court. The benefits under the Time Bound Promotion Scheme/ ACP is not a promotion but financial upgradation and, therefore, passing of Departmental Accounts Examination is not required for RC 4 the purpose of extending benefits under the said Scheme. The only requirement is completion of requisite period of service i.e. 10 and 25 years for 1st and 2nd Time Bound Promotion respectively. Learned counsel has further placed reliance in the order dated 14.02.2006 passed in L.P.A. No. 407 of 2005 as the petitioner has not been given any promotion during his unblemished service period of 39 long years. Learned counsel further submitted that on completion of 50 years of age an employee of the State Government is exempted from passing Departmental Accounts Examination and as such, the plea of the Staterespondents that petitioner has not passed the Accounts Examination is not tenable and impugned order rejecting claim of the petitioner is fit to be quashed. To buttress his arguments, learned counsel has placed reliance on the order of this Court in the cases of (I) Abdul Qayum Ansari Vs. The State of Bihar & Ors., reported in 1998(3) PLJR 902;
(II) Ramjee Prasad Singh Vs. State & Ors. Reported in 1999(3) PLJR 648. (III) Lala Devendra Prasad Vs. The State of Bihar & Ors. Reported in 2000(1) PLJR 228;
(IV) Kedar Nath Prasad Vs. State of Jharkhand through the Principal Secretary & Ors. Reported in 2006(3) JLJR 284;
(V) Bhola Nath Pattanayak Vs. The State of Jharkhand & Ors. Reported in 2004(1) JLJR 306.
Learned counsel further argued that in view of ratio laid down in the aforesaid Judgment, passing of the Accounts Examination was not the requirement for the benefits of Time Bound Promotion and as such, impugned order denying benefits to the petitioner is not justified and hence fit to be quashed and set aside. Learned counsel however submitted that though petitioner has been paid retiral benefits inclusive of travelling allowances but the respondents have not granted him benefits under ACP/ MACP though the same has been extended to his counterparts and others.
8. Per contra counter affidavit has been filed.
Mr. Sarvendra Kumar, JC to learned SC (L & C) vehemently opposed contention of learned Counsel for the petitioner and further argued that in view of the fact that petitioner has not passed departmental examination, he is not entitled for the benefits of ACP/ MACP.
9. Ms. Richa Sanchita, learned counsel appearing on behalf of the Accountant General submitted that the till date office of the Accountant General (A & E), Jharkhand, Ranchi has not received Service Book, Pension Papers, requisite sanction etc. for authorisation of claims pertaining to RC 5 revision of pensionary benefits in favour of the petitioner. As and when the same is received, proper steps shall be taken by them.
10. I have heard counsel for the parties and gone through records of the case as well as Judgments cited by the respective parties. Admittedly Time Bound Promotion policy was superseded by the subsequent Finance Department Resolution No. 660 (F/2) dated 8th of February, 1999 whereby while the recommendation of Fitment Committee was accepted, the State Government abolished the existing policy of time bound promotion and selection grade with effect from 01.01.1996 and a common replaced scale was allowed. The benefit of time bound promotion was, thus, taken away with effect from 01.01.1996, subject to introduction of subsequent scheme. Subsequently, State of Jharkhand framed a Scheme by Resolution No. 3/S6 (Pronnati) - 02/2002 - 5207 VI, Dated 14th August, 2002, issued from the Finance Department, known as ACP Scheme, which was given effect from 09.08.1999. It was ordered to grant benefit of first higher grade on completion of 12 years of service, subject to eligibility and passing of required departmental examination and fitness in regular course, if a person is not granted promotion to the higher post for want of vacancy. Similarly, it was ordered to give benefits of second higher grade on completion of 24 years of service subject to eligibility, passing of requisite departmental examination and fitness, if the employee has not been granted promotion in his service career for want of vacancy. Similar ACP Scheme has been framed by the State of Bihar under proviso to Article 309 of the Constitution of India, by Notification No. 4685F (2) dated 25.06.2003, giving effect from 9th August, 1999 and benefit of which any State Government employee can derive, who was in service prior to 15.11.2000.
11. I find that the requirement for finally passing the Accounts Examination for promotion to the selection grade was for the first time introduced on 29th April, 1985 and thus, I am of the view that any promotion which became due in the selection grade, which had been created in 1964, the Junior Selection Grade and the Senior Selection Grade created in the year 1981, cannot be denied on account of nonpassing finally in Accounts Examination till framing of the said amended Rule in the year 1985 and thus, the petitioner is also entitled for consequential fixation of his inter se seniority visavis others. The same view has been held in the Full Bench decision of the Hon'ble Patna High Court in the case of Maheshwar Prasad RC 6 Singh Vs. The State of Bihar and others and other analogous cases reported in 2000(4) PLJR 262.
12. Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that case of the petitioner needs consideration. Admittedly petitioner was appointed on 24.11.1973 and was absorbed in regular establishment on 24.09.1981. He was entitled for 1st Time Bound Promotion with effect from the year 1981 on completion of 10 years of service and 2nd Time Bound Promotion on completion of 25 years of service. Petitioner was entitled for 1st Time Bound Promotion in the year 1981 and the same was not granted illegally and arbitrarily. Had the promotion been granted in the year 1981, there would have been no occasion for passing of Departmental Accounts Examination which was not the requirement during the relevant period and if at all the Time Bound Promotion was granted for future financial upgradation, the same theory applies and as such, passing of Accounts Examination was not the requirement who had been granted financial upgradation prior to the year 1983. In the instant case, petitioner was entitled for the 1st Time Bound Promotion in the year 1981 itself which was illegally and arbitrarily neither considered nor granted. On completion of 25 years of service he also became entitled for the 2nd Time Bound Promotion and admittedly there was no provision made to pass Examination for promotion. Thereby, the respondents cannot reject claim of the petitioner for such promotion. Admittedly no regular promotion to the higher post/ rank in his service career was granted to the petitioner though he completed more than 24 years of service. The petitioner was entitled for consideration of his case for next higher grade on completion of 12th years of service on 09.08.1999 whichever is later and the second higher grade on completion of 24th years of service on 09.08.1999 whichever is later in terms with ACP Scheme issued by the State of Jharkhand as well as State of Bihar. The respondents having not considered case of the petitioner are duty bound to consider the same for grant of financial upgradation in view of Assured Career Progression on completion of 12 years and 24 years respectively and 1st Time Bound Promotion on completion of 10 years. As petitioner has already superannuated on 31.07.2013, he is entitled for benefits of ACP as also MACP on completion of 30 years of service. The respondents have admittedly neither granted 1st Time Bound Promotion on completion of 10 years nor have considered case RC 7 of the petitioner for grant of ACP and MACP benefits on completion of 12 years and 24 years of service and 30 years on account of MACP. The ground for rejection of case of the petitioner on the ground of 'Non Passing of Departmental Accounts Examination' is not tenable in the eyes of law as petitioner was fit for grant of Time Bound Promotion in the year 1981 itself and at the relevant time, there was no requirement of passing departmental examination.
13. Case of the petitioner is fully covered by the Judgment relied upon by counsel for the petitioner. As a cumulative effect of the aforesaid rules, guidelines, settled principles of law and judicial pronouncements, I, hereby quash and set aside the impugned order bearing no. 148, dated 30.09.2013, communicated under Memo No. 2148, dated 30.09.2013 of the Chief Engineer, Water Resources Department, Deoghar with a direction to consider case of the petitioner for grant of Time Bound Promotion which accrued prior to the year 1995 and other benefits including benefits of ACP and that of Modified Assured Career Progression on completion of 24 years of service and 30 years of service and pass appropriate order within a period of eight weeks from the date of receipt/ production of a copy of this order. Needless to say if petitioner is found entitled for the said benefits, the same shall be released forthwith within a period of four weeks thereafter.
The writ petition is accordingly allowed.
(Dr. S.N. Pathak, J.) High Court of Jharkhand at Ranchi Dated December 6, 2017 RC RC