Jharkhand High Court
Mohan Rajak vs The State Of Jharkhand on 19 December, 2024
Author: S. N. Pathak
Bench: S.N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3723 of 2024
Mohan Rajak, aged about 58 years 06 months, son of Late Aman Rajak,
resident of Krishnapuri, Street No. 4, Matwari, P.O.- Korrah, P.S.- Sadar,
District- Hazaribag.
.... ..... Petitioner
Versus
1. The State of Jharkhand
2. The Principal Secretary, Rural Works Department, Govt. of
Jharkhand, Ranchi.
3. The Additional Secretary, Rural Works Department, Govt. of
Jharkhand, Ranchi.
4. The Joint Secretary, Rural Works Department, Govt. of Jharkhand,
Ranchi.
5. The Engineer-in-Chief, Rural Works Department, Govt. of
Jharkhand, Ranchi.
6. The Chief Engineer, Rural Works Department, Govt. of Jharkhand,
Ranchi.
7. The Superintending Engineer, Rural Works Department, Circle
Office, Dupugarha, Hazaribag.
8. The Executive Engineer, Rural Works Department, Work Division,
Indrapuri Chowk, Hazaribag.
... ... Respondents
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CORAM : HON'BLE DR. JUSTICE S.N. PATHAK
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For the Petitioner : Mr. Rajendra Krishna, Advocate
Mr. Jay Shankar Tiwary, Advocate
Mr. Pratyush Shounikya, Advocate
For the Respondents : Mr. Sushant Kumar, AC to AG
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8/ 19.12.2024 The petitioner has challenged the office order contained in
Memo No. 2400 dated 26.07.2023 issued by respondent no.3, by which the service of the petitioner has been confirmed with effect from 01.08.2022, instead of 01.03.1988 when the petitioner joined the service as Junior Accounts Clerk. The petitioner has also challenged the letter contained in memo no. 924 dated 22.04.2024, whereby, the benefits of 1st ACP and 2nd MACP granted to the petitioner with effect from 01.03.2000 and 1.09.2008 respectively have been taken away unilaterally. The petitioner has also prayed for grant of 3rd MACP which fell due in the year 2018 after completion of 30 years of service.
2. Briefly stated, the petitioner was appointed as Junior Accounts Clerk by memo no. 355 dated 20.02.1988 and he joined the post on 1 1.3.1988. The petitioner passed Hindi and Noting drafting examination on 3.5.1990. The petitioner appeared in Accounts examination in the year 1991 and was declared successful and the result thereof has been published vide memo no. 417 dated 24.03.1993. Thereafter, the petitioner was granted 1st ACP with effect from 1.3.2000 and 2nd MACP with effect from 1.9.2008. Since the petitioner has completed 30 years of satisfactory service, he made representation before the respondents for grant of 3 rd MACP on 23.04.2022. In turn, a letter dated 11.6.2022 has been issued to the petitioner stating therein that since he has not passed 1 st, 2nd and 3rd paper of Accounts Examination, he is not entitled for 3 rd MACP. The petitioner replied the same that he passed the departmental examination with last stage, which would be evidence from perusal of memo no. 417 dated 24.03.1993 and thereafter, he got 1st ACP and 2nd MACP. In course of communication, the Executive Engineer vide letter no. 1023 dated 10.11.2022 also wrote to the Under Secretary, Rural Works Department that since the petitioner has crossed the age of 50 years, he was exempted for appearing in 5th paper of departmental examination. However, the petitioner appeared in the 5th examination paper and declared successful vide result dated 02.12.2022. Based on the result of 5th paper, though it is not a compulsory paper, the service of the petitioner was confirmed only with effect from 1.8.2022 vide office order dated 26.7.2023 and thereafter, the benefits of 1st ACP and 2nd MACP already granted to the petitioner with effect from 1.3.2000 and 1.8.2022 were taken away. Hence, this writ petition.
3. Mr. Rajendra Krishna, learned counsel appearing for the petitioner submits that the impugned order by which the service of the petitioner was confirmed with effect from 1.8.2022 vide office order dated 26.7.2023 is illegal and arbitrary, inasmuch as, the petitioner was appointed on the post of Junior Accounts Clerk on 1.3.1988 and he passed the Hindi Noting and Drafting Examination on 3.5.1990 and Accounts examination in the year 1993. Learned counsel submits that even in the case of adhoc employees, the past services rendered by them cannot be ignored. Relying on the judgment in the case of Rashi Mani Mishra & Ors. Vs. State of Uttar Pradesh & Ors., reported in 2021 SCC OnLine SC 509, learned counsel 2 submits that even seniority is to be counted from the date of initial appointment even on adhoc basis. Learned counsel submits that since the petitioner was appointed in regular establishment and after completion of probation, he shall be deemed to have confirmed in service, if any adverse order is not communicated to him. Learned counsel submits that having found the satisfactory service, the petitioner was extended the benefit of 1 st ACP and 2nd MACP with due date and when he approached the respondent- Authority for getting 3rd MACP upon completion of 30 years of service, the question of passing of departmental examination i.e. 5 th Paper of Accounts Exam arose and only after passing of such examination, his service was confirmed at the fag end of service career, which is not tenable in the eyes of law.
4. Mr. Rajendra Krishna, learned counsel appearing for the petitioner submits that passing of departmental examination for the purpose of granting ACP/MACP benefit is not at all relevant. Learned counsel further submits that though in the present case, the petitioner passed the departmental examination in 1990, but shifting the date of grant of ACP/MACP benefits on the ground that the petitioner did not pass the departmental examination on that relevant date is absolutely illegal and arbitrary. He submits that the benefit of ACP/MACP is like granting non- functional in situ promotion. The grant of ACP/MACP is just to avoid stagnation and therefore, requirement of passing of examination which is required for grant of regular promotion is not sina qua non for grant of ACP/MACP. In view of the fact that grant of ACP is not technically a grant of promotion, but just to enhance the pay scale to the next higher grade retaining the employee on the post held by him. This is just only to accord monetary benefit without disturbing any seniority. To strengthen his arguments, learned counsel places heavy reliance upon the judgment of the Hon'ble Apex Court in the case of Amresh Kumar Singh & Ors. Vs. State of Bihar & Ors., reported in 2023 SCC OnLine SC 496. Learned counsel also refers the judgment of the Patna High Court in the case of Shambhu Baitha Vs. State of Bihar & Ors., reported in 2023 SCC OnLine Pat 4676, wherein the Patna High Court placing reliance on the judgment of Hon'ble Apex Court in the case of Amresh Kumar Singh (supra) had 3 directed the respondents to grant the benefit of ACP/MACP without being impeded by the issue of non-passing of the departmental examination in time.
5. Learned counsel further submits that similar issue fell for consideration before this Court in the case of Somnath Ojha Vs. State of Jharkhand & Ors., decided in W.P.(S) No. 5307 of 2022 wherein, it has been held that passing of any departmental examination or any training program is not a sina qua non for extending the benefit of ACP/MACP to the employees of the State Government. Learned counsel submits that the issue involved in this case is same and similar to the aforesaid cases and as such, a direction may be given to the respondents to treat the present petitioner in similar fashion, as that of the aforesaid case.
6. Learned counsel representing the respondents very fairly submits that the issue involved in this case has already been decided by this Court and as such, the present petitioner may also be extended the same benefits, as has been given to the petitioners of the aforesaid case.
7. Having heard the learned counsel for the parties and upon perusal of the records of the case, this Court is of the considered view that admittedly, the petitioner was appointed on 1.3.1988 and after passing of departmental examination of Hindi and Noting Drafting Examination in the year 1991 and thereafter Accounts Examination in the year 1993, he was granted 1st ACP and 2nd MACP benefits with due date. The respondents at the fag end of service career, have confirmed the service of the petitioner, which is per se illegal and arbitrary. An employee after completion of probation period shall be deemed to have been confirmed in service, unless any adverse entry has not been mentioned in the service excerpts. The petitioner was never communicated any adverse order in the service career and only when he raises his claim for 3rd MACP, the dispute of passing of departmental examination has been raised. The issue regarding confirmation of service of probationer fell for consideration before the Hon'ble Apex Court in the case of M. K. Agarwal v. Gurgaon Gramin Bank, reported in AIR 1988 SC 286, wherein, it has been held that "if the service of probationer should either be confirmed or discharged render the inference inescapable that if the probationer was not 4 discharged at or before the expiry of the maximum period of probation, then there would be an implied confirmation as there was no statutory indication as to what should follow in the absence of express confirmation at the end of even the maximum permissible period of probation". In the case in hand, the petitioner has rendered approximately 34 years of service as on the date of confirmation of service with effect from 1.8.2022, which is against the mandate of law, as discussed herein above.
8. Further, this Court in the case of Somnath Ojha Vs. State of Jharkhand & Ors., decided in W.P.(S) No. 5307 of 2022, relying on the judgment of the Patna High Court in the case of Amresh Kumar Singh (supra) held that passing of any departmental examination or any training program is not a sina qua non for extending the benefit of ACP/MACP to the employees of the State Government.
9. Since the petitioner has already passed Hindi Noting and Drafting Examination as well as Accounts Examination, the benefits of 1st ACP and 2nd MACP already extended to the petitioner cannot be taken away unliterary. The similar issue fell for consideration before the Hon'ble Apex Court in the case of Kusheshwar Nath Pandey Vs. State of Bihar & Ors., reported in (2013) 12 SCC 508, wherein, it has been held that the benefits given long back cannot be reviewed and altered to the disadvantage of the employees even if it has wrongly been given.
10. As a sequitur to the aforesaid rules, regulations, guidelines and judicial pronouncements, the impugned order contained in Memo No. 2400 dated 26.07.2023 and letter contained in memo no. 924 dated 22.04.2024 are hereby quashed and set aside. The respondents are directed to issue formal order of confirmation of joining in service i.e. 01.03.1988. The benefits of 1st ACP and 3rd MACP already granted to the petitioner with effect from 01.03.2000 and 1.09.2008 respectively will remain intact. The respondents are also directed to extend the benefit of 3rd MACP to the petitioner with effect from the date of completion of 30 years of service, irrespective of the fact whether he has passed the departmental examination or not. Let the entire excesses be completed within a period of eight weeks from the date of receipt / production of a copy of this order.
511. Needless to say that the arrears of salary on account of grant of 3rd MACP shall be extended to the petitioner within a period of four weeks thereafter.
12. With the aforesaid observations and directions, this writ petition stands allowed.
(Dr. S. N. Pathak, J.) R.Kr.
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