Jharkhand High Court
Dr. Shailendra Kumar Sinha vs The State Of Jharkhand on 19 November, 2019
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 533 of 2018
Dr. Shailendra Kumar Sinha ............Appellant
Vrs.
1. The State of Jharkhand
2. The Principal Secretary, Animal Husbandry and Fishery
Department, Govt. of Jharkhand, Ranchi
3. Secretary, Animal Husbandry and Fishery
Department, Govt. of Bihar, Patna ......... Respondents
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellant : Mr. Saurabh Shekhar, Advocate
For the Respondents : Ms. Kanchan Kumari, A.C. to A.A.G. III
: Mr. Ramit Satender, Adv. ( for State of Bihar)
04/19.11.2019 Heard learned counsel for the appellant and the State on the prayer
for condonation of delay of 8 days in preferring the instant memo of appeal, made through I.A. No. 3500 of 2019. We have also entertained the submissions made on merits of the challenge to the impugned judgment dated 25.07.2018 passed in W.P.(S) No. 5193 of 2009 by the learned Writ Court.
2. The brief fact of the case is that the writ petitioner / appellant herein, who was a veterinary doctor in the Animal Husbandry and Fisheries Department was accused in six Fodder Scam Cases in the year 1996 and dismissed from service on 11.03.1996. However, the order of dismissal was quashed by the Patna High Court vide order dated 27.02.1998 passed in C.W.J.C. No.735 of 1998. Petitioner was thereafter placed under suspension for his involvement in fodder scam cases by order dated 12.02.1999. He was also charge sheeted in all the six cases, out of whom, he was convicted in two such cases as per the counter affidavit of the respondent State. After his conviction in the year 2007 in R.C. Case No. 43(A)/1996 and 50(A)/1996, he was dismissed from service in 2011. In the instant writ petition, his claim for A.C.P. benefits under circular dated 14.08.2002 w.e.f. 05.01.1993 with interest was negated by the learned Writ Court holding as under:
6. After bestowing my anxious consideration to the rivalized submissions and on perusal of the records, I find that the petitioner was appointed in the year 1981 and was suspended by the Government of Bihar, Animal Husbandry and Fisheries Department vide memo dated 08.02.1996 for the charge of financial irregularity in fodder scam for the first time and then he was dismissed vide memo dated 11.03.1996 of the Bihar -2- Government. Subsequently the said dismissal order was challenged in C.W.J.C No. 735 of 1998 and the order of dismissal was quashed by the Hon'ble Patna High court vide order dated 27.02.1998. In pursuance to order dated 27.02.1998 passed by the Patna High Court, the order of dismissal was cancelled by the Animal Husbandry and Fisheries Department, Bihar and again the petitioner was placed under suspension for his involvement in fodder scam vide order dated 12.02.1999. Vide report received from CBI, Ranchi vide letter dated 18.07.2003 the petitioner has been charge sheeted in Fodder Scam case No. R.C.-43 of 1996, 44 of 1996, 47 of 1996, 49 of 1996 and 50 of 1996 and thereafter the petitioner has been convicted by the learned trial court in the aforesaid cases.
7. Since the Assured Career Progression scheme came into operation in the year 2002 which was effective from 09.08.1999 and at the relevant time the petitioner has been involved in the Fodder Scam cases, in view of the chequered history and the blemished career of the petitioner and as per the terms and conditions of the scheme, the petitioner does not deserve to be considered for grant of benefit flowing from the Assured Career Progression schemes.
8. In that view of the matter, this Court is not inclined to accede to the prayer of the petitioner. Accordingly, the writ petition is dismissed being devoid of merit."
3. On merits, learned counsel for the appellant has made two fold points:
(i) That on the strength of being in service since 1981 and on completion of 12 years therefrom in 1993, petitioner was entitled to the benefits of first A.C.P. as per the terms and condition of the scheme dated 14.08.2002. Even though the scheme was made effective on notional basis on 09.08.1999 and actual benefits were to be paid from 15.11.2000 but prior to institution of fodder scam cases in 1996 against him, he was eligible in 1993 itself. Therefore, his claim should not have been refuted on the ground that he became accused in fodder scam cases in 1996;
(ii) It is submitted by him that A.C.P. scheme was the replacement of the time bound promotion scheme of 1991, under which he was granted first time bound promotion w.e.f. 15.03.1991 on completion of 10 years of service. On the replacement of the time bound promotion scheme, benefits accruable on completion of 12 years of service on 05.01.1993 should have been extended to him as on that date he was neither facing any charge sheet in a criminal case or a departmental proceeding. The impugned judgment has -3- failed to take note of these legal arguments. As such the case of the appellant deserves to be allowed.
4. Learned counsel for the respondent State has opposed both the prayer for condonation of delay and submission of learned counsel for the appellant on merits. It is submitted that petitioner was an accused in six fodder scam cases in 1996. The A.C.P. scheme has been brought into force under the 5th Pay Revision and is effective from 09.08.1999, though the actual benefits are payable from the date of formation of the State of Jharkhand i.e., 15.11.2000. The A.C.P. scheme prescribes satisfactory service and fulfillment of eligibility criteria which are mandatory for any regular promotion. Since the petitioner was an accused in fodder scam cases and thereafter also placed under suspension w.e.f. 12.02.1999 till his dismissal in 2011, petitioner was ineligible for regular promotion and likewise any financial upgradation during the consideration period. The mere fact that he had completed 12 years of service by 5.1.1993 could not avail him of the benefits of the scheme when during the subsistence of the scheme and the date of consideration, he was not eligible on these counts. Learned Single Judge has taken a correct view of the matter. The appeal is fit to be dismissed as being devoid of merits.
5. Having considered the submission of the parties and the grounds urged in the application for condonation of delay, minor delay of 8 days in preferring the appeal is condoned. On consideration of the merits of the case of the parties, as evident from the chronology of relevant facts noted above, we are of the view that contention of the appellant on both counts are fallacious. The A.C.P scheme was framed after coming into force of the 5th pay revision by the State Government from the due dates. Simply because the employee had completed 12 years of service even prior to the year 1996, do not entitle him to avail its benefit when during the period of consideration, such as that in the case of the present appellant, appellant was not only facing criminal cases under fodder scam but was suffering suspension from 12.02.1999 till he was finally dismissed in 2011 upon his conviction in two of the fodder scam cases. Though the A.C.P scheme is a financial upgradation scheme brought into effect under 5th Pay Revision after the time bound promotion scheme was abolished, but mere replacement of the -4- earlier scheme would not entitle and employee like the petitioner to enjoy the benefits there of if specific terms and conditions there of which required satisfactory service and fulfillment of eligibility criteria for regular promotion was not being satisfied.
6. As such on consideration of totality of facts and circumstances, we do not find any error in the impugned judgment. The appeal being devoid of merits is dismissed. I.A. stands disposed of.
(Aparesh Kumar Singh, J.) (Kailash Prasad Deo, J.) A.Mohanty