Jharkhand High Court
Somnath Ojha vs The State Of Jharkhand Through The ... on 15 January, 2024
Author: S. N. Pathak
Bench: S.N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5307 of 2022
Somnath Ojha ... ... Petitioner
Versus
1. The State of Jharkhand through the Secretary / Principal Secretary,
Department of Minor Irrigation, Ranchi.
2. The Chief Engineer, Minor Irrigation Department, Ranchi Zone,
Ranchi.
3. The Superintending Engineer, Minor Irrigation Circle, Hazaribagh.
4. The Accountant General (A&E), Jharkhand, Ranchi.
... ... Respondents
WITH
W.P.(S) No. 6172 of 2022
Ranjit Bihari Prasad .... .... Petitioner
Versus
1. The State of Jharkhand.
2. The Principal Secretary, Department of Road Construction,
Government of Jharkhand, Ranchi.
3. The Chief Engineer, Department of Road Construction, Government
of Jharkhand, Ranchi.
4. The Superintending Engineer, Department of Road Construction,
Ranchi Circle, Ranchi.
5. Executive Engineer, Road Division, Government of Jharkhand,
Ranchi.
6. Accountant General, Jharkhand, Ranchi.
.... .... Respondents
------
CORAM : HON'BLE DR. JUSTICE S.N. PATHAK
------
For the Petitioner : Mr. Manoj Tandon, Advocate
Ms. Neha Bhardwaj, Advocate
Mr. Adamya Kerketta, Advocate
(in W.P.S. No. 5307 of 2022)
Mr. Pradeep Kumar, Advocate
(in W.P.S. No. 6172 of 2022)
For the Respondent-State : Mr. Prabhat Kumar, SC-II Ms. Shivani Kapoor, AC to SC-II Mr. Aman Kumar, AC to GP-I For the Resp-A.G. : Ms. Richa Sanchita, Advocate Mr. Amit Kumar Verma, Advocate
-----
CAV On : 23 .11.2023 PRONOUNCED ON : 15.01.2024 Dr. S.N. Pathak, J. Since common question of law is under challenge in both writ petitions, they are heard together and are being disposed of by this judgment.
2. Heard the learned counsel for the parties at length.
2Prayer
3. In W.P.(S) No. 5307 of 2022, the petitioner has challenged the Letter No. 386 dated 12.5.2022 (Annexure-11) passed by the Superintending Engineer, Minor Irrigation Circle, Hazaribagh, whereby the claim of the petitioner pursuant to order dated 06.01.2022 passed by this Court in W.P.(S) No. 1332 of 2013 has been rejected. The petitioner has further prayed for fixation of pension and payment of all pensionery benefits including gratuity, leave encashment and other retirement benefits as per the last pay drawn by him i.e. Rs. 23000/- which was paid to him with effect from 1.7.2011. The difference of salary on account of 6th Pay Revision Commission with effect from 1.1.2006 has also been claimed by the petitioner. The petitioner has also thrown challenge to the order contained in Memo Nos. 1650, 1651, 1652 and 1653, all dated 10.11.2012 issued by the Superintending Engineer, Minor Irrigation Circle, Hazaribagh by which the pay of the petitioner has been reduced from Rs. 23000/- to Rs. 20510/- and again it was reduced to 18410 vide memo no. 386 dated 12.5.2022.
4. In W.P.(S) No. 6172 of 2022, the petitioner has prayed for a direction upon the respondents to fix his pension on the last pay drawn i.e. in the Grade Pay of Rs. 4200/-.
The Facts of W.P.(S) No. 5307 of 2022
5. Shorn of unnecessary details, the petitioner's case is that he was appointed as Typist in the Work Charge Establishment on 19.11.1979, but he was taken into regular Establishment on 4.4.1980 on the post of Typist. The post of Typist and Corresponding Clerks were amalgamated on 1.4.1981 by the erstwhile Government of Bihar by memo no. 2470 dated 10.12.1981 issued by the Superintending Engineer, Minor Irrigation Circle, Muzaffarpur Circle. The petitioner, therefore, came in the cadre of Correspondence Clerk and he continued as such till his superannuation. The service of the petitioner was allocated to the State of Jharkhand after bifurcation of the unified State of Bihar. Thereafter by Memo No. 3015 dated 12.12.2002 issued by the Chief Engineer, Minor Irrigation, Ranchi, the petitioner was transferred to Minor Irrigation Circle, Hazaribagh and he joined there on 3.2.2003. The petitioner has further pleaded that he appeared in the Hindi Noting and Drafting Examination and qualified 3 which was also confirmed by Joint Secretary to the Government, Rajbhasha Department on 21.9.1981 in the unified State of Bihar. The 1st ACP was granted to the petitioner on completion of 12 years of service with effect from 9.8.1999 vide letter dated 26.8.2009, which is at Annexure-1 of the writ petition. On completion of 24 years and 30 years of service, the petitioner was granted 2nd ACP and 3rd MACP with effect from 19.11.2003 and 19.11.2009 respectively. The petitioner thereafter retired on 31.12.2011 from the post of Correspondence Clerk while working in the Minor Irrigation Circle, Hazaribagh. It is specific case of the petitioner that he was not extended the benefit of 6th PRC with effect from 1.1.2006 which was payable in view of Memo No. 660A dated 28.2.2009. The State of Jharkhand started taking departmental examination from 2006 and the petitioner, therefore, passed the said examination in the year 2008. It was pleaded that the petitioner had blemish free service career, as at no point of time, any departmental or judicial proceeding was ever initiated against him. When the petitioner's post retiral benefits were not being paid, he approached this Court by filing W.P.(S) No. 5082 of 2012 for payment of retiral benefits, which was disposed of on 21.9.2012 with a direction to the respondents to consider the claim and pass appropriate order and pay the dues without further delay. The petitioner brought the order of this Court to the notice of the competent authority on 9.10.2012. It is further case of the petitioner that his last pay before retirement was Rs. 23000/- with effect from 1.7.2011 itself, when the last increment was granted to him, which is reflected from office order contained in letter no. 1217 dated 26.7.2012 at Annexure-6 of the writ petition. Thereafter, the Superintending Engineer concerned passed various orders contained in Memo Nos. 1650, 1651, 1652 and 1653, all dated 10.11.2012, whereby the benefits of 1st time bound promotion was taken away and the dates of grant of ACP/MACP have been shifted and thereby his pay was reduced from Rs. 23000 to 20510. These orders were challenged by the petitioner before this Court by filing another writ petition, being W.P.(S) No. 1332 of 2013. During pendency of the said writ petition, I.A. No. 4195 of 2013 was filed by the petitioner challenging another decision contained in Letter No. 512 dated 1.6.2013, by which recovery of a sum of Rs. 3,72,907/- was sought from the petitioner. The said I.A. No. 4195 of 2013 was allowed by permitting the petitioner to 4 amend the said writ petition. Finally, the writ petition was heard and the orders impugned in the writ petition were set aside by this Court on 6.1.2022. The matter was, however, remanded back to the authority to take a fresh decision. The petitioner brought the said order to the notice of the competent authority and thereafter the impugned decision contained in Letter No.386 dated 12.5.2022 has been passed, by which again the pay of the petitioner has been reduced to Rs. 18410/- as on 1.7.2011, which is subject matter of the present writ petition.
The Facts of W.P.(S) No. 6172 of 2022
6. The petitioner was appointed on 24.6.1981 on the post of Peon in Road Construction Department. He was promoted to the post of Clerk on 7.9.1987. The benefits of 1st ACP, 2nd and 3rd MACP have been extended to the petitioner strictly as per the terms and conditions of the ACP/MACP scheme. It is stated that 3rd MACP has been extended to the petitioner in the grade pay of 4200. The petitioner retired on 28.2.2015. However, after retirement, the Executive Engineer, Road Construction Department, Road Division, Ranchi issued office order contained in Memo No. 460 dated 28.2.2015 by which the petitioner's Grade Pay has been reduced from 4200 to 2800 and recovery of excess amount has been ordered. Aggrieved thereby, the petitioner moved this Court in W.P.(S) No. 2526 of 2017. After hearing the learned counsel for the parties, this Court quashed and set aside the impugned order with direction that no recovery shall be made from the retiral benefits. When the order of the Court has not been complied with regarding non-payment of revised pay scale, the petitioner preferred Cont. Case (Civil) No. 191 of 2020. However, the said contempt case was also dropped with liberty to the petitioner to file fresh writ petition. Hence, the present writ petition is filed.
7. A counter affidavit has been filed on behalf of the respondents stating therein that since the petitioner did not pass all the papers of departmental accounts examination till 7.9.1999, which was mandatory as per resolution no. 5207 dated 14.8.2002 issued by the Finance Department, Govt. of Jharkhand, 2nd and 3rd MACP granted earlier was cancelled and upon clearing the examinations on 23.7.2011, the petitioner was extended the benefit of 1st MACP with effect from 26.8.2010 in the Grade Pay of 2800.
5Arguments advanced by learned counsel for petitioner in W.P.(S) No. 5307 of 2022.
8. Mr. Manoj Tandon, learned counsel assisted by Ms. Neha Bhardwaj, learned counsel appearing for the petitioner submits that admittedly the petitioner was appointed on the post of Typist and after amalgamation of the post of Typist with the post of Correspondence Clerk, the petitioner worked as Correspondence Clerk but he was not granted any regular promotion in the entire service career. While referring to letter No. 1650 dated 10.11.2012, learned counsel submits that the benefit of 1st time bound promotion was given to the petitioner on 19.11.1989 which cannot be taken away unilaterally merely on the ground that the petitioner passed the departmental examination on 17-18th March, 2008. He further submits that 1st ACP was granted to the petitioner on 9.8.1999 and the same has been sought to be taken away merely on ground of non-passing of the departmental examination on that date, that too after retirement of this petitioner. He further refers that 2nd ACP was granted to him from the due date with effect from 7.5.2010 and 3rd MACP was granted to him with effect from 19.11.2009, which are also sought to be taken away unilaterally merely on such ground of non-passing of examination after retirement of this petitioner, which is not permissible in the eyes of law. Learned counsel further argues that admittedly the petitioner passed the Hindi Noting and Drafting Examination in the month of March, 2008 itself and therefore, after retirement of the petitioner merely on the ground of non-passing of departmental examination, the benefit accrued to him cannot be taken away. To fortify his arguments, Mr. Tandon refers the judgment of the Hon'ble Supreme 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 benefits given long back cannot be reviewed and altered to the disadvantage of the employees even if it has wrongly been given and there is no misrepresentation on behalf of the employees. He submits that in the said case, exactly similar situation was there and the Hon'ble Apex Court held that after the petitioner passed the departmental examination, the benefit granted under ACP could not be taken away. While referring to Annexure- 7/3, learned counsel submits that though the last pay drawn by the petitioner was 23000, the same has been reduced to 20510. He further 6 refers the impugned order dated 12.5.2022, which was passed after remand by this Court and thereby his pay as on 1.7.2011 has further been reduced to 18410. It is the argument of the learned counsel for the petitioner that at earlier round of litigation in W.P.(S) No. 5082 of 2012, the pay was reduced from 23000 to 20510, but after remand, the pay of the petitioner has further been reduced to Rs. 18410 just to teach a lesson to the petitioner to move this Court by filing a writ petition. Learned counsel submits that the act of the respondent-authority is absolutely illegal, arbitrary and in colourable exercise of power.
9. The next argument of Mr. Tandon is that passing of departmental examination for the purpose of granting ACP/MACP benefit is not at all relevant. He further submits that though in the present case, the petitioner passed the departmental examination in the month of March, 2008 much before his retirement, 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 further contends that possession of qualification or passing the departmental examination for the purpose of regular promotion is not at all required for the purpose of grant of ACP/MACP benefits. 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 directed the respondents to grant the benefit of ACP/MACP without being impeded by the issue of non-passing 7 of the departmental examination in time.
10. Placing reliance upon the aforesaid judgments, learned counsel submits that the impugned orders are fit to be quashed and set aside and the pension as well as pensionery benefits of the petitioner be fixed as per the last pay drawn by the petitioner, which was Rs. 23000 prior to the date of his retirement.
Arguments advanced by learned counsel for petitioner in W.P.(S) No. 6172 of 2022.
11. Learned counsel appearing for the petitioner adopts the same argument as advanced by learned counsel for the petitioner in W.P.(S) No. 5307 of 2022 on the legal issue that qualifying in the departmental examination for the purpose of grant of ACP/MACP is not required as that of regular promotion.
Arguments advanced by learned counsel for Respondents
12. Mr. Prabhat Kumar, learned SC-II assisted by Ms. Shivani Kapoor, AC to SC-II representing the respondent-State submits that the impugned orders were passed in accordance with law. It is submitted that since the petitioner in W.P.(S) No. 5307 of 2022 passed the departmental examination only in the month of March, 2008, the benefit of 1 st time bound promotion as also the benefits of ACP/MACP could not have been extended to him with earlier date. Learned counsel submits that passing of departmental examination as per Government Circular issued by the Finance Department is the requirement for grant of time bound promotion / ACP / MACP. Justifying the impugned orders at Annexure-7 series, learned counsel submits that since the petitioner cleared the departmental examination only in the year 2008, the benefit of 1 st time bound promotion granted with effect from 19.11.1989 has been withdrawn. Thereafter the benefits of ACP/MACP already granted to the petitioner have also been shifted and the pay of the petitioner was fixed at Rs. 18410 by the impugned order dated 12.05.2022. Learned counsel submits that even if the mistake has been committed by the Department, it is always permissible under the law to rectify the same. Learned counsel places reliance upon the judgment in the case of State of Maharasthra & Anr. Vs. Madhukar Antu Patil & Anr., reported in (2022) 5 SCC 322 to contend that erroneous orders cannot be allowed to continue. He also places reliance upon the 8 judgment in the case of State of Jharkhand & Ors. Vs. Param Hans Jha, reported in (2020) 3 JBCJ 55 (HC) to fortify that correction in the pay scale is always permissible in a given case. He also relied upon the judgment in the case of Union of India & Ors. Vs. Bhanwar Lal Mundan, reported in (2013) 12 SCC 433 to submit that the employer has every power to rectify the defect in fixation of pay.
Findings of the Court.
13. Having heard the learned counsel for the parties and after going through the materials on record, this Court is of the view that before delving deep into the matter, the aim and object of ACP/MACP benefits needs to be discussed.
14. It is worthwhile to mention here that ACP and MACP schemes were was enforced on the recommendation of the 5th and 6th Central Pay Commission respectively and it provided monetary benefit to the employees on completion of 12/24 or 10/20/30 years of regular service, who were not able to get promotion. The object of ACP/MACP is to avoid stagnation where no promotional avenues are available. ACP and MACP Schemes are schemes devised with the object of ensuring that the employees who are unable to avail of adequate promotional opportunities, get some relief in the form of financial benefits. Accordingly, the schemes provide for regular financial upgradation on completion of 12/24 years and 10/20/30 years of service without promotion. They are incentive schemes for the employees who complete a particular period of service but without getting promotion for lack of promotional avenues.
15. Now, from perusal of the materials brought on record, this Court is of the view that the followings issues are to be decided in the instant writ petitions:-
(1) Whether in garb of rectification, the pay scale of an employee can be reduced after retirement?
(2) Whether passing of departmental examination is mandatory requirement for grant of ACP/MACP benefits?
(3) Whether the requisite qualification prescribed for regular promotion is also a condition must for extending the benefits of financial up-gradation?
(4) Whether the petitioners are entitled for fixation of pensionery 9 benefits as per the last pay drawn?
Re: Issue No.(1): Whether in garb of rectification, the pay scale of an employee can be reduced after retirement?
16. In W.P.(S) No. 5307 of 2023, admittedly the benefit of 1st time bound promotion was given to the petitioner with effect from 19.11.1989. This is also not in dispute that 1st ACP was granted to him with effect from 9.8.1999; 2nd ACP was also granted after completion of 24 years of service and the 3rd MACP was also granted on completion of 30 years of service with effect from 19.11.2009.
17. In W.P.(S) No. 6172 of 2022, it is also not in dispute that the petitioner was granted the benefits of 1st ACP, 2nd and 3rd MACP with effect from 7.9.1999, 2.5.2010 and 24.6.2011 respectively. strictly as per the terms and conditions of the Scheme.
18. It appears that the respondents are trying to unsettle the settled position of this petitioner. The benefits which were granted 30 years back cannot be permitted to be taken away that too after retirement of the petitioners. It is not a case of mere correction of error. Herein, the pay of the petitioner Somnath Ojha has been reduced from 23000 to 20510. Not only this, after the remand by this Court, it has further been reduced to 18410. The respondents have not explained as to how when the pay of the petitioner was reduced from 23000 to 20510, which is the subject matter of earlier round of litigation, but on remand, the same has further been reduced to 18410. The benefit of accrued right of a person during the course of employment could not have been taken away in the manner as has been done by the impugned order. It appears that merely because the petitioner approached this Court by filing a writ petion being W.P.(S) No. 5081 of 2012 and the impugned orders therein were quashed and set aside and the matter was remanded back to the authority, the authority has further reduced the pay of the petitioner to 18410. Likewise, the grade pay of petitioner Ranjit Bihari Prasad was reduced from 4200 to 2800. The impugned orders are not sustainable in the eyes of law.
19. It is also not in dispute that the impugned orders have been passed only on the ground that the petitioner passed the departmental examination in the month of March, 2008 (in case of petitioner Somnath Ojha) and in case of Ranjit Bihari Prasad, he did not clear all the papers of 10 departmental accounts examination till 7.9.1999. Hence, the aforesaid benefits under the time bound promotion / ACP / MACP could not have been granted with earlier dates. In this context, reference may be made to the case of Kusheshwar Nath Pandey (supra). While dealing with similar situation where the benefits were taken away after passing the departmental examination, the Apex Court held that cancellation of time bound promotion after retirement in that case was not permissible. In the case of Kusheshwar Nath Pandey (supra), the petitioner was granted time bound promotion on 1.9.1991, which was cancelled on 16.9.2009. The writ petition was preferred which was allowed but such order was set aside by the Division Bench of Patna High Court. Thereafter it was held by the Hon'ble Apex Court that the petitioner retired on 31.5.2009 and thereafter it was not permissible for the respondent State of Bihar to take away such right particularly in a case where the employee passed the departmental examination during his service. I find that the cases in hand are fully covered by the judgment in the case of Kusheshar Nath Pandey (supra).
20. It is evident from the facts of the present cases also that the benefits were granted to the petitioners and till they passed the departmental examination, no such action was taken by the respondents. It is only after the petitioners' retirement, the impugned orders were passed, which are absolutely illegal and arbitrary.
21. The stand of the State is that mistake committed by the Department / State can be rectified at any moment. The judgments cited by the learned counsel for the respondents are of the peculiar facts of those cases. No doubt corrections / rectifications by the employer are permissible, if there is apparent error on the face of the record. However, in the present case, it is not a case of mere correction in taking away the benefits which has accrued to the petitioners during the service tenure, though the petitioners have passed the departmental examination belatedly. Therefore, the judgments relied upon by the respondents are of no help to the respondents and the issue is decided accordingly in favour of the petitioners.
Re : Issue no. 2 (whether passing of departmental examination is mandatory requirement for grant of ACP/MACP benefits, and Re: Issue no. 3: Whether the requisite qualification prescribed for regujlar promotion is also a condition must for extending the benefits 11 of financial up-gradation?
22. These issues fell for consideration before Hon'ble Supreme Court in the case of Amresh Kumar Singh & Ors. (supra), wherein all the aspects of the matter in respect of grant of ACP/MACP and the object thereto has been considered, which is evident from bare reading of pargraphs-12 to 20 of the judgment, which are as follows:-
" 12. It may be worth noting that the ACP scheme was enforced on the recommendation of the Fifth Central Pay Commission in context with Group C and D employees and it provided monetary benefit to the employees on completion of 12 years and 24 years of regular service who were not able to get promotion. The scheme as such was anti-stagnation and envisages merely placement of the employees in the higher pay scale for the grant of financial upgradation only without grant of actual promotion. The benefit of the ACP as such is like granting non-functional in situ promotion.
13. At the cost of repetition, it must be borne in mind that the object of ACP is to avoid stagnation where no promotional avenues are available. The grant of ACP is not technically a grant of promotion but increase in the pay scale to the next higher grade retaining the employee on the post held by him. This is only to accord monetary benefit without disturbing any seniority or actually effectuating promotion to any higher post to avoid stagnation on a particular post or pay scale for a very long period.
14. The object and purpose of ACP/MACP Scheme has been reiterated by this Court in Union of India v. C.R. Madhava Murthy, (2022) 6 SCC 183, as one to relieve the frustration on account of stagnation and it does not involve actual grant of promotional post but merely monetary benefits in the form of next higher grade subject to fulfilment of qualifications and eligibility criteria.
15. In sum and substance, both ACP and MACP Schemes are schemes devised with the object of ensuring that the employees who are unable to avail of adequate promotional opportunities, get some relief in the form of financial benefits. Accordingly, the schemes provide for regular financial upgradation on completion of 12-24 years and 10-20-30 years of service without promotion. They are incentive schemes for the employees who complete a particular period of service but without getting promotion for lack of promotional avenues. The effect of the schemes must be judged keeping in view the object and the purport of the scheme.
16. In Union of India v. G. Ranjanna reported in (2008) 14 SCC 721, the three-Judges Bench of this Court held that in situ promotions are made to remove stagnation of grade C and grade D employees by giving them certain monetary benefits.
17. It was further observed that fulfilment of educational qualifications prescribed under the recruitment rules for the purposes of promotion are not necessary for non-functional in situ promotion. In other words, educational qualification required for the purposes of promotion is not necessary for the grant of in situ promotion, i.e., only 12 for extending the monetary benefit where there are no promotional avenues and the employees are likely to be stagnated.
18. In the aforesaid case, the employees were working as malis (Gardeners) and had claimed promotion in the higher pay scale. The Central Administrative Tribunal seized of the original applications observed that the employees cannot claim the scale of the next higher post by way of in situ promotion. On the matter being taken to the High Court by way of a writ petition, the contention of the employees was accepted and it was observed that the object of in situ promotion on non-functional posts, is to ensure that the group C and D employees are not stagnated in the same cadre/pay scale and that they should be provided with certain monetary benefits. Therefore, the rejection of the claim for such nonfunctional in situ promotion on the ground that the employees do not possess the necessary minimum qualification of matriculation as per the rules is not justified and renders the order erroneous in law. The view so taken by the Division Bench of the High Court was affirmed by this Court in the above referred Civil Appeals holding that the High Court has correctly analysed the object of the in situ promotion and fixation of pay scales to Group C and D employees to avoid stagnation.
19. In view of the aforesaid legal position coupled with the fact that the qualification of graduation prescribed is for the promotion to the post of Accounts Officer rather than for the grant of in situ promotion on the non-functional post or for extending the benefit of ACP which is purely and simply in the nature of grant of monetary benefit without actually effectuating any promotion to any higher post, we are of the opinion that the judgment and order of the Division Bench of the High Court impugned in the appeals cannot be sustained. It is accordingly hereby set aside and that the judgment of the writ court dated 28.11.2017 is restored. The appellants are extended the benefit of ACP, as directed by the writ court.
20. We have not considered it necessary to deal with the two cases on the basis of which the Single Judge has allowed the writ petitions and granted the benefit of the ACP to the appellants, as we have independently of those two decisions have considered and held that the appellants are entitled to financial upgradation under the ACP Scheme on completion of requisite regular service ignoring the higher qualification prescribed for the next higher post as grant of such benefit is not actually a promotion but only financial upgradation and if the higher qualification is insisted it would frustrate the purpose of the entire scheme."
23. The Hon'ble Apex Court considering the earlier judgment rendered in the case of Union of India v. C.R. Madhava Murthy, reported in (2022) 6 SCC 183, clearly held that "the purpose of the ACP Scheme/MACP Scheme is to relieve the frustration on account of stagnation and the Scheme does not involve the actual grant of promotional post to the employees, but to merely monetary benefits in the form of next higher grade subject to fulfilment of qualifications and eligibility criteria."
24. Therefore, it is now settled by the Hon'ble Supreme Court of India that the requirement of regular promotion is not necessarily required 13 to be fulfilled for the purpose of grant of ACP/MACP. In that case, the employee who did not even have the qualification of graduation which the requirement of regular promotion, but the Hon'ble Apex Court held that those requirement of regular promotion are not required to be fulfilled for the purpose of grant of ACP/MACP, as the benefit of grant of ACP is like granting of non-functional in situ promotion.
25. Further the Patna High Court in the case of Shambhu Baitha Vs. State of Bihar & Ors., reported in 2023 SCC OnLine Pat 4676 relying upon the judgment rendered by the Hon'ble Supreme Court in the case of Amresh Kumar Singh (supra) directed the respondents to grant the benefit of ACP/MACP without there being impeded by the issue of non-passing of the departmental examination in time. In the said case, specific stand of the State was that the employee became entitled to grant of benefit of 2 nd MACP from the date of passing of Accounts Examination and not from the earlier date, but the Patna High Court was of the view that the issue is no more res integra, inasmuch as in catena of decisions, the Hon'ble Apex Court has consistently held that non-passing of departmental account examination would not be an impediment for grant of promotion of the assured career progression scheme.
26. Upon perusal of the judgments rendered to above, I am of the considered view that by now the issue is no more res integra that passing in departmental examination is not necessary for grant of situ promotion like ACP/MACP.
Both the issues are answered accordingly.
Issue No. 4 : Whether the petitioners are entitled for fixation of pensionery benefits as per the last pay drawn.
27. Law is well settled that pensionery benefits are granted on the basis of last pay drawn by the employee. The last pay drawn by the petitioner Somnath Ojha in W.P.(S) No. 5307 of 2023 was 23000 and in W.P.(S) No. 6172 of 2022, the last pay drawn by petitioner Ranjit Bihari Prasad was in the grade pay of 4200, which is admitted and not in dispute. Further reduction on the ground that benefits of ACP/MACP were wrongly extended is illegal, arbitrary and based on wrong interpretation. The impugned orders since based on wrong interpretation and have been issued in abuse of the process of law, the same are fit to be quashed and set aside.
14The petitioners are entitled to financial upgradation under the ACP/MACP benefits on completion of requisite regular service ignoring the conditions prescribed for next higher post as grant of such benefit is not only the promotion but only financial upgradation and if the same is acceded to, it would frustrate the purpose of entire scheme. This issue is also decided in favour of the petitioners.
Conclusion
28. As a sequitur of the aforesaid rules, regulations, guidelines and judicial pronouncements, the impugned orders contained in memo nos. 1650, 1651, 1652 and 1653 dated 10.11.2012, as also the order contained in memo nos. 386 dated 12.5.2012 challenged in W.P.(S) No. 5307 of 2022 are quashed and set aside. The respondents are directed to fix and pay pension and all pensionery benefits to petitioner Somnath Ojha as per the last pay drawn by him i.e; Rs. 23000 and pay the consequential benefits including differences of salary on account of 6th PRC with effect from 1.1.2006. Similarly, the respondents of W.P.(S) No. 6172 of 2022 are directed to fix and pay the pensionery benefits as per last pay drawn by petitioner Ranjit Bihari Prasad i.e. in the grade pay of 4200. Let the entire exercises be completed within a period of eight weeks from the date of receipt of a copy of this order.
29. With the aforesaid observations and directions, both writ petitions stands allowed.
(Dr. S. N. Pathak, J.) R.Kr.