Jharkhand High Court
Dinesh Prasad Thakur vs The State Of Jharkhand on 16 June, 2020
Equivalent citations: AIRONLINE 2020 JHA 584
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
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IN THE HIGH COURT OF JHARKHAND, RANCHI
W.P.(S) No.149 of 2018
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Dinesh Prasad Thakur, son of late Yogendra Prasad Thakur, resident of Mithanpura behind PNT Colony, PO-Ramna, PS-Mithanpura, District-Muzaffarpur, Bihar .... Petitioner
--Vs.--
1.The State of Jharkhand, through the Principal Secretary, Water Resources Department, Nepal House, Doranda, Ranchi, PO + PS Doranda, District-Ranchi
2.The Principal Secretary, Department of Finance, Government of Jharkhand, Project Building, Dhurwa, PO + PS Dhurwa, District-Ranchi
3.The Joint Secretary, Water Resources Department, Nepal House, Doranda, Ranchi, PO+PS Doranda, District-Ranchi
4.The Deputy Secretary, Water Resource Department, Nepal House, Doranda, Ranchi, PO +PS-Doranda, District-Ranchi
5.The Chief Engineer, Minor Irrigation, Dumka, PO+PS and District-Dumka
6.The Superintendent Engineer, Minor Irrigation Circle, Dumka, PO+PS and District Dumka ..... Respondents
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PRESENT HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Arvind Kumar Choudhary, Advocate For the Respondent-State : Mrs. Chandra Prabha, S.C.-I
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Order No. 7: C.A.V on 10th June, 2020 Pronounced on 16th June, 2020 Heard Mr. Arvind Kumar Choudhary, the learned counsel appearing for the petitioner and Mrs. Chandra Prabha, the learned S.C.-I, appearing for the respondent-State.
2. This writ petition has been heard through Video Conferencing 2 in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. The petitioner has preferred this writ petition for payment of annual increment due to the petitioner with effect from 01.07.2014 to 01.07.2015 along with consequential benefits and after grant of annual increment, i.e. arrears of revised salary for the period of 01.07.2014 to 31.01.2016, arrears of pension and other admitted dues which the petitioner is legally entitled after the grant of annual increment.
4. Mr. Arvind Kumar Choudhary, the learned counsel appearing for the petitioner submitted that the petitioner was appointed as Junior Engineer and joined service on 02.02.1979. The petitioner was promoted to the post of Assistant Engineer vide order dated 30.04.2013 and joined on that post on 03.07.2013 at the age of 57 years 5 months and 2 days. He further submitted that the petitioner had passed the second half yearly vocational examination, 2013 as per the notification dated 20.11.2013. The petitioner appeared in the departmental examination of the Gazetted Officers' conducted for the year 2013 from 25.08.2014 to 02.09.2014. The result was published on 22.06.2015 in which the petitioner passed the departmental examination with regard to subject Hindi, Canal Law Part-B with Book, Canal Law Part-C with Book. Thereafter the petitioner filled up the application with regard to the departmental examination of the year 2014 and 2015 through proper channel on 20.11.2015 with regard to subject Canal Law Part-A with Book (Subject Code 2764). He further submitted that the admit card was 3 issued but the examination was postponed from time to time and in the meantime the petitioner retired on 31.01.2016. He further submitted that the departmental examination for the year 2014 and 2015 was not conducted before the retirement of the petitioner and he got only one opportunity in the examination in the year 2013 conducted from 26.08.2014 to 30.08.2014. The petitioner was not given further opportunity to appear in the examination of Canal Law Part -A with book. He submitted that the petitioner is entitled to receive the annual increment due on 01.07.2014 and 01.07.2015 after his promotion to the post of Assistant Engineer. The petitioner filed several representations as he was in service and after retirement also he has filed the representation annexing all the documents but the same has not been released in favour of the petitioner. By way of referring Annexure-4 series, Mr. Choudhary, the learned counsel for the petitioner submitted that the petitioner has requested for exemption from passing the departmental examination. Mr. Choudhary, the learned counsel by way of referring to the clauses for the departmental examination of officers and subordinates of the Public Works Department further submitted that there are certain conditions under Clause 3 to the Appendix-D. By way of referring Clause 4, he submitted that there is exception with regard to departmental examination. By way of referring Clause 4 of Part-II of Public Works Department Code, he submitted that in view of that examinations will ordinarily be held at half-year intervals in December and June. By way of referring Clause 7, he submitted that the exception is there wherein the power is with the State Government to the effect that in the exceptional cases when owing to the exigencies of the public 4 service or illness, an officer is unable to pass the professional examination within the prescribed period the State Government may grant such extension of time as they may consider necessary and if the officer passes within this further period, no penalty will be imposed. By way of referring to the Circular dated 15.05.1992, he submitted that the persons who have crossed the age of 50 years are entitled for exemption from passing the departmental examination. He further submitted that in view of the P.W.D. Code and the 1992 Circular, the case of the petitioner is fit to be allowed. He further submitted that there are no laches on the part of the petitioner as the petitioner has already passed all the examinations, except one subject. He further submitted that though the petitioner has tried by way of filling up further application for passing the said examination, but the examination was postponed from time to time and in the meantime, the petitioner retired and in that view of the matter, the case of the petitioner is fit to be allowed an appropriate relief may kindly be extended to the petitioner. The learned counsel appearing for the petitioner further submitted that the case of the petitioner is fully covered in view of the judgment of the co-ordinate Bench passed in W.P.(S) No.4386 of 2017 vide order dated 29.08.2017.
5. Per contra, Mrs. Chandra Prabha, the learned S.C.-I appearing on behalf of the respondent-State submitted that the petitioner had appeared in the departmental examination in between 25.08.2014 to 02.09.2014 conducted by the Central Examination Committee, Board of Revenue, Jharkhand, Ranchi. She further submitted that the petitioner was declared pass in Hindi, Canal Law Part-B and Canal Law Part-C only and the result published contained in Memo No.721 dated 5 23.06.2015. The petitioner has not been able to pass the examination of Canal Law Part-A which is mandatory to becoming eligible for increment of pay as per the P.W.D. Code. She further submitted that the effect of the examination is considered from the next date on which the petitioner had appeared in the examination. According to her, the date of examination falling between 25.08.2014 to 02.09.2014 which is prior to the date of his superannuation, that is, 31.01.2016, but even after getting opportunity to appear in the examination he has not cleared all the papers and therefore the contention of the petitioner is denied. She submitted that no case of interference is made out.
6. This Court has anxiously considered the submissions of the learned counsels appearing for the parties. For the sake of brevity, the Clause-4 and 7 of Part-II (Rules Dealing with The Professional Examination of Assistant Engineers and Assistant Electrical Engineers) is quoted hereinbelow:
"PART-II RULES DEALING WITH THE PROFESSIONAL EXAMINATION OF ASSISTANT ENGINEERS AND ASSISTANT ELECTRICAL ENGINEERS
4. Examinations will ordinarily be held at half- year intervals in December and June and will be conducted by a committee constituted by the Engineer-in-Chief comprised of the Chief Engineer as president and two officers of the engineering establishment as members. The President will submit the report of the Committee with his observations and recommendation to the Government, who will decide which officers are deemed to have passed the test and will publish their names in the Jharkhand Gazette.
7. In the event of an officer failing to pass the examination within the period specified in rule 1 his increment will be withheld and arrears of increments so withheld will not be granted to him on his passing the examination except in special cases where his failure to pass has been due to the circumstances beyond his own control. Failure to pass the examination within the prescribed period will not 6 however affect the amount of an officer's salary when he has subsequently passed the examination and he will then be entitled to the rate of pay corresponding to the length of his service. In exceptional cases, when, owing to the exigencies of the public service or illness, an officer is unable to pass the Professional Examination within he prescribed period the State Government may grant such extension of time as they may consider necessary, and if the officer passes within this further period, no penalty will be enforced."
7. On perusal of Clause 7 of Part -II, it transpired that the power is kept reserved with the State Government for grant of such extension of time as it may deem fit and proper. The exception is also there in Clause 7 to the effect that in special cases where his failure to pass is due to the circumstances beyond his own control. It is admitted that the petitioner has passed in all the departmental examinations except in Canal Law Part-A. He has applied for further passing but the examination was not conducted and in the meantime, the petitioner has retired. This aspect has not been controverted by the learned counsel appearing for the respondents. Thus, it appears that there are no laches on the part of the petitioner. The Circular dated 15.05.1992 also provides that if a person is of the age of 50 years and has not been able to pass the departmental examination, he will be entitled for exemption from passing the departmental examination, Thus, the circular is in favour of the petitioner. The petitioner has already passed in all the departmental examinations, except Canal Law Part -A and in view of the Clause 7 of Part -II of P.W.D. Code as well as the circular dated 15.05.1992 and considering that the departmental examination was not held for a long period and the petitioner retired in the meantime, no liability can be fastened on the petitioner. Once the services are confirmed and the 7 employee would be born in regular cadre, he, thus, being in regular service, satisfactory completion of the stipulated period therein would entitle him to the benefits thereof.
8. For the aforesaid discussed reasons, the writ petition [W.P.(S) No.149 of 2018] is allowed.
9. The respondents are directed to consider the claim of the petitioner with regard to the annual increment in the light of the above discussion and pass appropriate order and to calculate the benefit and to extend it to the petitioner and if the petitioner is found entitled for the arrears, the same shall be extended to him within 8 weeks from the date of receipt/production of a copy of this order.
10. The instant writ petition stands disposed of.
(Sanjay Kumar Dwivedi, J.) Jharkhand High Court, Ranchi Dated : 16th June, 2020 N AFR/ SI/