Jharkhand High Court
T. Hussain (Aged About 64 Years) Son Of ... vs The Jharkhand State Agricultural ... on 10 January, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 749 of 2019
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T. Hussain (aged about 64 years) son of late Maniruddin, resident of village Brthil, P.O., P.S., and Dist - Aurangabad (Writ petitioner) ..... Appellant Versus
1.The Jharkhand State Agricultural Marketing Board, Itaki Road, Hehal, Ranchi-5, P.O. Hehal, P.S. - Sukhdev Nagar, Dist.-Ranchi through its Secretary.
2.The Managing Director, Jharkhand State Agricultural Marketing Board, Itaki Road, Hehal, Ranchi-5, P.O. Hehal, P.S. - Sukhdev Nagar, Dist.-Ranchi.
3.The State of Jharkhand.
(Respondents in the writ application).
..... Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. V.P. Singh, Sr. Advocate For the State : Mr. Shubham Mishra, A.C to S.C (Mines). For the JSAMB : Dr. Ashok Kumar Singh, Advocate.
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Oral Judgment Order No. 06 : Dated 10th January, 2022:
With consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.
2. The instant intra-court appeal under Clause 10 of the Letters Patent has been preferred against order/judgment dated 24.09.2019 passed by learned 2 Single Judge in W.P. (S) No. 5821 of 2018 and analogous cases, whereby and whereunder writ petitions were dismissed denying the claim for grant of benefits under 2nd Assured Career Progression (in short 'ACP') Scheme and 3rd Modified Assured Career Progression (in short 'MACP') Scheme to the petitioner w.e.f. 01.05.2005 and 01.05.2015 respectively along with consequential benefits.
3. The brief facts of the case, as per the pleading made in the writ petition, which are required to be enumerated, read as under:
The writ petitioner-appellant was appointed to the post of Accountant by the Bihar State Agricultural Marketing Board (hereinafter referred to as 'Board') and after working for more than 30 years, retired on 30.09.2016 from the post of Accountant, A.P.M.C., Jamshedpur.
During his service tenure, petitioner was granted the benefit under 1st ACP Scheme vide office order dated 09.04.2009 w.e.f. 09.08.1999 but when benefits under 2nd and 3rd ACP/MACP was not granted to him, he filed representation before the respondent-Board which did not evoke any response.
Being aggrieved, the petitioner preferred writ petition being W.P. (S) No. 5821 of 2018, invoking the 3 extraordinary jurisdiction conferred to this Court under Article 226 of the Constitution of India.
The writ petitioner submitted before the learned Single Judge that though he is entitled to get the benefit of up-gradation of pay-scale by virtue of ACP/MACP on completion of 20 and 30 years of services but the same was not granted on the ground that the Board is suffering from financial crunch. It was further submitted before the writ Court that up-gradation in pay-scale under ACP/MACP Scheme since was adopted by the respondent-Board by virtue of Office Order No. 287 dated 25.06.2014, by which decision was taken to grant the benefit of ACP/MACP scheme to the employees of the Board at par with the employees of State government, the benefit under ACP/MACP cannot be denied to the writ petitioner. Further submission was made that the writ petitioner since was retired on 30.09.2016 and adoption of scheme for grant of ACP/MACP was issued by the Board on 25.06.2014, therefore, such benefit cannot be denied to the writ petitioner.
While on the other hand, the respondent-Board took the ground that since the Board is facing financial crunch, it took a decision not to extend the benefit of up- gradation of pay-scale under ACP/MACP scheme as would be evident from Proceedings of the Meeting of the 4 Board dated 13.08.2019, annexed as Annexure B to the supplementary counter affidavit dated 03.09.2019. Further ground was taken that Office Order dated 25.06.2014 cannot be made applicable with retrospective effect so as to extend the benefit under MACP Scheme issued by the State Government vide Circular dated 01.09.2009. The respondent-Board had further taken the ground of delay and laches in filing the writ petition before the learned Single Judge.
The learned Single Judge, taking into consideration the pleadings available on record, dismissed the writ petition, which is the subject matter of present intra-court appeal.
4. Mr. Vijay Pratap Singh, learned senior counsel for the petitioner has submitted that since the writ petitioner has retired from service on 30.09.2016, which is after the date of decision of adoption of scheme for grant of ACP/MACP dated 25.06.2014, therefore, the same having been applied prospectively and the day when granting the benefit of ACP/MACP scheme to one or the other employee of the Board i.e., 25.06.2014 the writ petitioner was on roll of the Board, he is entitled for the benefit of up-gradation in pay-scale by virtue of ACP/MACP Scheme. According to learned senior counsel this aspect of the matter was not considered by learned Single Judge, 5 rather, travelled in wrong direction dismissing the writ petition on the basis of the fact that the circular dated 25.06.2014 cannot be applied with retrospective effect as also filing of writ petition after inordinate delay.
It has further been submitted that there is no question of applicability of resolution dated 25.06.2014 stating it to have retrospective application in denying the claim of the writ petitioner or up-gradation in pay-scale, rather, even if the version of the respondent-Board is accepted in applying the aforesaid circular with prospective effect then also the writ petitioner is entitled for the benefit of up-gradation in pay-scale since the writ petitioner on the day of aforesaid circular/office order was on roll of the Board and thereafter he superannuated from service.
So far as the reason of dismissal of writ petition on the ground of delay and laches is concerned, submission has been made that writ petition was filed in the year 2018 i.e., after adoption of the Scheme of the government of grant of up-gradation in pay-scale i.e., vide order dated 25.06.2014 and as such it cannot be said there is inordinate delay in filing the writ petition. Otherwise also, since it is an issue of up-gradation in pay-scale it will have 'recurring cause of action', therefore, the principle of 6 delay and laches will not be applicable in the case in hand.
5. Per contra, Dr. Ashok Kumar Singh, learned counsel appearing for the respondents-Board has submitted that since the Marketing Board is suffering from financial crunch, as such it is not possible for the Board to disburse the amount against up-gradation in pay-scale by way of ACP/MACP, therefore, decision was taken in the meeting of the Board dated 13.08.2019 to withdraw the scheme of grant of benefit of ACP/MACP to its employees. Further submission has been made taking plea of impermissibility of the retrospective application of the Board's Circular dated 25.06.2014 and also of delay and laches in filing the writ petition.
6. We have heard learned counsel for the parties and perused the documents available on record as also the findings recorded by learned Single Judge.
7. Admitted facts in the case in hand is that petitioner while serving on the post of Accountant in the establishment of Board retired on 30.09.2016 on attaining the age of superannuation.
The State of Jharkhand has come out with Modified Assured Career Progression (MACP) Scheme by virtue of circular dated 01.09.2009 replacing the earlier scheme of up-gradation in pay-scale granted by virtue of Assured 7 Career Progression (ACP). The respondents-Board has adopted the aforesaid resolution/circular in its meeting dated 21.10.2013, as would be evident from Office Order No. 287 dated 25.06.2014 issued by the Board.
For ready reference, relevant portion of Office Order dated 25.06.2014 is reproduced as under:
>kj[k.M jkT; d`f"k foi.ku i"kZn bZVdh jksM] gsgy] jk¡ph&05 dk;kZy; vkns'k la[;k 287-----@ jk¡ph] fnukad 25@6@2014 funs'kd eaMy dh cSBd fnukad 21-10-2013 ds dk;kZoyh la[;k 6 esa fy, x, fu.kZ; ds vkyksd esa >kj[k.M ljdkj foÙk foHkkx ds ladYi la[;k 2981@foÙk fnukad 01-09-2009 }kjk jkT; ljdkj ds vuq:i i"kZnh; dfeZ;ksa dks dsUnzh; osrueku ,oa vU; lqfo/kk,a iznku djus ds mn~ns'; ls d`f"k ,oa xUuk fodkl foHkkx] jkWaph ls izkIr lgefr ds vkyksd esa >kj[k.M jkT; d`f"k foi.ku i"kZn ,oa blds fu;a=.kk/khu dk;kZy;ksa esa dk;Zjr lsodksa dks jkT; ljdkj dfeZ;ksa dh Hkkafr la'kksf/kr lqfuf'pr o`fÙk mUu;u ;kstuk ykxw djus dh Lohd`fr nh tkrh gSA izcU/k funs'kd ds vkns'k g0 lfpo >kj[k.M jkT; d`f"k foi.ku i"kZn jkWaphA Admittedly, the writ petitioner on the date of such adoption was in the roll of the service of the Board as he retired from service on 30.09.2016. Therefore, the finding pertaining to retrospective applicability of the aforesaid circular, as has been referred in the impugned order, according to our considered view, will not be attracted in the case in hand, for the reason, that the Board has adopted the scheme of the government by virtue of order 8 dated 25.06.2014 and the writ petitioner retired from service w.e.f. 30.09.2016 which is after order dated 25.06.2014. Even accepting its prospective applicability then also the writ petitioner will be entitled to get the benefit of grant of the aforesaid order of adoption of ACP/MACP scheme adopted vide order dated 25.06.2014.
8. So far as one of the grounds of dismissal of writ petition, as referred in the impugned order about delay and laches is concerned, according to our considered view, it is not sustainable for the reason that the learned Single Judge considering that the writ petitioner has retired long back and has approached this Court after more than 7 to 10 years, dismissed the writ petition, but from where such finding has been recorded by learned Single Judge we fail to understand since cause of action to file writ petition arose on or after 25.06.2014, the date when the scheme of ACP/MACP was adopted and order to that effect was passed by the Board. The writ petition was filed in the year 2018, thus, the writ petition was filed after four years from the date of adoption of such scheme by the Board in the year 2014. Further, it is settled position of law that for filing writ petition there is no question of applicability of period of limitation, however, the principle of delay and laches is to be considered, but 9 it also depends upon the date of occurrence of cause of action.
Since we are delving upon the issue of up-gradation in pay-scale, it will have the bearing in pay-scale of one or the other employee on month to month basis and further it will have affect the retiral benefits, so far service condition of the writ petitioner is concerned. Therefore, according to our considered view, it will have the recurring cause of action.
Reference in this regard be made to the judgment rendered by Hon'ble Apex Court in M.R. Gupta Vs. Union of India & Ors [(1995) 5 SCC 628], in particular paragraph 5, which reads as under:
"5.Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with 10 rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1-8-1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action."
Therefore, according to our considered view, principle about delay and laches will not be applicable in the facts and circumstances of the present case.
9. So far as the submission of respondents-Board that the Board is suffering from financial crunch, and as such it took a decision not to extend the benefit of up- gradation of pay-scale under ACP/MACP scheme vide its resolution dated 13.08.2019, annexed as Annexure B to the supplementary counter affidavit dated 03.09.2019 filed in writ petition, is concerned, we are not impressed with such submission, for two reasons. First, the up- gradation in pay-scale by virtue of scheme is nothing but salary, which is being granted in favour of one or other employee in case of no regular promotion. The question would be that in such a situation once the promotion has been granted in favour of employee, the writ petition herein, can such plea be taken for denial of the salary of the petitioner on the ground of financial crunch? It 11 cannot be, since salary, by no stretch of imagination, can be denied so long as the establishment is functioning. If the salary is not being denied, then how and why the pay- scale, which is to be replaced by way of up-gradation in pay-scale, can be denied on the ground of financial crunch. Therefore, according to our considered view, since the benefit of up-gradation under the ACP/MACP Scheme is being granted in order to avoid stagnation in the pay- scale since one or the other employee is not being granted regular promotion and when the pay-scale of the promoted post cannot be denied on the ground of financial crunch, then where is the question of denial of the upgraded pay-scale on that ground. Second, the office order for extending the benefit of ACP/MACP was issued by the Board vide order dated 25.06.2014 and even accepting the submission of the Board that it was withdrawn vide office order dated 13.08.2019, during interregnum period the petitioner retired from service on 30.09.2016 that is before withdrawal of such scheme by the Board. Hence, he is entitled for the benefit of ACP/MACP as per the prevailing office order of the Board i.e. as per Office Order dated 25.06.2014.
Therefore, the contention about financial crunch, in denial of the disbursement of up-graded pay-scale, is hereby rejected.
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10. This Court, having discussed the fact in entirety, has gone across the judgment rendered by learned Single Judge and has found therefrom that the learned Single Judge has failed to appreciate the question of delay and laches and applicability of retrospective application of order dated 25.06.2014 in right prospective. The learned Single Jude has also not considered while dealing with the ground of delay and laches, that in the case in hand, the principle of recurring cause of action will apply, as discussed above.
Therefore, according to our considered view, the order passed by learned Single Judge suffers from patent illegality.
11. The learned Single Judge has further observed in impugned order that order dated 25.06.2014 nowhere mentions about its retrospective application. Even accepting that it has prospective application then also the writ petitioner is entitled to get the benefit of up- gradation in pay-scale by virtue of ACP/MACP since he has retired from service w.e.f. 30.09.2016 whereas decision of adoption of MACP Scheme was adopted by the Board vide order dated 25.06.2014. Therefore, the learned Single Judge has not considered the fact in right prospective.
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12. This Court, therefore, is of the view that the order passed by the learned Single requires interference by this Court.
13. Accordingly, the order dated 24.09.2019 passed in W.P. (S) No. 5821 of 2018 is hereby quashed and set aside.
14. In consequence thereof, the respondents-Board is directed to disburse the amount of arrears of difference of salary by virtue of applicable ACP/MACP in favour of writ petitioner, within a period of three months from the date of receipt/production of copy of this order.
15. With the aforesaid observations and directions, the instant appeals stands allowed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Alankar/ -
A.F.R