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2007 DIGILAW 371 (JHR)

Md. Idrish v. State Of Jharkhand Through Principal Secretary, Govt. Of Jharkhand

2007-04-27

M.KARPAGAVINAYAGAM, PERMOD KOHLI

body2007
JUDGMENT Permod Kohli, J. 1. This Letters Patent Appeal is directed against the order dated 25.4.2006, passed in WP (S) No. 624 of 2006, whereby writ petition filed by the petitioner- appellant for grant of 2nd time-bound promotion benefit has been dismissed. 2. It is admitted case of the parties that during the entire service tenure of the petitioner-appellant he has not received any regular promotion. Petitioner-appellant was appointed in the Agriculture Department on 29.9.1965 and retired on 31.1.2003. In the year 1981, he was allowed 1st time-bound promotion w.e.f. 1.4.1981 under the time-bound promotion scheme of the then State of Bihar as was invogue at the relevant time. Under the said time-bound promotion scheme. Government Servant who is not given even a single regular promotion was entitled to. two time-bound promotions in the next higher scale on completion of 10 years and 25 years of service respectively. Petitioner- appellant received 1st time-bound promotion on completion of 10 years of service under the time-bound promotion scheme and he was entitled to 2nd time-bound promotion on completion of 25 years of service. In the year 1996, time-bound promotion scheme was discontinued w.e.f. 1.1.1996 in view of the revision of pay scale on the basis of 5th Pay Commission. However later Government of India introduced the Assured Career Progression Scheme on the recommendation of Fitment Committee. Fitment Committee recommended similar schemes for the State Government employees. The State of Jharkhand, vide its notification dated 14.8.2002, introduced the Assured Career Progression Scheme (in short A.C.P. Scheme) for the employees of the State Government. In terms of this scheme, State Government employee is entitled to two financial upgradations in the next higher scale on completion of 12/24 years of continuous and satisfactory service provided he has not earned any regular promotion after his appointment in the Government service. The benefit of the scheme was made available w.e.f. 9.8.1999 or on completion of requisite period whichever is later and the arrears were payable only w.e.J. 15.11.2000 i.e. the date when the State of Jharkhand came into being. The benefit of the scheme was made available w.e.f. 9.8.1999 or on completion of requisite period whichever is later and the arrears were payable only w.e.J. 15.11.2000 i.e. the date when the State of Jharkhand came into being. The scheme further provides if a person has not received any of the financial upgradation on the notified date i.e. 9.8.1999, on completion of 24 years of service, he will be entitled to benefit of 2nd financial upgradation straightway and the benefit of 1st financial upgradation will be added for fixation of pay scale while granting benefit of 2nd financial upgradation. Clause-5 of the A.C.P. scheme further clarified that a person who has already received two regular promotions, will not be entitled to the benefit of A.C.P. Scheme. 3. Case of the petitioner-appellant is that after receiving 1st. time-bound promotion w.e.f. 1.4.1981, he was also entitled to 2nd time bound promotion w.e.f. 7.10.1990 which was denied to him. It is, however admitted case of the petitioner-appellant that he has been allowed the benefit of financial upgradation under the A.C.P. Scheme in the pay-scale of Rs. 6500-10500/- and Rs. 10000-15200/-. 4. Petitioner-appellant approached this Court by filing WP(S) No. 624 of 2006, seeking a direction for benefit of the 2nd lime bound promotion and fixation of his retrial benefits by adding the benefit of 2nd time bound promotion. He also claims arrears of pay on account of 2nd time-bound promotion. The State Government did not chose to file any counter affidavit, however, Accountant General filed counter-affidavit stating therein that Depuly Secretary, Agriculture and Cane Development Department, Jharkhand, Ranchi was pleased to send the sanction order of pension and gratuity vide his letter No. 740 dated 3.3.2004 and accordingly the authorities of pension, gratuity and commuted value of pension were issued vide authority no Pen-1-154-162 dated 18.4.2004. It is also mentioned that consequent upon granting of A.C.P. benefits petitioner-appellants pension and gratuity was revised vide letter No. Pen-1-2327-32 dated 27.3.2006 and also the consequential benefits viz. difference of pay and encashment of leave salary on account of unutilized (earned) leave have been issued vide letter No. GE 17-1234 dated 29.3.2006 and GE-17-1991 dated 29.3.2006 respectively in favour of the petitioner appellant. It is further stated that the authority of arrears of pay shall be issued after submission of pre audit bill. Based upon the counter affidavit, filed by the Accountant General. It is further stated that the authority of arrears of pay shall be issued after submission of pre audit bill. Based upon the counter affidavit, filed by the Accountant General. Writ Court dismissed the writ petition in view of the fact that petitioner-appellant has already received both the A.C.P. benefits. 5. Learned Counsel for the petitioner -appellant has contended before us that the petitioner-appellant is entitled to benefit of both the time bound promotions as also both financial upgradation under A.C.P. scheme. According to him, these are two distinct schemes and since he had completed the requisite period of 25 years under the time bound promotion scheme but having been paid only one time-bound promotion benefit, he is entitled to 2nd time-bound promotion benefit also not withstanding that he has received financial upgradation under A.C.P. Scheme. His further contention is that some employees have been allowed benefits both under time-bound promotion scheme and A.C.P. Scheme and on the ground of parity he is also entitled to benefits under both the Schemes. 6. Contention of the petitioner-appellant is strongly opposed by Mrs. I. Sen Choudhary, learned Counsel for State-respondents. According to her, petitioner- appellant has already received one additional benefit and thus he is not entitled to any further benefit or 2nd time-bound promotion. According to her either the petitioner-appellant is entitled to time-bound promotions or financial upgradation under A.C.P. scheme during his entire service career. 7. We have carefully perused the Assured Career Progression Scheme notified by the State Government. It clearly speaks about the financial upgradation on completion of 12 years/24 years of service during the entire service tenure of a Government Servant. The object and purpose of the time-bound promotion scheme was also the same. Since both the schemes tend to remove financial stagnation during the service career of a Government Servant and both prescribed two benefits during the entire service tenure, petitioner-appellant cannot claim benefit under both the schemes. Under both the Schemes only two benefits are available during the entire service career. It is under these circumstances when the time-bound promotion scheme was done away with w.e.f. 1.1.1996 on account of pay revision, the A.C.P. scheme was introduced by the Central/State Government. By no stretch of imagination a person can claim four benefits during the service career which is contrary to the intention and object of the Government sponsored schemes. It is under these circumstances when the time-bound promotion scheme was done away with w.e.f. 1.1.1996 on account of pay revision, the A.C.P. scheme was introduced by the Central/State Government. By no stretch of imagination a person can claim four benefits during the service career which is contrary to the intention and object of the Government sponsored schemes. Contention of the appellant that he is entitled to benefits both under the time-bound promotion scheme and A.C.P. Scheme otherwise also cannot be accepted for the simple reason that for two benefits under the time bound promotion scheme he should have put in at least 25 years of service and for benefits under the A.C.P. scheme he is required to put in 24 years of service, that means to qualify for both the benefits, he should have put at least 49 years of service. Petitioner-appellant joined the service in 1965 and retired in 2003. The entire service career spreads over only 38 years. Therefore, even on this analogy also he cannot claim benefits under both the Schemes. Plea of parity raised by the counsel for the appellant is also of no help to him unless it is established that benefit allowed to the similarly situated other employees was permissible in law. Benefit taken by other employees cannot be a ground for allowing the writ application unless the appellant is able to demonstrate before the Court that the benefit allowed to such employees was in accordance with the rules and law. Nothing has been brought to our notice. One wrong or even more cannot be adopted as a valid precedent to follow. 8. Petitioner appellant has relied upon a Division Bench judgment dated 14.2.2006, passed in LPA No. 407 of 2005, whereby this Court issued directions for consideration of the case of the appellant therein for grant of A.C.P. benefits. In that case, admittedly the appellant had been given benefit of 1st and 2nd time-bound. promotions but not the A.C.P. benefit Basing his submission on this judgment, it is contended that this Court has accepted that an employee is entitled to two time-bound promotions and two financial upgradations under the time-bound promotion scheme and also under the A.C.P. Scheme respectively. We have perused the judgment dated 14.2.2006. promotions but not the A.C.P. benefit Basing his submission on this judgment, it is contended that this Court has accepted that an employee is entitled to two time-bound promotions and two financial upgradations under the time-bound promotion scheme and also under the A.C.P. Scheme respectively. We have perused the judgment dated 14.2.2006. No doubt appellant in the said case had secured 1st and 2nd time bound promotions and this Court issued directions for consideration of his case for grant of A.C.P benefits; however, there is no specific finding by the Division Bench that an employee is entitled to four benefits i.e. both under the time-bound promotion scheme and the A.C.P Scheme. It has been brought to our notice by learned Counsel for the respondents that pursuant to direction of this Court in aforesaid L.P.A. N. 407 of 2005, the State found that appellant in the said case was not entitled to benefit under the A.C.P. scheme as he had already received two time-bound promotions under the time bound promotion scheme. Appellant filed a contempt petition being Cont (C) Case No. 332 of 2006 where a show-cause was filed. A Division Bench of this Court on consideration of the show-cause dismissed the contempt petition vide order dated 3.4.2007 passed in Cont. (C) No. 332 of 2006 and the said appellant has not been given two benefit under A.C.P scheme. 9. In the writ petition, petitioner-appellant has clearly admitted that the has been given benefit of two financial upgradations under A.C.P. Scheme and earlier he had received one time-bound promotion in the year 1981. As a matter of fact, petitioner -appellant has received one extra-benefit to which he was not entitled to. Since the petitioner-appellant retired from service, we refrain from passing any order withdrawing the extra benefit received by him. 10. In view of the above facts and circumstances, we do not find any merit in this appeal which is accordingly dismissed. M. Karpaga Vinayagam, C.J. 11. I agree.