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2012 DIGILAW 1043 (JHR)

Sada Shiv Jha v. State of Jharkhand

2012-07-24

ALOK SINGH

body2012
ORDER 1. Petitioner has approached this Court under Article 226 of the Constitution of India seeking the writ of Mandamus commanding the respondents to give benefits of Assured Career Progression (ACP) with effect from 09.08.1999, on completion of 24 years of service and to release all the consequential monetary benefits. 2. Brief facts of the present case, inter alia, are that petitioner was appointed as sergeant in the police department of the State of Bihar on 17.09.1974; petitioner was promoted on the post of sergeant Major with effect from 04.06.1988; after the bifurcation of the State, petitioner was allocated Jharkhand cadre; Government of Jharkhand, vide Government order dated 14.08.2002, has issued ACP scheme (Annexure 1 to the supplementary affidavit); petitioner was denied benefit of ACP on the ground that petitioner was awarded punishment of 'black mark' in the year 1998 for the incident occurred on 01.03.1996 and thereafter, again, petitioner was awarded punishment of 'black mark' in the year 2002 for the incident occurred on 20.08.2000. 3. Respondents have contended that, as per Clause 3 of the ACP scheme dated 14.08.2002, although benefit thereof shall be granted with effect from 09.08.1999, however, monetary benefit thereof shall be payable with effect from 15.11.2000 only. It has further been contended by the respondents that as per Clause 14 of the scheme, read with Rule 726 (III) of the Jharkhand Police Manual, benefit of ACP shall not be granted for three years from the date of major punishment. Petitioner was awarded punishment of 'black mark' in the year 1998 for the incident occurred on 01.03.1996, therefore, in view of Clause 14 of the ACP scheme, read with Rule 726 (III) of Jharkhand Police Manual, petitioner was not entitled for the regular promotion as well as monetary benefit under the ACP scheme for three years i.e. 1998 to 2001. Hence, benefit of ACP scheme was denied to the petitioner. 4. I have heard learned counsel for the parties and have carefully perused the record. 5. Perusal of scheme dated 14.08.2002 would reveal that benefit of ACP shall be granted only to those Government servants, who have completed 24 years of service. Benefit of ACP scheme shall be with effect from 09.08.1999. However, monetary benefit thereunder shall be granted only with effect from 15.11.2000. 5. Perusal of scheme dated 14.08.2002 would reveal that benefit of ACP shall be granted only to those Government servants, who have completed 24 years of service. Benefit of ACP scheme shall be with effect from 09.08.1999. However, monetary benefit thereunder shall be granted only with effect from 15.11.2000. As per Clause 14 of the scheme, if a Government servant is facing departmental enquiry or has been punished under the departmental enquiry, Rules for the regular promotion shall be applicable for the grant of benefits under ACP scheme. As per Rule 726 (III) of the Jharkhand Police Manual, no promotion shall be given for three years, if major punishment is awarded. 6. Undisputedly, petitioner, who was appointed in the police force on 17.01.1974, has completed 24 years of service on 09.08.1999, the cut off date provided in the scheme. Undisputedly, petitioner was awarded punishment of 'black mark' in 1998, vide Annexure A to the counter affidavit filed by Respondent No. 2 for the incident occurred on 01.03.1996. Undisputedly, 'black mark' is a major punishment. 7. Now, the question arises as to whether limitation of three years as provided in Rule 726 (III) of Jharkhand Police Manual will start from the date of award of major punishment or from the date of incident in question ? 8. Mr. Ajit Kumar, learned Addl. Advocate General, appearing for the respondents has vehemently argued that as per Rule 726 (III), a gap of three years shall be counted from the date of infliction of major punishment. In support of his contention, Mr. Ajit Kumar has referred to and relied on the decision of the single Bench judgment of this Court in the case of Sri Girish Deo Pandey Vs. The State of Jharkhand through the Director General of Police, Ranchi & Ors. reported in 2010 (2) JLJR 331 . 9. On the other hand, Dr. S.N. Pathak, learned senior Advocate appearing for the petitioner, has placed reliance on the judgment of the learned single Bench of the Patna High Court in the case of Ram Anugrah Singh Vs. State of Bihar & Ors. reported in 1992 (1) PLJR 502, has argued that period of three years, as stipulated under Rule 726 (III) of Jharkhand Police Manual, should be calculated from the dated of occurrence and not from the date on which punishment is awarded. 10. State of Bihar & Ors. reported in 1992 (1) PLJR 502, has argued that period of three years, as stipulated under Rule 726 (III) of Jharkhand Police Manual, should be calculated from the dated of occurrence and not from the date on which punishment is awarded. 10. In the matter of Ram Anugrah Singh (supra), promotion was denied on the ground that the police headquarter has issued amendment in the earlier police order No. 99 to the effect that period of three years for the purpose of Rule 726 (III) shall be counted from the date of award of the punishment and not from the date of incident. Learned single Judge of Patna High Court, in the case of Ram Anugrah Singh (supra), has quashed the amendment slip issued by the headquarter of the Bihar police saying earlier police order no. 99 has provided that the period of three years should be calculated from the date of occurrence and not from the date on which he has been awarded the punishment so that the delinquent may not suffer adversely for unnecessary delay in disposal of the departmental proceeding. Learned single Judge of the Patna High Court has further held that amendment slip issued by the Bihar police is unreasonable, arbitrary and in violation of Article 14 of the Constitution of India, in view of the judgment of the Apex Court in the case of State of Maharashtra Vs. Jagannath , AIR (1989) SC 1133, wherein Hon'ble Supreme Court has held that denial of promotion prospects to a person for the default of the Government would be unjust, unreasonable and arbitrary. If such a provision is allowed to stand, then even similarly situated person can be treated differently for no fault of theirs. 11.However, learned single Judge of this Court in the case of Sri Girish Deo Pandey (supra), has held as under : “8. Rule 726 (III) of the Police Manual, which relates to the disqualification for admission in the promotion list or retention in the promotion list, lays down that a gap of three years is necessary after the infliction of major punishment before an officer is retained or considered or reconsidered for any promotion list. It is amply clear from the aforesaid provision that the period has to be counted from the date of punishment and not from the date of alleged occurrence. It is amply clear from the aforesaid provision that the period has to be counted from the date of punishment and not from the date of alleged occurrence. Furthermore, it is well settled that a proceeding is deemed to have commenced only on the date when the charge is framed against the delinquent employee and not prior to the date of framing of charge.” 12. Perusal of the judgment of Sri Girish Deo Pandey (supra) would reveal that the judgment of the Patna High Court in the matter Ram Anugrah Singh (supra) was not cited at the bar. 13. There is no dispute that before the appointed day, police order no. 99, as referred in the matter of Ram Anugrah Singh (supra) was issued clarifying the Rule 726 (III) to the effect that period of three years shall be calculated from the date of occurrence and not from the date on which he has been awarded the punishment so that the delinquent may not suffer adversely for unnecessary delay in disposal of the departmental proceeding. This is also not disputed that subsequent amendment slip 1/86 of police order no. 99 was quashed by learned single Judge of the Patna High Court in the matter of Ram Anugrah Singh (supra). Section 2 (f) and Section 85 of Bihar reorganisation Act, 2000 are being reproduced herein as under : “Section 2 (f). “Law” includes any enactment, ordinance, regulation, order, by law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the existing State of Bihar; 85. Power to adapt laws. For the purpose of facilitating the application in relation to the State of Bihar or Jharkhand of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.” 15. Having perused Section 2(f) and Section 85 of the Act, it can be said that all the Act, Rules, Regulations, circulars, notifications, schemes having force of law on the appointed day shall have application after the appointed day in the State of Jharkhand unless repealed or amended within two years from the appointed day. 16. Since police order no. 99 was restored by the Patna High Court in the case of Ram Anugrah Singh (supra) and was in existence on the appointed day i.e. 15.11.2000, therefore, it shall be applicable in the State of Jharkhand. 17. No material is placed on record to show that police order no. 99 clarifying the starting date of limitation prescribed under Rule 726 (III) of the Jharkhand Police Manual was ever repealed or amended by the State of Jharkhand. Moreover, judgment passed by the Patna High Court before the appointed day shall have binding effect unless specifically overruled by the larger Bench of this Court or Hon'ble Apex Court, after the appointed day. Undisputedly, judgment of the Patna High Court in the case of Ram Anugrah Singh (supra) has never been overruled. Neither police order no. 99 nor judgment of the single Bench of the Patna High Court, was ever placed before the learned single Judge of this Court hearing the case of Sri Girish Deo Pandey (supra). Therefore, learned single Judge has taken contrary view to the view taken by the learned single Bench of the Patna High Court. However, fact remains that there are two conflicting views. Therefore, judicial discipline requires that matter should be placed before the Division Bench to answer the following question: “As to whether period of three years as prescribed under Rule 726 (III) of the Jharkhand Police Manual shall commence from the date of the award of punishment or shall commence from the date of the incident for which police officer was punished on the subsequent date ? 18. Let record be placed before Hon'ble the Chief Justice for appropriate orders. Ordered accordingly