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2012 DIGILAW 241 (PAT)

Dayanand Singh v. State of Bihar

2012-02-09

NAVIN SINHA

body2012
ORDER 1. Heard learned Counsel for the petitioner and the State. 2. The petitioner is aggrieved by the orders dated 4.8.2011 and 15.9.2011.The former holds him eligible for ACP from 10.10.2006, the date he was granted exemption from appearing in the departmental examination and not from 9.8.1999.The petitioner having superannuated on 31.8.2011 the latter directs recovery of Rs. 85,790/- from his unutilized earned leave for the pay and allowances given to him between 10.10.2006 to 30.6.2011 on account of the benefits of ACP. 3. It is submitted that the petitioner was appointed as an Accounts Clerk on 5.11.1980 and given 1st time bound promotion on 16.1.1999. He applied for exemption from passing the departmental examination on 10.10.2006. The respondents by order dated 2.7.2007 granted him 1st ACP from 9.8.1999 and second ACP from 16.1.2003. On 22.1.2008 the date of second ACP was corrected to 16.1.2005. The impugned orders dated 4.8.2011 and 15.9.2011 have been passed in violation of the principles of natural justice. 4. Counsel for the State urges that the orders require no interference. Exemption was not a matter of right. The petitioner is therefore entitled to be considered for ACP from the date that he was granted exemption, and the date on which he may have become eligible for ACP is not relevant. He has not been deprived of ACP but it has only been made prospective in its operation. 5. The Court cannot loose sight of the fact that grant of ACP is primarily an anti stagnation measure. The petitioner is stated to have been appointed as Accounts Clerk and retired from that post itself. The respondents had the power to grant relaxation from passing the departmental examination. There is no allegation against the petitioner of having practiced any fraud or misrepresentation in the impugned orders. By due application of mind the exemption was granted. Thereafter, satisfied of his eligibility for first and second ACP consequent to the exemption granted, the respondents on 2.7.2007 granted him 1st ACP from 9.8.99 and second ACP from 16.1.2003. 6. After this first stage of application of mind by the respondents they reapplied their mind to the issue of the date for grant of second ACP. They did not find any error with their earlier decision to grant him 1st ACP from 9.8.1999 satisfied of his eligibility by reason of the exemption granted by them. 6. After this first stage of application of mind by the respondents they reapplied their mind to the issue of the date for grant of second ACP. They did not find any error with their earlier decision to grant him 1st ACP from 9.8.1999 satisfied of his eligibility by reason of the exemption granted by them. The date of the second ACP was only shifted to 16.1.2005 when again respondents found no error in their own decision for grant of exemption and the consequent eligibility for ACP. 7. The monetary benefits were availed by the petitioner. He superannuated on 31.8.2011. Barely 26 days before his superannuation the respondents issued him a letter that the grant of 1st ACP by them to him with effect from 9.8.1999 on 2.7.2007 was contrary to the law. This was nearly four years later. The order does not consider in what manner their own decision dated 2.7.2007 or 22.1.2008 was erroneous. It makes no reference to them whatsoever. The Court is satisfied that the order dated 4.8.2011 suffers from gross illegality when it fails to take into consideration, discuss and overrule the earlier decision. An order which fails to take into consideration relevant issues suffers from arbitrariness and is not sustainable in law. The order dated 15.9.2011 being consequential in nature having adverse civil consequence for the petitioner after his superannuation when the master-servant relationship stood severed is therefore held automatically to be not sustainable. 8. There has to be a finality to government actions. If a litigant cannot be permitted to approach the Court in fits and starts on the same cause of action at different stages, in like manner, the respondents have a more onerous duty to act fairly, reasonably and responsibly. They have to be held accountable for not finding any error with their own decision for approximately nearly four years and waking up to the same belatedly with no justification whatsoever mentioned in their orders, depriving the petitioner of the benefits of his superannuation resources when he has no other source of income in the evening of his life. 9. The action of the respondents are therefore not sustainable in the law at all, considered from any aspect of the matter whether it be ignoring the relevant materials at the time of fresh decision making or absence of the principles of natural justice before visiting the petitioner with monetary consequences. 10. 9. The action of the respondents are therefore not sustainable in the law at all, considered from any aspect of the matter whether it be ignoring the relevant materials at the time of fresh decision making or absence of the principles of natural justice before visiting the petitioner with monetary consequences. 10. The opinion of the Court that there has been flagrant violation of natural justice as asserted by the petitioner is fortified from the absence of any recital in the impugned orders that the petitioner had been noticed, that he had filed his reply or that he failed to file his reply. The order dated 4.8.2011 suffers from gross infirmity when it holds that the claim of the petitioner for entitlement to ACP from 9.8.1999 was not correct. It was not a claim of the petitioner but it was decision of the respondents on 2.7.2007 that he was eligible. The orders dated 4.8.2011 and 15.9.2011 are set aside. Any deduction made from the unutilized earned leave salary of the petitioner are directed to be returned forthwith preferably within a maximum period of eight weeks from the date of receipt and/or presentation of a copy of this order. The writ application stands allowed.