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2012 DIGILAW 883 (JHR)

Dhananjay Kumar v. State of Jharkhand

2012-06-29

D.N.PATEL

body2012
ORDER 1. Counsel for the petitioner is challenging the order dated 25th January, 2012, which is at Annexure 7 to the memo of the petition, passed by respondents, whereby the benefit of second Assured Career Progression given to the petitioner with effect from a particular date, has been recalled by the impugned order and therefore, present writ petition has been preferred. 2. Counsel for the petitioner submitted that the petitioner was directly given benefit of second Assured Career Progression on 16th December 2004 with effect from 16th October, 2004. Thereafter, petitioner was in the service of the respondents up to 31st December, 2011 and on the said date the petitioner retired. There is neither any misrepresentation of facts on the part of the petitioner nor any fraud being played by the petitioner for getting the benefit of second Assured Career progression. The respondents, without giving any notice and without giving any opportunity to file reply, abruptly passed the impugned order, dated 25th January, 2012, which is at annexure 7 to the memo of the petition, whereby the effective date of second Assured Career Progression is changed from 16th October, 2004 to 7th July, 2008. In this connection, it is submitted by the counsel for the petitioner that had a notice been given to the petitioner, it could have been pointed out that whatever is granted to the petitioner from th October, 2004 is absolutely true and correct and in consonance with the facts and law and the new date for grant of benefit of second Assured Career Progression, i.e.7th July, 2008 is incorrect. 3. Counsel for the petitioner further submitted that the reason which has been given by the respondents for changing the effective date of second A.C.P. is that the petitioner has not cleared the departmental examination and therefore, the benefit of first Assured Career progression should have been given to the petitioner in the year 2004 and thereafter, benefit of second Assured Career Progression will be due with effect from th July, 2008. As per the counsel for the petitioner, this is an incorrect proposition and had a notice been given to the petitioner, the petitioner could have explained the correct legal position regarding exemption from appearing in the said departmental examination, which has been given to the petitioner by the respondents and therefore, impugned order is liable to be set aside as it is violative of the principles of natural justice and if the respondents give any notice, a detailed reply will be given by the petitioner. The said decision (impugned order at Annexure 7 to the memo of the petition) has been passed after the retirement of the present petitioner. The petitioner has retired on 31st December, 2011 and the impugned order has been passed later on, i.e. 25th January, 2012. 4. Except for what has been referred to hereinabove, no other argument has been canvassed by the counsel for the petitioner. 5. Counsel for the State submitted that there is no illegality committed by the respondents in passing the impugned order dated 25th January, 2012 as the petitioner became entitled to the first A.C.P. in the year 2004 and therefore, benefit of second A.C.P. was granted from 7th July, 2008. Earlier, erroneously the said benefit was given with effect from 16th October, 2004. The mistake of the government has been rectified by the impugned order upon correct facts being brought to the notice of the concerned department by the Finance Department. 6. Having heard counsel for the parties and looking to the facts and circumstances of the case, I, hereby, quash and set aside the order dated th January, 2012 ( Annexure 7 to the memo of the petition) passed by the Dy. Secretary, Department of Personnel, Administrative Reforms & Rajbhasha, Govt. of Jharkhand mainly for the following facts and reason: (I) The present petitioner was appointed as Assistant in service of the respondent State with effect from 30th April, 1979. Thereafter, petitioner served for several years and the petitioner was given the benefit of Assured Career Progression scheme. It further appears from the facts of the case that the petitioner was given the benefit of second Assured Career Progression on 16th December, 2004 with effect from 16th October, 2004. The said order is at Annexure 1 to the memo of the petition. Thereafter, petitioner worked till the date of his superannuation, i.e. 31st December, 2011. It further appears from the facts of the case that the petitioner was given the benefit of second Assured Career Progression on 16th December, 2004 with effect from 16th October, 2004. The said order is at Annexure 1 to the memo of the petition. Thereafter, petitioner worked till the date of his superannuation, i.e. 31st December, 2011. The benefit of second Assured Career Progression was given by the respondents without there being any misrepresentation or fraud on the part of the petitioner as per the counsel for the petitioner and further, there is no such allegation made by the respondents even. (II) It further appears from the facts of the case that the respondents have received letters from the Finance Department, Govt. of Jharkhand and in the light of that letter , impugned order at annexure 7 has been passed whereby the benefit of second Assured Career Progression, which was earlier given with effect from 16th October, 2004 is modified and is now being given with effect from 7th July, 2008. This order has been passed not only after retirement of the petitioner but also unilaterally, i.e. without giving any show-cause notice to the petitioner and without giving any opportunity of being heard. Thus, the impugned order has been passed is gross violation of principles of natural justice. (III) It further appears that some objection was raised by the Finance Department to the effect that the petitioner became entitled to the benefit of first Assured Career Progression in the year 2004 and thereafter, benefit of second A.C.P. can be given year 2008 because the petitioner has not cleared departmental examination at the relevant time. (IV) It has been submitted by the counsel for the petitioner that the petitioner was exempted from appearing in the departmental examination vide order dated 16th October, 2004 which is reflected in Annexure 3 to the memo of the petition. Had an opportunity been given to the petitioner before altering the date of grant of second A.C.P., petitioner could have pointed out the correct proposition of fact and law. 7. As a cumulative effect of the aforesaid facts and reasons, I, hereby quash and set aside the order dated 25th January, 2012, at Annexure 7 to the memo of the petition, as the same has been passed without giving any show-cause notice and without any opportunity of being heard. 8. 7. As a cumulative effect of the aforesaid facts and reasons, I, hereby quash and set aside the order dated 25th January, 2012, at Annexure 7 to the memo of the petition, as the same has been passed without giving any show-cause notice and without any opportunity of being heard. 8. Liberty is reserved with the respondent State to take action in accordance with law so far grant of A.C.P. benefit is concerned if the respondents so decide, but only after a show-cause notice and an opportunity of being heard to the petitioner. 9. I further direct the respondent State to make payment of the retirement benefit to the petitioner in accordance with law within a period of twelve weeks from the date of receipt of the copy of this order 10. This writ petition is disposed of in view of the aforesaid directions