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2013 DIGILAW 1250 (JHR)

Parwati Devi v. State of Jharkhand

2013-11-20

APARESH KUMAR SINGH

body2013
ORDER 1. Heard counsel for the parties. 2. These two petitioners are widows of two employees who were serving the Revenue and Land Reforms Department under the office of Settlement Officer on the post of Moharrir having been appointed on 1.11.1978 and 31.10.1979 respectively. Husbands of these petitioners were granted the benefits of first and second ACP by an order dated 10th August 2007 (Annexure-4) with effect from 9th August 1999, so far as it relates to the first ACP. While the husband of the petitioner no.1 was granted the benefit of second ACP with effect from 1st November 2002, the husband of the petitioner no.2 got it with effect from 5th November 2003. Husband of the petitioner no. 1 retired on 31st May 2011 while the husband of the petitioner no. 2 died in harness on 8th June 2012. 3. These two petitioners have approached this Court being aggrieved by the common impugned order contained at Annexure-5 dated 19th October 2012 by which, the grant of ACP has been cancelled in cases of their husbands on the grounds that they had availed of one promotion during their career. This impugned order has also been passed in cases of other employees holding the post of Moharrir in Grade-III under the same department. The defence of these two petitioners is that their husbands had approached the Patna High Court way back in 1992 in CWJC No. 3167/92 (R) which was decided along with CWJC No.1145/97 (R) vide judgment dated 24th August 1999. One of the petitioner's husband had also filed a similar writ petition being CWJC No. 3853/92 (R) which was also decided along with another writ petition being CWJC No. 131/93 (R) by the common judgment dated 19th July 2000. It is submitted that both the judgments are annexed as Annexure-6 series to the supplementary affidavit filed on behalf of the petitioners. 4. A perusal of the same would indicate that the learned Single Bench in the said writ petitions held that the respondent should not disturb the petitioners from the post of Moharrir and at best, should treat the orders of promotion as recruitment/appointment to the post of Moharrir. The said writ petitions were preferred being aggrieved by cancellation of their promotion to the post of Moharrir and they were reverted to the Class-IV post. The said writ petitions were preferred being aggrieved by cancellation of their promotion to the post of Moharrir and they were reverted to the Class-IV post. It is submitted that consequent to the passing of the aforesaid judgment which attained finality, an endorsement in the service book of the husbands of the respective petitioners was also made which are annexed as Annexure-3 and are evident from pages-33 and 35 of the writ petition. Such endorsements dated 22nd July 2010 in the case of husband of the petitioner no. 1 and 25th September 2010 in the case of second petitioner also make reference to the judgments passed in CWJC No. 3853/92 (R) and CWJC No. 3167/92 (R) as also other analogous cases being CWJC No. 131/92 (R). In such circumstances, it is submitted that after the death of the husbands of the present petitioners, as aforesaid, the impugned order so far as it concerns the present petitioners, is wholly bad in law and has been passed without any opportunity or show-cause notice. It is also submitted that the very ground for cancellation of grant of first ACP, as indicated in the impugned order, is also not made out in view of the aforesaid fact. 5. Counsel for the respondent State however opposes the prayer made on behalf of the petitioners. Counsel for the respondents once again submits by relying upon the impugned order that the same has been passed in respect of number of persons who were holding the post of Moharrir in Revenue and Land Reforms Department under the office of Settlement Officer and who had availed the benefit of first ACP even though, they were granted one promotion in their service career earlier. Learned counsel for the respondent State however is not able to dispute the aforesaid settled position of law determined in view of the judgments rendered in the case of husbands of the petitioners referred to hereinabove dated 24th August 1999 and 19th July 2000. It is also not in dispute that the impugned orders affecting the present petitioners, have been passed after death of their respective husbands and without any opportunity or show-cause or notice. 6. I have heard learned counsel for the parties and gone through the relevant materials on record. It is also not in dispute that the impugned orders affecting the present petitioners, have been passed after death of their respective husbands and without any opportunity or show-cause or notice. 6. I have heard learned counsel for the parties and gone through the relevant materials on record. The only ground which is being taken by the respondent for cancellation of the first ACP of the husbands of the present petitioners is the promotion said to have been granted to them to the Class-III post of Moharrir in the year 1978. The very issue however was raised by the husband of the petitioners in the judgments referred to herein above and there is definite findings at para-17 of the judgment dated 24th August 1999 that the respondents should at best treat the orders of promotion to the post of Moharrir as recruitment/appointment without allowing the respondents to revert them to Class-IV post. The aforesaid endorsements were also made in the service book of the husbands of the present petitioners as would be evident from Annexure-3 series at pages-33 and 35 which do not stand denied by the respondents. Moreover, no opportunity of hearing or show-cause was granted. The impugned order has been passed after the death of the husbands of these two petitioners. 7. In the totality of the aforesaid facts and circumstances therefore, the impugned order contained at Annexure-5 dated 19th October 2012, so far as it relates to the present petitioners, is quashed. Petitioners could be entitled to death-cum-retiral benefits, if not paid, on the last scale drawn taking into account the grant of benefits of 1st ACP to the respective husbands of these two petitioners at the time of their retirement or death in the individual cases. The writ petition is allowed in the aforesaid terms.