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Jharkhand High Court · body

2013 DIGILAW 1280 (JHR)

Dev Narayan Ray v. State of Jharkhand

2013-11-27

SHREE CHANDRASHEKHAR

body2013
ORDER Pursuant to order dated 25.09.2012, an amended writ petition has been filed with the following prayers:- (i) For a direction upon the respondents to pay forthwith admitted dues like pension, gratuity, leave encashment. (ii) For a direction upon the respondents to fix the pay of the petitioner in terms of 6th revision of pay scale w.e.f. 01.01.2006 and pay arrear thereof and also fix all the retiral benefit in the new pay scale w.e.f. 01.01.2006 and pay the arrear accordingly. (iii) For a direction upon the respondents to confirm the 2nd ACP given to the petitioner as the same has been given to the petitioner legally. (iv) For a direction for quashing the letter no. 461 dated 22.06.2010 by which the order of recovery has been passed in one installment against the petitioner which is illegal void and without jurisdiction as there is no misrepresentation on the part of the petitioner for getting the scale for the said period and there is total laches on the part of the respondents and for which the petitioner should not be suffered and the said order was issued without show cause and behind the back of the petitioner without giving any opportunity of being heard. (v) For a direction for quashing the letter dated 10.09.2010 as contained in Annexure-7 to this application as the same has been issued against the law and that too without show cause and no opportunity was given to the petitioner before issuance of the same, hence the same is liable to be quashed. 2. The petitioner was appointed on 20.01.1968 as Store Chowkidar. He was granted the benefits of 1st ACP w.e.f. 09.08.1999 and the 2nd ACP w.e.f. 04.06.2005. The petitioner was granted exemption from passing the departmental examination on 14.10.2005. 3. In the writ petition, the petitioner has stated as under:- “7. That petitioner was exempted for appearing in the departmental examination on attaining the age of 50 years in terms of Govt. Circular, since the petitioner has already attained the age of 50 years on 01.01.2000 as his date of birth is 01.01.1950 so the petitioner has been exempted for appearing in the departmental examination and accordingly, he was exempted by the department vide letter dated 14.10.2005. ….................................................................................... ....................................................................................... 10. Circular, since the petitioner has already attained the age of 50 years on 01.01.2000 as his date of birth is 01.01.1950 so the petitioner has been exempted for appearing in the departmental examination and accordingly, he was exempted by the department vide letter dated 14.10.2005. ….................................................................................... ....................................................................................... 10. The petitioner was granted 1st A.C.P. w.e.f 9.8.1999 and 2nd A.C.P. w.e.f 4.06.2005 on completion of 12 and 24 years of service and from the letter dated 15.4.2010 on bare perusal of the said letter is apparent that the mistake whatsoever has been committed by the respondents themselves not by the petitioner. 11. That all of sudden a letter no. 461 dated 22.6.2010 issued against the petitioner for recovery of Excess amount paid to the petitioner on account of 2nd A.C.P. which was given to the petitioner w.e.f. 4.10.2005 in place of 1.0.2005. A bare perusal of Annexure-2 and 5, it is apparent that there is no misrepresentation on the part of petitioner no he 1 a party for having the access salary for 10 days rather the respondent who himself granted A.C.P. w.e.f. 4.10.2005 and the said order was issued without show cause, without giving opportunity to the petitioner of being heard. Hence, the order is illegal, void and without jurisdiction.” 4. A supplementary counter-affidavit dated 21.10.2013 has been filed stating as under:- “6. That it is stated that the petitioner has been wrongly granted 1st A.C.P. on 9.8.1999 and benefits of 2nd A.C.P. on 4.6.2005. Thus by issuing an office order made it clear that in the meeting of Establishment Committee held on 14.8.2010 decided to modify that earlier office order no. 58 dated 10.1.2006 partially and it is decided that benefits of 1st A.C.P. is provided to the petitioner w.e.f. 14.10.2005 the date of issuance of letter of exemption from departmental examination and the petitioner is not entitled to benefit of 2nd A.C.P. as the petitioner has retired prior to date payable of the said benefit. 7. 58 dated 10.1.2006 partially and it is decided that benefits of 1st A.C.P. is provided to the petitioner w.e.f. 14.10.2005 the date of issuance of letter of exemption from departmental examination and the petitioner is not entitled to benefit of 2nd A.C.P. as the petitioner has retired prior to date payable of the said benefit. 7. That it is stated that the Finance Department has also taken into consideration as per Resolution dated 14.8.2002 clause 3 sub-clause IV that the petitioner completed the age of 50 years without passing the Accounts examination, he was exempted from passing the Accounts examination and was granted 1st A.C.P. On 14.10.2005 and his 2nd A.C.P. Was due only after 12 years from the date of grant of 1st A.C.P. i.e. on 14.10.17 but the petitioner retired from the service on 31.12.2009 much prior before 14.10.2017. Thus he was not entitled to avail 2nd the A.C.P. Therefore the 2nd A.C.P. wrongly granted to the petitioner on 4.6.2005 was cancelled.” 5. Pursuant to order dated 10.09.2013, a counter-affidavit dated 12.11.2013 has been filed on behalf of the Department of Finance, Government of Jharkhand stating as under:- “5. That it is clearly mentioned in para 3(vii) of Resolution no. 5207 dated 14.08.2002 issued by Finance Department regarding A.C.P. scheme for the employee of State Government, that criteria for promotion e.g. passing of departmental examination, acquisition of higher qualification etc. as described in recruitment and Promotion Rule is to be essentially fulfilled for financial upgradation under A.C.P. scheme. 6. That Clerk of Muffasil cadre have to pass departmental examination. Hence for financial upgradation under A.C.P. scheme also, passing of departmental examination is essential in case of clerks of muffasil cadre to which petitioner belonged as per provision of A.C.P. scheme. 7. That petitioner did not pass departmental examination, but subsequently after crossing the age of 50 years, he was exempted from passing departmental examination vide order dated 14.10.2005. As per letter no. 11691 dated 9.11.83 issued by Departmental of Personnel, benefit of exemption is to be given from the date of issue of order of exemption i.e. 14.10.2005 in petitioner's case. Thus petitioner became eligible for first financial upgradation under A.C.P. scheme on 14.10.2005 only. 8. As per letter no. 11691 dated 9.11.83 issued by Departmental of Personnel, benefit of exemption is to be given from the date of issue of order of exemption i.e. 14.10.2005 in petitioner's case. Thus petitioner became eligible for first financial upgradation under A.C.P. scheme on 14.10.2005 only. 8. That it is also mentioned in para 3(iv) of the circular dated 14.8.2002 that “if first financial upgradation remains pending due to ineligibility of the employee or pendency of departmental proceeding against him, there will be consequential effect, on second financial upgradation also, which will be delayed accordingly”. A.C.P. scheme is in force since 09.08.1999, but petitioner is entitled for 1st A.C.P. since 14.10.2005. i.e. the date of issued of order regarding his exemption from passing departmental examination and since first A.C.P. was delayed by 6 years 2 months and 5 days due to ineligibility of petitioner, so second A.C.P. will also be delayed by the said period. Petitioner would have been entitled for second A.C.P. from 09.08.2011, but petitioner retired on 31.12.2009 i.e. much earlier than the date of entitlement of second A.C.P. So he is not entitled for second A.C.P.” 6. Heard the learned counsel appearing for the parties and perused the documents on record. 7. The learned counsel appearing for the petitioner has submitted that the scheme of ACP envisages grant of 1st ACP on completion of 12 years and 2nd ACP on completion of 24 years of continuous service however, nowhere in the scheme it has been stipulated that the grant of benefit under 2nd ACP would be given on completion of another 12 years of continuous service from the date of grant of 1st ACP. The learned counsel for the petitioner relies on the decision in “State of Tripura Vs. K.K. Roy”, reported in AIR 2004 SC 1249 , and submits that the Hon'ble Supreme Court has held that the scheme envisages continuous service of 12 and 24 years and therefore, it has to be counted from the date of initial appointment of the petitioner. 8. A perusal of Resolution dated 14.08.2002 indicates that the eligibility and criteria applicable for grant of promotion would be applicable while granting benefit under A.C.P. Scheme. 8. A perusal of Resolution dated 14.08.2002 indicates that the eligibility and criteria applicable for grant of promotion would be applicable while granting benefit under A.C.P. Scheme. It further appears from para 3(iv) of Resolution dated 14.08.2002 that, 'if 1st finance upgradation remains pending due to ineligibility of the employee or pendency of departmental proceeding against him, there will be consequential effect on 2nd financial upgradation also, which will be delayed accordingly.' 9. On perusal of the documents on record, I find that there was a requirement for an employee to pass a departmental examination which the petitioner could not clear and on completion of 50 years of age, he sought exemption under the provisions of the said resolution. Accordingly, on 14.10.2005, such exemption has been granted to the petitioner. 10. The respondents have taken a plea that an employee would be entitled for grant of benefit under ACP only if he has passed the departmental examination and since, in the present case, the petitioner was granted exemption on 14.10.2005, the benefit which was earlier granted to the petitioner was reviewed. It is not in dispute that the petitioner was granted exemption from passing the departmental examination on 14.10.2005 and since the grant of exemption has been made applicable from the date on which exemption is granted, the petitioner was granted first benefit under the A.C.P. Scheme w.e.f. 14.10.2005. As the grant of 1st A.C.P was delayed due to ineligibility of the petitioner, the grant of benefit of 2nd A.C.P. could not have been extended to petitioner. However, the petitioner superannuated from service w.e.f. 13.12.2009, much before the date of entitlement for 2nd A.C.P. 11. From a reading of the scheme of ACP, I find that the benefit under the scheme has to be granted on completion of 12 years and 24 years of continuous service. The contention raised on behalf of the petitioner that the continuous service would mean service from the date of the initial appointment of the petitioner, is not tenable in as much as, the word 'continuous service' has appeared in the context that after grant of 1st ACP, there may be a situation in which there would a break in the service of an employee. Further, continuous service means continuous meritorious service and therefore, the grant of benefit under A.C.P. can be delayed due to departmental and/or judicial proceeding. 12. Further, continuous service means continuous meritorious service and therefore, the grant of benefit under A.C.P. can be delayed due to departmental and/or judicial proceeding. 12. The learned counsel for the petitioner contended that orders dated 22.06.2010 and 10.09.2010 are liable to be quashed as no show-cause notice was issued to the petitioner. I find that the benefit under A.C.P. Scheme was finalized and granted to the petitioner w.e.f. 04.10.2005 vide letter dated 10.01.2006. The effective date of grant of benefit was subsequently changed from 04.10.2005 to 14.10.2005 vide letter 22.06.2010. I find that copies of both the letters were furnished to the petitioner and thus, the petitioner had noticed in January, 2006 itself that benefit under A.C.P. Scheme was granted to him w.e.f. 04.10.2005 by letter dated 10.01.2006 itself. Further, the date and applicability of exemption from passing departmental examination which was granted on 14.10.2005, has not been disputed by the petitioner. In the writ petition the petitioner has not contended that the Resolution dated 14.08.2002 is not applicable in his case and therefore, I am of the view that even if no separate show-cause notice was issued to the petitioner, orders dated 22.06.2010 and 10.09.2010 are not liable to be interfered with. The counter-affidavit filed by the respondents discloses that all retiral benefits have been finalized and would be paid to the petitioner. 13. In “Calcutta Municipal Corporation and Another Vs. Sujit Baran Mukherjee and Others” reported in (1997) 11 SCC 463 , a case in which the grant of stepping-up of pay-scale was withdrawn without show-cause notice to the employee, the Hon'ble Supreme Court has held that the employer was justified in doing so. 14. I find no merit in the writ petition. Accordingly, all prayers in the writ petition are declined.