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2013 DIGILAW 1347 (JHR)

Sada Shiv Jha v. State of Jharkhand

2013-12-12

AMITAV K.GUPTA, R.BANUMATHI

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JUDGMENT R. Banumathi, C.J. & Amitav Kumar Gupta, J. The learned Single Judge has referred the matter to the Division Bench by framing the question of law which reads as under: - “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 incident for which police officer was punished on the subsequent date?” 2. The brief facts giving rise to the present reference is that the petitioner was appointed as a Sergeant in the Police Department of the State of Bihar on 17.09.1974 and was promoted to the post of Sergeant Major with effect from 04.06.1988. After the bifurcation of the State of Bihar the petitioner was allocated Jharkhand Cadre vide order dated 14.08.2002. The petitioner was denied Assured Career Progression (in short ‘ACP’) on the ground that the petitioner was awarded punishment of black mark in the year 1998 for the incident which occurred on 01.03.1996 and thereafter again the petitioner was awarded punishment of black mark in the year 2002 for an incident which took place on 20.08.2000. The Board which was constituted for grant and recommendation of ACP on 20.05.2003 and 01.10.2004 denied the benefit of ACP to the petitioner on the ground of unsatisfactory service record. Being aggrieved, the petitioner filed the writ petition for grant of ACP from the cut off date i.e. from 09.08.1999 on completion of 24 years of service. 3. Before the learned Single Judge, the Senior Counsel for the petitioner, Dr. S.N. Pathak placed reliance on the decision in the case of Ram Anugrah Singh versus State of Bihar & Others reported in 1992 (1) PLJR 502 and submitted that three years, as stipulated under Rule 726(III) of Jharkhand Police Manual should be calculated from the date of occurrence on which the wrong was done and not from the date on which punishment is awarded. 4. Before the learned Single Judge, learned Additional Advocate General Mr. Ajit Kumar relied on the decision in the case of Sri Girish Deo Pandey versus State of Jharkhand through the Director General of Police, Ranchi & Ors. 4. Before the learned Single Judge, learned Additional Advocate General Mr. Ajit Kumar relied on the decision in the case of Sri Girish Deo Pandey versus State of Jharkhand through the Director General of Police, Ranchi & Ors. reported in 2010 (2) JLJR 331 and submitted that as per Rule 726(III) of the Jharkhand Police Manual, a gap of 3 (three) years shall be counted from the date of infliction of major punishment and not from the date on which the wrong was done. 5. After noticing the two conflicting judgments in Ram Anugrah Singh’s case and Sri Girish Deo Pandey’s case, the learned Single Judge referred the matter to the Division Bench by framing the question of law, as aforesaid. 6. We have heard the learned Senior Counsel appearing for the petitioner and the learned Additional Advocate General. 7. Rule 726(III) of the Jharkhand Police Manual reads as under: - “Disqualification for admission to a promotion list or retention thereon – The infliction of any major punishment in any rank within the last 3 years may ordinarily be a bar to admission in any of the promotion list. A gap of 3 years is necessary after infliction of major punishment before an officer is retained or considered or re-considered for any promotion list. For special reasons to be recorded, this disqualification may be relaxed by the competent officer who gives the promotion.” 8. On the other hand para No. 6 of the Police Order No.99 states that “the date of consideration for promotion will be the date of occurrence of the major punishment and not the date for which punishment awarded i.e. three years gap”. 9. By Amendment Slip 1/86, para No.6 of the Order No.99 was rescinded and in its place, it has been provided that the period of three years would be counted from the date of awarding the punishment. 9. By Amendment Slip 1/86, para No.6 of the Order No.99 was rescinded and in its place, it has been provided that the period of three years would be counted from the date of awarding the punishment. This Amendment Slip 1/86 was the subject matter of challenge before the Hon’ble Patna High Court in the case of Ram Anugrah Singh versus State of Bihar reported in 1992 (1) PLJR 502 , wherein, the Hon’ble Patna High Court, relying on the judgment of the Hon’ble Supreme Court, reported in AIR 1989 SC 1133 (State of Maharashtra versus Jagannath), the Amendment Slip 1/86 was quashed holding that three years would be counted from the date of occurrence and not from the date of awarding punishment and Order No.99 para 6 was retained. As per Ram Anugrah Singh’s case, Police Order No. 99 para No.6 was thus, retained. 10. During the pendency of the present reference, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand issued memo No.1698 dated 18.02.2012. The memo No.1698 dated 18.02.2012 reads as under: - 2. The State Government has decided to implement service conditions in the State as per the Centre. Along with Rule-11 of Central Civil Services (Classification, Control and Appeal) Rules, 1965, the Government of India has notified following direction: - “Withholding of increment effective on increment accruing after date of punishment order – The penalty of withholding an increment takes effect from the date of increment accruing to the officer after the issue of the punishment orders. It cannot affect the increment which was due prior to the issue of the punishment orders even though it may not have actually been drawn due to the officer being on leave or other administrative reasons”. 11. Memo No.1698 dated 18.02.2012 was clarified by the memo No.1989 dated 22.08.2013 issued by the Office of the Director General of Police-cum-Inspector General of Police, Jharkhand. Memo No.1989 dated 22.08.2013 clarified the earlier memo No.1698 dated 18.02.2012 making it clear that the said circular (memo No.1698 dated 18.02.2012) and the prospective effect of the punishment order would apply to the incumbent of service, who are guided by CCS (CCA) Rules, which are referred to in Rule 824A(b). It further clarified that relevant Clause (b) related to the post of Deputy Superintendent of Police. It further clarified that relevant Clause (b) related to the post of Deputy Superintendent of Police. The said memo dated 22.08.2013 further clarified that the Police employee from the post of Police to Police Inspector level are covered under para (e) of Police Employee Rules of 824A and therefore the CCS (CCA) Rules are not relevant with reference to Police employee from the Police to Police Inspector level and that the circular dated 18.02.2012 would not apply to the police personnel up to the rank of Inspector of Police, who are covered by the provisions of Rule 824A(e). Circular contained in memo No.1989/P dated 22.08.2013 reads as under: - “As directed I am to say with reference to above subject that the following provisions have been implemented with reference to State Government employee vide Resolution No.1898, dated 18.02.2012 of Department of Personal, Administrative Reforms and Rajbhasha, Jharkhand, Ranchi. …… The above matter have been re-examined, and it became clear that the above provision is based on the Civil Service (Classification, Control and Appeal) Rules which is applicable with reference to the para ‘Kh’ of Police Manual Rule 824 ‘A’. The Police employee from the post of Police to Police Inspector level are covered under para ‘E’ of Police Employee Rules of 824 ‘A’. Therefore, the above provisions are not relevant with reference to police employee from post of Police to Police Inspector level.” 12. Having heard the learned counsel for the parties and on perusal of the provisions of Jharkhand Police Manual read with Circular, Memo 1989/P dated 22.08.2013, as noted above, no detailed discussion on the above conflicting decisions is necessitated. The point of reference is answered as under: - •In view of the memo No.1989 dated 22.08.2013, the prospective operation of the punishment is not applicable to such police personnel up to the rank of Police Inspectors, who are covered under the provisions of Rule 824A(e). •The prospective operation of the punishment from the date of order of penalty is applicable to the Officers in the rank of Deputy Superintendent of Police and they are governed by CCS (CCA) Rules. 13. •The prospective operation of the punishment from the date of order of penalty is applicable to the Officers in the rank of Deputy Superintendent of Police and they are governed by CCS (CCA) Rules. 13. Having regard to the above, the ratio of the judgment of the Single Judge in the case of Sri Girish Deo Pandey versus The State of Jharkhand through Director General of Police, Ranchi & Others reported in (2010) 2 JLJR 331 on the point of prospective operation of the punishment from the date of order of penalty shall be applicable only to the Officers in the rank of Deputy Superintendent of Police and the said judgment is clarified accordingly. 14. The matter is remitted before the learned Single Judge for deciding the issues and the factual aspects in the light of the answer made to the reference. The parties are at liberty to place the facts before the learned Single Judge. Since the writ petition is of the year 2005, learned Single Judge shall take up the matter at an early date.