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2014 DIGILAW 1027 (JHR)

Ganesh Prasad v. State of Jharkhand

2014-10-09

D.N.PATEL, SUJIT NARAYAN PRASAD

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JUDGMENT : Per D.N. Patel, J.- This Letters Patent Appeal has been preferred against the judgment and order dated 9th January, 2013 passed by the learned Single Judge in W.P.(S) No. 995 of 2005; whereby the petition preferred by this appellant has been dismissed. 2. Learned counsel for the petitioner submitted that petitioner was appointed in the year 1965 as a Clerk. Thereafter, he was promoted to the post of Receptionist (Upper Division Clerk). Initially, there were two types of post in the cadre of clerks, i.e. Lower Division Clerk and Upper Division Clerk and there were further promotional avenues of Junior Selection Grade, Senior Selection Grade and Super Selection Grade in the post of Upper Division Clerk. On 15th January, 1990 he got Senior Selection Grade and he reached up to the pay-scale of Rs. 6,954/-. The State Government merged the posts of Lower Division Clerk and Upper Division Clerk in the year 1980 and Junior Selection Grade, Senior Selection Grade, Super Selection Grade were also abolished. It is further submitted by the counsel for the appellant that recommendations of 5th Pay Revision was implemented by the State in the pattern adopted by the Central Government. However, in the Central Government both the posts, i.e. post of Lower Division Clerk and Upper Division Clerk were kept separate. They were not merged. Therefore, for both these posts there were separate pay-scales but in the State Government, as both the posts were merged into the post of a Clerk, for this post there was no corresponding pay scale in the Central Pattern and therefore, a circular dated 28th September, 1999 has been issued (Annexure-3 to the Memo of the Letters Patent Appeal) and as per direction contained in paragraph nos. 2, 3-1, 3-2, 3-3 and 3-4 of the said circular, anomaly in question has been removed by reviving the posts of Lower Division Clerk, Upper Division Clerk, Junior Selection Grade, Senior Selection Grade and Super Selection Grade. This aspect of the matter, i.e. revival of the aforesaid posts have not been properly appreciated by the learned Single Judge. 2, 3-1, 3-2, 3-3 and 3-4 of the said circular, anomaly in question has been removed by reviving the posts of Lower Division Clerk, Upper Division Clerk, Junior Selection Grade, Senior Selection Grade and Super Selection Grade. This aspect of the matter, i.e. revival of the aforesaid posts have not been properly appreciated by the learned Single Judge. It is submitted by counsel for the appellant that instead of the first A.C.P. benefit, which was granted to this appellant vide order dated 9th August, 1999, he should have been treated as an Upper Division Clerk and as per length of service he should have been given Junior Selection Grade, Senior Selection Grade and Super Selection Grade by virtue of the Circular dated 28th September, 1999 (Annexure-3 to this Letters Patent Appeal) and the benefit of A.C.P., may be set off against these three selection grades. This aspect of the matter has also not been appreciated by the learned Single Judge. It is further submitted by the counsel for the appellant that merely because the A.C.P. benefit was given it cannot be said that promotion cannot be given. In fact, on the contrary, if the original petitioner/present appellant is entitled for promotion, then he should not be given A.C.P. benefit. This aspect of the matter has not been• appreciated by the learned Single Judge and therefore, it is submitted that by virtue of the Circular dated 28th September, 1999, original petitioner may be treated as an Upper Division Clerk because now these posts have been revived and as per length of service he may be given Junior Selection Grade, Senior Selection Grade and Super Selection Grade at regular intervals and the amount of ACP benefit may be adjusted against the benefits to be given by the State to this appellant for his Junior Selection Grade, Senior Selection Grade and Super Selection Grade and if any amount is further to be paid by the respondent State the same also may be ordered to be paid. This aspect of the matter has not been appreciated by the learned Single Judge. If the claim of this appellant (original petitioner) is not accepted, as per the learned Single Judge the appellant will not get any benefit of promotion or any of the selection grades except the benefit of one A.C.P. though the appellant was in service since 1965. This aspect of the matter has not been appreciated by the learned Single Judge. If the claim of this appellant (original petitioner) is not accepted, as per the learned Single Judge the appellant will not get any benefit of promotion or any of the selection grades except the benefit of one A.C.P. though the appellant was in service since 1965. This idea of giving benefit of only one ACP to the appellant who is working since 1965 as a Clerk is running contrary to the Circular dated 28th September, 1999 (Annexure-3 to the Memo of this L.P.A.) and therefore, it is submitted by the counsel for the appellant that respondents be directed to treat this appellant as Upper Division Clerk and further to grant him Junior Selection Grade, Senior Selection Grade and Super Selection Grade and this calculation may be made to grant Selection Grade as was in existence prior to merger of the two cadres namely Lower Division Clerk and Upper Division Clerk, which is governed by Circular No. 6667 dated 20th July, 1973. 3. Counsel for the respondent State submitted that no error has been committed by the learned Single Judge in appreciating the fact that this appellant/original Petitioner was already granted benefit of ACP on 9.8.1999 and therefore, he is not entitled to the benefit of next Assured Career Progression because that will be due after 12 years from 1999, i.e. in the year 2011 and meanwhile this appellant was to retire on 30th April, 2003. Counsel for the State has further submitted that this appellant has not been discriminated as no employee junior to the appellant has been given promotion. It is further submitted by the counsel for the respondent State that as he was given benefit of A.C.P. no promotion can be given to this appellant. This matter has also been appreciated by the learned Single Judge. 4. It is further submitted by the counsel for the respondent State that as he was given benefit of A.C.P. no promotion can be given to this appellant. This matter has also been appreciated by the learned Single Judge. 4. Having heard counsel for both sides and looking to the facts and circumstances of the case it appears that the present appellant, who is the original petitioner, filed W.P.(S) No. 995 of 2005 with the following prayers:- (a) For the issuance of an appropriate writ/writ(s), order/order(s), direction/directions commanding upon the respondents to immediately decide and grant substantive post of Selection Grade of Assistant from 1.1.1996 and the post of Super Selection Grade from 15.11.2000 in view of the Circular No. 6389, dated 28.1.1999 and also in view of the fact that the case of grant of aforesaid scale upon promotion is pending for pending for consideration before the State of Bihar for which necessary record has been forwarded by the Govt. of Jharkhand Department of Information and Public Relating, vide its letter No. 669, dated 23.5.2003 and after the grant of the aforesaid scale, the last pay of the petitioner be fixed for fixation of final pension and other retrial dues. AND/OR b) For the issuance of an appropriate direction/directions commanding upon the respondents to fix the pay of the petitioner in the pay scales of Selection Grade Post (Rs. 5,000-150-8,000) from 1.1.1996 in the pay scale of Rs. 5,500/--175-9,000/- Super Selection Grade with effect from 15.11.2000 and accordingly, pay him all the retiral financial benefits in the said post and pay scale of Super Selection Grade for which the petitioner is found to be entitled in the facts and circumstances of the case; AND/OR (c) For issuance of such other direction(s) as this Hon'ble Court may think just and proper in the facts and circumstances of the case doing conscionable justice to the petitioner. 5. It further appears that the present appellant was serving the respondents from the year 1965. He was appointed as a Clerk and was later on promoted to the post of Receptionist (Upper Division Clerk). Initially two posts were there in the cadre of clerks, i.e. Lower Division Clerk and Upper Division Clerk, Appellant reached up to the post of Upper Division Clerk and thereafter, there were different selection grades-Junior Selection Grade, Senior Selection Grade and Super Selection Grade. Initially two posts were there in the cadre of clerks, i.e. Lower Division Clerk and Upper Division Clerk, Appellant reached up to the post of Upper Division Clerk and thereafter, there were different selection grades-Junior Selection Grade, Senior Selection Grade and Super Selection Grade. The post of Lower Division Clerk and Upper Division Clerk was merged in the year 1980 and now was known only as one post, i.e. clerk. The petitioner was promoted to the post of Upper Division Clerk and reached up to the scale of Rs. 6,954/-. 6. It further appears that recommendations of the 5th Pay Revision was implemented by the State Government in the Central pattern and pursuant to that these two posts, namely Lower Division Clerk and Upper Division Clerk were revived by the State Government as the merged post of clerk has no corresponding post in the Central Government, where there was no merger of these two posts of clerk, whereas in State Government posts of Lower Division Clerk and Upper Division Clerk were merged into a single post named Clerk. Therefore, a circular dated 28th September, 1999 was issued for the revival of earlier two posts of Lower Division Clerk and Upper Division Clerks. These two posts were revived with Junior, Senior and Super Time Selection Grades. The said circular is at Annexure-3 to the memo of this Letters Patent Appeal and was also referred to in the judgment of the learned Single Judge. The bottle neck is this circular. Paragraphs 2, 3-1, 3-2, 3-3 and 3-4 of the said circular (From the translated version as furnished by counsel for the appellant) reads as under:- "2. The State Government has also accepted recommendations of amendment of Fitment Committee in Educational/Training qualification, service conditions etc. of various cadre structures of the Centre. For instance, in the regional offices under the Central Government there are posts of Lower Division and Upper Division Clerks, though these posts in the State Government and also various posts of other departments have been merged in the decades of 1980. In course of discussion it has also been decided that even in other services, where, there are no equivalent services in the Centre, those Lower Division or junior posts which has been amalgamated with senior posts, those cadres should also be revived. 3. The State Government in the meeting of the Cabinet, dated 27.7.99 has decided that- 1. In course of discussion it has also been decided that even in other services, where, there are no equivalent services in the Centre, those Lower Division or junior posts which has been amalgamated with senior posts, those cadres should also be revived. 3. The State Government in the meeting of the Cabinet, dated 27.7.99 has decided that- 1. The existing structure of cadres in those departments or services, which are not at par with the existing cadres of the Centre, reconstitution of services like Central pattern, should be done there. For example, Bihar Secretariat Service and Secretariat Clerical Service should be constituted here also following the pattern of the Central Secretariat. In the same way, cadre of Lower Division and Upper Division Clerks like the Centre should be created in the Regional Offices. 2. In such cases where, there is no cadre or service/post the centre like services or cadres of the State, it has also been decided that junior and senior services were existing as earlier, which have been amalgamated in the decades of 1980, in such cases junior cadres should be revived. List of such cadres affected with amalgamation is given at Annexure-1. 3. It is made clear that the existing serving employees shall remain on the senior posts and there is no question of absorbing them in Lower Division Cadre to be newly created or revived. Only persons to be appointed after the decision shall be kept in that Lower Division Cadres." As per the appellant/original petitioner, following the direction contained in the paragraphs 2, 3-1, 3-2, 3-3 and 3-4 of the said circular the State Government has already taken a decision for revival of the post of Lower Division Clerk and Upper Division Clerk along with Junior Selection Grade, Senior Selection Grade and Super Selection Grade. Once this decision is taken this appellant became entitled to the corresponding benefits. This aspect of the matter has not been appreciated by the learned Single Judge. Looking to the circular dated 28th September, 1999 it appears that this decision of revival of the post of Lower Division Clerk, Upper Division Clerk and different Selection Grades has been taken by the Government to remove the anomaly of the pay scales and posts after implementation of the recommendations of the 5th Pay Commission. Looking to the circular dated 28th September, 1999 it appears that this decision of revival of the post of Lower Division Clerk, Upper Division Clerk and different Selection Grades has been taken by the Government to remove the anomaly of the pay scales and posts after implementation of the recommendations of the 5th Pay Commission. Counsel appearing for the State submitted that ACP has been given to the appellant with effect from 9th August, 1999 and therefore, this appellant can not be given the benefit of promotion. This contention is not accepted by this court mainly for the reason that A.C.P is given to an employee on the basis of the philosophy that when for several years an employee cannot be promoted due to non-availability of promotional posts or selection grades in regular course, A.C.P. is to be given, but vice versa is not true, i.e. if after A.C.P. benefit is given to an employee, he becomes entitled to regular promotion to a post and different type of selection grades, he cannot be denied promotion in regular course only because he has already been granted A.C.P. In fact, ACP benefit is an exception to the general rule of getting regular promotion and different type of selection grades. If any employee is going to get promotion or any type of selection grade in regular course, he ought to have been given promotion and not A.C.P. A.C.P. is an exception, whereas regular promotion and grant of normal selection grades at different intervals taking into consideration the length of service is a rule. 7. Heard argument canvassed by the counsel for the respondent State that since appellant was given A.C.P. benefit with effect from 1999, therefore, though he is entitled to be treated as an Upper Division Clerk (as per Circular dated 28th September, 1999) and though he is entitled to Junior Selection Grade, Senior Selection Grade and Super Selection Grade, he will not be given any such benefit in spite of the fact that these posts are revived by the circular dated 28th September, 1999. This contention of the State is not accepted by this court mainly for the reason that if the post of Lower Division Clerk, Upper Division Clerk and different Selection Grades have been revived, this appellant has to be given these promotional benefits at regular intervals and so far the benefit of A.C.P. already granted to the appellant is concerned, in the final calculation the said benefit is to be set off against the benefits to be given to the appellant treating him to be an Upper Division Clerk and promotion to different Selection Grades at different interval of time which will be governed by the Circular No. 6667 dated 20th July, 1973. This aspect of the matter has not been properly appreciated by the learned Single Judge. 8. We, therefore, quash the order dated 9th January, 2013 and we, hereby, direct the respondent State to treat this original petitioner as Upper Division Clerk because he has already reached up to the pay scale at Rs. 6.954/- on this post and further, looking to the length of service of this appellant, he will be given Junior Selection Grade. Senior Selection Grade and Super Selection Grade at different intervals and the said promotional benefit will be based upon the Circular No. 6667 dated 20th July, 1973 and the benefit of A.C.P. already given will be converted into money and will be set off against the monetary benefits to be given to the appellant. 9. We further direct the respondent State of Jharkhand to complete this exercise of grant of promotional benefit to the appellant and corresponding calculation in terms of money within a period of six weeks from today. Necessary copies of the decisions of the State Government will also be sent to the office of the Accountant General (A&E) within a period of six weeks from the date of receipt of a copy of this order. 10. This Letters Patent Appeal is allowed and disposed of in view of the aforesaid directions.