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2014 DIGILAW 1292 (JHR)

Gopal Prasad v. State of Jharkhand

2014-12-19

SUJIT NARAYAN PRASAD

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ORDER : The petitioner has prayed for payment of arrears of salary as per fixation of pay in the revised pay scale by virtue of recommendation of 6th Pay Revision Committee which has been taken into effect w.e.f. 1.1.2006 and accordingly pension, gratuity and leave encashment. 2. During pendency of the writ petition the respondent authorities filed a counter affidavit wherein an order has been passed on 27.7.2012 by which the pay scale which has been fixed on the basis of the first time bound promotion given w.e.f. 1.9.1985 and the benefit of upgradation by virtue of Assured Career Progression (ACP) Scheme given w.e.f. 1.9.1999 as also the promotion granted to the post of Head Clerk w.e.f. 1.8.2000 has been cancelled and thereafter the pay has been fixed in the earlier pay fixation. 3. The petitioner filed an interlocutory application being I.A. No.823/2013 challenging the order dated 27.7.2012 which has been allowed vide order dated 20.2.2013. 4. Now the grievance of the petitioner is that the petitioner was appointed as Correspondence Clerk on 1.9.1975. While he was in service he was given benefit of first time bound promotion in the pay scale of Rs.680-695/-w.e.f. 1.9.1985 after considering the fact that the petitioner has already passed departmental examination. Thereafter the petitioner was granted regular promotion to the post of Head Clerk w.e.f. 30.6.2000. The petitioner has finally been superannuated from service on attaining the age of 60 years w.e.f. 31.1.2007. Before superannuation of the petitioner, the Government of Jharkhand adopted the recommendation of 6th Central Pay Commission which has been made effective w.e.f. 1.1.2006. Accordingly, the petitioner become entitled to get the benefit of revision in pay scale by virtue of recommendation of 6th Pay Revision Committee w.e.f. 1.1.2006 but the same was not given. The petitioner approached this Court for issuance of direction on the respondents for fixation of pay scale on the basis of revision in the pay scale by virtue of 6th Central Pay Commission. 5. During pendency of the writ petition, the authorities have issued an order dated 27.7.2012 by which the benefit of first time bound promotion granted to the petitioner w.e.f. 1.9.1985, the benefit of second ACP granted w.e.f. 1.9.1999 and the regular promotion granted to the post of Head Clerk w.e.f. 1.8.2000 has been cancelled by way of common order. 5. During pendency of the writ petition, the authorities have issued an order dated 27.7.2012 by which the benefit of first time bound promotion granted to the petitioner w.e.f. 1.9.1985, the benefit of second ACP granted w.e.f. 1.9.1999 and the regular promotion granted to the post of Head Clerk w.e.f. 1.8.2000 has been cancelled by way of common order. After cancelling all the three promotions/upgradations in the pay scales, the pay scale of the petitioner has been revised w.e.f. 1.1.2006 and accordingly, pension has also been fixed on the basis of the reduced pay scale. 6. Now the submission of the petitioner is that the petitioner has retired from service on 31.1.2007, the authorities have got no jurisdiction to cancel the benefit/upgradation in pay scale granted to the petitioner under time bound promotion scheme w.e.f. 1.9.1985 which has been cancelled without giving any show-cause notice, that too after lapse of 22 years. It has been submitted that thus, the benefit of second upgradation granted to the petitioner under A.C.P. scheme w.e.f. 1.9.1999 has also been cancelled without any information to the petitioner. 7. Further, the regular promotion granted to the petitioner w.e.f. 1.8.2000 has also been cancelled even after five years from the date of his retirement without any show-cause notice or without any proceeding initiated in this regard, which is absolutely arbitrary and illegal exercise of the respondent authorities. 8. On the other hand learned counsel appearing on behalf of the State has submitted that since the petitioner has not passed the departmental examination as required, he has not been given exemption in view of Circular issued in the year 1992 and as such he was not entitled to get the benefit of promotion/upgradation by virtue of time bound promotion scheme and consequent thereof, order was passed with respect to the reversion of the petitioner from Head Clerk to Clerk. 9. Heard the parties and perused the documents on record. 10. The petitioner, admittedly, was appointed in service on 1.9.1975. 9. Heard the parties and perused the documents on record. 10. The petitioner, admittedly, was appointed in service on 1.9.1975. The concept of grant of upgradation in pay scale under time bound promotion scheme has been implemented w.e.f. 1.9.1981 wherein provision has been made for the Government employee that if not granted any regular promotion, then after completion of 10 years of service he will be eligible to be given the benefit of upgradation by virtue of first time bound promotion and after completion of 25 years of service the concerned employee will be granted the benefit of second upgradation of pay scale by virtue of second time bound promotion. 11. Since the petitioner was not granted regular promotion, as such under the said Scheme he was given benefit of first time bound promotion w.e.f. 1.9.1985. 12. After recalling of the orders of benefit to be given to the concerned employee under time bound promotion scheme, the concept of Assured Career Progression Scheme has been enacted by Circular dated 14.8.2002 which was made effective w.e.f. 9.8.1999 and accordingly under that scheme if an employee is not granted regular promotion after completion of 12 years, then he will be eligible to get the first A.C.P. benefit. Accordingly, the petitioner has been granted the benefit of upgradation in pay scale under A.C.P. scheme w.e.f. 1.9.1999. The petitioner has been given regular promotion to the post of Head Clerk w.e.f. 1.8.2000. 13. After the recommendation of 6th Central Pay Commission, the Fitment Committee of the State Government has provided the benefit of 6th pay revision by virtue of Circular dated 28.2.2009 and the benefit of revision of pay scale was to be given w.e.f. 1.1.2006 but actual benefit has been given w.e.f. 1.4.2007. 14. The petitioner has not been given any benefit of revision of pay scale w.e.f. 1.1.2006. The authorities have, however, not given the same and no explanation has also been given in the counter affidavit but in the counter affidavit they have come with an order dated 27.7.2012 by which all the promotions/upgradations granted to the petitioner have been cancelled. 15. The petitioner has not been given any benefit of revision of pay scale w.e.f. 1.1.2006. The authorities have, however, not given the same and no explanation has also been given in the counter affidavit but in the counter affidavit they have come with an order dated 27.7.2012 by which all the promotions/upgradations granted to the petitioner have been cancelled. 15. After perusal of the order dated 27.7.2012, it seems that no reason has been assigned by the authorities concerned and merely on the basis of objection of District Accounts Officer, Hazaribag a decision has been taken to cancel the upgradations and promotions of the petitioner and accordingly the pay has been revised w.e.f. 1.1.2006. 16. The authority, who has passed the order, it seems that he has not applied his mind, since no reference of the objection made by the District Accounts Officer, Hazaribag has been referred in the order dated 27.7.2012. It is a cardinal principle of law that if any order is passed, it is duty of the concerned authority to assign the reason so that reason given by him must be reflected from perusal of the order at a glance by the person who is going to be adversely affected by that order. In this context, the judgment rendered by the Hon'ble Apex Court in case of S.N. Mukherjee vs. Union of India (1990)4 SCC 594 needs to be referred wherein at para-36 it has been laid down that administrative authority must record reason as it excludes chances of arbitrariness and ensure a degree of fairness in the process of decision making. Para-36 is quoted herein below :- “36. ….............. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review........................” 17. Further from perusal of Counter Affidavit filled by the respondent it has been stated that petitioner was granted 1St time bound promotion on 1-9-1985 and promotion to the post of head clerk on 1-8-2000 and 2nd ACP on 1-9-1999, without passing the departmental accounts examination. But, at para 4 of the Counter Affidavit it is specifically stated that petitioner was granted exemption from Accounts Examination vide letter no. 1134(S) dated 9-3-2007 by the letter of Engineer in Chief, Road Construction Department ,Jharkhand ,Ranchi but the petitioner retired on 31-01-2007. In, reply to the aforesaid Counter Affidavit, petitioner at Para 4 has stated that petitioner had filed application for exemption from passing the accounts examination during his service period but the order has been passed by the department after his superannuation. The aforesaid letter no. 1134(S) dated 9-3-2007 issued by the Engineer-in -Chief, Road Construction Department, Jharkhand has been annexed as Annexure -2 of the Writ petition by the petitioner. 18. Hence, from the perusal of the counter Affidavit and reply to the aforesaid counter Affidavit, it can be said that petitioner was not at fault. Petitioner had made application for exemption from passing departmental examination before the concerned authority before his superannuation but order granting exemption from passing the departmental examination (letter no. 1134 (S) dated 9-3-2007-Annexure-2) came after his superannuation. 19. Retirement is only an incidence of service. Hence, reason given by the respondent –State that exemption letter, from passing the departmental examination was issued after the superannuation of the petitioner and hence petitioner was denied promotion, cannot be accepted. This contention of the petitioner can also not be accepted in view of the fact that respondent have themselves issued the letter on 9-3-2007 after petitioner superannuation on 31-01-2007, granting exemption to the petitioner from passing the departmental Accounts Examination. This contention of the petitioner can also not be accepted in view of the fact that respondent have themselves issued the letter on 9-3-2007 after petitioner superannuation on 31-01-2007, granting exemption to the petitioner from passing the departmental Accounts Examination. The fact remains that cancelling the promotion of the petitioner after rendering long years of service has caused hardship to the petitioner after his retirement and has forced the petitioner to approach this court. 20. From perusal of the order dated 27.7.2012 it further transpires that no show-cause notice has been issued to the petitioner before revision of the pay scale of the petitioner. The order of regular promotion has also been cancelled by which the petitioner's promotion to the post of Head Clerk has been cancelled which is a reversion under the service jurisprudence. Since reversion is a major punishment under provision of Civil Services (Classification, Control and Appeal) Rules, 1930. Hence, before reverting the petitioner from higher post to lower post, regular departmental proceeding ought to have been initiated against him or at least a show-cause notice ought to have been given to the petitioner, so that the petitioner could have been able to bring all the facts before the authority. 21. Thus, in entirety of the facts and circumstances, order dated 27.7.2012 has been passed in a very mechanical manner without assigning any reason or without issuing any show-cause notice to the petitioner and, as such, the same cannot be said to be a reasoned order. Hence, the same is not sustainable and is hereby quashed. 22. The petitioner is given liberty to approach the Superintending Engineer, Road Construction Department, Road Circle, Hazaribag by way of detailed representation annexing all the documents and supporting judgments within two weeks from the date of receipt/production of a copy of this order. If such representation is filed by the petitioner, the Superintending Engineer, Road Construction Department, Road Circle, Hazaribag will take a decision within four weeks thereafter in accordance with law and communicate the same to the petitioner. Consequential order will, accordingly, follow. 23. This writ petition stands disposed of, with the above observations and directions.