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2014 DIGILAW 2 (JHR)

Sada Shiv Jha v. State of Jharkhand

2014-01-02

SHREE CHANDRASHEKHAR

body2014
JUDGMENT : By Court: The petitioner has approached this Court seeking following directions: “(i) For issuance of writ in the nature of mandamus commanding the Respondents to give benefits as Assured Carrier Promotion (A.C.P.) from retrospective i.e. 09.08.1999 on completion of 24 years of Service as per the Rules and Guidelines of the State Government. (ii) For giving all consequential benefits from the cut of dated i.e. 9.8.1999 as he was eligible for the same from 1.3.1999. (iii) For issuance of any other appropriate Writ/Order or Direction in the facts and circumstances of the case and in accordance with law.” 2. Heard the learned counsel for the parties and perused the documents on record. 3. The brief facts of the case are that, the petitioner was appointed as Sergeant in the police department on 17.01.1974. He completed 24 years of service on 17.01.1998. The A.C.P. Scheme was made effective from 09.08.1999. It appears that due to the incident which occurred on 01.03.1996, the petitioner was awarded punishment of one black mark on 17.01.1998 and therefore, the petitioner was denied benefit under the A.C.P. Scheme. He represented before the authorities however, by order dated 5/7.10.2004 the claim of the petitioner was rejected. 4. A counter-affidavit has been filed on behalf of the respondent no. 4 justifying the decision to reject the claim of the petitioner for grant of benefit under the A.C.P. Scheme. 5. A counter-affidavit has also been filed on behalf of the respondent no. 2 stating as under: 18.” That it is stated that the case of the petitioner for grant of ACP was considered three times, but on all three occasions he was found unfit by the D.G. Board on account of his unsatisfactory service records as the petitioner earned punishments during various posting as Sgt. Major as follows: Ref. Of Dep. Proceeding Date of incident relating to the charge Order Passed Deoghar Distt. Deptt. Proceeding No. 10/92 Date not disclosed in Service Book One black mark vide D.O. No. 997/95 Rly. Katihar Depttl. Proceeding No. 74/96 01/03/96 One black mark vide D.O. No. 996/98 Palamau Distt. Depptl. Proceeding No. 12/01 20.08.2000 One black mark vide D.O. No. 278/02 Palamau Distt. Depptl. Proceeding No. 47/01 17.02.2001 One black mark vide D.O. 3919/01 Palamau Distt. Depttl. Proceeding No. 10/92 Date not disclosed in Service Book One black mark vide D.O. No. 997/95 Rly. Katihar Depttl. Proceeding No. 74/96 01/03/96 One black mark vide D.O. No. 996/98 Palamau Distt. Depptl. Proceeding No. 12/01 20.08.2000 One black mark vide D.O. No. 278/02 Palamau Distt. Depptl. Proceeding No. 47/01 17.02.2001 One black mark vide D.O. 3919/01 Palamau Distt. Depttl. Proceeding No. 48/01 24.02.2001 One black mark vide D.O. No. 3920/01 Similarly his ACRs particularly for the period 01.04.1995 to 15.05.1996, 25.11.2000 to 31.03.2001, 01.04.2002 to 27.12.2002 have not been found satisfactory. 19. That it is stated that from the facts mentioned above it would be evident that the petitioner during his various postings as Sgt. Major did earn major punishment at regular intervals and his ACRs not satisfactory and it was in the wake of above facts and the subjective appreciation there of, that the Board found his unfit for grant of ACP.” 6. Dr. S.N. Pathak, the learned Senior counsel appearing for the petitioner has contended that by order dated 24.07.2012 the matter was referred to the Division Bench of this Court for deciding the effect of punishment in terms of Rule 726 (III) of the Jharkhand Police Manual and by order dated 12.12.2013 the Hon'ble Division Bench of this Court has held that the operation of the order of punishment would be from the date of penalty order in case of the officers in the rank of Deputy Superintendent of Police and above. The learned Senior counsel has thus contended that in view of the aforesaid finding returned by the Division Bench which has now been implemented by the State of Jharkhand, since the petitioner who was serving in the rank of Sergeant which would be equivalent to the post of Sub-inspector and who was punished with respect to an incident which occurred on 01.03.1996, would be entitled for grant of benefit under the A.C.P. Scheme with effect from 01.03.1999 as the period of 3 years from the date of incident would expire on 01.03.1999. Relying on the recommendation of the Superintendent of Police, Sahebgunj whereunder, the case of the petitioner was recommended for grant of benefit under the A.C.P. Scheme w.e.f. 01.03.1999 and order dated 24.07.2012, the learned Senior counsel appearing for the petitioner has contended that before this Court the respondent-State of Jharkhand has taken a plea that since there was an order of punishment the petitioner was not granted benefit under the A.C.P. Scheme and now since the effect of punishment has been held to be effective from the date of occurrence in case of officers below the rank of Deputy Superintendent of Police, the petitioner's claim is bound to be granted. 7. As against the above, Mr. Ajit Kumar, the learned Additional Advocate-General has submitted that, though only on the ground of provision under Rule 726 (III) of the Jharkhand Police Manual, the claim of the petitioner now cannot be denied, the petitioner nonetheless has to fulfill other eligibility conditions which would be applicable in case of promotion. Relying on paragraph 14 of the guidelines dated 14.08.2002, the learned Additional Advocate-General has submitted that the petitioner has still to fulfill other conditions such as satisfactory service record etc. for grant of benefit under the A.C.P. Scheme however, from the proceeding dated 05/07.10.2004, it is apparent that the petitioner does not have satisfactory service record and therefore, the petitioner has rightly not been granted benefit under the A.C.P. Scheme. 8. On a perusal of documents on record, I find that the petitioner was inflicted punishment in the year, 1995 besides the punishment order dated 17.01.1998 which was awarded to him for the incident dated 01.03.1996. The benefit under the A.C.P. Scheme became applicable w.e.f. 09.08.1999 and even thereafter the petitioner has been punished thrice besides, the penalty order dated 17.01.1998. In view of the aforesaid, this cannot be said that the service record of the petitioner was satisfactory. Adverting to the contention raised by the learned Senior counsel appearing for the petitioner that, in case of the officers below the rank of Dy. S.P. every order of penalty would take effect from the date of occurrence and since the date of of occurrence for penalty imposed in the year, 1995 has not been disclosed, the petitioner cannot be denied benefit under the A.C.P. Scheme, I find myself unable to accept the contention raised on behalf of the petitioner. S.P. every order of penalty would take effect from the date of occurrence and since the date of of occurrence for penalty imposed in the year, 1995 has not been disclosed, the petitioner cannot be denied benefit under the A.C.P. Scheme, I find myself unable to accept the contention raised on behalf of the petitioner. The date of incident for which the petitioner has been punished in the year, 1995 would be within the knowledge of the petitioner and therefore, it is not open to the petitioner to take the plea that since the date of occurrence has not been indicated in the counter-affidavit, the penalty order passed in the year, 1995 cannot be taken against the petitioner for denying the benefit under the A.C.P. Scheme. I am also of the view that if every penalty order has to be viewed only with reference to the provision under Rule 726 (III) of the Jharkhand Police Manual, it would result in ignoring other mandatory conditions for promotion. I am of the opinion that the provision under Rule 726 (III) of the Jharkhand Police Manual is a condition in addition to other conditions which would be applicable for grant of promotion to a Government employee and therefore, a Government employee has to satisfy other eligibility criteria for grant of benefit under the A.C.P. Scheme. In fact provision under Rule 726 (III) of the Jharkhand Police Manual is an additional disqualification for promotion for 3 years even if an employee fulfills other eligibility criteria. I further find that the decision taken against the petitioner rejecting the claim of the petitioner in the proceeding which took place on 01.10.2005 has not been challenged by the petitioner in the present proceeding and therefore, no relief can be granted to the petitioner. 9. In the result, the writ petition fails and accordingly, it is dismissed.