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Jharkhand High Court · body

2014 DIGILAW 439 (JHR)

Shiv Bachan Singh v. State of Jharkhand

2014-03-28

APARESH KUMAR SINGH

body2014
ORDER Heard counsel for the parties. 2. In the present writ application, the petitioner who retired as a Clerk on 31st August 2011 under the Directorate of Provident Fund on attaining the age of superannuation, had approached this Court inter-alia seeking quashing of letter no. 16 dated 17th March 2010 (Annexure-5) whereby, the first ACP granted to the petitioner in the scale of Rs. 5000-8000 was reduced to Rs. 4500-7000. The petitioner had also sought direction upon the respondents to pay the entire post retirement dues of the petitioner such as Gratuity, Leave Encashment, Arrears of due increments, Pension, etc. except GPF and Group Insurance which has been paid, together with interest and statutory interest. The petitioner also made a prayer for direction upon the respondents to count his services since 19th November 1971 on which date he was appointed as a Clerk / Moharir under Tubewell Division, Sasaram under the Department of Irrigation and Electricity. Consequently, he prayed for the grant of the benefits of second and third ACP under the ACP/MACP scheme with effect from 9th August 1999 and 1st September 2008 respectively since he had completed required length of services prior to the due date. 3. During the pendency of this writ application, counsel for the petitioner has pointed out that the respondents have reckoned the services of the petitioner from the initial date of his appointment i.e. 19th November 1971 under the Tubewell Division under the Department of Irrigation and Electricity, Government of Bihar for the purposes of payment of pension, Gratuity and other post retirement dues. 4. On an earlier date i.e. on 25th October 2013, this Court after hearing the counsel for the parties, had passed an order giving the respondents further time to file a proper affidavit after reconsideration of the matter. The said order is being reproduced herein below: “Heard counsel for the parties. It is the case of the petitioner that he was initially appointed in the State Tubewell Organization in the Minor Irrigation Department under the State of Bihar. In support of the aforesaid contention the service book of the petitioner from his initial date of appointment in the year 1971 has been annexed as Annexure-11 to the supplementary affidavit. It is the case of the petitioner that he was initially appointed in the State Tubewell Organization in the Minor Irrigation Department under the State of Bihar. In support of the aforesaid contention the service book of the petitioner from his initial date of appointment in the year 1971 has been annexed as Annexure-11 to the supplementary affidavit. He submits that the service of such employees under the Tubewell Organization under the Minor Irrigation Department were, however, handed over to a newly created Bihar State Water Development Corporation by a conscious decision taken by the Irrigation and Electricity Department, Government of Bihar as contained in Government Order No.844 dated 28.02.1974, Annexure-1 to the writ application. His services were taken in regular establishment under the Corporation w.e.f. 19.11.1981 by the order of the Chairman cum Managing Director of the Corporation dated 8.10.1978 as per entries made in the Service Book. It is submitted that as per the said decision, the service condition of the petitioner, under the Tubewell Organization was secured. It is the contention of the petitioner that service of the petitioner was secured under the newly created Corporation as per the policy decision dated 28.02.1974. Some of the employees including the petitioner where services were surplus were, however, later on handed over to the Directorate of Provident Fundfor absorption, which was created in the year 1986 by an order dated 18.10.1986 as contained in Annexure-2. It is submitted that the petitioner has retired on 31.08.2011. In the matter of reckoning of the services of the petitioner the respondent- Directorate of Provident Fund, however, has not counted the services of the petitioner prior to his absorption in the Directorate of Provident Fund. This act of the respondent is not proper in the eye of law and has entailed adverse consequences in the matter of post retirement benefits and other service benefits to the petitioner. The respondents, in their counter affidavit, have treated the absorption of the petitioner in the Directorate of Provident Fund as a new appointment and have taken a stand that since the petitioner was in Public Sector Undertaking like the Water Development Corporation, the services of the petitioner for the said period could not be counted. However, it appears that several persons were absorbed in the Directorate of Provident Fund Organization. However, it appears that several persons were absorbed in the Directorate of Provident Fund Organization. The petitioner claims to have been working under the Tubewell Organisation under Minor Irrigation Department in the State of Bihar since the year 1971 itself, whose service condition was secured while his services were transferred to the newly created Water Development Corporation where his services were also taken in regular establishment. In such circumstances, it appears that the respondent Directorate have failed to take into account the purport of Annexure-1 and the previous service of the petitioner while taking their stand in discounting his services for the period prior to his absorption in the Directorate of Provident Fund. On the request of the learned counsel for the respondents, therefore, further six weeks time is allowed so that a proper affidavit be filed after reconsideration of the matter. Put up this case in the 2nd week of December, 2013.” 5. After the said order, respondent State has filed a supplementary counter affidavit enclosing the letter contained in memo no. 2968 dated 7th October 2006 issued by the Directorate of Provident Fund, Government of Bihar which apparently shows strong co-relation with the case of the petitioner, since at para-4, respondent themselves have stated that the petitioner along with other similarly situated persons have been absorbed provisionally in the services of the Directorate of GPF after its creation in 1986 from the services of the Water Development Corporation after being declared surplus over there. 6. Counsel for the respondent State however has stated that the services of the petitioner for the period he was serving under the Water Development Corporation could not be counted for the purposes of grant of ACP/MACP in view of the specific conditions contained in Clause-13 of the MACP Scheme under Appendix-1 of resolution dated 01st September 2009 (Annexure-D to the counter affidavit filed on 6th October 2012. A perusal of the letter dated 7th October 2006, which has been enclosed to the supplementary counter affidavit, as aforesaid, however indicates that the services of the employees who were handed over to the Water Development Corporation by Govt. Order No. 844 dated 28.02.74, were treated as a Government Servant before handing over to the said corporation from the Irrigation and Electricity Department by office order no. 844 dated 28th February 1974. Order No. 844 dated 28.02.74, were treated as a Government Servant before handing over to the said corporation from the Irrigation and Electricity Department by office order no. 844 dated 28th February 1974. It further appears that there was a confusion relating to the fact as to whether after their services were handed over to the Directorate of Provident Fund, they were freshly absorbed in the said Directorate from the corporation or they were employees of the State Government from before. This fact obviously was realized by the respondent State of Bihar that the services of such employees which were handed over to the Water Development Corporation and subsequently to the Directorate of Provident Fund, were already treated as Government employees before such handing over. In such circumstances, they were treated to be absorbed in the Directorate of Provident Fund from the respective date i.e. year 1986 when their services were handed over to such Directorate. 7. On the other hand, clause-13 of Appendix-1 of MACP Scheme relied upon by the respondent indicates that in the matter of grant of MACP to Government employees, their service in Local Bodies / Boards / Corporation / Public Sector Undertaking prior to their appointment as Government Servant, will not be treated to be regular service for grant of MACP benefits. In view of the categorical decision indicated in office order dated 7th October 2006 enclosed to the respondent's supplementary counter affidavit, it is therefore without any doubt that this petitioner and others were already Government employees before their services were handed over to the corporation as per Govt. Order dated 28.02.74 and thereafter, were absorbed in the Directorate of Provident Fund. Therefore, clause-13 of Appendix-1 of the MACP Scheme does not apply in the instant case to deny the benefits of ACP/MACP when the services of the petitioner from his initial date of appointment under the Department of Irrigation and Electricity is being treated as a Government servant whereafter, he has been absorbed in the Directorate of Provident Fund in the erstwhile State of Bihar. At the same time, it is also apparent that for all other purposes / post retirement benefits, the services of the petitioner have been reckoned with effect from 19th November 1971 as a Government employee by the respondent themselves. 8. At the same time, it is also apparent that for all other purposes / post retirement benefits, the services of the petitioner have been reckoned with effect from 19th November 1971 as a Government employee by the respondent themselves. 8. Therefore, in the light of the aforesaid discussions made, respondents are obliged to take into account the period of services of the petitioner right from the date on which he was treated as a Government employee under the irrigation and Electricity Department, Government of Bihar also for the purposes of grant of ACP/MACP. 9. Respondents are therefore directed to take an informed decision in the matter of grant of ACP/MACP benefits to the petitioner. The petitioner has also complained that the grant of first ACP in the scale of Rs. 5000-8000 has been reduced to Rs. 4500-7000 by Memo dated 17th March 2010 (Annexure-5). Since on the question of grant of ACP/MACP, a direction is being issued to the concerned respondent i.e. Director, Provident Fund Directorate, Government of Jharkhand, Ranchi (Respondent No. 3) to take a decision in the matter, the petitioner shall also represent before the same authority in relation to his first grievance relating to letter dated 17th March 2010 (Annexure-5) whereunder the grant of higher pay scale on account of first ACP has been reduced. The Respondent No. 3 shall consider the representation of the petitioner along with the issue of grant of ACP/MACP within a period of twelve weeks from the date of receipt of a copy of this order. It is however indicated that till the decision is taken by the respondent no. 3 on the aforesaid issue, the amount as directed to be recovered pursuant to Annexure-5, shall be kept in abeyance. The writ petition stands disposed of with the aforesaid observations and directions. I.A. No. 4335/2013 also stands disposed of.