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2014 DIGILAW 842 (JHR)

State of Jharkhand v. Rajendra Prasad Mahto

2014-08-07

AMITAV K.GUPTA, R.BANUMATHI

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JUDGMENT R. Banumathi, C.J The present appeal is filed against the order dated 24.06.2013 passed in W.P.S No. 1676 of 2010 whereby the writ application filed by the respondent was allowed in part to the extent of cancellation of the order granting 2nd ACP to the respondent and further directed the appellants to calculate the arrears of service terminal benefits as well as the retiral dues in terms of his first promotion and order of 2nd ACP from the date of the order within 2 months. 2. The facts of the case in brief is that the Respondent was appointed as Excise Constable in the pay scale of 105-2-195-3-204 on 19.11.1974 and he was given temporary promotion vide Office Order No. 3598 dated 17.06.1983(61/V) issued by the Secretary to the Commissioner of Excise to the post of Excise Clerk and he gave joining on 21.06.1983 in the pay scale 580-10-620-15-770 E.B. 15-860/-. The respondent got first ACP (Assured Career Progression) with effect from 09.08.1999 in the pay scale of Rs. 4500-7000 and also got Second ACP with effect from 21.06.2007 in the pay scale of Rs.5000-8000 provisionally (vide office order no.862 dated 28.6.2008) with a condition that within one year the confirmation order of the Department of Finance, Jharkhand would be obtained on such grants of financial up gradation given to the respondent. In the meantime, the respondent retired on 31.01.2009. 3. In the light of the advice of the Finance Department in paragraph 3(v) of the resolution no.5207/F dated 14.8.2002, the Department of Excise and Prohibition issued an order vide Memo No. 473 dt. 17-03-2010 and the previous order relating to financial up gradation of the respondent was cancelled. Thereafter, the respondent filed writ being W.P.S No. 1676 of 2010 for quashing the memo no. 473 dated 17.03.2010 and the same was allowed on 24.06.2013 to the extent that the respondent is entitled to the benefits 2nd ACP by holding that the policy decision of granting ACP does not show that if a person is given promotion with certain scale he shall not be entitled for the benefits of 2nd ACP on completion of 24 years of service. Aggrieved by the order of the learned Single Judge the appellant has filed the present appeal. 4. Aggrieved by the order of the learned Single Judge the appellant has filed the present appeal. 4. Learned Additional Advocate General appearing for the appellants submitted that there are two errors in extending ACPs to the respondent and by virtue of the order dated 17.3.2010, the same was rightly cancelled by the Finance Department. It was submitted that by getting one regular promotion on the post of Excise Clerk in the scale of pay of Rs.4500-7000/-with effect from 9.8.1999, which is equivalent to 2nd ACP scale of pay in the post of Excise Constable, the petitioner-respondent is not entitled to get the benefit of either 1st ACP or 2nd ACP and the learned Single Judge did not properly appreciate the Scheme of granting ACPs to Government servant (vide clause 3(v)). 5. Learned counsel appearing for the respondents submitted that as against the 25% of departmental quota, the respondent was promoted from the post of Excise Constable to the post of Excise Clerk and therefore, his entry in the cadre of Excise Clerk cannot be termed as promotion, rather it has to be construed to be an appointment afresh and therefore, the respondent is entitled to 2nd ACP. Learned counsel further contended that one Gopal Pandit, who was appointed as Excise Constable along with the respondent and is similarly situated like the respondent, has been granted 2nd ACP in the post of Excise Clerk and while so, the appellant authorities cannot adopt a discriminatory attitude against the respondent. Learned counsel further contended that the benefits of 1st ACP and 2nd ACP granted to the respondent have been cancelled by the impugned order without giving any notice or affording any opportunity of representation and therefore, the learned Single Judge rightly quashed the impugned order to the extent of cancellation of the order granting 2nd ACP. 6. The respondent was appointed as Excise Constable on 19.11.1974. By the order dated 17.6.1983, four Excise Constable including the respondent and one Gopal Pandit and two Daftari were given promotion to the post of Excise Clerk in the scale of pay of Rs.580-10-770-EB-15-860/-, vide Annexure – A filed along with the counter-affidavit. 7. In so far as the contention of the respondent that his promotion as Excise Clerk should be construed to be “an appointment afresh” is concerned, the same is not supported by any document. 7. In so far as the contention of the respondent that his promotion as Excise Clerk should be construed to be “an appointment afresh” is concerned, the same is not supported by any document. As pointed out by the learned Single Judge, by perusal of Annexure – A, it is seen that it was an order of promotion of four Excise Constables including the respondent and two Daftari and therefore, the same cannot be taken as a fresh appointment on the basis of selection to the post under 25% category and the said plea that the respondent’s promotion as Excise Clerk to be an appointment afresh was rightly negatived by the learned Single Judge. 8. As per the scheme of the State Government, vide resolution no.5207 dated 14.8.2002, to grant two financial upgradation under the Assured Career Progression (ACP), the relevant clause in the said resolution is 3(V), which reads as under:- “3(V) The calculation of two financial upgradation under ACP scheme in the entire Government service period, in special category, in which the concerned Government servant has been appointed through direct recruitment, shall be done against the availed regular promotion. It means that two financial upgradation under ACP scheme shall be made available provided the Government servant would not have availed any regular promotion within the prescribed period (12 years and 24 years). If any employee has already been receiving pay scale of second financial progression, admissible under ACP scheme, after getting one regular promotion, in such circumstances, benefit of additional upgradation shall not be admissible to him. If any employee has already got one regular promotion, then he shall be eligible for second financial upgradation under ACP scheme only after completion of 24 years of regular service. If any employee has already got two promotions on regular basis, no any benefit shall be admissible to him under ACP scheme. 9. On an analysis of the above clause 3(V), the following categories emerge:- • Two financial upgradation under ACP shall be made available to the Government servant provided the Government servant had not availed any regular promotion with the prescribed period of “12 years and 24 years”. • After getting one regular promotion, if an employee has already received pay scale of second financial progression admissible under ACP scheme, in such circumstances, the benefit of additional upgradation shall not be admissible to him. • After getting one regular promotion, if an employee has already received pay scale of second financial progression admissible under ACP scheme, in such circumstances, the benefit of additional upgradation shall not be admissible to him. • If an employee has already got one regular promotion, then he shall be eligible for second financial upgradation under the Scheme, only after completion of 24 years of regular service. • If an employee has already got two promotions on regular basis, no benefit under ACP Scheme shall accrue to the employee. 10. In the case on hand, the respondent got only one promotion, i.e. from the post of Excise Constable to the post of Excise Clerk, vide office no.3598 dated 17.6.1983 in the scale of pay of Rs.580-10-620-15-770-EB-15-860/-and in revised scale of pay of Rs.4000-6000/-. The scale of pay of Excise Constable is Rs.2650-3540/-and as per 1st ACP, it will be Rs.3200-4900/-and for 2nd ACP Rs.4000-6000/-. 11. The stand of the appellants is that for getting one regular promotion in the scale of pay of Rs.4000-6000/-, which is equivalent to 2nd ACP in the post of Excise Constable, the writ petitioner-respondent is 1st 2nd not entitled to get the benefit of either ACP and ACP in the promotional post of Excise Constable. Learned Additional Advocate General submitted that the second error, which is being committed, is apparent from the plain reading of the first two lines of clause 3(V) of the Policy which says that “the calculation of second financial upgradation under ACP Scheme in the entire service shall be calculated from the grade in which the employee had been appointed”, which means that the case of the respondent for the purpose of calculation ought to have been taken from 19.11.1974, but while granting ACP, service career was taken from 1983 when he was promoted on the post of Excise Clerk, which is totally an error as per the Scheme of the State Government. It was submitted that the error was detected subsequently and therefore, ACP was cancelled and the learned Single Judge did not keep in view the errors crept in the order of granting 2nd ACP granted to the respondent. 12. There is no merit in the contention that since the respondent was given one promotion from the post of Excise Constable to 2nd the post of Excise Clerk, he is not entitled to ACP. 12. There is no merit in the contention that since the respondent was given one promotion from the post of Excise Constable to 2nd the post of Excise Clerk, he is not entitled to ACP. In the above resolution dated 14.08.2002 for granting ACP, it is not stated that if a person is given one promotion, he shall not be entitled to any ACP. It only states that if any employee has already got one regular promotion, then he shall be eligible for second financial upgradation under ACP Scheme only after completion of 24 years of regular service. If any employee has already got two promotions on regular basis, no benefit under ACP Scheme shall accrue to him. It is not the case of the appellants that the respondent was granted two promotions. Admittedly, as pointed out earlier, the respondent was granted one promotion from the post of Excise Constable to Excise Clerk. The language in clause 3(V) of the resolution is “if any employee has already got one promotion, then he shall be eligible for second financial upgradation under ACP Scheme only after completion of 24 years of regular service”. When the respondent was granted 2nd ACP with effect from 21.6.2007 in the scale of pay of Rs.5000-8000/-provisionally, vide office order no.862 dated 28.6.2008, the respondent has already completed 24 years of regular service. The learned Single Judge rightly pointed out that since the respondent had completed 24 years of continuous service before he was granted 2nd ACP, there is no justification for cancellation of 2nd ACP given to the respondent. We are, thus, of the view that the learned Single Judge rightly quashed the order cancelling the grant of 2nd ACP given to the respondent. 13. Our conclusion is fortified by yet another fact and circumstance. As pointed out earlier, vide office order no.3598 dated 17.6.1983, four Excise Constables including the respondent and one Gopal Pandit and two Daftari were promoted as Excise Clerk. The said Gopal Pandit was granted first ACP in the scale of pay of Rs.4500-7000/-with effect from 9.8.1999, vide order no.1020 dated 24.6.2005. On behalf of the respondent, it is stated that the said Gopal Pandit was granted 2nd ACP in the sale of pay of Rs.5000-8000/-and the same was not cancelled. When the similarly situated Excise Clerk, like Gopal Pandit, was granted 2nd ACP, the respondent cannot be discriminated. 14. On behalf of the respondent, it is stated that the said Gopal Pandit was granted 2nd ACP in the sale of pay of Rs.5000-8000/-and the same was not cancelled. When the similarly situated Excise Clerk, like Gopal Pandit, was granted 2nd ACP, the respondent cannot be discriminated. 14. The respondent was granted 1st ACP, vide office order no.1686 dated 20.12.2007, in the scale of pay of Rs.4500-7000/-with effect from 9.8.1999. So far as 1st ACP is concerned, as per the Scheme if an employee has already got one regular promotion, he shall be eligible for 2nd financial upgradation under ACP Scheme on completion of 24 years of regular service. The clear stand of the appellants is that in lieu of 1st ACP, the respondent was given promotion, vide order no.3598 dated 17.6.1983 and therefore, the respondent is not entitled to any ACP. The learned Single Judge did not interfere with the order dated 17.3.2010 cancelling the grant of 1st ACP given to the respondent. The respondent has also not preferred any appeal against the same. Therefore, the cancellation of 1st ACP in the scale of pay of Rs.4500-7000/-continues to hold good. 15. When the respondent was granted 2nd ACP in the scale of pay of Rs.5000-8000/-with effect from 21.6.2007 in the scale of pay of Rs.5000-8000/-, the respondent had already completed 24 years of regular service and therefore, as per the Scheme the respondent was entitled to the 2nd ACP. In such view of the matter, learned Single Judge rightly observed that there is no legal justification for cancellation of 2nd ACP given to the respondent on completion of 24 years of service. The respondent retired from service on 31.1.2009. 16. While quashing the order in respect of cancellation of 2nd ACP given to the petitioner-respondent, learned Single Judge issued the following direction:- “Since the petitioner is said to have retired on 31.1.2009, the respondents are directed to calculate his arrears of service terminal benefits as well as the retiral dues in terms of his first promotion and order of 2nd ACP from the dates the said orders were issued, within two months from the date of receipt/production of a copy of this order and thereafter, pay his all admitted dues/arrears within six weeks with statutory interest”. 17. We do not find any reason to interfere with the order dated 24.06.2013 passed by the learned Single Judge. 17. We do not find any reason to interfere with the order dated 24.06.2013 passed by the learned Single Judge. The LPA is, thus, liable to be dismissed. In the result, this LPA is dismissed.