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2014 DIGILAW 961 (JHR)

Rajendra Prasad Sinha v. State of Jharkhand

2014-09-12

APARESH KUMAR SINGH

body2014
JUDGMENT Aparesh Kumar Singh, J. Heard counsel for the parties. 2. Petitioner after his retirement from the post of permanent clerk in the Registration Department under the Office of District Sub Registrar, Hazaribag on 31.1.2004 approached this Court in WPS No. 6175 of 2004 for fixation of his pay and promotional benefits. The said writ petition was disposed of vide judgment dated 30.11.2004 directing the respondents to consider the petitioner's representation in accordance with law and take decision within a stipulated time. By a reasoned order at Annexure-3 bearing letter no. 38 dated 17.3.2005 issued by the Secretary cum I.G. Registration, Ranchi, while allowing other benefits of time bound promotion, the claim of the petitioner of first ACP has been denied on the ground that he was promoted as a permanent clerk in the year 1995 during the period of his service. The part of said order is also under challenge in the present writ application by the petitioner who also seeks direction upon the respondents to grant him the benefits of first ACP in the scale of Rs. 4500-7500 w.e.f. 9.8.1999 as also for payment of arrears of salary, D.A, H.R.A etc. 3. Petitioner has placed reliance upon the letter dated 8.11.1995 which is enclosed to the rejoinder as Annexure-6 as per which promotion from the post of Temporary Clerk to the post of Permanent Clerk is to be treated as appointment and such permanent clerk would not be entitled to enhanced 12% scale of pay . Reliance has been placed by the petitioner upon the judgment rendered in the case of Md. Moinuddin Ahmad in W.P.S. No. 3579 of 2010 dated 23.7.2014. It is the case of the petitioner that he was appointed earlier as an Extra Clerk in Registry Office, Hazaribag on 4.4.1965 and thereafter by the order dated 21.5.1981, Annexure-1 issued by the I.G. Registration, Bihar, he was appointed as temporary clerk along with 22 others. Learned counsel for the petitioner has pointed out that by the same office order, Md. Moinuddin Ahmad and one Mohan Prasad were also appointed as Temporary Clerk. It has been further pointed out that relying upon the instance of one Mohan Prasad and the order dated 8.11.1995 issued by the Secretary, Registration Department to all the District Sub Registrar, in the case of Md. Moinuddin Ahmad and one Mohan Prasad were also appointed as Temporary Clerk. It has been further pointed out that relying upon the instance of one Mohan Prasad and the order dated 8.11.1995 issued by the Secretary, Registration Department to all the District Sub Registrar, in the case of Md. Moinuddin Ahmad, who was similarly placed like the petitioner, this Court vide judgment dated 23.7.2014 has been pleased to direct the respondents to grant him the first ACP on completion of 12 years of service in terms of A.C.P resolution dated 14.8.2002. It is also submitted that petitioner also got promotion as a permanent clerk in the year 1995 itself which was in the nature of appointment in view of the departmental instruction dated 8.11.1995(Annexure-6). It therefore submits that refusal to grant first ACP on the ground that he has availed one promotion in the service career is not justified either in fact and law. 4. Respondents have contested the case of the petitioner and stated that upon consideration of his case he has been granted benefit of first time bound promotion w.e.f 21.5.1991 but since he was promoted as a permanent clerk in the year 1995 in regular manner he has no been granted the benefit of first ACP as per the terms and conditions of the A.C.P scheme. Petitioner has retired on 31.1.2004 as such he was not entitled to the benefit of second A.C.P also. 5. Having heard the counsel for the parties and in the aforesaid facts and circumstances of the case, it appears that the case of the petitioner is similar to that of Moinuddin Ahmad in whose case also it is noticed that he was appointed by the same office order dated 21.5.1981 as temporary clerk, Annexure-1. The said person was also given benefit of promotion to the post of permanent clerk, which however has been treated to be appointment in view of the specific instruction of the respondent-Registration Department as contained in Annexure-6 issued on 8.11.1995. As per said letter, the promotion of Temporary Clerk to Permanent Clerk were directed to be treated as case of appointment and those Permanent Clerk would not be entitled to benefit of 12% enhanced pay. Therefore it appears that case of the petitioner is similarly situated to that of Md. Moinuddin Ahmad, petitioner in W.P.S. No. 3579 of 2010. In the case of Md. Therefore it appears that case of the petitioner is similarly situated to that of Md. Moinuddin Ahmad, petitioner in W.P.S. No. 3579 of 2010. In the case of Md. Moinuddin Ahmad on noticing similar facts, this Court vide judgment dated 23.7.2014 directed the respondents to grant him first A.C.P as has been granted to one Mohan Prasad, who was also appointed through same order at Annxure-1 and had been promoted in the year 1995 as permanent clerk, though it was treated as appointment. 6. Having regard to the striking similarities between the case of the petitioner and the said person Md. Moinuddin Ahmad, the part of the reasoned order dated 17.3.2005 (Annexure-3) which has rejected the claim of the petitioner for grant of first A.C.P does not seem to be sustainable in law and fact. Accordingly, the concerned respondents would grant the benefit of first A.C.P to the petitioner as well from the due date and also revision in his pensionary benefits as may accrue there upon within a period of 12 weeks from the date of receipt of the copy of this order. The consequential benefits of arrears of salary accruing thereupon be released within a reasonable time thereafter. So far as the claim of arrears in relation to D.A, H.R.A is concerned, it appears from Annexure-A to the counter affidavit dated 28.10.2010 itself that the District Sub Registrar, Ramgarh has been directed to take a decision in that regard in view of the pendency of the writ petition. Accordingly, respondents are directed to take a decision in respect of the aforesaid claim of H.R.A, D.A and T.A of the petitioner within the same period. 7. The writ petition is allowed in the aforesaid manner.