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2015 DIGILAW 1496 (JHR)

Chhedi Ram v. State of Jharkhand

2015-12-03

APARESH KUMAR SINGH

body2015
ORDER : Heard counsel for the parties. 2. Petitioner has retired on 30.06.2008 from the post of Excise Constable while working under the Respondent No. 4 - Assistant Commissioner, Department of Excise and Prohibition, Dhanbad. He has prayed for grant of ACP benefits. 3. Petitioner was appointed on 08.07.1974 on the same post in the Government of Bihar, Department of Excise and has been granted first time bound promotion on 16.07.1985. Though explicitly, no prayer for second time bound promotion has been made, but learned counsel for the petitioner, during course of submissions, relied upon the contents of the writ petition, to submit that the petitioner was also entitled to second time bound promotion. Petitioner has prayed for grant of ACP as he completed about 34 years in service till his retirement. 4. As is revealed from the pleadings, petitioner completed 25 years of service to be eligible for second time bound promotion only in the year 1999 by which time, provisions of time bound promotion have been rendered inoperative in view of implementation of 5th Pay Revision from 01.01.1996. In that regard therefore, judgment relied upon by the petitioner in the case of Ramjee Prasad Singh vs. State & Ors. [1999 (3) PLJR 648 would not apply. 5. Admittedly, petitioner has not been granted exemption from passing the departmental exam at any time after he attains the age of 50 years. Learned counsel for the petitioner has referred to some communication, not on record, that correspondence was made with the higher authorities in the department for grant of such exemption on 29.05.2012. Any benefit of exemption from passing the departmental exam under the relevant circular of the Government is available only upon the decision of the competent authority taken in that regard and upon due consideration of all required conditions stipulated therein. Even otherwise, the order of exemption takes effect from the date of its passing. There is no order granting such exemption. In the absence of such exemption order in favour of the petitioner, he cannot claim such benefit. In respect of claim for ACP, petitioner's case has been contested by the respondents on the ground that he did not pass the mandatory physical training during his entire service period which is an essential requirement under the provisions of Government Notification No. 5207 dated 14.08.2002 contained in para-3(vii). 6. In respect of claim for ACP, petitioner's case has been contested by the respondents on the ground that he did not pass the mandatory physical training during his entire service period which is an essential requirement under the provisions of Government Notification No. 5207 dated 14.08.2002 contained in para-3(vii). 6. Petitioner in his rejoinder has made statement that he was never deputed or sent for such physical training. Therefore, that should not be a ground to deny the benefit of ACP. In that regard, he relies upon a judgment rendered in the case of Jharkhand Police Association, Wireless, Jharkhand, Ranchi through its Secretary Thakur Ajit Kumar versus State of Jharkhand & Ors. [2007 (4) J C R 443 (Jhr). Learned counsel for the petitioner has also relied upon a judgment rendered in the case of Basharat Hussain versus State of Jharkhand & Ors. [2009(2) J C R 139 (Jhr) in support of the contention that non passing or exemption should not be a ground of cancelling the time bound promotion. In this regard however, it is to be noted that financial up-gradation to an employee is dependent upon the scheme or circular introduced by the Government / employer and on fulfillment of laid down conditions therein which operates uniformly to all class of employees covered under the said circular. The Scheme under which claim for ACP is considered is not in question in the present case. The Hon'ble Supreme Court in the case of Secretary, Government (NCT of Delhi) and others versus Grade-I DASS Officers Association & others [(2014) 13 SCC 296, has held that Assured Career Progression Scheme being a policy decision of Government, would not be amenable to judicial review. It has to be implemented as per the scheme and the conditions stipulated uniformly, otherwise it may lead to results which would be violative of Article 14 and 16 of the Constitution of India. 7. Admittedly, one of the requirements of grant of ACP is the passing of the departmental exam, i.e. any such exam which is mandatory for grant of substantive promotion also, in terms of the said provisions. Once the petitioner has not passed the departmental exam for any reason whatsoever, conditions of Circular dated 14.08.2002 do not get satisfied. 7. Admittedly, one of the requirements of grant of ACP is the passing of the departmental exam, i.e. any such exam which is mandatory for grant of substantive promotion also, in terms of the said provisions. Once the petitioner has not passed the departmental exam for any reason whatsoever, conditions of Circular dated 14.08.2002 do not get satisfied. In that regard, petitioner cannot draw the benefit of judgment relied upon and that too when he has not been granted exemption and he has retired in the year 2008 itself. 8. In totality therefore, it is found that the petitioner has failed to make out any case of issuance of direction upon the respondent to grant him the benefit of ACP. The writ petition is dismissed.