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2015 DIGILAW 850 (JHR)

Radha Kishore Prasad v. State of Jharkhand

2015-07-24

PRAMATH PATNAIK

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Order : Pramath Patnaik, J. 1. In the instant writ application, the petitioner has inter alia prayed for direction to the respondents for payment of due gratuity, leave encashment arising out of 1st A.C.P. w.e.f. 09.08.1999 and 2nd A.C.P. w.e.f. 27.04.2001 granted to the petitioner vide letter no.1047 dated 26.04.2006 (Annexure-2) and also to pay the arrears of pension etc. after fixation of final pension in the revised scale alongwith statutory interest. The petitioner has further prayed for quashing the letter dated 15.03.2010 (Annexure-8) as well as memo dated 31.03.2010 (Annexure-8/A) issued by respondent no.6 without issuing any notice as well as for disposal of the case in terms of the order dated 15.12.2008 (Annexure-10) passed in W.P.(S) no.5939 of 2005, Jwala Prasad vs. The State of Jharkhand and Others. 2. Initially a counter affidavit was filed on behalf of the respondents but this Court vide order dated 12.12.2014 directed the respondents to file a supplementary counter affidavit clarifying the following position: “(i) as to whether any recruitment and promotion rules for the post which the petitioner belonged, has been formulated or not, (ii) on what basis the ground has been taken for shifting the date of granting ACP benefits w.e.f. 7.6.2004, the date of passing Accounts examination while it has not been mentioned in Clause-3(vii) of the Circular, as contained in circular no.5207 dated 14.8.2002.” 3. In pursuance to order dated 12.12.2014 a counter affidavit has been filed by the respondents wherein it has been mentioned that with regard to release of retiral dues of the petitioner, Leave Encashment, Group Insurance Scheme as well as General Provident Fund have been paid to the petitioner but so far as recruitment/promotion rules is concerned, it has been mentioned that circular issued for Class-III employees vide letter no.3/R/1-103/73-ka-16440 dated 3rd December, 1980 and regarding Clause 3(vii) of the Circular no.5207 dated 14.08.2002, a clear order was issued by the Finance Department, Government of Jharkhand vide letter no.1779 dated 21.05.2014. In this letter, in para (x) all doubts regarding date of ACP in case of departmental examination has been cleared that ACP to any employee will be awarded with the date of passing the departmental examination and accordingly, MACP will be affected as evident from Annexure-M to the counter affidavit. 4. Heard Mr. Anjani Kumar Verma, learned counsel for the petitioner and Mrs. Rakhi Rani (J.C. to Sr. S.C.II) appearing for the respondents. 4. Heard Mr. Anjani Kumar Verma, learned counsel for the petitioner and Mrs. Rakhi Rani (J.C. to Sr. S.C.II) appearing for the respondents. 5. Learned counsel for the petitioner has submitted that the impugned order under Annexures-8 is not legally sustainable in view of the fact that prior to issuance of order dated 15.03.2010 no notice has been issued nor any opportunity has been given in violation of Article 300A of the Constitution of India and the impugned order has visited the petitioner with civil consequences resulting in financial loss. Moreover, the petitioner is aggrieved by the order of recovery mentioned in Annexure-8/A of the writ petition. Learned counsel for the petitioner has strenuously urged that the case of the petitioner is squarely covered by the decision rendered in Ajit Kant Sahay vs. State of Jharkhand & Ors. reported in [ 2012 (1) JCR 113 (Jhr)]. Learned counsel for the petitioner has submitted that the case of the petitioner is squarely covered by the aforesaid decision and the similar benefit be extended to the petitioner. 6. As against this learned counsel for the State has dexterously argued the case that the Government has got right to rectify a bonafide mistake at any point of time. Learned counsel for the State by referring to the counter affidavit has submitted that Clause 3(vii) of the Circular no.5207 dated 14.08.2002 a clear order was issued by the Finance Department, Government of Jharkhand. In the said letter in para (x) all doubts regarding date of ACP in case of departmental examination has been cleared that ACP to any employee will be awarded with the date of passing the departmental examination and accordingly, MACP will be affected as evident from Annexure-M to the counter affidavit. As such, the impugned order (Annexure-8/A) does not suffer from any arbitrariness or illegality so as to call for any interference by this Court. 7. As such, the impugned order (Annexure-8/A) does not suffer from any arbitrariness or illegality so as to call for any interference by this Court. 7. Having heard the counsels for the parties at length and on perusal of the records, I am of the considered view that the impugned order (Annexure-8/A) so far as recovery is concerned is not legally sustainable in view of the following facts reasons and judicial pronouncements: (I) Admittedly, the petitioner retired on attaining the age of superannuation on 30.11.2008 but after retirement of the petitioner, the impugned order of recovery shifting the date in the year 2004 has been passed for recovery of the amount prior to the issuance of impugned order under Annexure-8/A. (II) To the specific query of this Court dated 12.12.2014, a counter affidavit has been filed wherein it has been mentioned vide annexure-M that for grant of ACP passing of departmental examination is condition precedent which came into effect vide resolution dated 21.05.2014, but the said resolution will not have any retrospective effect, so the accrued benefit could not have been extinguished by passing impugned order vide annexure-8/A thereby infringing Article 300A of the Constitution of India. 8. On cumulative effect of the facts, reasons and judicial pronouncements, I am of the considered view that the impugned order under Annexure-8/A is not legally sustainable so far as recovery is concerned and the impugned order dated 15.03.2010 (Annexure-8) as well as memo dated 31.03.2010 (Annexure-8/A) is accordingly quashed. Resultantly, the petitioner shall be entitled to draw the pension as per the last pay drawn at the date of retirement i.e. 30.11.2008. 9. With the aforesaid observation and direction, the writ petition stands disposed of.