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2016 DIGILAW 1008 (JHR)

Saroj Sinha v. State of Jharkhand

2016-07-04

PRAMATH PATNAIK

body2016
JUDGMENT : PRAMATH PATNAIK, J. 1. The present writ petition has been preferred by the petitioner for quashing the impugned order as contained in letter no. 2106 dated 17.12.2011 issued by the office of the Commissioner, Palamu Division, Medninagar (respondent no. 3) vide Annexure-3 whereby the benefit of up-gradation in the pay scale, granted to the husband of the petitioner by order dated 14.05.2004 has not been confirmed, due to the reason that the husband of the petitioner had not passed Accounts Examination and further prayer has been made for direction upon the respondents to forthwith release the benefits of up-gradation in the pay scale under the provisions of Assured Career Progression Scheme in terms of the order dated 14.05.2005 issued under the signature of the respondent no. 4 and also for direction upon the respondents to forthwith fix and release the entire pension amount and leave encashment due to the husband of the petitioner, since the date of his death i.e. from 03.06.2008, along with interest and other consequential benefits and issuance of writ and nature of mandamus commanding upon the respondents to pay family pension to the petitioner on the basis of enchanced pay scale. 2. Mr. Saurabh Shekhar, learned counsel for the petitioner has vehemently submitted that due to withdrawal of the benefits of the 1st and 2nd up-gradation in the pay scale under Assured Career Progression Scheme, granted to the husband of the petitioner on the ground of non-passing of the Accountant Examination is contrary to the decisions of this Court dated 12th October, 2011 passed in W.P. (S) No. 5694 of 2009 and clause 4(i) of the circular dated 12th August, 1992 which has been issued by the Finance Department which envisages that the benefit of Assured Career Progression Scheme which was given to those clerks prior to 1983, cannot be withdrawn on the ground that they have not cleared examination. It is also mentioned in clause 4(i) of the said circular that once the 1st Assured Career Progression cannot be withdrawn then subsequent benefits of Assured Career Progression should be given to such Clerks. It is also mentioned in clause 4(i) of the said circular that once the 1st Assured Career Progression cannot be withdrawn then subsequent benefits of Assured Career Progression should be given to such Clerks. Learned counsel for the petitioner further submits that while in service, husband of the petitioner duly became entitled for the benefits of 1st and 2nd up-gradation in the pay scale under the Assured Career Progression Scheme and the same was granted to him vide order dated 14.05.2004 and the same was duly certified by inquiry letter that the deceased qualified for the said benefits as on 09.08.1999 while he was serving on the post of Senior Accounts Clerk. Moreover, the husband of the petitioner had already completed the required 12 years and 24 years of service on 12.04.1977 and 12.04.1989 respectively from the date of his appointment i.e. 12.04.1965 and was also eligible for regular promotion. Learned counsel for the petitioner further submits that the husband of the petitioner was eligible for 1st up-gradation under Assured Career Progression Scheme even before 01.09.1983 i.e. when he had already completed twelve years of services on 12.04.1977, counted from 12.04.1965 and the Finance Department of Bihar through its circular dated 14.11.2000 made a mention of Clause 4(i) of its circular dated 12.08.1992 in which it was held that any employee eligible for increment on or before 01.09.1983 would not be withheld for the same, merely on the reason that he has not passed some departmental examination circular issued dated 21.11.2000 as evident from Annexure-4 series to the writ application. Learned counsel for the petitioner during course of hearing has referred to circular dated 12.08.1992 vide Annexure-10 to the Supplementary Affidavit dated 29.03.2016 which squarely covers the case of the husband of the petitioner. 3. Ms. C. Prabha, S.C. IV, learned counsel for the respondents-State has reiterated the submissions made in the paragraph nos. 6 and 7 of the counter-affidavit. It has been submitted that the husband of the petitioner was provided benefit of A.C.P. on 14.05.2004 on provisional basis with condition that if any irregularity or illegality will be found, then the matter will be reconsidered or withdrawn and payment made, if any, that may be recovered. 6 and 7 of the counter-affidavit. It has been submitted that the husband of the petitioner was provided benefit of A.C.P. on 14.05.2004 on provisional basis with condition that if any irregularity or illegality will be found, then the matter will be reconsidered or withdrawn and payment made, if any, that may be recovered. It has further been stated in the counter-affidavit that the aforesaid condition has been accepted by the employees including the husband of the petitioner and after granting the benefit of A.C.P. the matter has been sent before the competent authority i.e. the Divisional Commissioner, Palamau at Medninagar for approval and vide office letter dated 17.12.2011 the office of the Divisional Commissioner, Palamau has not approved the A.C.P. granted to the husband of the petitioner, on the ground that the husband of the petitioner had not passed the departmental examination in terms of decision of the Finance Department. It has further been submitted that the entire amount of G.I.S to the tune of Rs.1,39,075 has already been paid on 04.08.2008 itself and 90% provisional pension has also been paid to the petitioner to the tune of Rs.3645/- per month and the provident fund amount has also been paid on 24.03.2009 to the petitioner to the tune of Rs.2,18,403/-. Recommendation has been made for payment of full pension and gratuity in terms of last pay drawn by the husband of the petitioner, after deducting the A.C.P benefit which has been provided provisionally and conditionally. 4. Mr. S. Srivastava, learned counsel for the respondent no. 6 has submitted that after receipt of the required information from Commissioner, Palamau Division, Jharkhand, necessary steps shall be taken by the office of the respondents no. 6. 5. Having heard learned counsel for the respective parties at length and looking to the facts and circumstances of the case, the impugned letter dated 17.12.2011 issued by the Commissioner, respondent no. 3 is liable to be quashed and set aside, mainly on the ground that the case of the petitioner is squarely covered by the decisions of this Court dated 12.10.2011 passed in W.P. (S) No. 5694 of 2009, vide Annexure-5 to the writ application, wherein this Court by referring to Clause 4(i) of the circular dated 12th August, 1992 issued by Finance Department, has passed a reasoned order. In that view of the matter, the aforesaid impugned order does not stand to any reason. In that view of the matter, the aforesaid impugned order does not stand to any reason. Under the aforesaid circumstances, the impugned letter dated 17.12.2011 vide Annexure-3, passed by the respondent no. 3, is hereby quashed and set aside and the writ petition is disposed of with direction to the respondents to release the benefits and the pay scale under the provisions of Assured Career up-gradation scheme, in terms of order dated 14.05.2004 issued by respondent no. 4 and, accordingly, fix and release the entire pension amount including leave encashment due to the husband of the petitioner, by fixing the payment of family pension to the petitioner, on the basis of enhanced pay scale and the entire exercise be completed within a period of 16 weeks from the date of communication of this order. 6. With the aforesaid observations and directions, the writ petition stands disposed of. Petition disposed of.