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2017 DIGILAW 1418 (JHR)

Naresh Kumar v. State Of Jharkhand

2017-08-09

PRAMATH PATNAIK

body2017
JUDGMENT Pramath Patnaik, J. – In pursuance to the order dated 25.07.2017, Mr. Rakesh Kumar Shahi, learned J.C. to A.A.G. appearing for the Respondent-State has produced the Minutes of the Screening Committee, dated 11.07.2015. After perusal the same is returned to learned State counsel. 2. In the accompanied writ application, the petitioner has, inter alia, prayed for quashing the impugned order dated 15.06.2011, passed by the Respondent No. 3, whereby the representation of the petitioner for grant of 3rd upgradation in the pay-scale in Modified Assured Career Progression Scheme has been rejected and the petitioner has further prayed for a direction upon the respondents for grant of third upgradation in the pay scale under the M.A.C.P. Further, for which, otherwise, the petitioner is entitled to get with effect from 20th May, 2010, the date on which he has completed 30 years of service and the petitioner has further prayed to the respondents to release the entire arrears of difference of salary by virtue of grant of 3rd upgradation under the M.A.C.P Scheme and accordingly, fix and finalize his pension on the basis of enhanced pay scale and to release the entire arrears of difference of pensionary benefit with effect from 31.07.2010 i.e. the date of superannuation of petitioner along with interest. 3. The brief facts, as disclosed in the writ petition, are that initially the petitioner was appointed on the post of Bihar Administrative Service Cadre from 20.05.1980 till 15.11.2000 and after bifurcation of the State, he has been allocated Jharkhand cadre. In the year 1999, the first upgradation of the pay-scale was granted to the petitioner and thereafter, he has been granted the second upgradation vide Notification dated 17th October, 2005, wherein, his name appears at Serial No. 61. Thereafter, the petitioner has been granted promotion to the post of Sr. Selection Grade, in the Deputy Secretary Rank vide Notification dated 29th October, 2005, where, while working as a Circle Officer in the district of Ranchi, a criminal case was instituted against him in the year 2000 and a departmental proceeding was initiated against him, which is still pending. In the criminal case, he has been granted anticipatory bail in some of the cases while in others, he has prayed for quashing the entire FIR and order taking cognizance of the case under section 482 of the Code of Criminal Procedure, 1973 which was admitted by granting interim protection. In the criminal case, he has been granted anticipatory bail in some of the cases while in others, he has prayed for quashing the entire FIR and order taking cognizance of the case under section 482 of the Code of Criminal Procedure, 1973 which was admitted by granting interim protection. After 6th pay revision the petitioner claims for 3rd upgradation in the pay-scale under M.A.C.P. Scheme, has been rejected due to pendency of the criminal case, the petitioner filed W.P.(S) No. 6707 of 2010, which was disposed of on 18.04.2011. In pursuance to the order passed in W.P.(S) No. 6707 of 2010, the impugned order dated 15.06.2011 vide Annexure-6 of the writ petition has been passed rejecting the claim of the petitioner, which is impugned in this writ petition. 4. Learned counsel for the petitioner submits that the circular dated 20.11.2008, issued by the Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand is applicable to the petitioner so far as grant of M.A.C.P. is concerned and in pursuance to the order dated 04.05.2016, a supplementary counter affidavit dated 03.08.2016 has been filed by the respondents, wherein it has been submitted that the matter was taken up on 04.05.2016 for the provisional grant of MACP to the petitioner as per the provisions laid down in paragraph 5 of the resolution dated 20.11.2008, in the meeting of the Department of Screening Committee for consideration of the M.A.C.P. to the eligible officer was held on 27.10.2015 and the case of the petitioner was also considered, but, due to the nature of allegation and overall service record, the petitioner was not found fit for grant of M.A.C.P. It has been further stated that there are certain criteria laid down in paragraph 5 and 6 of the aforementioned resolution in the light of which grant of provisional promotion is to be considered as per which the Screening Committee did not find the petitioner fit for grant of M.A.C.P and due to above under the provision of paragraph 5 of the Government resolution dated 20.11.2008, the grant of third M.A.C.P to the petitioner cannot be considered to be submitted before the Committee. 5. Heard Mr. Saurabh Shekhar, learned counsel for the petitioner as well as Mr. Rakesh Kumar Shahi, learned J.C. to A.A.G. appearing for the Respondent-State. 6. Mr. 5. Heard Mr. Saurabh Shekhar, learned counsel for the petitioner as well as Mr. Rakesh Kumar Shahi, learned J.C. to A.A.G. appearing for the Respondent-State. 6. Mr. Rakesh Kumar Shahi, learned J.C. to A.A.G appearing for the Respondent-State has gone through the records minutely in order to appreciate the case of the petitioner and on perusal he has submitted that the case of the petitioner was considered by the Screening Committee in the light of the Resolution dated 02.08.2016. Learned counsel for the Respondent-State was directed to produce the minutes of the Screening Committee dated 27.08.2015 and today learned counsel for the Respondent-State has produced the same for perusal of the Court. 7. Having gone through the minutes of the meeting dated 27.08.2015, it appears that the case of the petitioner has been considered by the Screening Committee on 27.10.2015, but, it appears that the case of the petitioner has been considered in a very casual manner without having any reference to the Resolution dated 20.11.2008. 7. Having gone through the minutes of the meeting dated 27.08.2015, it appears that the case of the petitioner has been considered by the Screening Committee on 27.10.2015, but, it appears that the case of the petitioner has been considered in a very casual manner without having any reference to the Resolution dated 20.11.2008. For better appreciation of the relevant facts of the case, the relevant portion i.e. Clause 5 of the Resolution dated 20.11.2008, which has been annexed as Annexure-7 to the rejoinder filed on behalf of the petitioner dated 07.09.2011, is quoted hereunder: " 5 & mi;qZDr dafM+dk&4 esa mfYyf[kr Nekgh leh{kk fd;s tkus ds ckotwn] dqN ,sls ekeys Hkh gks ldrs gS] ftuesa igyh foHkkxh; izksUufr lfefr] ftlus ljdkjh lsod ds laca/k esa vius fu"d"kksZ dks eqgjcan fyQkQs esa j[kk Fkk] dh cSBd dh frfFk ls nks lky ckn Hkh ljdkjh lsod ds fo:) vuq''kklfud ekeys@vkijkf/kd vfHk;kstu laca/kh ekeyksa esa vafre :i ugha fn;k tk ldk gSA ,slh ifjfLFkfr esa fu;qfDr vf/kdkjh ,sls ljdkjh lsod ds ekeys dh leh{kk djsaA vxj og ljdkjh lsod fuyEcuk/khu u gks] rks fuEukafdr igyqvksa dks /;ku esa j[krs gq, mls rnFkZ izksUufr fn;s tkus dh laHkkouk ij fopkj fd;k tk;%& d & D;k ljdkjh lsod dh izksUufr yksdfgr ds fo:) gksxh\ [k & D;k vkjksi brus xaHkhj gS fd mls izksUufr ls oafpr j[ks jguk t:jh gS\ x & D;k fudV Hkfo"; esa bl ekeys ds iwjk gksus dh laHkkouk gS\ ?k & D;k fdlh foHkkxh; vFkok fdlh vkijkf/kd dk;Zokgh dks vafre :i fn;s tkus esa gksus okys foyEc esa lh/ks rkSj ij vFkok ijks{k :i esa lacaf/kr lsod dk dksbZ gkFk gS\ M+ & D;k ,slh dksbZ laHkkouk gS fd lacaf/kr lsod rnFkZ izksUufr ds ckn izkIr gqbZ viuh ljdkjh gSfl;r dk nq:i;ksx dj ldrk gS vkSj ftlds ifj.kkeLo:i foHkkxh; ekeys@vkijkf/kd dk;Zokgh ls lacaf/kr dkjZokbZ ij dksbZ izfrdwy izHkko iM+ ldrk gS\ fu;qfDr izkf/kdkj ;fn mfpr le>s rks dkj.kksa dks fyf[kr :i ls n''kkZrs gq, yksdk;qDr ds dk;kZy;] fuxjkuh foHkkx vFkok dsUnzh; vUos"k.k C;wjks] ftuds izfrosnu ds vk/kkj ij vuq''kklfud dkjZokbZ@vkijkf/kd vfHk;kstu izkjEHk gqvk Fkk] ls ijke''kZ fy;k tk ldrk gSA fdUrq fu;qfDr izkf/kdkj bl ladYi esa mfYyf[kr funs''kksa ds foijhr ijke''kZ dks ekuus ds fy, ck/; ugha gksaxsA " 8. There is no gainsaying of the fact that the departmental proceeding is still pending against a Government servant, the provisions for grant of ad hoc or provisional promotion has been envisaged under the aforesaid circular, which has also been admitted by the supplementary counter affidavit by the State dated 03.08.2016. So far as the consideration by the respondents for grant of third M.A.C.P to the petitioner, it appears to be the respondents have only mentioned the fact that because of the pendency of the departmental proceeding, they have not considered the case of the petitioner, so it is a case, where the petitioner''s case has been totally left out because of the pendency of the departmental proceeding. By no stretch of imagination, it can be construed that the case of the petitioner has been considered in the light of the Circular dated 20.11.2008. 9. It would be apt to refer to the decision of the Hon''ble Apex Court rendered in the case of Chairman, Life Insurance Corporation of India and Ors. v. A. Masilamani reported in (2013) 6 SCC 530 , at paragraph 19 has been pleased to hold: "19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind." 10. The Minutes of the meeting held on 27.10.2015, I am of the considered opinion that the case of the petitioner deserves to be considered afresh in the light of the resolution dated 20.11.2008. In that view of the matter, in the interest of justice, it would be apposite to direct the respondents and more particularly, the respondent no. 2 i.e. The Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Ranchi to consider the case of the petitioner for grant of third M.A.C.P strictly in the light of the Resolution dated 20.11.2008 and in accordance with law within a period of eight weeks from the date of receipt/production of a copy of the order. 11. 2 i.e. The Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Ranchi to consider the case of the petitioner for grant of third M.A.C.P strictly in the light of the Resolution dated 20.11.2008 and in accordance with law within a period of eight weeks from the date of receipt/production of a copy of the order. 11. With the aforesaid observation and direction, this writ petition stands disposed of.