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2017 DIGILAW 1648 (JHR)

Pramod Kumar v. State of Jharkhand

2017-09-13

S.N.PATHAK

body2017
JUDGMENT : S.N. PATHAK, J. 1. Heard learned counsel for the parties. 2. The petitioner has filed this writ petition with a prayer to quash letter No. 1380, dated 20.10.2011, whereby ACP/MACP granted to him long back has been canceled and order has been passed for recovery of excess amount on the ground that he has not passed Departmental Accounts Examination. Petitioner has further prayed for quashing of the letter No. 601, dated 21.3.2014, issued by the respondent No. 3 whereby after order of this' Court dated 17.1.2014, passed in W.P.(S) No. 8 of 2012, after inviting show-cause, respondent-Chief Engineer has confirmed the previous letter No. 1380, dated 20.10.2011 holding that as per Finance Department's letter No. 493, dated 22.2.2007, no promotion can be granted without passing Accounts Examination after 1.9.1983. 3. The facts in short as has been delineated in the instant writ petition is that petitioner was appointed on 6.12.1972 on the post of Accounts Clerks and on completion of 10 years of satisfactory service, he was granted First Time Bound Promotion on 6.12.1982 and entry in this regard was made in the Service Book. In the year 1992, a policy decision was taken by the Government that those accounts clerks of Works Department who have got promotion before 1.9.1983, shall not be reverted on the ground that he has not passed the Accounts Examination conducted by the Revenue Board. Further, because in First Promotion passing of examination is required, but since first promotion has been granted before 1.9.1983, subsequent promotion shall also be available if he fulfills other conditions, and circular to this effect was issued vide letter No. 3814, dated 21.7.1992. Pursuant to the order passed by the High Court in C.W.J.C. No. 4167 of 1998(R), the Finance Department, Government of Bihar issued a letter No. 8094, dated 21.11.2000 and letter No. 465, dated 13.2.1995, confirming that passing of Accounts/Departmental Examination for further promotion is not necessary if First Promotion has been granted before 1.9.1983. Similar stand was taken by the successor State of Jharkhand also which has been reiterated in letter No. 1256, dated 9.5.2003. In view of said stand of the Department, petitioner and others were granted Second Assured Career Progression with effect from 9.8.1999 and a letter to this effect had been issued vide letter No. 2287, dated 30.10.2006. Thereafter, on completion of 30 years of service, petitioner was also granted MACP. In view of said stand of the Department, petitioner and others were granted Second Assured Career Progression with effect from 9.8.1999 and a letter to this effect had been issued vide letter No. 2287, dated 30.10.2006. Thereafter, on completion of 30 years of service, petitioner was also granted MACP. However, when without any show-cause notice, the benefits of ACP granted to the petitioner had been recalled vide letter No. 1380, dated 20.10.2011, petitioner moved this Court vide W.P.(S) No. 8 of 2012 which was disposed of on 17.1.2014 quashing the impugned letter No. 1380, dated 20.10.2011. Thereafter, show-cause notice had been issued to the petitioner vide letter No. 398, dated 24.2.2014 and a short period of three days' time was allowed to the petitioner to give reply thereof. However, the respondents did not consider reply to show-cause and vide letter No. 601, dated 21.3.2014 upheld the previous order issued vide letter No. 1380, dated 20.10.2011 which was already quashed by this Court. 4. Mr. Rajiv Ranjan, learned Sr. Counsel appearing on behalf of the petitioner argued that petitioner is entitled for the benefits of ACP and financial upgradation and as such, the respondents have committed serious error in issuing impugned order. Learned Sr. Counsel further argued that in view of earlier Notification dated 12.8.1992, it is crystal clear that those who are granted promotion prior to 1.9.1983, were not required to pass Accounts Examination after 1.9.1983 and as such, they are entitled for the benefits of ACP in view of said Notification/clarification. Learned counsel has relied upon the Judgment passed in the case of Maheshwar Prasad Singh vs. State of Bihar reported in 2000 (4) PLJR 262 . Learned Sr. Counsel further referred to the Finance Department's Letter No. 493, dated 22.2.2007 indicating that so far as promotion to higher post is concerned, the departmental letter dated 12.8.1992 has made it clear that those clerks who have got promotion to the higher posts will get further promotion to the higher posts provided they fulfill the other conditions laid by the Department. Learned Sr. Learned Sr. Counsel further argued that no promotion can be granted without passing of Accounts Examination after 1.9.1983 though as a matter of fact the Finance Department's Letter dated 22.2.2007 does not indicate that after 1.9.1983 no promotion shall be admissible without passing Accounts Examination to those clerks who are already granted First Time Bound Promotion before cut-off date and moreover the issue involved has already been set at rest by the Finance Department as well as by this Court and it has now been held that once time bound promotion is granted without passing of the examination before cut-off date i.e. 1.9.1983, the subsequent promotion shall also be granted even though such employees have not cleared such departmental examination. Meaning thereby that those employees who were considered for promotion before 1983, are not required to clear Accounts Examination for getting further promotion. 5. Per contra counter affidavit has been filed. Ms. Shruti Shrestha, JC to learned Advocate General vehemently opposed the contention of learned Sr. Counsel and further drew attention of this Court towards letter dated 28/30.6.2017. Learned counsel submitted that in Clause-9 of said letter dated 8.7.2014, it has been clearly mentioned that those clerks can be considered for promotion without clearing departmental Accounts Examination who had already received promotion on 1.9.1983 or prior to that and those who had received promotion after this cut-off date, in that case they were required to pass Accounts Examination. Learned counsel further submitted that the Resolution dated 8.7.2014 issued vide Memo No. 2308, which is in continuation to letter No. 493, dated 22.2.2007, clearly depicts that those employees who have been promoted prior to 1.9.1983 without passing Accounts Examination, will get further promotion on fulfilling the other specified conditions. Learned counsel further pointed out that petitioner had got only merger of scale before 1.9.1983 and not any promotion to higher posts. Hence, the above departmental provisions is not valid for him and as such, the writ petition has got no merits. 6. Be that as it may, having gone through the rival submission of the parties, this Court is of the considered view that case of the petitioner needs consideration. Hence, the above departmental provisions is not valid for him and as such, the writ petition has got no merits. 6. Be that as it may, having gone through the rival submission of the parties, this Court is of the considered view that case of the petitioner needs consideration. Admittedly, petitioner was granted ACP and MACP as his case is exempted in view of series of Circulars issued by the Finance Department, Government of Bihar as also successor State of Jharkhand such as Circular dated 21.11.2000, 29.11.2001, 13.2.1995 and the clarification made in the latest Resolution dated 28.4.2014 issued by the Finance Department (Para 9 thereof). It is thus crystal clear that those who have been granted even first promotion after 1.9.1983 are required to pass departmental accounts examination while those who have been granted first promotion for first time before 1.9.1983, are exempted from doing so in the matter relating to subsequent promotion as also for financial upgradation provided other conditions are satisfied. As in the instant case, petitioner had received promotion, though not a regular one, prior to 1.9.1983, he is not required to pass accounts examination rather he is exempted from doing so in the matter relating to their subsequent promotion as also for financial upgradation provided he fulfilled other conditions. 7. As a cumulative effect of the aforesaid observations, rules, guidelines and judicial pronouncements, I am of the considered view that impugned order No. 1380, dated 20.10.2011, whereby ACP/MACP granted to him long back has been canceled and order has been passed for recovery of excess amount on the ground that he has not passed Departmental Accounts Examination and the letter No. 601, dated 21.3.2014, issued by the respondent No. 3 are not tenable in the eyes of law and resultantly, the same are quashed. The respondents are directed to grant ACP and MACP respectively. Respondents are further directed to pay differences of salary, other admissible allowances as applicable under revised scale and retirement benefits including gratuity, leave encashment and pension with statutory interest over the dues amount. It is made clear if any amount has already been recovered, the same shall be refunded to the petitioner within a period of six weeks from the date of receipt/production of a copy of this order. The writ petition is accordingly allowed.