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2017 DIGILAW 1742 (JHR)

Krishna Kumar Uraon v. State of Jharkhand

2017-10-06

S.N.PATHAK

body2017
ORDER : S.N. PATHAK, J. 1. As the issues involved in all the writ petitions are same and similar, they are being disposed of with a common order. However, in W.P.(S) No. 6081 of 2014, only petitioner No. 1 i.e. Krishna Kumar Uraon and petitioner No. 6 i.e. Arun Kumar Tiwari are pressing their claims. However, the petitioner in W.P.(S) No. 3832 of 2015 inter alia prays for quashing of office order No. 240 dated 9.12.2013, whereby the pay-scale of the petitioner and corresponding grade pay given to the petitioner in pursuance of grant of 2nd ACP vide office order No. 227 dated 13.11.2012 has been reduced and the same has been fixed at a lower pay scale/grade pay contrary to resolution dated 17.11.2012 of the Department of Finance, Govt. of Jharkhand. Similarly, petitioners in WP(S) No. 6081 of 2014, W.P.(S) No. 5847 of 2014, W.P.(S) No. 3832 of 2015, W.P.(S) No. 6221 of 2014 and WP(S) No. 6208 of 2014 have prayed for part quashment of office Order No. 74 dated 7.7.2014 and office order No. 162 dated 9.12.2013 [in W.P.(S) No. 6221 of 2014] whereby the pay-scale of the petitioners have been reduced contrary to resolution dated 17.11.2012 to disadvantage of the petitioners. Further in W.P.(S) No. 5335 of 2012, petitioner prays for grant of benefit of 1st and 2nd ACP and the petitioners in W.P.(S) Nos. 6029 of 2014 and 6200 of 2014 prays for grant of benefits of 2nd ACP. 2. The petitioners have approached this Court with a common prayer for direction upon the respondents to take a decision whether petitioners are entitled for the benefits of 2nd ACP in the scale of Rs. 6500-10500/- and whether the benefits of Assured Career Progression Scheme can be denied on the ground that the petitioners does not have the prescribed educational qualification for the post, i.e. Matric. Further prayer has also been made for quashing the order of recovery issued by the respondents that too after the retirement of the petitioners. 3. The petitioners joined the services of the Forest Department as Forest Guards and retired from the said Department after attaining the age of superannuation. The petitioners were considered and granted the benefits of 1st and 2nd ACP in the scale of Rs. 4000-6000/- and Rs. 6500-10500/- respectively. 3. The petitioners joined the services of the Forest Department as Forest Guards and retired from the said Department after attaining the age of superannuation. The petitioners were considered and granted the benefits of 1st and 2nd ACP in the scale of Rs. 4000-6000/- and Rs. 6500-10500/- respectively. It is the specific case of the petitioners that they were never considered for grant of any regular promotion in their entire service career and as such, after completion of 12 years and 24 years of their services, they were considered for 1st and 2nd ACP in the scale of Rs. 4000-6000/- and Rs. 6500-10500/- respectively. Subsequently, the respondents have modified the said order to the extent that petitioners were not entitled for the said pay-scale as they were non-matric and were entitled for the pay-scale of Rs. 4000-6000/- and Rs. 4500-7000/- under 1st and 2nd ACP respectively. Further, an order of recovery was passed for recovery of the excess amount paid to the petitioners on account of grant of 2nd ACP in the pay-scale of Rs. 6500-10500/-. Aggrieved by the said modification order for grant of 2nd ACP in the scale of Rs. 4500-7000/- in place of Rs. 6500-10500 and also against the order of recovery, the petitioners have approached this Court by way of preferring these writ petitions for redressal of their grievances. 4. Mr. Vijay Shankar Prasad assisted by Mr. Subham Mishra, learned counsel appearing for the petitioners strenuously urges that the aforesaid aspect of the matter has succinctly been dealt with by the Hon'ble Supreme Court as well as by the Hon'ble High Courts and the issue is now no more res integra, as the Hon'ble Courts have already held that the employees posted against the isolated post having no promotional avenues, would not be required to have any minimum standards of qualification attached with higher post and insisting upon the employees having the minimum educational qualification required for the higher post would be against the spirit of ACP Scheme and as such, distinction regarding matric and non-matric and fixing the pay-scale accordingly, is not tenable in the eyes of law and fit to be quashed and set aside. Learned counsel further argues that the respondents have illegally and arbitrarily reduced the pay-scale of petitioners from Rs. 6500-10500/- to Rs. 4500-7000/- under 2nd ACP, which is bad in the eyes of law. 5. Learned counsel further argues that the respondents have illegally and arbitrarily reduced the pay-scale of petitioners from Rs. 6500-10500/- to Rs. 4500-7000/- under 2nd ACP, which is bad in the eyes of law. 5. Per contra counter-affidavit has been filed by the respondents. Mr. Dhananjay Kumar Dubey, learned Sr. SC-I assisted by Mrs. Nilam Tiwary, learned counsel appearing for the respondents justifies the order of amendment regarding grant of 2nd ACP and argues that after realization of errors in granting ACP to non-matric Forest Guards in the light of Circular No. 176 dated 17.1.2009, issued by the Finance Department, the Screening Committee headed by the Regional Chief Conservator of Forest, Palamau, considered the matter for grant of ACP to non-matric Forest Guards and accordingly, they were granted 1st ACP in the scale of Rs. 4000-6000/- and 2nd ACP in the scale of Rs. 4500-7000/- after completion of 12 years and 24 years of service respectively. Learned senior standing counsel draws the attention of the Court towards para-35 of the counter-affidavit at page 50-51 and argues that the pay-scale already granted to non-matric Forest Guards was subsequently modified/revised in the light of aforesaid Circular dated 17.1.2009 and further in view of Resolution No. 2446 dated 17.11.2012, which at para-9 inter alia provides that the eligibility criteria for promotion such as passing in departmental examination, possession of requisite educational qualification for promotion shall also be taken into consideration while granting the benefits of ACP and thus, actions taken by the respondents are in accordance with law and are based on resolution of government which have been considered by Competent Screening Committee in formulating guidelines for deciding ACP while taking into due consideration of eligibility criteria as provided in the aforesaid resolution and thus, there is no illegality in modifying the earlier order for grant of 2nd ACP. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the cases of the petitioners need consideration. The issue regarding possession of higher educational qualification as prerequisite for grant of ACP on a pay which coincides with the promotional pay-scale have already been decided in catena of decisions of the Hon'ble High Courts as well as by the Hon'ble Apex Court. The issue regarding possession of higher educational qualification as prerequisite for grant of ACP on a pay which coincides with the promotional pay-scale have already been decided in catena of decisions of the Hon'ble High Courts as well as by the Hon'ble Apex Court. The petitioners continued to discharge their duties as Forest Guards till the date of their retirement and their educational qualification i.e. non-matric never came in their way in discharge of such duties. It is not a case that persons having higher qualifications are discharging duties that are larger and higher in scope and nature. Both the matriculates and non-matriculates are discharging the same duties and as such, no discrimination can be made on the ground of essential qualifications. Learned senior standing counsel for the respondents was unable to point out whether the Scheme of ACP clearly envisaged holding of essential educational qualification as a prerequisite for grant of ACP on a pay-scale which coincides with the promotional scale. Learned senior standing counsel for the respondents heavily relied on para-9 of the resolution no. 2446 dated 17.11.2012 regarding eligibility criteria for promotion. The said resolution only speaks of passing of departmental examination and not of having any essential educational qualification as a prerequisite for grant of ACP. The said resolution does not come to any help of the respondents. The ACP Scheme dated 9.8.1999 needs to be viewed as "Safety Net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. It further provides in para 3.1 Grant of financial upgradation under the ACP Scheme shall, however, be subject to the conditions". Fulfillment of normal promotion norms (benchmark, departmental examination, seniority-cum-fitness in the case of Group 'D' employees, etc.) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradation as personal to the incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (house building Advance, allotment of Government accommodation, advances, etc.) only without conferring any privileges related to higher status (e.g., invitation to ceremonial functions, deputation to higher posts, etc.) shall be ensured for grant of benefits under the ACP Scheme. It can be seen from the above that while norms include benchmark, departmental examination, seniority-cum-fitness, it does not specifically mention the requirement of holding the essential qualification for the pay-scale that may be granted under ACP even though this pay-scale coincides with the promotional pay-scale. In view of the same, it is my understanding that while the requirement of having proper benchmark, departmental examination or seniority-cum-fitness are laid down in the rules in the Scheme, holding of essential qualification corresponding to the pay-scale on which the ACP is granted, is nowhere explicitly envisaged in the scheme of the policy itself. 7. Thus, in my opinion, in cases of employees posted against the isolated post having no promotional avenues would obviously be not required to have any minimum standards of qualification for a higher post, in the instant cases matric. In case, where promotion avenues are available and the promotions are being denied due to lack of vacancies, to insist upon the employees having the minimum educational qualification required for the higher post, would be against the purpose of the scheme. 8. As a cumulative effect of the aforesaid observations, rules, guidelines, judicial pronouncements, I hereby quash and set aside the office order No. 240 dated 9.12.2013 in W.P.(S) No. 3832 of 2015 and office order No. 74 dated 7.7.2014 in W.P.(S) No. 6081 of 2014, W.P.(S) No. 5847 of 2014 and W.P.(S) No. 6208 of 2014 and office order No. 162 dated 9.12.2013 in W.P.(S) No. 6221 of 2014, whereby the pay-scale of the petitioners given in pursuance of grant of 2nd ACP has been reduced and the same has been fixed at a lower pay scale/grade pay contrary to resolution dated 17.11.2012 of the Department of Finance, Govt. of Jharkhand to the disadvantage of the petitioners. Further, the respondents are directed to grant the benefits of 1st and 2nd ACPs to the petitioners in W.P.(S) No. 5335 of 2012 and 2nd ACP to petitioners in W.P.(S) No. 6029 of 2014 and W.P.(S) No. 6200 of 2014, in pursuance of government resolution dated 17.11.2012. 9. Resultantly, the writ petitions are allowed. The respondents are directed to consider the cases of the petitioners and grant them the benefits of 2nd ACP by disregarding the requirement of matriculation as essential qualification provided the petitioners, who are otherwise eligible and suitable for grant of 2nd ACP in the scale of Rs. 6500-10500. 9. Resultantly, the writ petitions are allowed. The respondents are directed to consider the cases of the petitioners and grant them the benefits of 2nd ACP by disregarding the requirement of matriculation as essential qualification provided the petitioners, who are otherwise eligible and suitable for grant of 2nd ACP in the scale of Rs. 6500-10500. Further, the order of recovery, if any, are also hereby quashed and set aside. The respondents are further directed to grant the said benefits to the petitioners and to make refund of the amount, if any, which has already been recovered, within a period of three months from the date of receipt/production of a copy of this order and also inform the petitioners accordingly. No order as to costs.