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2017 DIGILAW 2184 (JHR)

Shyam Sundar Singh v. State Of Jharkhand

2017-12-18

S.N.PATHAK

body2017
JUDGMENT S.N. Pathak, J. – Heard learned counsel for the petitioners and learned counsel for the respondents. 2. The petitioners have approached this Court with a prayer for quashing the resolution as contained in memo No. 2394 dated 11.09.2013, issued under the signature of respondent No. 2, by which the earlier implementation of D.A.C.P. scheme w.e.f. 05.04.2002 (as per 5th pay revision recommendation) and 29.10.2008 (as per 6th pay revision recommendation) has been shifted to 01.09.2008. Further prayer has been made for quashing the notification contained in memo Nos. 51(3) and 52(3), both dated 15.01.2014, issued under the signature of Joint Secretary, whereby Dynamic Assured Career Progression (D.A.C.P.) given to the petitioners, have been withdrawn. 3. The factual exposition as has been delineated in the writ petition are that the petitioners, are medical practitioners and they were employed under the respondent-State and all of them have already retired from their services on different dates. The Govt, of India, Ministry of Health and Family Welfare (Department of Health) vide letter dated 05.04.2002 implemented the 5th pay Revision regarding grant of D.A.C.P. which was applicable to the medical practitioners only whereby it has been mentioned that the promotion under said D.A.C.P. scheme shall be made without linkage to the vacancy position. In other words, no vacancy is required for giving the benefits under D.A.C.P. Scheme. As per this letter dated 05.04.2002, benefits under D.A.C.P has to be granted after completion of 4 years, 9 years and 13 years of continuous services, it has further been stated that pursuant to 6th Pay Revision, Govt, of India, Ministry of Health and Family Welfare, issued another office memorandum dated 29.10.2008 which was made effective from 29.10.2008. Thereafter, the Govt, of Jharkhand vide resolution dated 28.11.2011 accepted implementation of both 5th and 6th pay revisions after approval of the Cabinet and the benefits under D.A.C.P. was made effective from 05.04.2002 in light of 5th Pay Revision and the benefit of D.A.C.P. from 29.10.2008 in light of 6th pay revision. The petitioners after being qualified in terms of 5th and 6th pay revision were granted the benefits of D.A.C.P. vide notification Nos. 446(3) and 447(3) both dated 02.04.2013, issued by the Department of Health, Govt, of Jharkhand, Ranchi. The petitioners after being qualified in terms of 5th and 6th pay revision were granted the benefits of D.A.C.P. vide notification Nos. 446(3) and 447(3) both dated 02.04.2013, issued by the Department of Health, Govt, of Jharkhand, Ranchi. As per cut.-off date, as notified by the State Government vide Annexure-3, the petitioners were then in service and they have rightly been granted benefits of D.A.C.P. by the respondents. It is the specific case of the petitioners that all of a sudden, without any information or show-cause to the petitioners, the cut-off date which was fixed by the Government has been modified to 01.09.2008 vide resolution dated 11.09.2013, whereas, as per resolution dated 22.01.2013 (Annexure-4), the petitioners were entitled for all the financial benefits. Accordingly, in pursuance of order dated 11.09.2013, the Department of Health and Family Welfare, Govt, of Jharkhand issued notification dated 15.01.2014, whereby the benefits of D.A.C.P. granted to the petitioners vide notification dated 02.04.2013 has been withdrawn. Aggrieved by the said orders dated 11.09.2013 and 15.01.2014, the petitioners have approached this Court by way of filing the instant writ application. 4. The learned Senior Counsel argues that the sole issue to be decided in the instant writ application is whether the doctors are entitled for benefits of D.A.C.P and if entitled, then from which date. It has been emphatically argued that petitioners have already been granted the benefits of D.A.C.P vide Annexure-5 and 5/1, but the same has been modified vide Annexure-3, Annexure-6 without assigning any reasons and opportunity of hearing to the petitioners and as such the decision is wholly arbitrary. The learned Senior Counsel further argues that once right has accrued to the petitioner and same was implemented too, the same cannot be snatched away by way of amending the cut of date which has no nexus and even no reasons have been assigned. It has been further argued that 5th and 6th Pay Revision cannot be merged together. Piecemeal changes cannot be allowed dehors the rule by the respondents. It has been further argued that 5th and 6th Pay Revision cannot be merged together. Piecemeal changes cannot be allowed dehors the rule by the respondents. To strengthen his argument the learned counsel relies on (2005) 4 SCC 154 , Secretary, Andhra Pradesh Public Service Commission v. B. Swapna and AIR 1987 SC1676 in case of P.D. Aggarwal and others v. State of U.P. and others and argues that though there was a specific direction of the court to clarify the stand of the respondents, but nothing has come in the counter-affidavit of the Finance Department. 5. The counsel for the State vehemently opposes the contention of the petitioner and argues that doctors are not entitled for the benefits of D.A.C.P. as they have already received the benefits of two A.C.Ps. Annexure-6 was issued because benefits under A.C.P. and D.A.C.P. were running side by side. Therefore, D.A.C.P. was introduced by shifting the dates. It has been further argued that the benefits of both the Schemes were not admissible since there were no guidelines of the Central Government to that effect till 31.08.2008. It is submitted that since the scheme of A.C.P. was open to the doctors till 31.08.2008, it was decided vide memo no. 2394 dated 11.09.2013 (Annexure-6 of the writ application) that the scheme of D.A.C.P. would be implemented notionaliy from 01.09.2008 and monetary benefits were to be given from 01.04.2009 and allowing the benefits of the scheme of D.A.C.P to the doctors notionaily from 05.04.2002 by Government of Jharkhand would lead to an anomaly for the period from 05.04.2002 to 31.08.2008, as the doctors would have been entitled to both the benefits of A.C.P. as well as D.A.C.P. which was against the spirit of the scheme. Justifying the impugned orders the learned counsel further argues that the scheme of D.A.C.P. is effective under Jharkhand Government notionally from 1.09.2008 and monetary benefits were granted w.e.f 01.04.2009 and as such there is no illegality or any infirmity in the impugned orders and petitioners are not entitled to any relief from this court. 6. Be that, as it may having gone through the rival submissions of the parties this court is of the considered view that no interference is warranted in the writ application in view of the policy decision of State Government. 6. Be that, as it may having gone through the rival submissions of the parties this court is of the considered view that no interference is warranted in the writ application in view of the policy decision of State Government. From perusal of Annexure-6 of the writ application, the said changes in the cut of date has been brought in terms of the objection raised by the office of the Accountant General and keeping in mind the prevailing economic and other conditions of State Government. Further no serious prejudice has been caused to the petitioners, since benefits of both the schemes can''t be granted to the petitioners side by side. In the instant case scheme of A.C.P. as well as D.A.C.P. remained operative till 31.08.2008 for the doctors in the State of Jharkhand which was rationalized by the Government by shifting the date of implementation of the D.A.C.P Scheme. From perusal of the records it is apparent that vide resolution dated 28.11.2011 benefits of Dynamic Assured Career Progression were granted to the doctors of non-teaching cadre. Thereafter, vide Annexure-7 the benefits of the D.A.C.P. was notionally granted with effect from 01.09.2008 (on the basis of the recommendation of the 5th Pay Commission) and 29.10.2008 (on the basis of recommendation of the 6th Pay Commission) but the monetary benefits was decided to be given with effect from 1.04.2009. Clause 4(e) of the resolution dated 22.01.2013 provides that the benefits of D.A.C.P. would be extended in terms of the resolution of the Department of Finance issued vide Resolution no. 2464 dated 28.11.2011 and notional benefit of the same would be extended w.e.f. 5.4.2002 and the monetary benefits was decided to be granted w.e.f. 01.04.2009. The resolution dated 22.01.2013 was amended vide memo no. 2394 dated 11.9.2013 (Annexure-6 to the writ application). Clause 3(b) of the resolution issued vide memo dated 11.09.2013 finally settles the issue regarding the date of implementation of the scheme of D.A.C.P. w.e.f. 01.09.2008 to the doctors of nonteaching cadre and monetary benefits was decided to be given w.e.f. 1.4.2009 and as such no prejudice has been caused to the petitioners in view of the aforesaid amendment. Clause 3(b) of the resolution issued vide memo dated 11.09.2013 finally settles the issue regarding the date of implementation of the scheme of D.A.C.P. w.e.f. 01.09.2008 to the doctors of nonteaching cadre and monetary benefits was decided to be given w.e.f. 1.4.2009 and as such no prejudice has been caused to the petitioners in view of the aforesaid amendment. Hon''ble Apex Court ins J.P. Chaurasia and Ors., AIR 1989 SC 19 has observed that:- "Equation of pay must be left to the Executive Government and it must be determined by expert bodies like Pay Commission and the court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration." 7. The same view was reiterated in Shiba Kumar Dutta and others v. Union of India and others, (1997) 3 SCC 545 , the Hon''ble Supreme Court reaffirmed the aforesaid view and held that credence has to be given to the opinion of expert committee like Pay Commission and the Court should be reluctant to interfere unless the opinion of such committee is arbitrary or invidious discrimination. 8. The Department of Health, Government of Jharkhand issued a notification in this regard as grant of benefits under Dynamic Assured Career Progression are matters within the Exclusive Domain of Executive and not of the Judiciary. Therefore, this Court is not inclined to interfere with the Policy Decision of the Government, either by granting or revising such benefits to the Doctors. The same view has been expressed earlier by the Hon''ble Division Bench of this Hon''ble Court in case of Dr. Ajit Kumar and Ors. v. State of Jharkhand and Ors. disposed of on 04.03.2014. 9. As a cumulative effect of the aforesaid rules/guidelines/judicial pronouncements this court is of the considered view that no interference is warranted in the instant writ petition, as the aforesaid issues are within the exclusive domain of the Executive and therefore the court is not inclined to interfere with the Policy decision of the Government. 10. Resultantly the writ petition merits dismissal and is hereby dismissed.