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2017 DIGILAW 37 (JHR)

Birendra Kumar Sinha v. State Of Jharkhand

2017-01-05

PRAMATH PATNAIK

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JUDGMENT Pramath Patnaik, J. – In the accompanied writ application, the petitioner has inter alia prayed for direction upon the respondents to correct and fix the pension taking into account the correct length of service of petitioner and revised pay scale and further direction upon the respondents to pay the arrears of first, second and third financial up-gradation under ACP Scheme and further prayer has been made for direction upon the respondents to pay arrears of pension, post retiral benefits with statutory and penal interest. 2. Referring to supplementary counter affidavit 09.12.2015, learned counsel for the respondents submitted that petitioner has been paid all his retiral benefits and his pension has also been revised in terms of his revised pay-scale, as evident from Annexure I series to the Supplementary Counter Affidavit, which has been communicated to the petitioner also. It has further been contended that petitioner has also been paid all his arrears on account of his pay revision as per 5th and 6th PRC and the petitioner is enjoying pension, which has been revised considering his total length of service. Learned counsel for the respondents further submitted that so far parity with the case of Saryu Prasad is concerned, he has passed the departmental accounts examination in 2007 itself, hence, he became entitled for benefits of ACP/MACP. Referring to Circular of Finance Department No. 4178 dated 12.08.1992, 4314 dated 21.06.1993 and letter no. 493 dated 22.02.2007, learned counsel for the respondents submitted that it is mandatory to pass the departmental examination to avail the benefit of ACP/MACP. It has further been submitted that even the competent authority-Commissioner, Kolhan Division has not approved the case of the petitioner on the ground that he has not passed the departmental accounts examination. Since the petitioner has neither passed the departmental examination nor has approached the authority concerned while in service, after attaining age of 50 years that he is otherwise eligible for ACP/MACP, now cannot claim benefits of ACP. 3. In support of her argument, learned counsel for the respondents relied upon the case of Veer Kumar Jha & Ors v. R.G., High Court of Jharkhand & Ors. 3. In support of her argument, learned counsel for the respondents relied upon the case of Veer Kumar Jha & Ors v. R.G., High Court of Jharkhand & Ors. passed in W.P. (S) No. 2803 of 2003 dated 11.12.2014 , wherein the Hon''ble Court has been pleased to hold that petitioner has not been granted exemption from passing departmental examination by the competent authority, which is mandatory requirement for being considered for grant of any Time Bound Promotion after crossing the age of 50 years. In the case at hand, the petitioner has also not been granted such exemption, hence, in the facts of the case, the petitioner is not entitled for such Time Bound Promotion. 4. Learned counsel for the petitioner submitted that petitioner being an employee of Rural Works Department, the case of the petitioner stands on the same footing as of Mr. Saryug Prasad and further it is the department, which had not conducted the departmental examination, hence, after attaining the age of 50 years, as per the relevant circular of the Government, the petitioner automatically become entitled to get the benefits of A.C.P. and for the inaction on the part of department, the petitioner cannot be deprived of his right of financial up-gradation of benefit of A.C.P. Under the circumstances, the petitioner is entitled to get the benefits of financial up-gradation under ACP Scheme. 5. After bestowing my anxious consideration to the rivalized submissions advanced by learned counsel for the parties and on perusal of the materials available on record, in particular, the relevant circulars, it appears that all the grievances of the petitioner has been redressed except extending the benefits of Time Bound Promotion. There is no denial of the fact that any benefit under financial up-gradation or Time Bound Promotion or ACP/MACP is governed/guided by relevant Rules/Circulars/Provisions of law and no order or direction could be passed in derogation of those Rules/Circulars/Provisions of law. View of this Court gets fortified by decisions rendered by Hon''ble Apex Court in the case of Secretary, Government of N.C.T of Delhi & Ors v. Grade-I DASS Officers'' Association & Others dated 30.07.2014 in Civil Appeal Nos. 5153-5157 of 2009. 6. View of this Court gets fortified by decisions rendered by Hon''ble Apex Court in the case of Secretary, Government of N.C.T of Delhi & Ors v. Grade-I DASS Officers'' Association & Others dated 30.07.2014 in Civil Appeal Nos. 5153-5157 of 2009. 6. Admittedly, in the case at hand, the petitioner had neither passed the departmental examination nor was granted exemption from passing departmental examination by the competent authority, which is a mandatory requirement for being considered for grant of financial up-gradation under A.C.P/M.A.C.P, even after crossing the age of 50 years, no direction can be issued for grant of such A.C.P./M.A.C.P and consequential benefits. 7. At this stage, learned counsel for the petitioner submitted even otherwise some retiral dues is still payable. 8. In the light of aforesaid discussions, the writ petition stands disposed of with liberty to the petitioner to approach the competent authority for payment of admissible retiral dues, if any.