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2017 DIGILAW 47 (JHR)

Suresh Kumar v. State of Jharkhand

2017-01-08

ANIL KUMAR CHOUDHARY

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JUDGMENT : Heard Mrs. Ritu Kumar, learned counsel appearing for the petitioner, and Mr. Suraj Pakash, learned JC to SC Mines, appearing for the State. 2. This writ application has been filed by the petitioner with a prayer to quash the letter No. 4113 dated 26.9.2006 (Annexure-10), issued under the signature of the respondent No.3, by which the claim of the petitioner for Assured Career Progression has been rejected. The petitioner has also prayed for a direction upon the respondents to immediately and forthwith grant to promotions to the petitioner in pursuance of the scheme of Assured Career Progression on completion of 12 and 24 years with all consequential benefits with interest and place the petitioner in the pay scale of Rs.14,300-Rs.18,300/- instead of Rs.10,000-Rs.15,000/- and other relief. Mrs. Ritu Kumar the learned counsel for the petitioner submitted that inadvertently the prayer for grant of two promotions to the petitioner has wrongly been made in the writ application hence the petitioner does not press the same and instead the petitioner prays for the benefits under the Assured Career Progression Scheme along with other reliefs as mentioned above. 3. The brief facts, involved in this case, are that the petitioner being a diploma holder was appointed on the post of Junior Engineer on 30.12.1966. During the service career, the petitioner after due sanction and approval of the Competent Authority, enhanced his educational qualification and obtained a Degree in Engineering and as per the prevalent rules and circular of the Government, on completion of five years of service, the petitioner became entitled for appointment by way of promotion under 3% quota and as such, he was appointed by way of promotion on 29.3.1979. It is the case of the petitioner that his up gradation on enhancement of educational qualification and on completion of the minimum qualified tenure of five years of service was not a regular promotion rather the appointment by way of promotion. It has been averred in the writ application by the petitioner that no departmental proceeding or criminal case has been pending against the petitioner meaning thereby the petitioner was not otherwise ineligible for the benefits of Assured Career Progression. It is also contended that the petitioner has not been granted any regular promotion during his service tenure of 12 to 24 years. It is also contended that the petitioner has not been granted any regular promotion during his service tenure of 12 to 24 years. The petitioner has been refused the benefits of one Assured Career Progression on completion of 12 years of service and he has been granted only one Assured Career Progression on completion of 24 years of service and has been placed in the scale of Rs. 10,000-15,200/-. 4. In the counter-affidavit filed on behalf of the respondents, it has been mentioned that the petitioner was initially appointed as Junior Engineer in the department and during his service period, he has promoted to the post of Assistant Engineer. The petitioner was given the benefit of Assured Career Progression w.e.f. 9.8.1999 after completion of 24 years of service. The representation of the petitioner for giving scale of Rs. 14,300-18,300 (second Assured Career Progression) was referred to the Finance Department but the Finance Department did not agree with the request of the petitioner. When the petitioner moved before this Court, his case was again referred to the Finance Department for advice and the matter of the petitioner was being put up before the Departmental Screening Committee for needful. It is further averred in the counter-affidavit that the writ application is fit to be dismissed, as the Finance Department is taking steps for consideration of the case of the petitioner. By filing the supplementary counter-affidavit on behalf of the respondents, it has been mentioned that the petitioner was promoted to the post of Assistant Engineer against 10% post reserved for the Engineering Degree. 5. Mrs. Ritu Kumar, learned counsel for the petitioner, submits that the impugned letter No. 4113 dated 26.9.2006, which is Annexure-10 to the writ application, is a non-speaking order and therein it has not been mentioned by the respondent No.3, as to why the Finance Department rejected the representation of the petitioner. Hence, the impugned letter is arbitrary and illegal and the same is fit to be dismissed by this Court. Hence, the impugned letter is arbitrary and illegal and the same is fit to be dismissed by this Court. It is further submitted by learned counsel for the petitioner that it remains incongruous as to on what basis it has been averred in paragraph No. 3 of the supplementary counter-affidavit filed on behalf of the respondent No. 1 to 3 dated 8.9.2008 that the petitioner has been promoted against the quota of 10% reserved because as per Annexure-3 to the writ application, the relevant resolution for promotion of the Junior Engineer, which is not disputed by the respondents, no reserved quota to the extent of 10% finds place. It is further submitted that the respondents have illegally denied the benefits of first assured career progression to the petitioner and to avoid quashing of the illegal decision have resorted to this confusing and flimsy plea. 6. Learned counsel for the petitioner relied upon the order dated 27.9.2011 passed by the Hon'ble Patna High Court in the case of Krishna Kumar Sinha v. The State of Bihar and others in CWJC No. 9098 of 2009 wherein in case involving similar facts where the petitioner of that case was denied the second ACP after completion of 24 years of service in the rank of Assistant Engineer, the Patna High Court held as under :- "Rule 4(2) of the ACP Rules provides that selection through competitive examination shall be treated as direct recruitment for purposes of ACP and the service rendered in the lower pay scale shall not be counted if there is provision for direct recruitment in the Rules. The acquiring of AMIE Qualification shall be substituted by the words 'competitive examination' in the Rules. The proviso reads that if under the recruitment rules a promotion quota has been fixed (this shall apply to the 35% quota) it shall be treated as promotion for the purposes of ACP and the past service (on the lower post) shall count. The scheme provides that if sufficient number of persons in the 3% quota are not available it cannot be filled up from the 35% quota meant for promotional vacancy but shall have to be filled up by adding the same to the 62% quota for direct recruitment. The scheme provides that if sufficient number of persons in the 3% quota are not available it cannot be filled up from the 35% quota meant for promotional vacancy but shall have to be filled up by adding the same to the 62% quota for direct recruitment. That conclusively establishes that the petitioner has not been promoted under the 35% quota meant for promotional vacancies but has been appointed by promotion as an Assistant Engineer against the 3% quota at par with direct recruitment. The petitioner is held entitled to be considered for grant of second ACP while holding the post of Assistant Engineer in the rank of Superintending Engineer. The monetary benefits to be paid have to be ascertained after adjustment of that paid to him in the lower scale." It is further submitted by the learned counsel for the petitioner that the writ petition be allowed and the relief, as prayed for by the petitioner, be granted. 7. Learned counsel for the respondents, on the other hand, submits that by the year 2008 when the counter-affidavit was filed on behalf of respondent No.2, the matter of the petitioner was put up before the Departmental Screening Committee for needful but he has no information of further developments in the matter of the petitioner relating to his claim for Rs.14,300-18,300. He further submits that he cannot say as to on what basis it has been averred in Paragraph No. 3 of the supplementary counter-affidavit filed on behalf of the respondent No.1 to 3 dated 8.9.2008 that the petitioner has been promoted against the quota of 10% reserved. 8. After giving anxious consideration to the matter and on perusal of the record, I find that the impugned letter is a cryptic one. It has not been mentioned therein that as to which prayer of the petitioner was rejected and why it has been rejected. As mentioned in the counter-affidavit the matter is still under reconsideration of the respondents. There is apparent confusion on the part of the respondents regarding the petitioner having been promoted against the quota of 10% reserved. So, the impugned letter is not sustainable in law and hence is liable to be quashed and set aside. 9. As mentioned in the counter-affidavit the matter is still under reconsideration of the respondents. There is apparent confusion on the part of the respondents regarding the petitioner having been promoted against the quota of 10% reserved. So, the impugned letter is not sustainable in law and hence is liable to be quashed and set aside. 9. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the letter No. 4113 dated 26.9.2006 (Annexure-10), issued under the signature of the respondent No. 3 is quashed and set aside. The matter is remitted back to the respondent No. 2 Secretary, Water Recourses Department, Government of Jharkhand, Ranchi for consideration of the claim of the petitioner for his legitimate dues under the Assured Career Progression Scheme. The respondent No. 2 shall dispose of the same by passing a reasoned order within a maximum period of three months from the date of receipt/production of a copy of this order. 10. With the aforesaid observations and directions, this writ application stands allowed. Petition allowed.