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2017 DIGILAW 665 (JHR)

Suraj Bhushan Prasad Sinha v. State of Jharkhand

2017-04-11

ANANDA SEN

body2017
ORDER : Heard learned counsel for the parties. 2. The petitioner, in this writ application, has prayed for quashing the order dated 21.09. 2012, contained in Memo No. 6979-6985/- Acctts., by which upgradation in the pay scale granted to the petitioner, has been reduced. He further prays that the pay scale granted to the petitioner vide order dated 15.04.2005, be restored and further the benefit of 3rd upgradation in the pay scale of Rs. 15600-39100/- with Grade Pay of Rs. 7600/- w.e.f. 01.09.2008, be released in his favour. By way of amendment a new prayer to quash the order contained in Memo No. 1572 dated 18.12.2012, by which the petitioner has been directed to deposit the excess drawn salary to the tune of Rs. 5,98,509/- in the treasury, has been added. 3. The petitioner joined on 01.12.1976 as a Cashier in the Ranchi Bench of Hon'ble Patna High Court. There was no promotional avenue for the Cashier in the establishment of Patna High Court. The post of Cashier was a single post in the isolated cadre. After bifurcation of the State of Bihar and after establishment of the High Court of Jharkhand, from 14th November, 2000, the petitioner became an employee of the High Court Jharkhand and was the Cashier. A Scheme called “Assured Career Progression Scheme” was introduced, whereby, it was provided that one or other Government Employee, if completed 12 or 24 years of regular service and if he is eligible to be given regular promotion, then he will be entitled to get the 1st and 2nd upgradation in the pay scale. The Resolution also provides that in case the hierarchy of the post is not available, then pay scale, which has been mentioned in Schedule I of the resolution dated 14.08.2002 (the resolution by which the ACP was introduced), will be given to the employee. Again vide resolution dated 05.02.2007, the condition given in condition no. 3(1) of the resolution dated 14.08.2002, whereby it has been provided that in case of absence of hierarchy, the pay scale mentioned in Schedule-I, will be given, has been recalled. 4. The petitioner was granted benefit of upgradation of pay scale. He was granted 1st upgradation in the pay scale of Rs. 6500-10500/- w. e.f. 09.08.1999 and 2nd upgradation in the pay scale of Rs. 10000-15200/- w.e.f. 01.12.2000. 4. The petitioner was granted benefit of upgradation of pay scale. He was granted 1st upgradation in the pay scale of Rs. 6500-10500/- w. e.f. 09.08.1999 and 2nd upgradation in the pay scale of Rs. 10000-15200/- w.e.f. 01.12.2000. The petitioner was granted regular promotion to the post of Section Officer w.e.f. 07.09.2005 and he was confirmed to the said post w.e.f. 07.09.2007. The petitioner, thereafter, got subsequent upgradation of pay in the scale prescribed for the next hierarchy post of Section Officer vide Office order dated 15.04.2005. 5. An Office order was issued on 21.09.2012, whereby the upgradation of the pay scale, granted to the petitioner vide order dated 15.04.2005 was recalled and a direction was issued to fix the pay scale of the petitioner in the scale of Rs. 7500-12000/- in stead of Rs. 10000-15200/- as 2nd ACP w.e.f. 01.12.2000 and in the scale of Rs. 9300-34800/- with Grade pay of Rs. 5400/- in stead of Rs. 15600-39100/- with Grade pay of Rs. 7600/- as 3rd ACP. Thereafter, an order was issued to recover the excess amount paid to the petitioner in one installment. On this fact, the present writ application has been filed for the reliefs, mentioned above. 6. The petitioner contended that admittedly, the post of Cashier in the Patna High Court was a single post in the solitary cadre. He was promoted from the post of Cashier as Section Officer and, thereafter, he was again promoted as a Court Master and got superannuated. It is submitted that the pay scale of Court Master is equal to the post of Assistant Registrar. He submits that the pay scale of the Cashier is Rs. 5500-9000/- and of Section Officer is Rs. 6500-10500/-. It is submitted that the moment the petitioner has been granted regular promotion from the post of Cashier to the post of Section Officer, which is a cadre post, the petitioner became entitled to get the benefit of 1st, 2nd and 3rd upgradation in the hierarchy of the post of Section Officer. Thus, the upgradation cannot be as per the Schedule-I of the ACP resolution. Thus, the upgradation cannot be as per the Schedule-I of the ACP resolution. He submits that since the next hierarchy of Section Officer is the Assistant Registrar and that of Assistant Registrar is the Deputy Registrar and, thereafter, the Joint Registrar, having their own individual different pay scales, the petitioner is entitled to get the upgradation in the pay scale of the Assistant Registrar then that of the Deputy Registrar and then the pay scale of the Joint Registrar as 1st, 2nd and 3rd upgradation respectively. He further submits that the impugned order dated 21.09.2012 could not have been issued by the respondents and that to without giving any opportunity to the petitioner as it violates the principles of natural justice. He further submits that the direction, as contained in the memo no. 1572 dated 18.12.2012, directing the petitioner to deposit the excess salary, is also bad as the petitioner has not been paid any excess salary. He lastly submits that there is no misrepresentation on the part of the petitioner in the entire process which could have warranted the impugned order. 7. Respondent no. 2 the Registrar General, Jharkhand High Court has filed his counter affidavit. Relying upon the counter affidavit, it has been submitted that as per the ACP Scheme, [Clause 2(3)], it is provided that where there is no promotional hierarchy exclusively fixed, and where there is less than one promotional post available in the promotional hierarchy, in such cases ACP shall be granted in the next higher pay scale as indicated in Schedule-I of the said resolution. It has been mentioned that it is the Personnel and Administrative Department, which is authorized to give such promotion and the confirmation is to be made by the Department of Finance and it is the Department of Finance, which is competent to modify and cancel the provisional promotion. It has been submitted that the Office order by which the petitioner was granted the benefit of ACP was provisional till it was confirmed, modified or cancelled by the Finance Department. It is further submitted that the Finance Department objected with regard to the grant of ACP as well as the promotion of the petitioner to the post of Section Officer. It has been mentioned that since the pay scale of the Cashier in the 5th Pay Revision was Rs. It is further submitted that the Finance Department objected with regard to the grant of ACP as well as the promotion of the petitioner to the post of Section Officer. It has been mentioned that since the pay scale of the Cashier in the 5th Pay Revision was Rs. 5500-9000/-, the 1st ACP, which is petitioner is entitled to, is Rs. 6500-10500/- and 2nd ACP Rs. 7500-12000/-. It has been further mentioned that the post of Section Officer is totally a cadre promotional post of Assistant and in that circumstances, direct promotion to the post of Section Officer from the post of Cashier, so far the petitioner is concerned, is not admissible as per Rules. It is submitted that the pay scale has to be granted as per the Schedule-I as there was no promotional hierarchy for the Cashier. Further, it has been contended that on 09.08.1999 and 01.12.2000, the petitioner was holding the post of Cashier and the effective Rules applicable to the petitioner was “Patna High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1997”. Thus the impugned order does not suffers from any illegality. 8. Learned counsel for the State also relying on their counter affidavit, submits that the case of the petitioner is covered by Sub-Clause (iii) of Clause 3 of the said resolution of ACP, wherein it has been specifically mentioned that where there is no promotional post in hierarchy, then ACP has to be granted as per the Schedule. It has been further argued that the post of Cashier has no promotional post in hierarchy and only some post of Section Officers are earmarked for promotion from the Cashier. So for the purpose of grant of ACP the same cannot be considered as hierarchy post in the cadre of the petitioner. Thus, it has been submitted that the petitioner is entitle to get the monetary benefit as per Schedule-I of the Scheme and this writ application is liable to be dismissed. 9. After hearing the parties, I find that the post of Cashier in the Patna High Court was a single post in isolated cadre. The pay scale of the Cashier was Rs. 5500-9000/-. Schedule D of Jharkhand High Court, Officers and Members of Staff (Recruitment, Conditions of Service, Conduct and Appeal) Rules prescribed source, qualification and methods of recruitment of non-gazetted Class-III & IV posts. The pay scale of the Cashier was Rs. 5500-9000/-. Schedule D of Jharkhand High Court, Officers and Members of Staff (Recruitment, Conditions of Service, Conduct and Appeal) Rules prescribed source, qualification and methods of recruitment of non-gazetted Class-III & IV posts. The post of Cashier in the pay scale of Rs. 5500-9000/- is to be filled up by direct recruitment. The petitioner was promoted to the post of Section Officer. The Section Officer is a Class-II Gazetted Post as per Schedule C of the said Rules. The post of Section Officer is to be filled up by promotion from Assistants, Legal Assistants and Translators or any post of the same scale on the basis of the merit-cum-seniority/length of service in the existing grade. The pay scales of Assistants, Legal Assistants and Translators are Rs. 5500-9000/-, which is equivalent to that of the Cashier. Thus, as per the said provision, a Cashier can be promoted to the post of Section Officer. 10. In this case, the petitioner was promoted to the post of Section Officer from the post of Cashier. Thus, by virtue of the Jharkhand High Court, Officers and Members of Staff (Recruitment, Conditions of Service, Conduct and Appeal) Rules, there is promotional avenue for a Cashier, which was not there in the Patna High Court. The petitioner was ultimately promoted and superannuated from the post of Court Master. The pay scale of Section Officer is Rs. 6500-10500/-. The post of Court Master is filled up by promotion from the members of the establishment having a minimum qualification as Law Graduate. Thus, from the aforementioned fact, I find that there was a promotional avenue for the petitioner as per Jharkhand High Court, Officers and Members of Staff (Recruitment, Conditions of Service, Conduct and Appeal) Rules. 11. From the aforementioned fact, it is quite clear that there exists hierarchy for the post of Cashier. Since there was a promotional avenue/hierarchy for the post of Cashier, the fixation of pay scale of the petitioner cannot be as per Schedule-I of the resolution no. 5207 dated 14.08.2002 (Scheme of ACP). Thus, the objection of the State that the petitioner is entitled to get the upgradation as per Schedule-I, cannot be accepted. The petitioner has rightly been provided the upgradation vide order dated 15.04.2005 as 1st upgradation in the pay scale of Rs. 6500-10500/- w.e.f. 09.08.1999 and Rs. 10000-15200/- w.e.f. 01.12.2000 as 2nd upgradation. 5207 dated 14.08.2002 (Scheme of ACP). Thus, the objection of the State that the petitioner is entitled to get the upgradation as per Schedule-I, cannot be accepted. The petitioner has rightly been provided the upgradation vide order dated 15.04.2005 as 1st upgradation in the pay scale of Rs. 6500-10500/- w.e.f. 09.08.1999 and Rs. 10000-15200/- w.e.f. 01.12.2000 as 2nd upgradation. Since, the Rules of Jharkhand High Court provides for promotional avenue for the Cashier, which was not there in the Rules of Patna High Court and since the petitioner is an employee of the Jharkhand High Court, it is the Rules of Jharkhand High Court which will govern the case of the petitioner. Further as it has been held above that the Schedule-I of the resolution no. 5207 dated 14.08.2002, is not applicable to the petitioner and the petitioner has rightly been given the upgradation of pay scale vide 7 order dated 15.04.2005, as contained in Memo no. 22/Acctts., and is entitled to get all consequential benefits. 12. Thus, the impugned order dated 18.12.12, by which the petitioner was directed to refund the excess amount in one installment is also set aside. In view of the findings made above, no excess amount has been paid to the petitioner. The order dated 15.04.2005, granting upgradation to the petitioner is restored and the respondents are directed to grant all consequential benefits to the petitioner keeping in view the order dated 15.04.2005, as contained in Memo No. 22/Acctts. 13. This application stands allowed.