Research › Search › Judgment

Patna High Court · body

2018 DIGILAW 1237 (PAT)

Kamla Kant Kharwar v. State of Bihar

2018-08-06

JYOTI SARAN

body2018
JUDGMENT : JYOTI SARAN, J. 1. The petitioners 16 in number pray for quashing of the letter bearing Memo No. 5612 dated 15.07.2016 of the respondent No. 2, the Additional Secretary, Department of Finance impugned at Annexure-C together with the order bearing memo No. 1382 dated 30.11.2016 of the District Magistrate whereby the benefit given to the petitioners under the Modified Assured Career Progression Scheme in the grade pay of Rs. 4200/- has been modified at Rs. 2400/- which is impugned at Annexure- 1 to the writ petition. 2. The facts leading to the orders impugned lie in a very narrow compass. 3. The State Government in its Department of Finance framed a scheme known as the Assured Career Progression Scheme, Rules 2003 (hereinafter referred to as the "ACP Rules, 2003") for the purpose of removal of stagnation to those who either had no avenue of promotion or had failed to get one but had long tenure of satisfactory service behind them. Under this scheme which came into force with effect from 09.08.1999, a copy of which is annexed at Annexure-10 to the rejoinder, the Government Servant concerned was either entitled to the basic pay of the promotional post, if he qualified for such progression and in case there was no promotional avenue available then the progression had to be given on the next higher pay scale available in the schedule attached to "the Rules 2003". The other mandatory condition was that the incumbent should have 12/24 years of satisfactory service. 4. This scheme was replaced by the Modified Assured Career Progression Rules, 2010 (hereinafter referred to as the "MACP Rules") which was introduced to replace the "ACP Rules, 2003" and had its foundation on the revision of pay scales under the 6th Pay Revision given to the State Government employees with effect from 01.01.2006 vide Resolution dated 21.01.2010. Copy of the Resolution dated 21.01.2010 revising the pay scales under the 6th Pay Revision together with the "MACP Rules, 2010" are enclosed at Annexures-3 & 4 to the writ petition. The "MACP Rules" was made effective from 01.01.2009 and as per the stipulations present, the incumbent were entitled to progression on a grade pay just above the grade pay which they were drawing in terms of Schedule 1 of the resolution No. 630 dated 21.01.2010 i.e the 6th Pay Revision notification. The "MACP Rules" was made effective from 01.01.2009 and as per the stipulations present, the incumbent were entitled to progression on a grade pay just above the grade pay which they were drawing in terms of Schedule 1 of the resolution No. 630 dated 21.01.2010 i.e the 6th Pay Revision notification. In other words the provision present in the "ACP Rules, 2003" of granting progression on the promotional post where there was a chain of promotion, was done away with and the provision of grant of Progression to the next higher scale present in the "ACP Rules, 2003" got replaced by a grant of Progression on the next higher grade pay as per the schedule attached to the 6th Pay Revision. Though the "MACP Rules" were made operative from 01.01.2009, effectively it was enforced with effect from 13.07.2010 when the "ACP Rules, 2003" got repealed by the publication of the resolution enforcing the "MACP Rules" in the official gazette. Now, while under the "ACP Rules, 2003" the eligibility for grant of first and second Progression arose on completion of satisfactory service of 12/24 years respectively, this stipulation underwent a change under the "MACP Rules" which granted Progression on completion of 10, 20 and 30 years of satisfactory service. The transition period between the enforcement of the "MACP Rules" from 01.01.2009 and the effective date from which the "ACP Rules, 2003" got repealed i.e 13.07.2010 when the "MACP Rules" were notified, is the issue of discussion in the present case and the reason is because these petitioners were allowed the benefit of progression under the "MACP Rules, 2010" on a grade pay which was meant for the promotional post. On reexamination of the matter this progression granted to the petitioners on the basic pay of the promotional post has been recalled and they have been granted the progression under the "MACP Rules" on the next higher grade pay than the one on which these petitioners were serving. Since the order of recall also accompanies a recovery order as manifest from Annexure-1 that these petitioners are before this Court. 5. Mr. Jitendra Kumar Roy, learned counsel has appeared for the petitioners and his main plank of argument is that the "ACP Rules, 2003" never got repealed rather its stipulations continued under the "MACP Rules" but the manner of grant underwent a change. In short, it the argument of Mr. 5. Mr. Jitendra Kumar Roy, learned counsel has appeared for the petitioners and his main plank of argument is that the "ACP Rules, 2003" never got repealed rather its stipulations continued under the "MACP Rules" but the manner of grant underwent a change. In short, it the argument of Mr. Roy that the scheme of grant of progression to the basic pay on the promotional post present in the "ACP Rules, 2003" was never withdrawn rather continued even under the MACP rules which is said to have replaced the "ACP Rules, 2003". Learned counsel has referred to the "MACP Rules" at Annexure-4 and with particular reference to paragraph 2 ifjf'k"V&1 at running page 50, he submits that a reference is made to the pay revision Resolution No. 630 dated 21.01.2010 together with Schedule at Annexure-3. In reference to the schedule attached to the pay revision Resolution at Annexure 3, he submits that the petitioners were in a pre revised scale of Rs. 3200- 4900 and its replacement scale was in Pay Band -I with the pay structure of Rs. 5200-20200 with grade pay of Rs. 2000/-. He agrees that the next higher grade pay is Rs. 2400/- as manifest from Serial No. 8 which also carries a scale of Rs. 5200- 20200. In reference to Annexure-6 which is an order bearing Memo No. 442 dated 27.08.2013 of the District Magistrate, Madhepura, he submits that the eligibility of the petitioners was considered for grant of progression under the "MACP Rules" and since the next promotional post of these Panchayat Secretaries which is the post held by these petitioners, was to the post of Block Panchayat Raj Officer which post carried a scale of Rs. 5000-8000 that these petitioners were held entitled to progression in the said scale. He submits that the grant of progression was after obtaining concurrence of the Finance Department as manifest from the letter of the deputy Director-cum-Deputy Secretary, Panchayati Raj Department addressed to the Accountant General dated 18.05.2009, a copy of which is present at Annexure-2. This grant of progression was questioned by the Finance Department through letter dated 02.05.2016 addressed to the District Magistrate, Vaishali and Bhagalpur, who were asked to explain the reasons which persuaded them to grant a grade pay of Rs. 4200/- to the petitioners because according to the Secretary, Finance, the petitioners were entitled to the next higher grade pay of Rs. 4200/- to the petitioners because according to the Secretary, Finance, the petitioners were entitled to the next higher grade pay of Rs. 2400/-. He submits that it is following the query made by the Finance at Annexure-7 that the District Magistrate has taken a turn around to mechanically recall the earlier order of grant of progression dated 27.08.2013 whereby the petitioners were given progression in the grade pay of Rs. 4200/- on proper appreciation of the stipulations present in the ACP Rules, 2003, as replaced by the MACP Rules, 2010. He submits that by the same order the petitioners were held eligible to the next higher grade pay of Rs. 2400/- in the scale of Rs. 5200 to 20200. 6. As I have noted at the out set, the main plank of argument of Mr. Roy is that the stipulations regarding grant of progression on the basic salary of the promotional post present in the "ACP Rules, 2003" was never diluted and it is appreciating the position as manifest from Annexures 2 and 6 that these petitioners had been granted progression as such in the scale of Rs. 5000-8000 which was the scale of the promotional post of Block Panchayat Raj Officer. 7. Per contra it is the argument of Mr. Ashish Kumar Lal AC to GA 5 that the orders impugned suffers no infirmity because the error committed by the District Magistrate, Madhepura while granting progression to the petitioner on an incorrect grade pay vide Annexure6 has been corrected which is fully in accordance with the stipulations present in the "MACP Rules". According to the learned State counsel, it is because the claim fell in the transition period that a mistake was committed by the District Magistrate, Madhepura in granting progression to the petitioners in an incorrect scale but it is on appreciation of the provisions of the "MACP Rules" that the order impugned has been passed which suffers no infirmity. Learned counsel has invited my attention to an advisory issued by the Finance Department dated 15.07.2016 at Annexure-C to the counter affidavit to submit that the position has been explained by the Additional Secretary. 8. I have heard learned counsel for the parties and I have perused the records. 9. The distinctive nature of progression under the "ACP Rules, 2003" and MACP Rules, 2010 has already been discussed above and requires no reiteration. 8. I have heard learned counsel for the parties and I have perused the records. 9. The distinctive nature of progression under the "ACP Rules, 2003" and MACP Rules, 2010 has already been discussed above and requires no reiteration. While the "ACP Rules, 2003" stipulates a grant of progression on the basic pay of the promotional post or in its absence, on the next pay scale mentioned in the Schedule, the "MACP Rules" which has replaced the "ACP Rules, 2003" at paragraph 2 ifjf'k"V&1 makes it absolutely that any progression under the "MACP Rules" would be given only on a grade pay just above the grade pay drawn by the incumbent. It is not in dispute that the petitioners were in a grade pay of Rs. 2000/- and a cursory glance to the schedule attached to the 6th Pay Revision at Annexure-3 at running page 44 which is the basis for such consideration as manifest from the "MACP Rules" at Annexure-4, the next higher grade pay for the petitioners would be Rs. 2400/- and not Rs. 4200/-. Perhaps, the District Magistrate, Madhepura has got swayed by the letter of Deputy Director- cum- Deputy Secretary, Panchayati Raj Department dated 18.05.2009 at Annexure- 2 for allowing progression to the petitioners on the grade pay of Rs. 4200/-, however the letter of the Additional Secretary at Annexure- C dated 15.07.2016 would clarify this confusion. 2400/- and not Rs. 4200/-. Perhaps, the District Magistrate, Madhepura has got swayed by the letter of Deputy Director- cum- Deputy Secretary, Panchayati Raj Department dated 18.05.2009 at Annexure- 2 for allowing progression to the petitioners on the grade pay of Rs. 4200/-, however the letter of the Additional Secretary at Annexure- C dated 15.07.2016 would clarify this confusion. The relevant extract of the letter is reproduced herein below: ^^-------------foRr foHkkx ds ladYi la[;k 7366 fnukad 14-7-2010 }kjk ,eŒ,ŒlhŒihŒ,lŒ ;kstuk 2010 fuxZr gSA bl ladYi ds ifjf'k"V 1 dh dafMdk 2 esa Li"V :i ls mYysf[kr gS fd ,eŒ,ŒlhŒihŒ,lŒ ds vUrxZr foRrh; mUu;u foRr foHkkx ds ladYi la[;k 630 fnukad 21-1-2010 dh vuqlwph&1 esa of.kZr xzsM is Ja[kyk esa egt Åij ds xzsM is esa fd;k tk,xkA iapk;r lfpo dk osrueku ihch&1&thih&2000@& gS blfy, oSls iapk;r lfpo tks 01-01-2009 dks ;k mlds ckn dh frfFk esa 10 o"kksZ dh lsok iwjh dj fy, gSa mUgsa ÁFke ,eŒ,ŒlhŒihŒ,lŒ 2400@& xzsM osru esa gh vuqekU; gksxkA ,ŒlhŒihŒ fu;ekoyh 13-7-2010 esa fujflr dh x;h gSA vr% oSls iapk;r lfpo tks 12-7-2010 rd 12@24 o"kksZ dh lsok iwjh djrs gSa mUgsa ,ŒlhŒihŒ fu;ekoyh 2003 ds rgr xSj lEoxhZ; ÁksUufr in lksiku esa ÁFke@f}rh; ,ŒlhŒihŒ ÁkIr vkSj fnukad 1-1-2009 ;k mlds ckn dh frfFk esa 10@20 o"kZ dh lsok vof/k iwjh djus dh fLFkfr esa ,eŒ,ŒlhŒihŒ,lŒ ds rgr foRrh; ÁksUufr Ánku dh tk,xh-------------A** 10. The clarification is in tune with paragraph 2 ifjf'k"V&1 of the "MACP Rules" and takes into consideration the transition period in between the enforcement of the "MACP Rules" and the actual repeal of the "ACP Rules, 2003". No doubt the "MACP Rules" came into force with effect from 01.01.2009 but the Resolution is dated 14.07.2010 and was published in the Bihar Gazette Extraordinary on 16.07.2010. It is thus to answer the poser arising in case of those employees who though had crossed 10 years of service on 01.01.2009 but had not completed 12 years of service, as well bearing note of such of the employees who would complete 12 years or 24 years of service on or before the date the "ACP Rules 2003" got repealed i.e. 13.07.2010 that the advisory has been issued by the Finance Department. Since paragraph 2 ifjf'k"V&1 of the "MACP Rules" is a relevant factor for consideration it is reproduced herein below: ^^---------------2- :ikUrfjr lqfuf'pr o`fRr mUu;u ;kstuk varxZr foRrh; mUu;u foRr foHkkx ds osru iqujh{k.k ladYi 630] fnukad 21 tuojh 2010 dh vuqlwph&1 esa of.kZr xzsM&is dh Ja[kyk esa egt Åij ds xzsM&is esa fn;k tk,xkA bl Ádkj :ikUrfjr lqfuf'pr o`fRr mUu;u ;kstuk ds v/khu foRrh; mUu;u ds le;] tgka nks vkuqØfed xzsMksa ds chp fu;fer ÁksUufr ugha gksrh gks] dfri; ,sls ekeys esa xzsM osru mlls fHkUu gks ldrk gS tks fu;fer ÁksUufr ds le; miyC/k gksrk gksA ,sls ekeys esa laca} laoxZ@laxBu ds in lksiku esa vxyh ÁksUufr ls tqM+k mPprj xzsM osru fu;fer ÁksUufr ds le; gh fn;k tk,xk---------------A** 11. A plain reading of Paragraph 2 ifjf'k"V&1 the "MACP Rules" at Annexure-4 alongside the clarification present in Finance Department letter dated 15.07.2016 at Annexure-C would make the following aspects clear: (a) Paragraph 2 ifjf'k"V&1 of the MACP Rules mandates that an incumbent is entitled to progression on completion 10, 20 and 30 years of service on a grade pay just above the grade pay held by him. (b) Since the Panchayat Secretary, drew salary in Pay Band -I on Grade Pay of Rs. 2000/-, those Panchayat Secretary who had completed 10 years of satisfactory service on 01.01.2009 or thereafter would be granted first MACP in grade pay of Rs. 2400/-. (c) Since "ACP Rules, 2003" has been repealed with effect from 13.07.2010, those Panchayat Secretary who had completed 12/24 years of service until 12.07.2010 would be given benefit under the "ACP Rules, 2003" by progression on the Ex-cadre promotional post. However, those completing 10 years or 20 years of service on 01.01.2009 or thereafter would be given financial progression under the "MACP Rules". 12. In so far as the 16 petitioners herein are concerned, it is not in dispute that except for the petitioner No. 1 all the other petitioners had simply completed 10 years of service on or after 01.01.2009 and thus in terms of paragraph 2 ifjf'k"V&1 of the "MACP Rules" were entitled to a grade pay just above the grade pay they held at Rs. 2000/- i.e Rs. 2400/-, as manifest from the schedule attached to the 6th Pay Revision at running page 44. 13. If the argument of Mr. 2000/- i.e Rs. 2400/-, as manifest from the schedule attached to the 6th Pay Revision at running page 44. 13. If the argument of Mr. Roy is to be accepted then he wants the benefit for the petitioners as present in "the ACP rules 2003" even though these petitioners do not fulfill the service period of 12 years/24 years as mandated in those rules. In other words, Mr. Roy wants that the eligibility of service period i.e 10/20/30 be picked up from the "MACP Rules" but the benefit of progression be given as per the ACP rules. In my opinion, this would lead to absurdity & is taken only for rejection. 14. In so far as the petitioner No. 1 is concerned, although as per the submission of Mr. Roy, he has completed 12 years of service on or before 12.07.2010 and thus would be entitled to the progression in the ex-cadre promotional chain in the pay scale of Rs. 5000-8000 but the pleadings are absent to such effect. According to Mr. Roy, there is no infirmity in the order of grant of progression passed by the District Magistrate on 27.08.2013 in the scale of Rs. 5000-8000, in so far as petitioner No. 1 Kamla Kant Kharwar is concerned. 15. On the issue of recovery, it is the submission of Mr. Roy that there being a conscious decision by the Panchayati Raj Department for grant of progression to the Panchayat Secretaries in the pay Scale of Rs. 5000-8000 as manifest form the letter dated 18.05.2009 at Annexure-2, even if the clarification at Annexure-C runs counter to the interest to these petitioners, it cannot vest any right or jurisdiction in respondent to order for a recovery because it is following the decision of the State Government in its Panchayati Raj Department that relief of progression was given to the petitioners. 16. Having considered the rival submissions in the backdrop of the stipulations present in the "ACP Rules, 2003", "the MACP Rules, 2010" and the clarification issued by the Finance Department in its letter dated 15.07.2016 at Annexure-C, the order impugned at Annexure-1 in so far as it accords progression to the petitioner Nos. 2 to 16 in the grade pay of Rs. 2400/- by recalling the earlier grant in the grade pay of Rs. 4200/-, would suffer no infirmity. In so far as petitioner No. 1 is concerned, according to Mr. 2 to 16 in the grade pay of Rs. 2400/- by recalling the earlier grant in the grade pay of Rs. 4200/-, would suffer no infirmity. In so far as petitioner No. 1 is concerned, according to Mr. Roy, he completed 12 years of service on or before 12.07.2010 and thus was fully entitled for progression in the pay scale of Rs. 5000- 8000 which on revision would carry a grade pay of Rs. 4200/-. Since these foundational facts of completion of 12 years of service on or before 12.07.2010 does not transpire from the records, let the claim of the petitioner No. 1 be considered by the District Magistrate, Madhepura afresh, bearing in mind the clarification dated 15.07.2016 of the Finance Department at Annexure-C to the counter affidavit. However in so far as the petitioner Nos. 2 to 16 are concerned, no infirmity is found in the order of the District Magistrate impugned at Annexure-1 requiring interference. 17. The next issue which comes up for consideration is whether the correction of the error would entitle the respondents to make any recovery from the salary of the petitioners. The answer is in the negative and my opinion rests on the decision of the Supreme Court rendered in the case of State of Punjab Versus Rafiq Masih, (2015) 4 SCC 334 . Hence, to the extent of recovery stipulated in the order impugned passed by the District Magistrate, Madhepura bearing Memo. No. 1382 dated 30.11.2016, the order is held unsustainable and is accordingly quashed. The District Magistrate is restrained from affecting recovery of the benefits extended to the petitioners under the grant of progression order dated 27.08.2013 at Annexure-6. The interim order of stay of recovery passed on 13.10.2017 is hereby confirmed, however, the petitioners would not entitled to any refund of the amount already recovered by the respondent prior to the passing of the interim order on 13.10.2017. 18. The writ petition is allowed to the extent that no recovery shall be affected pursuant to the order impugned which is otherwise found to be in accordance with rules. No order as to costs.