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2018 DIGILAW 131 (JHR)

State of Jharkhand v. Sambhu Prasad Sinha

2018-01-16

AMITAV K.GUPTA, D.N.PATEL

body2018
ORDER : D.N. Patel, J. This Letters Patent Appeal has been preferred by the State of Jharkhand-respondent in W.P.(S) No. 4969 of 2010. The writ petition was preferred by respondent No. 1 for getting the benefit of Assured Career Progression which was allowed by the learned Single Judge and, hence, original respondent has preferred the present Letters Patent Appeal. 2. Arguments canvassed by the learned counsel for the appellants : It is submitted by learned counsel for the appellants that respondent No. 1 (original petitioner) was initially appointed as Extra Clerk on 2nd August, 1971. Thereafter, he was appointed as Temporary Clerk on 21st May, 1981. The appointment on the post of Temporary Clerk was on the pay scale of Rs. 220-550/-, whereas, appointment on the post of Extra Clerk was for a fixed or lump sum remuneration per month. It is further submitted by learned counsel for the appellants that earlier there was a Scheme floated by the appellants known as Time Bound Promotion Scheme which was in existence till 31st December, 1995. Respondent No. 1 (original petitioner) was given first time bound promotion on 22nd May, 1991. Thereafter, respondent No. 1 (original petitioner) was given regular promotion to the post of Permanent Clerk on 17th April, 1999 as per the letter of promotion dated 17th April, 1999 which is at Annexure-2 to the memo of this Letters Patent Appeal. It appears that promotion was given to respondent No. 1 (original petitioner) on the post of Permanent Clerk, for which, the pay scale was Rs. 1,200-1800/- at the relevant time (now there is enhancement in the pay scale). It is also submitted by the learned counsel for the appellants that Time Bound Promotion Scheme brought to an end by 31st December, 1995 and Assured Career Progression (ACP) Scheme has been floated by the appellants-State. As per this ACP Scheme, if any employee has been given promotion, then he will not be entitled to the benefit of ACP-Scheme. Thus, first time bound promotion was already given in the year 1991 and, thereafter, promotion was given in the year 1999 and, hence, no benefit of ACP can be given to respondent No. 1 (original petitioner) unless, he completes 12 years from the year 1999, but, in the facts of the present case, respondent No. 1 (original petitioner) has already reached to the age of superannuation in the year 2003. This aspect of the matter has not been properly appreciated by the learned Single Judge and, hence, grant of ACP benefit by the judgment delivered by the learned Single Judge in W.P. (S) No. 4969 of 2010 deserves to be quashed and set aside. 3. Arguments canvassed by learned counsel for respondent No. 1 (original petitioner) : Learned counsel for respondent No. 1 submitted that from the post of Temporary Clerk to the post of Permanent Clerk, there is no promotion. Learned counsel for respondent No. 1 has relied upon the letter of the year 1995 which is annexed as annexure in the rejoinder affidavit filed by respondent No. 1 (original petitioner) in the writ petition. It is further submitted by learned counsel for respondent No. 1 that no error has been committed by the learned Single Judge in granting the benefit of Assured Career Progression under the ACP Scheme, floated by the appellants-State because after the year 1991. 12 years’ period has already lapsed and respondent No. 1 retired in the year 2003 without ACP benefit and, hence, this Letters Patent Appeal may not be entertained by this Court. Reasons : 4. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, we, hereby, quash and set aside the judgment and order delivered by the learned Single Judge in W.P.(S) No. 4969 of 2010, dated 12th September, 2014 mainly for the following facts and reasons : (i) Respondent No. 1 (original petitioner) was appointed as Extra Clerk on 2nd August, 1971 on fixed or monthly lump sum remuneration. (ii) Thereafter, he was regularly appointed as Temporary Clerk with effect from 21st May, 1981 with the pay scale of Rs. 220-550/-, prevailing at the relevant time (by now this pay scale has been enhanced substantially). (iii) It further appears from the facts of fire case that earlier there was Time Bound Promotion Scheme floated by the appellants-State and as per this Time Bound Promotion Scheme, those who are unable to get regular promotion, they are given higher pay scale. Higher promotion may not be available because of pyramidical structure in the services. In pursuance of the Time Bound Promotion Scheme, respondent No. 1 (original petitioner) was given first time bound promotion with effect from 22nd May, 1991. Higher promotion may not be available because of pyramidical structure in the services. In pursuance of the Time Bound Promotion Scheme, respondent No. 1 (original petitioner) was given first time bound promotion with effect from 22nd May, 1991. (iv) It further appears from the facts of the case that thereafter regular promotion was given on the post of Permanent Clerk with effect from 17th April, 1999 vide office order No. 1 bearing memo No. 592, Hazaribag which is annexed as Annexure-2 to the memo of the writ petition-W.P.(S) No. 4969 of 2010. Much has been argued out by the learned counsel for respondent No. 1 that the post of Permanent Clerk is not a promotional post, at all. (v) Learned counsel for respondent No. 1 has relied upon the letter of the year 1995 annexed with the rejoinder affidavit filed in the writ petition. We have perused Annexure-2 to the memo of the writ petition and the letter of rejoinder, upon which, learned counsel for respondent No. 1 (original petitioner) is relying. It appears that the post of Permanent Clerk was given to respondent No. 1 (original petitioner) as a promotion, looking to the letter dated 17th April, 1999, which is at Annexure-2 to the memo of the writ petition. Moreover, the pay scale of Temporary Clerk is Rs. 220-550/-, whereas, post of Permanent Clerk is having pay scale of Rs. 1200-1800/-. (vi) Thus, first time bound promotion was given to respondent No. 1 (original petitioner) on 22nd May, 1991 and the promotion was also given on 17th April, 1999. Respondent No. 1 (original petitioner) retired in the year 2003. The benefit of ACP can be given only after the period of 12 years from the date of time bound promotion. Thus after the year 1999, 12 years’ period has to be allowed to be lapsed which has not happened in this case. Respondent No. 1 (original petitioner) has already retired in the year 2003. This aspect of the matter has not been properly appreciated by the learned Single Judge while allowing the writ petition being W.P.(S) No. 4969 of 2010. (vii) It appears that one time bound promotion in the year 1991 and another promotion on the post of Permanent Clerk in the year 1999 was given. Hence, the benefit of ACP cannot be given unless 12 years’ period from the year 1999 is being lapsed. 5. (vii) It appears that one time bound promotion in the year 1991 and another promotion on the post of Permanent Clerk in the year 1999 was given. Hence, the benefit of ACP cannot be given unless 12 years’ period from the year 1999 is being lapsed. 5. As a cumulative effect of the aforesaid facts and reasons, we, hereby, quash and set aside the judgment and order delivered by the learned Single Judge in W.P. (S) No. 4969 of 2010, dated 12th September, 2014. This Letters Patent Appeal is, therefore, allowed and disposed of. 6. In view of the final order passed in the Letters Patent Appeal, I.A No. 2971 of 2016 is also disposed of. Appeal allowed and disposed of.