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2018 DIGILAW 1313 (JHR)

Ramdeo Mahto v. State of Jharkhand

2018-06-25

S.N.PATHAK

body2018
ORDER : The petitioner has approached this Court with a prayer for quashing and setting aside the order dated 05.02.2013 as contained in Memo No. 283 (Annexure-4 to the writ petition), whereby and whereunder, the earlier order granting the benefits of ACP to the petitioner has been cancelled and respondents have directed to consider the case of the petitioner for grant of benefits of ACP w.e.f. 20.02.2011 as the Departmental Examination was held on 19.02.2011. 2. Further prayer has been made to grant the benefits of ACP to the petitioner, which was granted earlier w.e.f. 20.08.2008 in the scale of Rs. 9300-34800/- with grade pay of Rs. 4200/- and also to fix the pension on revised pay scale and release the arrears of other consequential benefits with statutory interest. 3. The case of the petitioner lies in a narrow compass. The petitioner was appointed to the post of Typist on 20.08.1996 in Civil Court, Bokaro and his services was duly confirmed by the respondents. As per the service rules and guidelines, which is meant for consideration for grant of benefits of ACP, the petitioner became entitled for the benefits of first ACP on completion of 12 years of service i.e. on 20.08.2008. Therefore, he represented before the respondents, stating therein as no departmental examination were held since 2003, he has applied for appearing in the departmental examination to be held on 10.02.2009 and also stated that he has completed 50 years of age and as such, he may be exempted from appearing in the departmental examination. Thereafter, on 15.12.2012, the petitioner was granted the benefits of First ACP w.e.f. 20.08.2008 in the pay scale of Rs. 5000-150-8000/- and granted pay band–II in the scale of Rs. 9300-34800/-. The petitioner enjoyed the said benefits till the year, 2012, but on 5.02.2013, the respondents issued Annexure-4 to the writ petition, wherein the grant of benefits of first ACP has been directed to given w.e.f. 20.02.2011 and not from 20.08.2008 as it was found that the petitioner had cleared the departmental examination only in the year, 2011. Though the petitioner represented before the respondents annexing the order passed by this Court in W.P.(S) No. 2443 of 2016 (Chitaranjan Prasad Verma Vs. Though the petitioner represented before the respondents annexing the order passed by this Court in W.P.(S) No. 2443 of 2016 (Chitaranjan Prasad Verma Vs. The State of Jharkhand) which is at Annexure 8 to this writ petition which exactly covers the case of the petitioner but the respondents-authorities instead of considering the case of the petitioner, have relied on a different judgment and order passed by this Hon’ble Court in W.P. (S) No. 2333 of 2013 (Subodh Kumar Nandkeolyar Vs. The State of Jharkhand & Ors.). Aggrieved thereto, the petitioner has preferred instant writ petition. 4. Mrs. Vandana Singh, learned counsel for the petitioner submits that the respondents-authorities have illegally, arbitrary and without any application of mind have cancelled the order granting the benefits of first ACP w.e.f. 20.08.2008 and have considered for grant of the same w.e.f. 20.02.2011. Learned counsel for the petitioner draws the attention of the Court towards Annexure-8 to the writ petition and argues that case of the petitioner is squarely covered by the order/judgment passed by this Hon’ble Court in Chitranjan Prasad Verma (Supra) case, but the respondents have considered earlier order/ judgment of this Hon’ble Court, which is based on a different facts. The issue involved in this writ petition has already been decided by this Hon’ble Court and it is held that when the examination has not been conducted for several years and employee has completed 12 years of service, he/she is entitled for the benefits of first ACP and thereafter, second ACP though they have not passed the departmental examination. On 19.02.2011 as no examination were held from 2002 to 2011 i.e. prior to 19.02.2011, the petitioner is entitled for the first ACP w.e.f. 20.02.2008. There is no illegality or infirmity in earlier order for grant of benefits of ACP i.e. 20.02.2008. 5. Per contra, counter-affidavit has been filed. Mr. Suman Kumar Ghosh, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and justifying the impugned order, submits that as the departmental examination was held on 19.02.2011, rightly he was considered and granted the benefits of first ACP w.e.f. 20.02.2011. Learned counsel further argues that as per the Rules, only if the employee clears the departmental examination, he can be considered for grant of benefits of ACP. Learned counsel further argues that as per the Rules, only if the employee clears the departmental examination, he can be considered for grant of benefits of ACP. Surprisingly, in several paragraphs of the counter-affidavit, it has been mentioned that petitioner has not cleared the departmental examination, but contrary to this, in paragraph 10 of the counter-affidavit, it has been mentioned that petitioner has passed the departmental examination on 19.02.2011. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered opinion that the case of the petitioner needs consideration. The impugned order has been issued illegally, arbitrary and without any application of mind. Law has been settled by this Court in case of Jharkhand Police Association through its Secretary, Thakur Ajit Kumar Vs. The State of Jharkhand & Ors., reported in 2007 (1) JLJR Page 499, wherein it has been observed that “the stand of the authorities to deny the benefit from the cut-off date on the ground of acquiring training later in the time is not justifiable, such employee on acquiring training, held entitled for such benefits retrospectively on completion of 12/24 years of service or from the cut-off date whichever is later.” 7. In the instant case, admittedly, the petitioner has cleared the departmental examination though at later stage as and when, examination was held. Rules of ACP clearly speaks that on completion of 12 /24 years of services, employee is entitled for benefits of ACP, if he fulfills the other requirement. The averments made in counter-affidavit are not as per the law, same are not acceptable to this Court. 8. As a cumulative effect of the aforesaid rules, guidelines, and judicial pronouncement, the impugned order at Annexure 4 to the writ petition dated 05.02.2013 is hereby quashed and set aside. The respondents are directed to consider the case of the petitioner for the benefits of ACP from the date, he was considered and granted earlier i.e. on 20.08.2008 and not permitted to shift the date to 20.02.2011. Respondents are further directed to consider the case of the petitioner for grant of all consequential benefits and as the petitioner has already been superannuated, the pension and other retiral benefits be fixed in the revised scale, in accordance with law. 9. With the aforesaid observations, writ petition stands allowed.