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Jharkhand High Court · body

2018 DIGILAW 1797 (JHR)

Ashok Kumar Mishra v. State of Jharkhand

2018-08-09

S.N.PATHAK

body2018
JUDGMENT : Heard the parties. 2. Since the issues involved in all these writ petitions are same and similar, they are being heard together and disposed of by this common order. 3. Petitioners in all the writ petitions have approached this Court with a common prayer for direction upon the respondents to consider their cases for grant of the benefits of ACP/MACP. 4. The factual exposition as has been delineated in the writ petition is that the petitioners were appointed on compassionate ground to the post of Forest Guards in the pay-scale of Rs.425-10-565/- in pursuance to the order No. 1 dated 07.01.1984 (in W.P.S. No. 2208 of 2018); order No. 64 dated 15.04.1982 (in W.P.S. No. 2209 of 2018); and letter No. 2503 dated 20.09.1989 (in W.P.S. No. 2844 of 2018) respectively. In view of their appointment letters, petitioners submitted their joining before the office of Divisional Forest Officer, Dumka and since then, they were discharging their duties regularly, sincerely, diligently and with utmost satisfaction of his superior without any compliant. The petitioners were also declared successful in the examination of reading and writing of Hindi, which was held on 25.08.1985 (W.P.S. No. 2208 of 2018), on 10.12.1984 (W.P.S. No. 2209 of 2018) but the petitioner in W.P.S. No. 2844 of 2018 has not cleared the reading and writing exam of Hindi though he has appeared on several occasions.. Their services were also confirmed by the competent authority on 10.01.1987 (in W.P.S. No. 2208 of 2018) vide order dated 19.04.2008, on 24.02.1985 (in W.P.S. No. 2209 of 2018) vide order dated 14.04.2003 and on 25.09.1995 (in W.P.S. No. 2844 of 2018) vide order dated 17.01.2004. They have also successfully completed the Forest Guard Training held from January, 2004 to June, 2004 (in W.P.S. No. 2208 of 2018), from April, 1995 to December, 1995 (in W.P.S. No. 2209 of 2018) and from January, 2010 to June, 2010 (in W.P.S. No. 2844 of 2018). It is the further case of the petitioners that they were granted the benefits of 1st and 2nd ACP in the upgraded pay-scale of Rs.4,000-6,000/- and Rs.6,500-10,500/- respectively on completion of 12/24 years of regular service. It is the further case of the petitioners that they were granted the benefits of 1st and 2nd ACP in the upgraded pay-scale of Rs.4,000-6,000/- and Rs.6,500-10,500/- respectively on completion of 12/24 years of regular service. It is the specific case of the petitioners that in their entire service careers they were never considered for any regular promotion but they were granted the benefits of 1st ACP in the pay-scale of Rs.4,000-6,000/- in pursuance of the Sankalp No. 2446 dated 17.11.2012 issued by the Finance Department, Govt. of Jharkhand. Thereafter, on completion of 24 years of regular service, the cases of the petitioners were considered and recommended for grant of 2nd MACP vide letter dated 29.06.2016 and in pursuance to the said letter, their pay-scale were revised and fixed in the scale of Rs.9300-34800/- with Grade Pay of Rs.4200/-. The said revised pay-scale has also been confirmed by the District Accounts Officer, Dumka. It is the specific case of the petitioner that when they approached before the respondent-authorities for grant of the benefits of 3rd MACP after completion of 30 years of regular services, the Regional Chief Conservator of Forest, Santhal Pargana, Dumka had issued a letter whereby he had recommended to cancel the benefits of 2nd ACP of the petitioners due to the reasons that the petitioners are non-matric. The reason for non-consideration of their cases for granting the benefits of ACP/MACP was that the petitioner had not fulfilled the requisite qualification i.e. matric. Aggrieved by the said cancellation order, the petitioner represented before the respondent-authorities but till date no decision has been taken in this regard. Hence, these writ applications have been filed by the petitioners for redressal of their grievances. 5. Mr. V.N. Jha, learned counsel appearing for the petitioners strenuously urges that admittedly the petitioners were non-matric but the issue has already been decided by the Central Administrative Tribunal which was affirmed upto the Hon’ble Apex Court. The same view has been reiterated by this Court vide its order dated 06.10.2017 passed in W.P.(S). 6081 of 2014 and analogous cases and as such, a direction be given to the respondents to consider the cases of the petitioners taking into account that matriculation will not come in the way of getting the benefits of ACP/MACP in view of the judgment passed by this Court. 6. Per contra, counter-affidavit has been filed. 6081 of 2014 and analogous cases and as such, a direction be given to the respondents to consider the cases of the petitioners taking into account that matriculation will not come in the way of getting the benefits of ACP/MACP in view of the judgment passed by this Court. 6. Per contra, counter-affidavit has been filed. Learned counsel appearing for the respondent-State, vehemently opposes the contention of the learned counsel for the petitioners and submits that since the petitioners did not fulfill the requisite qualifications as they were non-matric, hence, their cases were not considered for granting the benefits of ACP/MACP. Learned counsel further submits that since the representations of the petitioners are pending before the respondents and since this Court has already decided the issue regarding requisite qualification for granting the benefits of ACP/MACP, the same may be considered by the respondents and a reasoned order shall be passed on the pending representation of the of the petitioner, if a direction is given by this Court in this regard. 7. In view of the aforesaid facts and circumstances, this Court is of the opinion that similar issue fell for consideration before this Court in W.P.(S). No. 6081 of 2014 and analogous cases and this Court vide its order dated 06.10.2017, after considering the resolution dated 17.11.2012 regarding eligibility criteria for promotion, was of the view that the said resolution only speaks of passing the departmental examination and not of having any essential educational qualification as a pre-requisite for grant of ACP. The said resolution does not come to any help of the respondents. The ACP Scheme dated 09.08.1999 needs to be viewed as “Safety Net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. The said resolution does not come to any help of the respondents. The ACP Scheme dated 09.08.1999 needs to be viewed as “Safety Net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. It further provides in para 3.1 Grant of financial up-gradations under the ACP Scheme shall, however, be subject to the conditions.” Fulfillment of normal promotion norms (benchmark, departmental examination, seniority-cum-fitness in the case of Group ‘D’ employees, etc.) for grant of financial up-gradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial up-gradations as personal to the incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (house building Advance, allotment of Government accommodation, advances, etc.) only without conferring any privileges related to higher status (e.g., invitation to ceremonial functions, deputation to higher posts, etc.) shall be ensured for grant of benefits under the ACP Scheme. It can be seen from the above that while norms include benchmark, departmental examination, seniority-cum-fitness, it does not specifically mention the requirement of holding the essential qualification for the pay-scale that may be granted under ACP even though this pay-scale coincides with the promotional pay-scale. In view of the same, it is my understanding that while the requirement of having proper benchmark, departmental examination or seniority-cum-fitness are laid down in the rules in the Scheme, holding of essential qualification corresponding to the pay-scale on which the ACP is granted, is nowhere explicitly envisaged in the scheme of the policy itself. 8. Thus, in my opinion, in cases of employees posted against the isolated post having no promotional avenues would obviously be not required to have any minimum standards of qualification for a higher post, in the instant cases matric. In case, where promotion avenues are available and the promotions are being denied due to lack of vacancies, to insist upon the employees having the minimum educational qualification required for the higher post, would be against the purpose of the scheme. 9. In case, where promotion avenues are available and the promotions are being denied due to lack of vacancies, to insist upon the employees having the minimum educational qualification required for the higher post, would be against the purpose of the scheme. 9. As a cumulative effect of the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, I hereby direct the respondent No. 4 to take a conscious decision on the pending representations of the petitioners taking into account the order dated 06.10.2017 passed in W.P.S. No. 6081 of 2014 and analogous cases, within a period of eight weeks from the date of receipt/production of a copy of this order. Needless to say that if the petitioners are found entitled for the benefits, as claimed by them, the same shall be extended to them within a further period of four weeks thereafter. 10. Resultantly, writ petition stands disposed of.