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2018 DIGILAW 184 (JHR)

Birendra Kumar Singh v. State Of Jharkhand

2018-01-19

PRAMATH PATNAIK

body2018
JUDGMENT Pramath Patnaik, J. – Since the aforementioned writ applications involve common questions of law, therefore, the said writ applications have been heard analogously and with the consent of the respective counsels, are being disposed of by this common order. 2. The seminal issue, which hinges for determination of the aforesaid writ applications, is as to whether passing of the Accounts Examination is required for grant of upgradation under the time bound promotion or under the A.C.P. Scheme. The contentions of the learned counsels in the respective writ applications are that the grant of benefit of time bound promotion/ACP has been cancelled on the ground of not passing the accounts examination by relying on the provisions of 157 (3) (j) of the Bihar Board''s Miscellaneous Rules, 1958, which is not required for the purpose of upgradation in the pay-scale under the ACP Scheme, because as per the condition laid down in the Circular issued on 30.12.1981, the requirement of upgradation under the promotion/ACP Scheme are that the employees, who possesses eligibility condition, as required for regular promotion as per the recruitment Rules and there is no requirement of passing of Accounts examination for promotion to the higher post. 3. The petitioner in W.P. (S) No. 4168 of 2008, has inter alia, prayed for issuance of a writ of certiorari for quashing of the office order dated 07.03.2008 (Annexure-3) communicated through Memo No. 640, dated 28.02.1989, by which the Regional Chief Conservator of Forest ordered the forest conservator as per the order of the Principal Chief Conservator of Forest ordered for cancellation of promotion given to the employees, who were given Time Bound Promotion without passing the departmental examination or the accounts examination on the ground of breach of principles of natural justice and non-issuance of show cause notice prior to issuance of the impugned order. The petitioner has further prayed for quashing of the order dated 10.06.2008 (Annexure-5), issued by the Divisional Forest Officer, Koderma Division wherein, the order has been passed for recovery of Rs.31,197/- from the salary of the petitioner, which has been paid during May, 1983 to October, 1996 on account of the first time bound promotion and the petitioner has further prayed for issuance of writ of certiorari for quashing the letter dated 27.09.2007 (Annexure-2), issued by the RCCF, Hazaribagh to the Conservator of Forest for cancellation of the time bound promotion and for a direction to the respondents to consider the case of the petitioner for the first time bound promotion, from the date, it became due and for fixation of the pay-scale, accordingly with all consequential benefits. 4. In W.P. (S) No. 6329 of 2007, the petitioners have, inter alia, prayed for direction upon the respondents and especially respondent no.5 to verify the service book and fixation of salary in respect of time bound promotion and benefit of A.C.P. granted to the petitioners as the petitioners have already been granted time bound promotion and some of them have been granted benefit of the A.C.P. and further prayer has been made for quashing of the letter dated 25.08.2004 and 26.06.2006 vide Annexure-5 and 7, by which the respondent no. 5 has refused to verify the service book in respect of time bound promotion and benefit of A.C.P. granted to the petitioners. 5. In W.P. (S) No. 3566 of 2008, the petitioner, who is a retired employee, has sought for issuance of writ of certiorari for quashing the memo dated 10.10.2007 and 27.12.2007 vide Annexure-3 and 5, whereby the Divisional Forest Officer, State Trading Division, Hazaribagh West, Hazaribagh has requested the Divisional Forest Officer, Hazaribag West Forest Division, Hazaribagh to recover Rs.69,929/- from the salary of the petitioner on account of first time bound promotion without following the principles of natural justice and non-issuance of show cause notice. The petitioner has further prayed for quashing of the order dated 20.07.2005 (Annexure-2), by which first time bound promotion given to the petitioner has been cancelled on account of non-passing of accounts examination. Further prayer has been made for direction to the respondents to consider the case of the petitioner for the first time bound promotion from the date, it became due and for fixation of scale, accordingly with all consequential benefits. 6. Further prayer has been made for direction to the respondents to consider the case of the petitioner for the first time bound promotion from the date, it became due and for fixation of scale, accordingly with all consequential benefits. 6. In W.P. (S) No. 3573 of 2008, the petitioner has, inter alia, prayed for quashing of the office order dated 20.06.2008 (Annexure-4), issued under the signature of Conservator of Forest, Bokaro Circle, Bokaro pertaining to an order for recovery to the tune of Rs.57,505/- and for quashing of the office order dated 23.08.2003 (Annexure-2) by which the time bound promotion given to the petitioner has been cancelled on account of non-passing of the accounts examination and the petitioner has further prayed for issuance of a writ of mandamus commanding upon the respondents to consider the case of the petitioner for the first time bound promotion from the date, it became due and for fixation of scale, accordingly with all consequential benefits. 7. In W.P. (S) No. 4304 of 2008, the petitioner has prayed for issuance of a writ of certiorari for quashing the letter dated 27.09.2007 (Annexure-2), issued by the RCCF, Hazaribagh to the Conservator of Forest to cancel the time bound promotion of the employees, who have not passed the departmental examinations and further prays for a direction to the respondents to consider the case of the petitioner for the first time bound promotion from the date it became due and fix the scale accordingly, with all consequential benefits. 8. Challenge has been thrown to the action of the respondents in passing the impugned orders on the ground that in view of the decision vide Annexure-10 and 11 of the writ application (W.P. (S) No. 4168 of 2008, passed in C.W.J.C. No. 42 of 1988 (R), and C.W.J.C. No. 1824 of 1995 (R) wherein the Hon''ble Court has been pleased to hold that passing of the accounts examination are not a condition precedent for the grant of the first and the second time bound promotion. 9. Learned senior counsel in W.P. (S) No. 3566 of 2008, has strenuously urged that the impugned orders are illegal, void and without jurisdiction in view of the orders, passed by the Hon''ble Court vide Annexure-10 and 11, whereby the Bihar Board''s Miscellaneous Rules, 1958 has been made inapplicable for grant of promotion to the selection grade and for grant of time bound promotion. Learned senior counsel further submits that the impugned orders, passed by the respondents is violative of principles of natural justice, as no show cause notice has ever been issued nor the petitioner has been provided opportunity of being heard to place his case. Learned senior counsel further submits that the respondents have acted illegally in passing the impugned orders in view of the fact that there is no misrepresentation on the part of the petitioner in the matter of grant of time bound promotion, therefore, the impugned orders are in breach of Article 14 and 16 of the Constitution of India. Learned senior counsel has also referred to the proviso to Section 73 of the Re-organization Act, which reads as under :- "73. Other provisions relating to services.- Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Bihar or to the State of Jharkhand under Section 72 shall not be varied to his disadvantage except with the previous approval of the Central Government." 10. Learned counsel for the petitioners in W.P. (S) No. 6329 of 2009 and other batch of cases, apartfrom adopting the submissions of the learned senior counsel in W.P. (S) No. 3566 of 2008, in support of their contentions, has referred to the following decisions : - (i) in the case of Yoga Nand Mishra-versus-State of Bihar (Now Jharkhand) and Ors. , (2003) 2 JCR 343 (Jhr) para 5, (ii) in the case of Bhola Nath Pattanayak-versus-State of Jharkhand , (2004) 1 JLJR 306 paragraphs 3 and (iii) in the case of S. Naseemuddin-versus-State of Jharkhand and ors. , (2014) 4 JLJR 70 , (iv) in the case of Ashok Kumar Mandal-versus-State of Jharkhand and Ors.,2017 1 JBCJ 246 and (v) in the case of T.R. Kapur and others-versus-State of Haryana and others , (1986) Supp1 SCC 584 paragraphs 7 and 8. 11. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents, wherein, it has been submitted that the State Government has put a condition of passing the departmental examination in three papers for the Clerks of mufassil offices like that of Divisional Forest Officers. 11. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents, wherein, it has been submitted that the State Government has put a condition of passing the departmental examination in three papers for the Clerks of mufassil offices like that of Divisional Forest Officers. These subjects have very clearly been mentioned in rule 157 of Bihar Board Miscellaneous Rule, 1958 and it includes the subject of accounts as per rule 157 (3) (a) (b) and (c). Rule 157 (3) (j) (kha) of the Boards Miscellaneous Rules very clearly speaks that no promotion in higher grade will be given unless the Clerk passes the final departmental examination. It has further been submitted that the condition of passing the accounts examination for crossing the efficiency bar, which is necessary for up-gradation has very clearly been mentioned in paragraph 3.31 of Volume-II of the Bihar Forest Manual, which, inter alia, envisages for crossing the efficiency Bar in the scale (iv), the Clerks will have to pass the preliminary Accounts examination prescribed under rule 157 of the Board''s Miscellaneous Rule. For crossing the efficiency Bar in the scale III, the Clerks will be required to pass the final examination in accounts prescribed under rule 157 of the Board''s Miscellaneous Rules. No clerk who has not passed the preliminary examination will be allowed to cross the efficiency Bar and no Clerk who has not passed the final examination will be appointed in the Upper division. The same has been annexed as Annexures-A and B to the supplementary counter affidavit, filed by the respondents in W.P. (S) No. 4168 of 2008. 12. Referring to the aforesaid submissions, Mr. Binod Singh, learned S.C. (L&C) appearing for the Respondent-State has submitted that the passing of the Accounts Examination is a must for the grant of any upgradation. 13. The same has been annexed as Annexures-A and B to the supplementary counter affidavit, filed by the respondents in W.P. (S) No. 4168 of 2008. 12. Referring to the aforesaid submissions, Mr. Binod Singh, learned S.C. (L&C) appearing for the Respondent-State has submitted that the passing of the Accounts Examination is a must for the grant of any upgradation. 13. Having heard the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioners in the aforesaid writ applications have been able to make out a case for interference, in view of the following facts and reasons : - (i) Admittedly, the petitioners are aggrieved by the impugned orders, whereby in some cases, the grant of time bound promotion/ACP have been cancelled and the order of recovery of the payment made on the ground of time bound promotion or ACP has been passed by the respondents even for non-passing of the accounts examination in view of the provisions of 157 (3) (j) of the Bihar Boards'' Miscellaneous Rules. Moreover, the respondents have unilaterally passed the impugned order without issuance of any show cause notice or in compliance of the principles of natural justice. Apartfrom that in some cases, the petitioners have retired from services and the action of the respondents in directing recovery from the salary of the petitioners without resorting to the provisions of Pension Rules or the departmental proceeding cannot be sustained in the eyes of law. (ii) On perusal of the order passed in C.W.J.C. No. 42 of 1988 (R) in the case of Kedar Prasad Singh-versus-The State of Bihar & Others vide Annexure-10 as well as the order passed in C.W.J.C. No. 1824 of 1995 (R) in the case of Uday Kant Jha and others-versus-The State of Bihar & Others vide Annexure11, the Hon''ble Court has been pleased to direct for grant of the time bound promotion without passing of the accounts examination. In C.W.J.C. No. 18015 of 2011, in the case of Pramod Kumar-versus-The State of Bihar & Others and another writ petition vide C.W.J.C. No. 16346 of 2011, in the case of Ashok Kumar and others-versus-The State of Bihar & Others the Hon''ble Court has directed for grant of ACP without passing of the accounts examination and the said decision has been confirmed in L.P.A. No. 1260 of 2012 vide order dated 20.04.2015 by the Hon''ble High Court of Patna. (iii) It is no more res integra that any order affecting the pay of an employee ought to be passed in compliance to the principles of natural justice but, admittedly, no show cause notice prior to cancelling of the grant of time bound promotion and direction for recovery of the excess amount to the employees has been passed without any show cause notice. On that score alone, the impugned orders are liable to be quashed and set aside. 14. In view of the reasons stated in the foregoing paragraphs and as a logical sequitor, the impugned orders dated 07.03.2008 (Annexure-3) communicated through Memo No. 640, dated 28.02.1989, the order dated 10.06.2008 (Annexure-5), issued by the Divisional Forest Officer, Koderma Division as well as the letter dated 27.09.2007 (Annexure-2), issued by the RCCF, Hazaribag to the Conservator of Forest in W.P. (S) No. 4168 of 2008, the letter dated 25.08.2004 and 26.06.2006 vide Annexure-5 and 7 in W.P. (S) No. 6329 of 2007, the memo dated 10.10.2007 and 27.12.2007 vide Annexure-3 and 5 as well as the order dated 20.07.2005 (Annexure-2) in W.P. (S) No. 3566 of 2008, the office order dated 20.06.2008 (Annexure-4), issued under the signature of Conservator of Forest, Bokaro Circle, Bokaro and the office order dated 23.08.2003 (Annexure-2) in W.P. (S) No. 3573 of 2008 and the letter dated 27.09.2007 (Annexure-2), issued by the RCCF, Hazaribagh to the Conservator of Forest in W.P. (S) No. 4304 of 2008 are hereby quashed and set aside and the respondents are directed to fix the scale of pay of the petitioners by granting time bound promotion from the due date and accordingly, all the consequential benefits be extended to the petitioners. Let the aforesaid exercise be completed within a period of 12 weeks from the date of communication of the order. 15. Let the aforesaid exercise be completed within a period of 12 weeks from the date of communication of the order. 15. With the aforesaid direction, the aforementioned writ applications [W.P. (S) No. 4168 of 2008 with W.P. (S) No. 6329 of 2007 with W.P. (S) Nos. 3566, 3573 and 4304 of 2008] stand disposed of.