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2018 DIGILAW 2705 (JHR)

Triveni Singh v. State Of Jharkhand

2018-12-10

PRAMATH PATNAIK

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JUDGMENT Pramath Patnaik, J. - In the captioned writ application, the petitioner has inter alia prayed for quashing office order dated 14.03.2011 whereby the petitioner has been communicated that due to non-passing of Accounts examination, 1st Time Bound Promotion granted to him w.e.f 26.06.1990 and the benefit of ACP Scheme w.e.f 09.08.1999 is cancelled and it has been decided to recover the excess amount paid to him; and for quashing office order dated 21.08.2008 whereby it has been decided to recover Rs. 1,04,027.00 from the petitioner which was paid to the petitioner in lieu of benefit of ACP granted to him in between 15.11.2000 to 31.07.2008. 2. The facts, in brief, is that the petitioner was initially appointed on the post of Correspondence Clerk on 26.08.1980 in the Works Division of Rural Development Department, now known as Rural Engineering Organization. It has further been averred that since the petitioner had not been granted regular promotion in his cadre during his entire service tenure, he was granted his 1st Time Bound Promotion w.e.f 26.08.1990 vide memo dated 05.01.1991. Thereafter, the Government of Jharkhand introduced the scheme of Assured Career Progression vide notification dated 14.08.2002, consequently, the petitioner was granted A.C.P vide memo dated 26.10.2002 w.e.f 09.08.1999. But, to the utter surprise, the petitioner received office order dated 21.08.2008, whereby it was informed that since he had been granted the benefit of ACP without passing the Accounts Examination as such it has been decided to recover the financial benefit to the tune of Rs. 1,04,027.00 which was paid to him in between 15.11.2000 to 31.07.2008 in installments. Thereafter, the office order dated 14.03.2011 was issued whereby the petitioner was communicated that due to non- passing of the Accounts examination, 1st Time Bound Promotion as also A.C.P granted to him is cancelled and it has been decided to recover the excess amount paid to him. 3. Heard Ms. Ritu Kumar, learned counsel for the petitioner and Ms. Chandra Prabha, learned S.C. IV for the respondents. 4. Learned counsel for the petitioner submitted that the Rural Works Department (now known as Rural Engineering Organization), Govt. of Jharkhand has not conducted any departmental examination till date. 3. Heard Ms. Ritu Kumar, learned counsel for the petitioner and Ms. Chandra Prabha, learned S.C. IV for the respondents. 4. Learned counsel for the petitioner submitted that the Rural Works Department (now known as Rural Engineering Organization), Govt. of Jharkhand has not conducted any departmental examination till date. Learned counsel for the petitioner referring to letter dated 12.08.1992 submitted that petitioner being correspondence clerk in Works Division of Rural Works Department is not exempted from passing of Accounts examination, however, the petitioner appeared for Accounts Examination in the 1998 and cleared all papers except paper I of final examination. It has further been submitted that in an abundant precaution, the petitioner after crossing the age of 50 years applied for exemption from appearing and passing of such examination and was granted exemption vide letter dated 17.06.2008 with the approval of Commissioner, South Chotanagpur Division, Ranchi. Even otherwise also, the impugned orders are bad in law as before passing of such order neither any show cause was issued nor opportunity of hearing was afforded to the petitioner to put forth his case. Moreover, there is no misrepresentation on the part of the petitioner in getting such benefits rather it is the department which after examining all the materials granted such benefit. Lastly, learned counsel for the petitioner submitted that during pendency of the writ application, the petitioner has retired from services on 30.01.2015 on attaining the age of superannuation. 5. As against this, learned counsel for the respondents submitted that the petitioner being correspondence clerk was required to pass the departmental examination as per Rule 157 (j) (a) of the Jharkhand Board Misc. Rules, which says that "Any clerk, who has not passed the preliminary examination in Accounts, will neither be confirmed nor be allowed to cross the efficiency bar." Learned counsel for the respondents referring to Clause 3 (7) of the Resolution dated 14.08.2002 submitted that the same principle is applicable in case of ACP or promotion and since the petitioner has not passed the departmental examination, the respondents have rightly passed the impugned order of recovery and cancellation of A.C.P/Time Bound Promotion. It has further been submitted that exemption from passing the departmental examination was granted to the petitioner vide order dated 17.06.2008 but as per Clause (2) of circular dated 09.11.1983, it is apparent that the exemption is applicable from the date of grant of such exemption and no exemption could have been granted to the petitioner before the age of 50 years, hence the same was rightly cancelled and order of recovery of excess amount was passed. 6. Replying to the submissions advanced by counsel for the respondents, learned counsel for the petitioner submitted that Rule 157 (j) (a) of the Jharkhand Board Misc. Rules says it is necessary for every clerk to pass the preliminary examination, which the petitioner has passed as evident from letter dated 02.06.1998 of the Deputy Secretary, Water Resources Department, hence, on the ground no order for recovery or grant of ACP/Time Bound Promotion ought to have been cancelled. 7. Having considered the submissions advanced by learned counsel for the parties at length and on perusal of record, it appears that the benefit of Time Bound Promotion and A.C.P were granted to the petitioner by the department itself there was no misrepresentation on the part of petitioner. It further appears that the petitioner passed the preliminary examination of Accounts in the year 1998 itself, which is alleged to be essential for clerk post, which the petitioner was holding. Furthermore, the petitioner immediately after attaining the age of 50 years sought for exemption from passing the departmental examination which was granted vide order dated 17.06.2008 with the approval of Commissioner, Sought Chotanagpur Division, Ranchi. From the pleadings available on record, it is admitted that the petitioner never misrepresented the departments so as to get such benefit rather it is department who are changing their mind. Moreover, during pendency of the instant writ application the petitioner has retired from services on attaining the age of superannuation in the year 2015. 8. For the reasons aforesaid, the impugned order dated 14.03.2011 and order dated 21.08.2008 is hereby quashed and set aside and respondents are directed to refund the amount, if any amount is recovered on account of passing of impugned orders. 9. With the aforesaid directions, the writ application stands allowed.