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Jharkhand High Court · body

2019 DIGILAW 1752 (JHR)

Krishna Barai v. State of Jharkhand

2019-10-16

S.N.PATHAK

body2019
ORDER : 1. Heard counsel for the parties. 2. Petitioner has approached this Court with a prayer for quashing the order dated 24.12.2018, passed by the Divisional Forest Officer vide Memo No. 3049 and office order no. 184, as well as the order dated 24.12.2018, vide memo no. 3050 and office order no. 185. Further prayer has been made for a direction upon the respondents to provide 3rd MACP in Grade Pay of Rs. 4,600/- with effect from 9.10.2016. Petitioner has also prayed for a direction upon the respondents to provide entire post retiral monetary benefits on the basis of consideration of his case for 3rd MACP in grade pay of Rs. 4,600/-. 3. From the facts pleaded in the writ petition, it appears that petitioner is Intermediate of Arts and was appointed in the Forest and Environment Department on 9.10.1986 as a Forest Guard. During the service tenure, he passed the Hindi Noting and Drafting Examination in the year 1993 and further passed the Jan Jatiye (Santhali) language examination in the year 1993 and also completed the training of Forest Guard in the session of October, 1997 to March, 1998 from Forester-cum-Forest Guard Training School, Hazaribagh. Petitioner got his 1st ACP in the scale of Rs. 4,000-6,000/- (pre-revised) and Grade Pay of Rs. 2,800/- and the 2nd ACP in scale of Rs. 6,500-10,500/- (pre-revised) and Grade Pay of Rs. 4,200/- vide office order no. 67, dated 16.6.2014. Thereafter, without any rhyme or reason and without issuance of any show-cause notice and totally against the provisions of grant of ACP and MACP, vide order dated 24.12.2018, passed by Divisional Forest Officer, vide Memo No. 3049 and office order no. 184, as well as the order dated 24.12.2018, vide Memo No. 3050 and office order no. 185, the scale under 1st and 2nd ACP of the petitioner has been reduced to Grade Pay of Rs. 2,400/- and Rs. 2,800/- respectively, 3rd MACP in PB-II with Grade Pay of Rs. 4,200/- instead of Grade Pay of Rs. 4,600/-. Further, a direction has also been passed for recovery of the excess amount paid to the petitioner. In view of the fact that other Forest Guards are getting the monetary benefits of ACP and MACP, as claimed by the petitioner, he preferred representation before the competent authority for redressal of his grievance. 4,200/- instead of Grade Pay of Rs. 4,600/-. Further, a direction has also been passed for recovery of the excess amount paid to the petitioner. In view of the fact that other Forest Guards are getting the monetary benefits of ACP and MACP, as claimed by the petitioner, he preferred representation before the competent authority for redressal of his grievance. Petitioner has already superannuated from the service as a Forester on 31.10.2018 from the office of Divisional Forest Officer, Giridih Forest Division, Giridih. Since grievance of the petitioner has not yet been redressed, he has knocked door of this Court. 4. Mr. V.N. Jha, learned counsel appearing for the petitioner submits that petitioner was entitled for the monetary benefits as per his. entitlement in view of the ACP and MACP Scheme, which was duly extended to him on 16.6.2014 in the Grade Pay of Rs. 4,200/- but the "same has illegally been withdrawn by lowering his Grade Pay, which is not acceptable in the eyes of law. Learned counsel further argues that without following the principles of natural justice and without issuing any show-cause notice, reduction in the pay scale and grade pay has been done and as such, the impugned orders are fit to be quashed and a direction may be passed for granting the benefits of grade pay of Rs. 4,600/- to the petitioner. Learned counsel further argues that same pay scale has been granted, to all other similarly situated persons who are even juniors to the petitioner but petitioner is unnecessarily being harassed and as such, direction may be passed for grant of statutory interest on dues amount. 5. Per contra counter affidavit has been filed. 6. Mr. Shivam Utkarsh Sahay, AC to learned SC-2 appearing on behalf of respondents-State vehemently opposes contention of learned counsel for the petitioner and submits that State is always at liberty to rectify the mistakes. Erroneously petitioner was paid the Grade Pay of Rs. 4,200/- without his entitlement. As soon as it came to the knowledge of the respondents that erroneous pay scale with wrong grade pay has been fixed at the behest of some officers, immediately thereafter order has been passed for reduction of the same as per entitlement of the petitioner. Erroneously petitioner was paid the Grade Pay of Rs. 4,200/- without his entitlement. As soon as it came to the knowledge of the respondents that erroneous pay scale with wrong grade pay has been fixed at the behest of some officers, immediately thereafter order has been passed for reduction of the same as per entitlement of the petitioner. However, learned counsel very fairly submits that nothing has been mentioned in the counter affidavit whether any opportunity was ever granted to the petitioner to explain as to why he is not entitled for the higher pay scale. 7. Be that as it may, having gone through rival submission of the parties, I find case of the petitioner needs consideration. Admittedly, petitioner was granted the benefits of 2nd ACP in the Grade Pay of. Rs. 4,200/- on 16.6.2014. It was only after four years, respondents have passed an order reducing the Grade Pay from Rs. 4,200/- to Rs. 2,800/- and the corresponding scale, without affording any opportunity of hearing and in complete violation of the principles of natural justice. Petitioner was appointed as a Forest Guard and superannuated as a Forester. It was specific stand of the respondents in L.P.A. No. 262 of 2018 that post of Forest Guard has two promotional avenues i.e. the first promotion to the post of Foresters and then the second promotion to the post of Forest Rangers i.e. Forest Range Officers. The promotion from Forester to Forest Range Officer the Grade pay of Rs. 4,200/- has been mentioned and as such rightly the pay scale was granted to the petitioner. However, nothing has been whispered in the counter affidavit whether any opportunity was ever afforded to the petitioner or not. Any order visiting with civil consequences, the provisions of principles of natural justice is attracted. However, it is a clear case where without adhering to the principles of natural justice, the respondents have illegally and arbitrarily reduced pay scale of the petitioner, that too after about four years. The petitioner received higher pay scale and corresponding grade pay for four long years. 8. However, it is a clear case where without adhering to the principles of natural justice, the respondents have illegally and arbitrarily reduced pay scale of the petitioner, that too after about four years. The petitioner received higher pay scale and corresponding grade pay for four long years. 8. The issue fell for consideration before the Hon'ble Division Bench of this Court in L.P.A. No. 262 of 2018 with other analogous cases and the Hon'ble Court was of the view that the benefits of 2nd ACP granted to the incumbent could not be withdrawn on the ground that they were not having the prescribed minimum qualification for the post of Forest Ranger Officer. The Hon'ble Court observed that the very ground for withdrawing the 2nd ACP granted to the petitioners in said case, that they were not having the prescribed educational qualification for the post for direct recruitment to the post of Forest Ranger, is absolutely a non-existent ground, in view of the express provisions in Clause 3.20 of the Forest Manual. Meaning thereby, the requirement of minimum qualification was not there in the Forest Manual and as such the respondents cannot withdraw the benefits given to the petitioner in the corresponding scale. In the instant case also, petitioner fulfills the minimum qualification and as such fully entitled for the same pay scale. This Court is of the view that petitioner is entitled for the pay scale for 2nd MACP which he was given on 16.6.2014. 9. As a sequel to the aforesaid observations, the order dated 24.12.2018, passed by the Divisional Forest Officer vide Memo No. 3049 and office order no. 184, as well as the order dated 24.12.2018, vide memo no. 3050, and office order no. 185, are hereby quashed and set aside. So far the prayer for grant of 3rd MACP in Grade Pay of Rs. 4,600/- with effect from 9.10.2016 is concerned, the respondents shall consider the same and if petitioner is found entitled for the said benefits, the same shall be extended to him within a period of six weeks from the date of receipt/production of a copy of this order. If any extra deduction has been made, the same shall also be released in favour of the petitioner within a period of six weeks. If any extra deduction has been made, the same shall also be released in favour of the petitioner within a period of six weeks. It is made clear that whatever amount is found due, the same shall be released in favour of the petitioner along with statutory interest. 10. The writ petition stands allowed with the aforesaid observations and directions.