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Jharkhand High Court · body

2019 DIGILAW 1921 (JHR)

Ashish Ranjan Das v. State of Jharkhand

2019-11-27

S.N.PATHAK

body2019
JUDGMENT : S.N. PATHAK, J. 1. Heard the parties. 2. Petitioner has approached this Court with a prayer for direction upon the respondents to consider his case for exemption from passing the Departmental Examination of Accounts and consequentially, grant such exemption to the petitioner. Further prayer has been made for a direction upon the respondents to grant him the benefits of 2nd ACP/MACP in the pay-scale of Rs. 5200-20200 with G.P. of Rs. 2800, since the Establishment Screening Committee has already taken decision for grant of benefits of 2nd ACP/MACP to the petitioner. Petitioner has also prayed for a direction upon the respondents to grant all consequential benefits, like arrears of salary and re-computation of pensionary benefits, pursuant to extension of benefits of 2nd ACP/MACP. 3. Bereft of unnecessary details, the petitioner was initially appointed to the post of Class-IV under respondent-Department on 30.07.1985. Thereafter, petitioner was promoted to the post of Clerk vide office order dated 02.12.1995, after having passed the departmental examination for promotion to the said post. On attaining the age of superannuation, petitioner retired from the post of In-charge Head-Clerk on 31.12.2012. It is the case of the petitioner that during his entire tenure of service he was granted only one promotion to the post of Clerk and as such, he is entitled for grant of benefits of ACP on completion of 12/24 years of respective service. The petitioner appeared in the Hindi Noting and Drafting Examination conducted by Rajbhasha Department, State of Bihar in the year 2001 itself and he also passed the Accounts Lower Standard Paper-I, which is required to be passed by a Clerk. It is the further case of the petitioner that though he appeared in the examination of Accounts Higher Standard Paper-II held in the year 2007 but unfortunately he did not clear the same. Thereafter, till the date of his retirement, the said examination was never conducted by the State of Jharkhand. Under such circumstances, the petitioner filed representation before the respondent No. 2 on 16.04.2008, for considering his case for grant of exemption from passing the Departmental Examination, however, no heed was paid to his said request. Thereafter, petitioner filed several representations before the respondent No. 2 to consider his case for granting the benefits of ACP after exemption from departmental examination but all went into vein. Thereafter, petitioner filed several representations before the respondent No. 2 to consider his case for granting the benefits of ACP after exemption from departmental examination but all went into vein. It is the specific case of the petitioner that case of the petitioner for grant of 2nd ACP was considered by the Establishment Screening Committee headed by respondent No. 2 and the Committee found the petitioner fit for the said benefits. Inspite of that, the respondents have not granted the benefits of 2nd ACP to the petitioner. Aggrieved by the same, petitioner has knocked the door of this Court. 4. Mr. Sumeet Gadodia, learned counsel appearing for the petitioner submits that petitioner is entitled for granting exemption from the Departmental Examination, especially in view of the fact that after 2007, no departmental examination was conducted in respect of Accounts Part-II till the date of his superannuation i.e. 31.12.2012 and thus, he was prevented from appearing and passing the said examination. Learned counsel submits that the petitioner is entitled for grant of benefits of 2nd ACP/MACP from the due date in terms of the ACP Scheme formulated by the respondent-State of Jharkhand. Learned counsel further submits that due to non-consideration of his case for exemption from appearing in the departmental examination, the petitioner made to immensely suffer, especially because petitioner’s right for grant of 2nd ACP/MACP is being prejudiced due to non-grant of exemption and the action of the respondent in not granting exemption from passing the departmental examination in question and consequently not granting the benefits of 2nd ACP/MACP is wholly illegal, arbitrary and violative of Articles 14 and 19(1)(g) of the Constitution. 5. Learned counsel for the respondent-State vehemently opposes the contention of the learned counsel for the petitioner and submits that as per letter dated 09.11.1983 and 15.05.1992, issued by the Personnel and Administrative Reforms Department, Govt. 5. Learned counsel for the respondent-State vehemently opposes the contention of the learned counsel for the petitioner and submits that as per letter dated 09.11.1983 and 15.05.1992, issued by the Personnel and Administrative Reforms Department, Govt. of Bihar, the following are conditions for grant of exemption from passing the departmental examination:- ^^¼1½ foHkkxh; ijh{kk ls foeqfDr dk vkns'k ml jktif=r@vjktif=r ljdkjh deZpkjh ij ykxw gksxk ftUgksaus 50 o"kZ dh vk;q iwjh yh gSA ¼2½ ftl frfFk ls foeqfDr dk vkns'k fuxZr fd;k tk;sxk mlh frfFk ls foeqfDr dk vkns'k ÁHkkoh gksxkA ¼3½ foeqfDr mUgha ljdkjh lsodksa dks nh tk ldsxh ftUgksaus ijh{kk esa Hkkx ysus dk yxkrkj Á;Ru fd;k] ijUrq vlQy jgs vFkok ljdkjh dkj.kksa ds pyrs ijh{kk esa Hkkx ugha ys lds vFkok 50 o"kZ dh vk;q iwjk djus ds 05 ¼ikap½ o"kZ iwoZ foHkkxh; ijh{kk dHkh vk;ksftr ugha dh x;h gksA ¼4½ ijh{kk ls cjh djus dk Áfrdwy ÁHkko dk;Z {kerk ij ugha iM+s bls /;ku esa j[kdj foeqfDr oSls gh vH;FkhZ dks nh tk;s ftudh pfj= iqfLr@vH;qfDr;ka vPNh gks dk;Z larks"kÁn jgk gks] dksbZ Hkh foHkkxh; vuq'kklfud djokbZ yafcr ugha gks rFkk ftUgsa lsokdky esa dksbZ n.M ugha feyk gksA ¼5½ foHkkxh; ijh{kk ls foeqfDr Ánku djus dk vf/kdkj ,fPNd gksxk vfuok;Z ughaA ¼6½ foeqfDr dk vkns'k foHkkxh; lfpo ds vuqeksnu ls ikfjr gksxk rFkk eqQfly dk;kZy;ksa ds ljdkjh lsodksa ds laca/k esa foeqfDr dk vkns'k ÁeaMyh; vk;qDr ds vuqeksnu ls ikfjr gksxkA ¼7½ foeqfDr vkns'k ikfjr djus ds iwoZ dkfeZd ,oa Á'kklfud lq/kkj foHkkx dh lgefr dh vko';drk ugha gksxhA** 6. Learned counsel submits that since the petitioner did not fulfill all the above mentioned conditions during his service period, he was not exempted from passing the Departmental Examination in question. As per condition No. 2, the exemption order comes into effect from the date of issuance of exemption order. The claim of the petitioner for grant of exemption from passing the departmental examination with retrospective effect is not sustainable in the eyes of law. Learned counsel submits that for the reasons stated above, the petitioner is not entitled for the benefits of 2nd up-gradation scale under ACP Scheme or MACP Scheme. 7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. Learned counsel submits that for the reasons stated above, the petitioner is not entitled for the benefits of 2nd up-gradation scale under ACP Scheme or MACP Scheme. 7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. The petitioner appeared in the Hindi Noting and Drafting Examination conducted by Rajbhasha Department, State of Bihar, in the year 2001 itself and also cleared the Accounts Lower Standard Paper-I, which was the requirement. It is the further case of the petitioner that though he appeared in the examination of Accounts Higher Standard Paper-II held in the year 2007 but unfortunately, he did not clear the same. Thereafter, the said examination was never conducted by the respondent-Department till the date of his superannuation. Under such circumstances, the petitioner was compelled to file representation before the respondent-authorities for exemption. However, the respondent-authorities did not consider the same and no order was passed regarding exemption of the petitioner. The petitioner is entitled for the benefits of 2nd MACP but was denied the same due to non-consideration of his case for exemption from appearing the departmental examination. The right of the petitioner is prejudiced due to non-grant of exemption. From perusal of the rules, particularly condition No. 3, it appears that exemption would be granted to those government employees, who appeared in the examination continuously but did not succeed and further due to official reasons, could not appear in the said examination and 5 years prior to attaining the age of 50 years, no examination is held. The petitioner admittedly fulfils the requirement for exemption. The petitioner was not at fault and as per the rules, he was entitled for exemption as no examinations were held earlier and petitioner continuously appeared in the examination but could not succeed till completion of 50 years of age. As per Rule-II, exemption order comes into effect from the date of issuance of exemption order. 8. The respondents have considered the case of one similarly situated person, namely, Bishwanath Murmu, who was at S. No. 26 in gradation list as contained in memo No. 128 dated 01.03.2001 and has been granted exemption and he received the benefits of ACP but the petitioner, who was just after him at S. No. 27, has been denied the said benefits. This amounts to discrimination and violation of Article 14 of the Constitution of India. It is settled principle of law that similarly situated persons have to be given similar benefits and cannot be discriminated, which is illegal and not tenable in the eyes of law. The petitioner rightly approached the respondent-authorities for grant of exemption as per Rule, 1992, which was illegally rejected by the respondents. Admittedly, petitioner fulfils the criteria laid down under the Rules and comes within the ambit of aforesaid criteria and is entitled for exemption from the date he made representation for exemption. Since no examination has been conducted by the Department after 25.08.2007 till the date of retirement of the petitioner, i.e. 31.12.2012, he is entitled for exemption from appearing in the departmental examination. 9. As a cumulative effect of the aforesaid observations, rules and guidelines, I hereby direct the respondents to re-consider the case of the petitioner for grant of exemption in view of 1992 Rules since the respondent-authorities particularly, Establishment Screening Committee headed by respondent No. 2 found the petitioner entitled for the said benefits. The respondents are directed to take a decision within a period of 10 weeks from the date of receipt/production of a copy of this order. Needless to say, if there is no other legal impediment and petitioner is found entitled for the benefits, as prayed in the instant writ application, the same may be extended to him within a further period of six weeks. 10. Resultantly, the writ petition stands allowed.