Research › Search › Judgment

Jharkhand High Court · body

2021 DIGILAW 318 (JHR)

Gangeshwar Mishra v. State of Jharkhand

2021-03-18

S.N.PATHAK

body2021
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 grant of Annual Increments which has fallen due on 01.07.2013 with all consequential benefits. Further prayer has been made for proper fixation of pension and to pay the arrears of post-retiral benefits, which has not been paid due to non-inclusion of annual increment. 3. As per the factual matrix, petitioner was appointed as Junior Engineer under the Hazaribagh Division of Water Resources Department on 06.02.1979. The petitioner was granted time bound promotions/benefits of ACP from time to time and the same were also confirmed by departmental orders. Petitioner was also considered for regular promotion and was promoted to the post of Assistant Engineer on 30.04.2013. It is the specific case of the petitioner that when he was posted at Hazaribagh Waterways Division, Ghagra Dam was under construction at war footing due to which the chief Engineer did not allow to leave the head-quarter and as such he could not appear in the departmental and professional examination held in the year 2013. Since passing of departmental and professional examination was an essential requirement for grant of annual increment as per Rules, hence his case was not considered for grant of annual increment which had fallen due on 01.07.2013. Thereafter, on attaining the age of superannuation, the petitioner superannuated on 31.01.2014, from Ranchi division of respondent-department but neither had he received the post-retiral benefits nor his pension has been properly fixed as yet due to non-inclusion of annual increment and hence he has been constrained to knock the door of this Hon’ble Court for redressasl of his grievances. 4. Mr. Mitul Kumar, learned counsel appearing for the petitioner vociferously argues that petitioner is entitled for annual increment and post-retiral benefits. Learned counsel submits that in the year 2013, when the departmental examination was conducted, he was directed by the Chief Engineer of the concerned Department not to leave his headquarter for any reasons as the work of Ghagra Dam was under construction at war footing and hence, for the said reasons the petitioner could not appear in the departmental examination. Learned counsel places heavy reliance on letter dated 15.05.1992, issued by the Personnel and Administrative Reforms Department, Govt. Learned counsel places heavy reliance on letter dated 15.05.1992, issued by the Personnel and Administrative Reforms Department, Govt. of Bihar, which entitles the petitioner for grant of exemption from appearing in the departmental examination on attaining the age of 50 years. Referring to the relevant provisions of letter dated 15.05.1992, learned counsel submits that the case of the petitioner comes within the ambit of Clause-(I) of the said letter framed for exemption from passing of the departmental examination and as such, a direction be given to the respondents to grant the benefits of Annual Increments and Post Retiral benefits. 5. Per contra, counter-affidavit has been filed. Mr. Sharad Kaushal, learned counsel appears for the respondent-State while Mr. Sudharshan Srivasvata, learned counsel appears for the respondent-Accountant General. Learned counsel for the respondent-State submits that the petitioner joined his services as Junior Engineer in the year 1979 and subsequently, on 30.04.2013, the petitioner was promoted to the post of Assistant Engineer and accordingly, he gave his joining on the said post on 03.05.2013. Thereafter, on attaining the age of superannuation, the petitioner superannuated on 31.01.2014. Learned counsel submits that as per Para-55 of Jharkhand Public Works Department Code, all Assistant Engineers are required to pass the departmental/professional examination within two/three years of joining the said post. Learned counsel further submits that the contention of learned counsel for the petitioner that no full-fledged departmental examination, either oral or written, was conducted and the petitioner had no occasion to appear in the examination or pass it out, is not sustainable in view of the fact that a regular departmental examination (oral as well as written) was conducted by the department on 29.09.2013 and 30.09.2013 respectively. However, the petitioner did not appear in the same. Learned counsel further submits that the post of Junior Engineer comes under ‘Subordinate Engineering Services’ whereas, the post of Assistant Engineer comes under ‘State Engineering Service’ and thus, on account of promotion, the cadre of the petitioner was changed. At Clause-11 of Resolution dated 28.02.2009, issued by Department of Finance, Govt. of Jharkhand, it has been clearly stated that “there will be a uniform date of annual increment, viz. 1st July of every year and the employees completing six months and above in the revised pay structure as on 1st July will be eligible to be granted the increment”. At Clause-11 of Resolution dated 28.02.2009, issued by Department of Finance, Govt. of Jharkhand, it has been clearly stated that “there will be a uniform date of annual increment, viz. 1st July of every year and the employees completing six months and above in the revised pay structure as on 1st July will be eligible to be granted the increment”. Since the petitioner was granted promotion on 30.04.2013, he would have been granted annual increment in the cadre of Assistant Engineer only on 01.07.2014, however, the petitioner superannuated midway on 31.01.2014 itself and as such benefit of one increment has not been given to the petitioner. Learned counsel further argues that so far as contention of learned counsel for the petitioner that the petitioner has submitted application for exemption from passing the departmental examination is concerned, the same is not sustainable in the eyes of law since as per provisions contained in Clause-3 of letter dated 15.05.1992, such exemption can only be given to the employees who have appeared in the examination but could not succeed. Learned counsel accordingly submits that for the aforesaid reasons, the writ petition is not maintainable and fit to be dismissed outrightly. 6. Be that as it may, having heard the rival submissions of the parties and upon perusal of the documents brought on record, this Court is of considered view that no case is made out for interference in the instant writ application for the following facts and reasons: (I) Admittedly, petitioner did not appear in the examination meant for Gazatted Officers and did not make any application for exemption from passing the departmental examination, while he was in service. However, the said application was made by the petitioner only after his superannuation i.e. in the year 2017. As per provisions contained in Clause-3 of letter dated 15.05.1992, it is crystal clear that exemption is not granted automatically but to obtain such exemption, an employee is required to appear in the departmental examination and if he could not succeed in the said examination, then only he would be entitled to make application for such exemption. (II) Before coming to a concrete finding it would be appropriate to examine the provisions for exemption from passing the departmental examination. (II) Before coming to a concrete finding it would be appropriate to examine the provisions for exemption from passing the departmental examination. From perusal of letter dated 15.05.1992, it appears that the said letters provide for exemption from passing the departmental examination in the following cases: 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 dj 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 ÁR;Uu 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;fDr;k¡ vPNh gks dk;Z larks"kÁn jgk gks] dksbZ Hkh foHkkxh; vuq'kklfud dkjokbZ 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 (III) It has been claimed by the petitioner that he fulfills all the requirements of letter dated 15.05.1992 but the said contention of the petitioner is totally misconceived. Admittedly, no representation has been 5 filed by the petitioner for exemption from passing the departmental examination at the time of attaining the age of 50 years. The petitioner has filed representation for exemption and for grant of annual increments after retirement i.e. on 07.04.2017, which is of no help to him. (IV) Clause 11 of Resolution dated 28.02.2009 issued by Department of Finance; Govt. of Jharkhand stipulates that “there will be a uniform date of annual increment, viz. 1st July of every year. Employees completing six months and above in the revised pay-structure as on 1st of July will be eligible to be granted the increment”. (IV) Clause 11 of Resolution dated 28.02.2009 issued by Department of Finance; Govt. of Jharkhand stipulates that “there will be a uniform date of annual increment, viz. 1st July of every year. Employees completing six months and above in the revised pay-structure as on 1st of July will be eligible to be granted the increment”. But in case of petitioner, as he was granted promotion on 30.04.2013, he would have been granted annual increment in the cadre of Assistant Engineer only on 01.07.2014. However, the petitioner superannuated on 31.01.2014 itself, hence, there is no question of granting annual increment to the petitioner on 01.07.2014. 7. As a sequel to the aforesaid observations, rules, guidelines and legal propositions, no interference is warranted in the instant writ application and hence, the same is hereby dismissed. 8. However, since the petitioner has already retired and if pensionary benefits have not been extended to him till date, I hereby direct the respondent-State to forward the relevant papers relating to fixation of pension of the petitioner by making recommendations to the office of the Accountant General for fixation of pensionary benefits, which the petitioner is entitled for in accordance with law. On receipt of the recommendation, the Accountant General is directed to fix the pensionary benefits for which the petitioner is entitled, in accordance with law. Let the entire exercise be completed within a period of two months from the date of receipt/production of a copy of this order.