Research › Search › Judgment

Jharkhand High Court · body

2021 DIGILAW 453 (JHR)

Jailata Choudhary v. State of Jharkhand

2021-06-18

DEEPAK ROSHAN

body2021
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant writ application has been preferred by the petitioner praying therein for quashing the part of the order as contained in Memo No. 4821 dated 16.08.2011 (Annexure-4) passed by the Principal Secretary, Personnel, Administrative & Reforms Department, Government of Jharkhand, Ranchi (Respondent No.2), whereby certain claim towards the payment of death-cum-retiral dues standing in the name of the deceased husband of the petitioner has been rejected and also for a direction to the respondents to reconsider the case of petitioner’s-husband with regard to payment of benefit under Assured Career Progression (ACP) with all consequential benefits and also for quashing the part of the order whereby certain period has been declared as extra ordinary leave. 3. The facts of the case is that the petitioner is the wife of the deceased employee-Saryu Prasad Choudhary who was appointed and joined on the post of Block Development Officer, Barhet, Sahebganj in the year 1978-79 on the recommendation of Bihar Public Service Commission, Patna and worked till 31.08.2005. At the time of death the deceased employee was working as Assistant Director in the office of the Tribal Welfare Commissioner, Ranchi. This petitioner had earlier moved before this Court praying for a direction to the respondents to pay the deathcum- retiral benefits on account of petitioner’s deceased husband, who died in harness on 31.08.2005. This court after considering the entire facts and circumstance, directed the petitioner to file a fresh representation, stating her entire claim before the concerned respondents and further directed the respondents to consider and take a decision on the petitioner’s claim and pay the amount which are legally payable under different heads. Pursuant thereto; the petitioner filed a detailed representation, however, when the same was not disposed of and a contempt case was also filed being Cont. Case (Civil) No. 673 of 2009. However, in the meantime an order dated 16.08.2011 was passed admitting certain claims. The grievance of the petitioner is only with regard to two aspects; one is that since he worked for almost 27 years, as such nonpayment of ACP benefit to this petitioner is non-est in the eye of law as the basic principle of ACP scheme is up-gradation of financial benefit. The other grievance is with regard to treating some period as extra ordinary leave which has adversely affected the pension of this petitioner. 4. The other grievance is with regard to treating some period as extra ordinary leave which has adversely affected the pension of this petitioner. 4. Mr. Samvesh Bhanj Deo, learned counsel for the petitioner submits that the deceased employee was entitled to get the first time bound promotion after completion of 10 years of service and thereafter, when the ACP scheme came into force, he was accordingly entitled for the benefit of financial up-gradation, but for the reason that the petitioner’s-husband did not pass the accounts examination; the benefit of ACP was not given. 5. Learned counsel further draws attention of this Court towards the impugned order and submits that the reasons for denying the ACP benefit is that petitioner never passed the departmental examination and also his services were not confirmed and as such, as per the approval by the competent authority the ACP benefit has been denied. The contention of the petitioner is that the employee was entitled for first time bound promotion after completion of 10 years and the second time bound promotion after 20 years and after coming into force the ACP scheme, he was duly entitled. He specifically contended that since no departmental examination was held by the respondents he could not pass the departmental examination; as such the ground for rejecting the claim of the ACP benefit on the ground of departmental examination is non-est in the eye of law. He further submits that confirmation of service is not in the hand of the employee. The fact remains that he served the respondents-State for about 27 years and if regular promotion was not given, it was not his fault. He further submits that there is no rule to show that on the ground of non-confirmation the employee; the benefit of ACP/MACP even regular promotion can be denied on the ground of non-confirmation. He further referred the judgment passed in the case of Santosh Kumar Singh Vs. State of Bihar reported in 1993 (2) BLJ 13 which says that the respondents are responsible for confirmation of services of the employee and the employee cannot be allowed to suffer on the ground of non-confirmation. Based upon the aforesaid judgment he reiterates that the petitioner’s husband was entitled for ACP benefit being completed more than 27 years as ACP benefit is not a promotion rather it is a financial up-gradation. 6. Based upon the aforesaid judgment he reiterates that the petitioner’s husband was entitled for ACP benefit being completed more than 27 years as ACP benefit is not a promotion rather it is a financial up-gradation. 6. Learned counsel further assailed the impugned order on the ground that certain period has been declared as extra ordinary leave and the proceeding which was held to declare the period as extra ordinary leave was after the death of the petitioner; as such any proceeding with regard to service condition and service period of the petitioner’s husband after his death is non-est in the eye of law. As such, the period which has been declared as extra ordinary leave may be counted as a regular service and the financial benefit may be given to the present petitioner. 7. Mr. Subham Mishra, appearing for the respondent- State vehemently opposes the prayer of the petitioner and submits that the claim of the petitioner that no departmental examination was held is incorrect and he further referred to paragraph 18 of the counter-affidavit and submits that seniority of petitioner’s-husband was 197/2003 in the gradation list of 2003 whereas that of the seniority of one Shri Pankaj Kumar Mishra is 195/2003 who was confirmed in services after passing the departmental examination, as such it is incorrect to say that there was no departmental examination. He further referred to two circulars which is annexed as Annexure-A and B series and while referring Annexure-B; which is the resolution of the Finance Department, he submits that only those persons are entitled for ACP benefit who fulfills the entire conditions as mentioned in the resolution and further submits that as per Clause-3(vii) it is clear that for getting ACP benefit, the person will have to comply all the service conditions for promotion; since the petitioner’s-husband did not passed the accounts examination the ACP benefit has been rejected. 8. Learned counsel further controverted the argument of learned counsel for the petitioner with regard to treating some period as extra ordinary leave. He submits that after the death of petitioner’s husband and pursuant to the order of this Court in previous writ application; a proceeding was initiated against this petitioner and a decision was taken, whereby it was decided that in order to regularize service of the deceased employee; those period of absenteeism shall be treated as extra ordinary leave. He submits that after the death of petitioner’s husband and pursuant to the order of this Court in previous writ application; a proceeding was initiated against this petitioner and a decision was taken, whereby it was decided that in order to regularize service of the deceased employee; those period of absenteeism shall be treated as extra ordinary leave. As a matter of fact, the respondents have taken a sympathetic approach by treating those periods of absenteeism as extra ordinary leave, since no leave was available. 9. In reply to the aforesaid contention on the question of extra ordinary leave; learned counsel for the petitioner submits that the petitioner is duly entitled for full salary as the deceased-husband was always ready and willing to perform his duties but was forced to wait for a place of posting. Even the impugned order reflects that the period from 01.01.1999 till 07.06.1999 he was waiting for posting. He concluded his argument by submitting that no adverse order can be passed behind a delinquent employee and the order treating some period as extra ordinary leave is passed after the death of the petitioner and as such the same is non-est in the eye of law. 10. Mr. Rupesh Singh, learned counsel appearing on behalf of the Accountant General submits that passing of departmental examination is necessary to get the benefit of ACP scheme. 11. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments therein it appears that two issues are involved in this case. First is with regard to payment of ACP benefit to the petitioner’s husband and secondly, regarding treating the period of leave as extra ordinary leave. 12. After going through the record it transpires that the petitioner had earlier moved before this Court after the death of her husband for payment of retiral benefits. The earlier writ application was disposed of by giving liberty to the petitioner to file a fresh representation and the respondents were directed to consider her case and pay the amount legally payable under different heads in the account of the deceased employee. Thereafter, the impugned order dated 16.08.2011 was passed, whereby several claims of the petitioners were admitted and the same has been paid. Thereafter, the impugned order dated 16.08.2011 was passed, whereby several claims of the petitioners were admitted and the same has been paid. The petitioner is assailing part of this order whereby the ACP benefit has been denied to this petitioner and certain period has been declared as extra ordinary leave which adversely affected the petitioner financially. 13. So far as first issue with regard to payment of ACP benefit to the deceased-employee is concerned; Clause 3 (vii) of Resolution No. 5207 dated 14.08.2002 of the Government is very clear. For brevity, the same is quoted herein-below: ^^3- lqfuf'pr o`fr mUu;u ;kstuk ds rgr~ foRrh; mUu;u fuEufyf[kr 'krksZ ds v/khu Lohd`r fd;k tk ldsxk %& ¼1½---------- ¼2½---------- ¼3½ ,ŒlhŒihŒ ;kstuk ds rgr foRrh; mRØe.k gsrq lkekU; ÁksUufr ekudksa ;Fkk foHkkxh; ijh{kk esa mRrh.kZrk] mPprj ;ksX;rk dh ÁkfIr vkfn] tks HkrhZ ,oa ÁksUufr fu;ekoyh esa fufgr gSa] dks ÁkIr djuk vko';d gksxk-----A** 14. After perusing the aforesaid resolution, it appears that the Government has decided that several conditions are required for getting the benefit of ACP; wherein at sub-clause (vii) it has been stipulated that the Government employee is required to comply with all the conditions which are applicable for regular promotion. As such it is clear that all the conditions which are required for getting a regular promotion are also necessary for ACP. At this stage it is also pertinent to mention here that even prior the aforesaid Resolution dated 14.08.2002 of the Government of Jharkhand; the finance department of the State of Bihar vide its Resolution No. 3P.R.C.-3/81/F-10770 dated 30.12.1981 at clause-11(vi) has categorically stated that all conditions, rules and procedure meant for usual promotion should be followed in case of time bound promotion also. Thus, length of qualifying service is not the only condition for grant of ACP benefit rather it is dependent on several other conditions; one of such conditions is that the employee should also pass departmental examination. The contention of the petitioner that since deceased employee has completed 27 years of service, as such he was entitled for ACP benefits is non-est in the eye of law and is misconceived. The contention of the petitioner that since deceased employee has completed 27 years of service, as such he was entitled for ACP benefits is non-est in the eye of law and is misconceived. It goes without saying that the contention of the petitioner that no departmental examination was held till the death of the deceased-employee has been controverted by the respondent-State in paragraph 18 of the counter-affidavit, inasmuch as, they have given reference of other employees also who have been promoted so this factual aspect cannot be denied. 15. Further, in view of Annexure B of the supplementary counter-affidavit dated 28.11.2019 it is clear that passing of departmental examination is necessary. Relevant portion of the said order is quoted herein-below: ^^mi;qZDr fo"k;d fu;qfDr foHkkx ¼vc dkfeZd ,oa Á'kklfud lq/kkj foHkkx½ ds ladYi la[;k&13632 fnukad 11-10-1961 ,oa vf/klwpuk la[;k&13559 fnukad 10-10-1961 ds Álax esa funs'kkuqlkj eq>s dguk gS fd mDr vf/klwpuk ds [k.M&1 ds )kjk lHkh jktif=r inkf/kdkfj;ksa rFkk [kaM&2 ds )kjk fcgkj vlSfud lsok ¼dk;Zikfydk 'kk[kk½ ds fy, foHkkxh; ijh{kk esa mRrh.kZ gksus ,oa mDr ijh{kk esa mRrh.kZ gksus ds i'pkr~ muds lsokdky esa mlls gksus okys ÁHkkoksa ds ckjs esa Áko/kku fu:fir fd;s x;s gSaA mDr Áko/kku esa Li"V :i ls vafdr fd;k x;k gSa fd lHkh jktif=r inkf/kdkfj;ksa dks foHkkxh; ijh{kk esa mRrh.kZrk ÁkIr djuk ,d nkf;Ro gS rFkk foHkkxh; ijh{kk esa mRrh.kZ gq, fcuk mUgsa lEiqf"V ugha fd;k tk ldrk gSaA gky ds o"kksZ esa ;g ik;k tk jgk gS fd dfri; foHkkxksa )kjk jktif=r inkf/kdkfj;ksa dks fcuk foHkkxh; ijh{kk esa mRrh.kZ gq, gh ÁksUufr gsrw fopkj fd;k tk jgk gS tks mDr vf/klwpuk esa fofgr Áko/kkuksa ds vuq:i ugha gS-----A** In view of the aforesaid discussions and circular/orders, this Court is having no hesitation in holding that passing of departmental examination is necessary even for ACP benefits. Thus, this part of the impugned order is sustained and the petitioner is not entitled for the amount in connection with ACP. 16. So far as the second issue is concerned with regard to treating of some period as extra ordinary leave by the respondent, it appears that the order dated 16.08.2011, whereby some periods have been taken as extra ordinary leave is passed in the year 2011 i.e. after six years of the death of the petitioner’s husband. 16. So far as the second issue is concerned with regard to treating of some period as extra ordinary leave by the respondent, it appears that the order dated 16.08.2011, whereby some periods have been taken as extra ordinary leave is passed in the year 2011 i.e. after six years of the death of the petitioner’s husband. From the impugned order, it further transpires that the period which has been treated as extra ordinary leave starts from 01.01.1999 to 07.06.1999, from 27.03.2002 to 16.05.2002, from 30.11.2002 to 24.10.2003 and 01.07.2004 to 31.08.2005. Most of the period was prior to two years from the death of the petitioner’s husband; as such the respondents were at liberty to take a decision for treating the period of leave during the life time of the petitioner’s husband. 17. It is unheard that after death of an employee his service period has been declared as extra ordinary leave in a subsequent proceeding. As aforesaid, the respondents could have easily taken a decision for treating the period of leave within the life time of the petitioner’s husband after hearing him. But after six years; that too after filing of the writ application by the widow of the deceased-employee; the respondents came with a decision dated 16.08.2011 (Annexure-4) by treating this period as extra ordinary leave which cannot be accepted in the eye of law; as such that part of the order is quashed and set aside. 18. The concerned respondent is directed to recalculate the consequential financial benefits of that part which has been earlier taken as extra ordinary leave by treating it as regular service. It goes without saying that since the matter is very old, the respondent no.2 shall take a final decision within a period of four months from the date of receipt/ production of copy of this order. 19. With the aforesaid observations and directions, the instant writ application is partly allowed.