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2022 DIGILAW 1437 (JHR)

Kedar Prasad v. State of Jharkhand

2022-12-22

S.N.PATHAK

body2022
JUDGMENT : The petitioner has approached this Court for quashing of the office order dated 26.02.2016 (Annexure-6) issued by the Superintending Engineer, Rural works Department, Works Circle, Chaibasa, so far as it relates to the petitioner, whereby and whereunder, the date of grant of 1st ACP has been shifted to 25.08.2010 from 05.12.2006 without affording any opportunity of hearing to the petitioner. Further, prayer has been made for a direction upon the respondents to correct the entry made in the Office Order No.05 as contained in Memo No.101 dated 26.02.2016 so far as it relates to the petitioner and the date 25.08.2010 be treated as grant of 3rd MACP instead of 1st ACP. Further, prayer has been made for a direction upon the respondents to fix and pay the final pension on the revised pay-scale upon grant of 1st , 2 nd & 3rd ACP/MACP from due date along with interest @ 18 % per annum. 2. At the very outset, Mr. Mrinal Kanti Roy, learned counsel for the respondent-State submits that issue involved in this writ petition is no more res integra and this writ application is squarely covered by the order passed by 2 Hon’ble Division Bench of this Court in LPA No.354 of 2018 and Hon’ble Full Bench of Patna High Court in Maheshwar Prasad Singh Vs. State of Bihar, reported in 2000 (4) PLJR 262 (FB) in W.P.(S).No.3162 of 2018 vide its order dated 15.10.2019. Justifying the impugned order dated 26.02.2016, learned counsel submits that admittedly, the petitioner has not passed departmental examination, which is mandatory as per the provision stipulated under Rule 157 (3)(J) of the Bihar Boards’ Miscellaneous Rules, 1958 for grant of benefits of ACP. Justifying the impugned order dated 26.02.2016, learned counsel submits that admittedly, the petitioner has not passed departmental examination, which is mandatory as per the provision stipulated under Rule 157 (3)(J) of the Bihar Boards’ Miscellaneous Rules, 1958 for grant of benefits of ACP. He further submits that the date, when the financial upgradation has fallen due i.e. on 05.12.2006 a general order was issued by the respondents regarding the grant of benefits of 1st and 2nd ACP to all correspondence Clerk/Typist/Steno Typist functioning and posted within the office of Superintending Engineer, Rural Engineering Organization, Work Circle, Chaibasa, but the actual monetary benefits were not granted to the petitioner, since the same was not approved by the Competent Authority and in the meantime, it was found that petitioner has not passed the departmental examination and the petitioner passed the Departmental Examination on 25.08.2010 and as such, rightly, petitioner was granted the benefits of 1st ACP vide impugned order dated 26.02.2016 w.e.f. 25.08.2010 and as such, there is no illegality or infirmity in the impugned order. He further submits that the Department has also conducted the examination simultaneously, but the petitioner could not qualified in the same and it is only in the year, 2010, he passed the said departmental examination. 3. On the other hand, learned counsel for the petitioner admits that petitioner passed the departmental examination only on 25.08.2010. However, he submits that without affording any opportunity of hearing to the petitioner or without issuance of notice, the earlier order dated 05.12.2006 was rectified/modified, which is not tenable in the eyes of law. 4. Be that as it may, having gone through fair submissions of the parties and on perusal of the records it appears that admittedly, the petitioner has not cleared the departmental examination on 05.12.2006, when the first and second ACP benefits were granted but the same was not approved by the Competent Authority and as such, vide impugned orders, the respondents rightly rectified their mistake, by granting the 1st ACP benefits to the petitioner w.e.f. 25.08.2010 after passing the departmental examination since the passing of departmental examination is a mandatory provision for grant of benefits of promotion/ACP/MACP. There is no illegality or infirmity in the impugned orders. There is no illegality or infirmity in the impugned orders. Similar issue fell for consideration 3 before this Court in LPA No.354 of 2018 and Division Bench of this Court, after hearing the Counsels for the parties at length, has allowed the said LPA on 22.12.2021, with the following observations:- 10) As the Full Bench of the Patna High Court in Maheshwar Prasad Singh’s case (supra) has laid down a rule of passing the departmental examination mandatory, there cannot be any relaxation in grant of upgradation in the pay scale. However, matter would have been different if the examination would not have been conducted by the concerned authority and in such circumstances, such employee would not have been made to suffer, but that is not the case herein as would be evident from the detailed table as referred herein above that the Water Resources Department has conducted the examination, but the writ petitioner has chosen not to appear in the aforesaid departmental examination, however, he has appeared in the departmental examination held in the year 2013 from which date the benefit of upgradation of pay scale has been granted. 11) Thus, it is evident that the proposition has been laid down that the judgment passed by a Bench of larger strength is binding on any Bench of lesser strength. Herein the judgment rendered by the Patna High Court in Maheshwar Prasad Singh’s case (supra) in this context has not been relied upon by the learned Single Judge of this Court while passing the impugned judgment or even has not been relied upon in the orders passed by the other learned Single Judges basing upon which the order impugned has been passed which is the subject matter of the instant intra-court appeal. 12) This Court, therefore, is of the view that the learned Single Judge has committed gross error in moving away from the ratio decided by the Full Bench in Maheshwar Prasad Singh’s case (supra) and as such, the order passed by the learned Single Judge is held to be not sustainable in the eyes of law. Accordingly, the same is quashed and set aside. 5. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, no interference is warranted in the instant case. Accordingly, writ petition stands dismissed. 6. Pending I.A., if any, also stands disposed of.