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2024 DIGILAW 177 (JHR)

Budhni Gope v. State of Jharkhand

2024-02-19

RAJESH SHANKAR

body2024
Order : Rajesh Shankar, J. The petitioner – widow of Late Jagarnath Gope, who died in harness on 20.10.2015 while working as Forester in the office of the respondent no. 5 – the Divisional Forest Officer, Forest Division, Chaibasa, has filed the present writ petition seeking following reliefs: (i) For issuance of direction upon the respondents to grant the benefit of 2 nd ACP/MACP on completion of 12/24/36 years of satisfactory service as the husband of the petitioner is legally entitled for grant of ACP/MACP and to fix the pay of the deceased employee as well as pension on enhanced pay scale after grating the benefits of 2 nd ACP/MACP. (ii) For issuance of direction upon the respondents to disburse the arrears of salary after granting the benefits of 2 nd ACP/MACP and to pay the difference of salary and difference of pension accrued after granting the benefits of 2 nd ACP/MACP along with statutory interest as applicable under law. 2. Learned counsel for the petitioner submits that the husband of the petitioner was appointed as Forest Guard on 30.12.1976 and he joined the service on 04.01.1977. Thereafter, he was transferred from one Division to another in the erstwhile State of Bihar and lastly, he was posted as Forester in the office of the respondent no. 5 where he died in harness on 20.10.2015. 3. According to learned counsel for the petitioner, the petitioner’s husband, during his lifetime, had filed several representations for grant of ACP/MACP after completion of the required period of service, however, the same remained unresponded. However, subsequent to his death, 1 st ACP was granted to him in the pay scale of Rs. 4000-6000 with effect from 09.08.1999 vide office order no. 195 dated 27.11.2017 and his pay was fixed accordingly vide office order no. 211 dated 13.12.2017. Since the benefit of 1 st ACP was granted to the husband of the petitioner with effect from 09.08.1999, his 2 nd ACP/MACP had fallen due in the year 2009 i.e., prior to his death. However, the same was denied to him. Under the said circumstance, the petitioner has been compelled to prefer the present writ petition. 4. Since the benefit of 1 st ACP was granted to the husband of the petitioner with effect from 09.08.1999, his 2 nd ACP/MACP had fallen due in the year 2009 i.e., prior to his death. However, the same was denied to him. Under the said circumstance, the petitioner has been compelled to prefer the present writ petition. 4. Learned counsel for the petitioner also submits that since the husband of the petitioner had crossed the age of 50 years in 2007, and the 2 nd ACP/MACP had fallen due subsequently in the year 2009, there should not have been mandatory condition of passing the Hindi Noting and Drafting Examination for grant of the same. 5. Mr. Shivam Utkarsh Sahay, AC to SC (Mines)-II appearing on behalf of the respondents, refers to the counter affidavit dated 26.07.2019 and submits that in view of the circular dated 13.02.1975 issued by the Addl. Chief Conservator of Forests, Bihar and resolution dated 17.11.2022 issued by the Principal Secretary, Finance Department, Government of Jharkhand, if a Forest Guard/Forester is non-matriculate, he is neither eligible for promotion to the post of Range Officer nor for getting 2 nd ACP. Accordingly, a Forest Guard, if otherwise eligible and has educational qualification of middle pass, he would get 1 st ACP in the pay scale of Forester (Rs. 4000-6000 with effect from 15.11.2000) and if he is matriculate, he would get 2 nd ACP too in the pay scale of Range Officer (Rs. 8000-13500) with financial benefits from 01.03.2007. Thus, a non-matric Forest Guard/Forester would not be eligible for 2 nd ACP/MACP, as per the aforesaid circular and resolution. 6. It is further submitted that the husband of the petitioner was non-matriculate and was appointed on the post of Forest Guard on 04.01.1977 and was promoted to the post of Forester on 23.03.2009. He was given the benefit of 1 st ACP with effect from 09.08.1999 vide office order no. 195 dated 27.11.2017 issued by the Divisional Forest Officer, Chaibasa Forest Division, Chaibasa in consonance with the decision taken by a screening committee headed by the Regional Chief Conservator of Forests (RCCF), Jamshedpur on 10.11.2017. He was given the benefit of 1 st ACP with effect from 09.08.1999 vide office order no. 195 dated 27.11.2017 issued by the Divisional Forest Officer, Chaibasa Forest Division, Chaibasa in consonance with the decision taken by a screening committee headed by the Regional Chief Conservator of Forests (RCCF), Jamshedpur on 10.11.2017. In the meeting of the said screening committee, the case of husband of the petitioner for grant of 2 nd ACP and 3 rd MACP was considered and the same was rejected on the ground of non-fulfillment of essential educational qualification i.e., matric, which is mandatory for grant of 2 nd ACP, since the scale of 2 nd ACP is of Range Forest Officer for which the minimum educational qualification is matric. Since the husband of the petitioner was not having educational qualification of matric, he was not entitled to get 2 nd ACP and 3 rd MACP. 7. Heard learned counsel for the parties and perused the materials available on record. The stand taken in the counter affidavit filed on behalf of the respondents is that the petitioner’s husband was a non-matriculate and was initially appointed as Forest Guard, who was subsequently promoted to the post of Forester on 23.03.2009. He was granted the benefit of 1 st ACP (after his death) from retrospective date i.e., 09.08.1999. So far as 2 nd ACP and 3 rd MACP were concerned, those were not granted to him as he was not having the necessary educational qualification of matric, which was must for grant of 2 nd ACP. Moreover, since the scale of 2 nd ACP was of Range Forest Officer and the minimum educational qualification for the said post was matriculate, he was not eligible to get the benefit of 2 nd ACP as well as 3 rd MACP. 8. Thus, I find justification in the said stand taken in the counter affidavit filed on behalf of the respondents. Moreover, the petitioner’s husband did not raise the said issue during his lifetime. 9. So far as the submission of learned counsel for the petitioner that the petitioner’s husband had crossed the age of 50 years in 2007 and the 2 nd ACP had fallen due in 2009 and, therefore, he was otherwise eligible to get the benefit of 2 nd ACP on being exempted from passing the Hindi Noting and Drafting Examination. 9. So far as the submission of learned counsel for the petitioner that the petitioner’s husband had crossed the age of 50 years in 2007 and the 2 nd ACP had fallen due in 2009 and, therefore, he was otherwise eligible to get the benefit of 2 nd ACP on being exempted from passing the Hindi Noting and Drafting Examination. Though the respondents have not taken the said stand while refusing to grant the benefit of 2 nd ACP and 3 rd MACP to the petitioner’s husband, however, since learned counsel for the petitioner has raised the said issue, this Court also intends to deal with the same. The said aspect has already been considered by this Court in the judgment dated 05.12.2023 passed in W.P.(S) No. 2329 of 2022 [Narayan Singh Vs. The State of Jharkhand & Ors.], the relevant paragraphs of which read as under: 8. To appreciate the contention of learned counsel for the petitioner, it would be appropriate to refer letter no. 11691 dated 09.11.1983 which provides as under: 1. The exemption from passing of departmental examination will be given to only those gazetted/non-gazetted employees who have completed 50 years of service. 2. The exemption shall be made effective from the date of order. 3. Exemption shall be granted to only those government servants who continuously participated in the examination but failed or they could not participate in the departmental examination due to official reasons. 4. It should be kept in mind that such examination does not affect the work efficiency. As such, the exemption shall be granted to only those government employees whose service books have no adverse remarks regarding their character, their work performances are satisfactory, no departmental or disciplinary proceeding is pending against them and they have not been punished during their service tenure. 5. The right of giving exemption from passing departmental examination will be optional and not mandatory. 6. The order of exemption shall be granted by the order of the departmental minister. 7. No consent is required from the Personnel and Administrative Reforms Department, before passing the order of exemption. 9. Thus, in view of departmental letter no. 11691 dated 09.11.1983, the exemption from passing of departmental examination was not automatic, rather there had to be an order to that effect and the said exemption was to be made effective from the date of passing of the order. 9. Thus, in view of departmental letter no. 11691 dated 09.11.1983, the exemption from passing of departmental examination was not automatic, rather there had to be an order to that effect and the said exemption was to be made effective from the date of passing of the order. The said letter specifically provided that the exemption was not to be claimed as a matter of right by any government servant, rather the exemption was to be granted by the competent authority to only those government servants whose service books had no adverse remarks regarding their character, their work performances were found satisfactory, no departmental/ disciplinary proceeding was pending against them and no punishment had been imposed upon them during service period. It was further provided that exemption would be granted after attaining the age of 50 years to only those government servants who continuously participated in the departmental examination but failed or who could not participate in the said examination due to official reasons. 10. In the case in hand, the specific stand of the respondents is that no application for exemption from passing the departmental examination was given by the petitioner during his service tenure and as such there was no question of passing any order to that effect. It has further been contended by the respondents that the service of the petitioner was not satisfactory and he was punished by imposing punishment of withholding two increments for the proved charge, moreover, he was paid only subsistence allowance during the suspension period. 11. The said factual stand of the respondents has not been specifically controverted by the petitioner. Thus, I am of the view that in the light of the clear stipulation made in letter no. 11691 dated 09.11.1983, the petitioner cannot claim exemption from passing of departmental examination as a matter of right in absence of any such application filed by him during his service tenure and passing of an order to that effect by the competent authority being satisfied that he had fulfilled all the conditions for grant of exemption from passing the departmental examination. 12. In view of the discussion made hereinabove, I do not find any reason to entertain the present writ petition and the same is, accordingly, dismissed. 10. 12. In view of the discussion made hereinabove, I do not find any reason to entertain the present writ petition and the same is, accordingly, dismissed. 10. Hence, the submission of learned counsel for the petitioner that the petitioner’s husband having crossed the age of 50 years in the year 2007 should have been granted the benefit of 2 nd ACP despite having not cleared the Hindi Noting and Drafting Examination, deserves to be rejected. 11. This Court is of the view that the husband of the petitioner was not entitled to get the benefit of 2 nd ACP and 3 rd MACP, as he did not possess the educational qualification of Range Officer being a non-matriculate. 12. The writ petition being devoid of merit is accordingly dismissed.