Kanu Kachhap … v. 1.The State of Jharkhand 2.The Secretary, Rural Works Department, Govt. of Jharkhand, Ranchi 3.The
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (S) No. 2529 of 2013 --- Kanu Kachhap … … Petitioner Versus 1.The State of Jharkhand 2.The Secretary, Rural Works Department, Govt. of Jharkhand, Ranchi 3.The Superintending Engineer, Rural Works Department, Works Circle, Chaibasa, West Singhbhum 4.The Executive Engineer, Rural Works Department, Works Division, Chaibasa, West Singhbhum 5.The Divisional Commissioner, Singhbhum (Kolhan)Division, Chaibasa, West Singhbhum 6.The Accountant General, Jharkhand, … … Respondents --- CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR --- For the Petitioner For the Respondents-State For the Accountant General
Legal Reasoning
examination is not tenable in view of the decision of this Court in C.W.J.C. No. 1824 of 1995(R) dated 04.12.2005. She has further placed reliance on the judgment reported in (2012) 1 JCR 113 (Jhr.) and (2009) 2 JCR 139 (Jhr.). 6. As against the above, learned counsel appearing for the State of Jharkhand has submitted that the scheme of MACP and ACP envisages that the benefit under such scheme would be granted only after passing departmental examination and since the petitioner passed the departmental examination in the year, 2008, such benefit would be granted to the petitioner from 17.03.2008. He has further submitted that since service book of the petitioner was not received and there are some query made by the Divisional Commissioner, the final pension and other benefits granting to the petitioner has not yet been finalised. 7. Mr. Sudarshan Srivastava, learned counsel appearing for the Accountant General (respondent no. 6) has submitted that the promotion policy which the State of Jharkhand has issued in the year 2013 would not be applicable in the case of petitioner and since the scheme of ACP has to be considered in the light of the promotion policy by the State of Jharkhand, the petitioner could not have been denied the benefit of grant of MACP and ACP. 8. On a perusal of the documents on record, I find that in the writ petition, the petitioner has taken a specific plea in -3- paragraph nos. 10 to 15 which are extracted below: “That the petitioner was not granted even one 10. regular promotion during his entire service career and as such in pursuance to the Notification dated 14.08.2002 a meeting of the Screening Committee was held and thereafter in pursuance to the decision taken in the said meeting the petitioner alongwith others were granted the benefit of 1st and 2nd Assured Progression Scheme with effect from 9.8.1999 on completion of 12/24 years of service as would be evident from Statement 'Ka' and Statement 'Kha'. 11. That a letter contained in Memo No. 4178 dated 12.08.1992 was issued with regard to exempt the Clerks of Works Department from Accounts examination. It was clarified that though earlier the examinations were being conducted by the Revenue Department but now the said examinations would be conducted by the Works Department. 12. That it would be evident from clause IV of the letter contained in Memo No. 4178 dated 12.8.1992 (Annexure 2) that if there are vacancies then the remaining clerks would be granted promotion in accordance with law. The condition would be that they will have to pass the departmental examination conducted next by the Department. That the Finance department, Government of 13. Jharkhand, Ranchi by its letter no. 493 dated 22.2.2007 informed the Commissioner, Santhal Pargana Division, Dumka with regard to exemption of the Clerks of Works Department from Accounts examination. It was made clear that the letter contained in Memo No. 4178 dated 12.08.1992, 8094 dated 21.11.12000 and 4116 dated 20.11.2001 is clear on this point. 14. That since the petitioner was working as Accounts Clerk in the Works Division of Rural Works Department, Work Circle, Chaibasa and as such he would be bound to pass in the departmental examination conducted by the Rural Works Department. 15. That it will not be out of place to mention here that Rural Works Department, Government of Bihar as well as the Government of Jharkhand has not conducted any departmental examination till date.” 9. In the counter affidavit filed on behalf of the State of Jharkhand, the claim of the petitioner has almost been admitted by the respondent – State of Jharkhand, when in paragraph nos. 30, -4- 31 and 37 they have taken the following stand:
Arguments
: Mrs. Ritu Kumar, Advocate : Mr. Prashant Kumar Singh, G.P. VI : Mr. Sudarshan Srivastava, Advocate --- 4/11.11.2013 The petitioner has approached this Court seeking a direction - (i) for payment of retiral dues by fixing his pension, gratuity, group insurance, leave encashment; (ii) for grant of benefit of third MACP scheme with 18% p.a. interest from the date of retirement i.e., 31.08.2012; and (iii) for benefit of assured career progression scheme w.e.f. 09.08.1999. 2. The brief facts of the case are that, the petitioner was appointed on the post of Accounts Clerk on 26.07.1974 and he superannuated from service w.e.f. 31.08.2012. However, since the retiral benefits and the benefit under the MACP and ACP were not granted to the petitioner, the petitioner was constrained to file this writ petition. 3. A counter affidavit has been filed in which a plea has been taken that, the benefit of MACP and ACP would be granted to the petitioner from the date on which he passed Departmental Accounts examination. It is also stated that since the service book -2- of the petitioner was not received in the office of the competent authority, therefore, though the provisional pension of the petitioner was fixed, the final pension and other retiral benefits of the petitioner could not be finalised. 4. Heard learned counsel appearing for the parties and perused the documents on record. 5. The learned counsel appearing for the petitioner has submitted that the plea taken by the respondents that, the benefit under the MACP and ACP would be granted to the petitioner from the date the petitioner passed the departmental Accounts
Decision
“That, with regard to the statements made in 30. paragraph no. 14 of the Writ petition it is humbly stated and submitted that Rural Work Department has not conducted any Departmental Examination. 31. That, with regard to the statements made in paragraph no. 15 of the Writ petition it is humbly stated and submitted that it is admitted. 37. That, with regard to the statements made in paragraph no. 21 of the Writ petition it is humbly stated and submitted that the petitioner will get the final pension, gratuity, leave encashment etc. after revision of pay from date of passing the Accounts examination and accordingly the pay of petitioner has been fixed and send to the Commissioner, Singhbhum (Kolhan) Division, Chaibasa for approval.” 10. From the above, I find that the only ground taken by the respondent – State of Jharkhand is that the retiral benefits of the petitioner as well as the benefit under the MACP and ACP has not been finalised as few queries have been made by the Divisional Commissioner and as the service book of the petitioner has not been submitted in the office of the competent authority. Though the respondent – State of Jharkhand has taken a plea that benefit under ACP and MACP to the petitioner would be admissible from 17.03.2008, I find from the judgment rendered by this Court in C.W.J.C. No. 1824 of 1995(R), and also from the stand taken by the respondent – State of Jharkhand in paragraph nos. 30 & 31 that, the petitioner is entitled for grant of the third benefit under the MACP scheme and the benefit of ACP scheme. I find that the respondents have admitted that no Departmental Accounts examination was conducted by the Rural Works Department. I further find support from the fact that the scheme of ACP has to be seen in the light of the promotional policy of the State of Jharkhand which does not envisage a mandatory requirement for passing the departmental Accounts examination for grant of promotion. 11. In view of the aforesaid, this writ petition is allowed. -5- The respondents are directed to calculate and finalise the retiral benefits of the petitioner within a period of 8 weeks from today. R. Shekhar Cp 2 (Shree Chandrashekhar, J.)