Mohammad Shamsuddin and others v. State of Bihar and others
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 97 of 2023 1. The State of Jharkhand 2.The Secretary, Department of Road Construction, Government of Jharkhand, Project Building, PO and PS Dhurwa, District Ranchi 3.The Superintending Engineer, Road Construction Department, Road Circle, PO and PS Ranchi, District Ranchi 4.The Executive Engineer, Ranchi Road Division, PO and PS Ranchi, District Ranchi ...… Appellants/Respondents Versus 1.Ranjib Narayan Sinha, son of late Ramendra Narayan Sinha, resident of Nabarun, Radium Road, PO GPO, PS Kotwali, Town and District Ranchi, Jharkhand 2.Narendra Prasad, son of late Deo Nandan Prasad Sinha, resident of Hehal Bunglow, Itki Road, PO and PS Hehal, Town and District Ranchi, Jharkhand 3.Shriniwash Mishra, son of Sant VilashMishr, R/o Krishna Puri Road No. 6, Chutia, PO and PS Chutia, Town and District Ranchi, Jharkhand …. ... Respondents/Writ Petitioners CORAM: HON'BLE THE ACTING CHIEF JUSTICE
Legal Reasoning
HON'BLE MR. JUSTICE NAVNEET KUMAR For the Appellant-State For the Respondents : Ms. Omiya Anusha, AC to AAG-IA : None Per, Shree Chandrashekhar, A.C.J. 14th March 2024 The State of Jharkhand has challenged the writ Court’s direction to refund the amount deducted from the salary of Ranjib Narayan Sinha, Narendra Prasad and Shriniwash Mishra on account of withdrawal of ACP benefits which were granted to them erroneously. 2. The writ Court having examined the materials on record and referring to “Mohammad Shamsuddin and others v. State of Bihar and others” 1983 PLJR 347 came to a conclusion that the order contained in memo no. 127 dated 29th January 2011 cannot sustain the scrutiny in law as the benefits of financial upgradation to the writ petitioners cannot be denied. 3. By an order dated 28th January 2022, WP(S) No. 1688 of 2011 was allowed holding as under: “13. From conjoint reading of Clause 2(3), clause 3 (vii) and clause 3(x) of the resolution dated 14.08.2002 it is amply clear that in the matters of grant of ACP there can be two eventualities; first when the ACP is granted on the basis of the pay-scale equivalent to the next post in hierarchy, and another in 2 LPA No. 97 of 2023 the cases where there is no promotional hierarchy, or promotion is not possible; then the benefit of ACP is granted as per the schedule attached with the Resolution dated 14.08.2002. The case of the petitioners appears to be genuine, inasmuch as, there is no promotional hierarchy to the post of Assistant Clerk. Therefore, the provision of Clause 2(3) will cover their cases and the petitioners will get the benefit of ACPs in pursuance with the schedule annexed with the resolution dated 14.08.2002. As far as the applicability of clause 3 (vii) of the Resolution dated 14.08.2002 is concerned; the same will not be applicable in the case of the petitioners, specifically in view of the fact that there is no promotional hierarchy to the post of Assistant Clerk. Admittedly; there is no promotional rule available for getting promotion in relation to the post of Assistant Clerk. Therefore, the case of the petitioners shall be governed by clause 2 (3) of the resolution dated 14.08.2002. 14. It further appears that the specific averment made by the petitioner that there is no cadre promotion to the post of Assistant Clerk has been accepted by the respondents at paragraph no.16 of their counter-affidavit and also there is no reply to the contention that there are no promotional rules available. In the counter-affidavit at paragraph number 29, nothing has been mentioned about the promotional rules while replying to the contentions of the petitioners. 15. It further transpires that Bihar Boards Miscellaneous Rules, 1958 (Annexure D series), deals with the procedure of departmental examination. Even in this rule; sub- clause J of clause 157 (3), it has been said that there will be no promotion without passing Departmental Examination. In the present case there is no question of promotion; therefore, passing of Departmental Examination is not necessary for granting the benefits of ACP. In the matter of Mohammed Shamsuddeen (Supra), it has been clearly held that passing of departmental examination for financial up-gradation in the case of Assistant Clerk, specifically in view of the fact that there has been merger of the post of upper division clerk and lower division clerk, is not necessary. Relevant paragraph no. 7, 9 and 10 is quoted herein below:- “7. Learned counsel appearing on behalf of the State has admitted that the posts of Lower Division Clerk and Upper Division Clerk were amalgamated in the year 1980 and a new cadre of "Assistants" was created and since then all such employees are called as Assistants. Learned counsel appearing on behalf of the State has fairly conceded that in view of this amalgamation and creation of new cadre question of departmental examination for the promotion to the post of upper Division Clerk does not arise and has no meaning now. 9. When posts of Upper Division Clerk or Lower Division Clerk do not exist, passing of departmental examination for the promotion to the post of Upper Division should not arise at all. petitioners now cannot be called as Lower Division Clerk. 10. It has been argued on behalf of the petitioners that a large number of Selection Grade posts of clerk (for the offices Subordinate to the Co- operative Department) with effect from 1.4.64 were created by the Government ORDER: dated 24.1.1969 and it was specifically provided in the said ORDER :that all posts of clerks will be filled up by the Ministerial officers in ORDER :of seniority. A true copy of the said ORDER: dated 24.1.1969 is Annexure ‘3’. Unfortunately, this petitioner are not being promoted to the selection grade on the ground that they have not passed final examination in accounts. Even the representation filed by them have been rejected without considering their cases. In this connection, it has been contended that the posts of selection Grade did not exist when the Boards Miscellaneous Rules 1947 came in existence. Therefore any direction by the Government to the effect that until and unless these petitioners passed examination in accounts they cannot be promoted to the Selection Grade post is quite illegal. I find some force in this argument of the learned counsel for the petitioners. The posts of Selection Grade have 3 LPA No. 97 of 2023 been created much after the Board's Miscellaneous Rules 1947 came in existence. When the Board's Miscellaneous Rules 1947, which is statutory rule does not provide or lays down that fur promotion to a Selection Grade post passing of examination in accounts is a must, I think the petitioners cannot be called upon the Selection Grade posts it otherwise they are found fit. It is admitted that the Legislature has not framed any rule to regulate the recruitment and condition of service of persons appointed to the public service and post in connection with affairs of this State. Therefore, the provisions of Boards Miscellaneous Rules 1947 which was adopted after independence are statutory and no executive ORDER : can be passed in contravention of those provisions. Therefore, the cases of these petitioners for their promotion to the Selection Grade posts have to be considered on merits from the due date without requiring them to pass examination in Accounts. 16. In view of the aforesaid discussions, the benefit of financial up- gradation to the post of Assistant Clerks after 1980 cannot be denied to the petitioners on the ground of mandatory requirement of passing of departmental examination. 17. Consequently, the instant writ application is allowed and the impugned order as contained in Memo No. 127 dated 29.01.2011, whereby the benefit of up-gradation under the Assured Career Progression Scheme granted in favour of the petitioners were cancelled with further direction to recover the excess amount paid in their favour; is quashed and set-aside. The respondents are directed to re-fix and improve the pensionary benefits and further pay the arrears of salary and pension to the petitioners in the enhanced scale of ACPs granted vide orders dated 29.10.2003 and 28.02.2004 (Annexure-2 and 3).
Decision
The respondents are further directed to refund the amount already recovered. The entire exercise shall be completed within a period of 4 months from the date of receipt/production of copy of this order. 18. With the aforesaid observation and directions, the instant writ application stands allowed. Pending I.A, if any, also stands disposed of.” 4. This Letters Patent Appeal is premised on the ground that a government employee is required to fulfill conditions prescribed under ACP scheme which was floated through Circular dated 14th August 2002. Ms. Omiya Anusha, the learned State counsel submits that this is the mandatory requirement under the Circular dated 14th August 2002 is that the government employee must fulfill the conditions for promotion to the higher post and one of the conditions is passing of the departmental examination. 5. Briefly stated, the petitioners were appointed to the post of Junior Accounts Clerk on different dates during 1979-80. Later, the posts of Junior Accounts Clerk and Senior Accounts Clerk were merged and designated as Accounts Clerk w.e.f 1st May 1980. The appellant-State has pleaded that the respondents were granted time-bound promotion and in pursuance of the Circular dated 14th August 2002 respondent nos. 4, 5 and 6 were given first upgradation in the pay-scale vide office order dated 29th October 2003. The respondents were also granted benefits of second 4 LPA No. 97 of 2023 upgradation vide office order dated 28th February 2004. Ms. Omiya Anusha, the learned counsel for the appellant-State submits that on examination of the records when it was found that the respondents were given ACP benefits erroneously as they had not passed the Accounts Examination they were issued show-cause notices and by an order dated 29th January 2011 the benefits of ACP scheme given to them were cancelled. The learned State counsel further states that the respondent nos. 1 and 3 passed the departmental examination/Accounts Examination and benefits of ACP scheme have been restored to them. 6. Having heard Ms. Omiya Anusha, the learned counsel for the appellant-State, this Court finds no reason to interfere with the order passed in WP(S) No. 1688 of 2011. This is the stand of the respondents that the posts held by them is a stand-alone post and therefore they are not required to pass the departmental examination. This stand of the respondents has not been controverted by the State of Jharkhand and, in fact, no Recruitment Rules indicating promotional avenue to the higher posts has been produced. This is well accepted that the financial upgradation under the ACP scheme are given to the government employee holding stand-alone post as per the pay-scale prescribed under Appendix-I. While the pay-scales provided under Appendix-I are not the pay-scales of the higher posts, the government employees holding stand-alone post therefore are not required to pass departmental examination. This is the fundamental difference between promotion to a post and financial upgradation that for promotion to a higher post the government employee is required to possess necessary qualification while a financial upgradation is given from the date when the government employee becomes entitled for the same. 7. For the foregoing reasons, on completing 12 years and 24 years of service the respondents became eligible for financial upgradation under the ACP scheme and while so, we do not find any reason to interfere in the matter and, accordingly, LPA No. 97 of 2023 is dismissed. (Shree Chandrashekhar, A.C.J.) (Navneet Kumar, J.) Tanuj