Ashok Kumar v. Jharkhand

Judgment

1. Secretary/Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, having office at Project Building, Dhurwa, P.O. & P.S. Dhurwa, Town and District-Ranchi. through The Deputy Commissioner, Dumka, having office at

2. P.O, P.S. & District-Dumka. The Deputy Collector (Establishment), Dumka,

3. having office at P.O., P.s. & District-Dumka.

4. at P.O., P.S. & District-Dumka. The District Accounts Officer, Dumka, having office ..... Respondents ---------

CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN --------- For the Petitioner : Mr. Manoj Tandon, Adv For the Respondent : Mr. Munna Lal Yadav, S.C. (L&C)III 04/Dated: 24th September, 2024 --------- The instant writ application has been preferred by the petitioner praying therein to quash and set aside the order No. 176/2020 as contained in memo No. 806 dated

24.12.2020 (Annexure-4) issued by the respondent No.2; whereby the date of grant of MACP of the petitioner has been shifted. The petitioner has further prayed for quashing the order No. 03/21 as contained in memo No. 13 dated 1

09.01.2021 (Annexure-5) issued by respondent no.3; whereby the pay of the petitioner has been wrongly fixed with a direction to recover the alleged excess amount paid to the petitioner. The petitioner has further prayed for a direction upon the respondent-Authorities to pay 1st ACP to the petitioner on completion of 12 years of his service w.e.f. 22.10.2003 and 2nd MACP w.e.f. 22.10.2011 with all consequential benefits.

2. Mr. Majon Tandon, learned counsel for the petitioner submits that the issue involved in this case has already been decided by the Coordinate Bench of this Court in W.P.(S) No. 5307 of 2022; as such now there should not be any hindrance in accepting the prayer of this petitioner. He further submits vide Annexure-4 the impugned order was quashed; whereby a ground was taken that the petitioner has not passed the departmental examination held by the department; as such he is not entitled for ACP or MACP benefits. He contended that the said issue travelled up till the Hon’ble Apex Court in the case of Amresh Kr. Singh & Ors. Versus State of Bihar & Ors, reported in (2023) SCC Online SC 496; wherein the Hon’ble Apex Court has held this issue at para 12 to 20 of its judgment; whereby it has been held that the employee should not be denied MACP 2 benefits on the ground of none passing of departmental examination. He further submits that the Coordinate Bench of this Court after relying the case of Amresh Kumar Singh (Supra) has allowed the case of the similarly situated co- employee namely, Somnath Ojha in W.P.(S) No. 5307 of 2022 with analogous cases reported in 2024 (d) JBCJ 603 and granted the relief what has been prayed for in the instant writ application.

3. Mr. Munna Lal Yadav, S.C. (L&C) III, representing the State respondent fairly submits that the issue involved in this writ application will be governed by the judgment passed in the case of Somnath Ojha (Supra). He further referred Government Circular vide Sankalp memo No. 2981/vi dated

01.09.2009 issued by the Department of Finance. The Government employee whose benefit of ACP and MACP has been delayed due to incapability of Departmental Proceeding in giving 10 years 1st ACP benefits, then the benefit of 20 years MACP will be affected as per delay and vide Sankalp memo no 1779/vi dated 21.05.2014 issued by Department of Finance. The condition of passing the benefit of Departmental Examination is precondition for getting such benefit and so the writ petitioner who got his 10 years MACP benefit on

25.08.2011 is entitled to get 20 years of MACP on 3

25.08.2019. However, he could not dispute the fact that the issue involved in this case was same and similar in that case.

4. Having heard learned counsel for the parties and after going through the order passed in the case of Somnath Ojha (Supra), it appears that the coordinate Bench of this Court has framed four issues in which issue no. 2 is relevant for this case and the same has been dealt with in para 21 in the said judgment and the said judgment has been decided in favour of the petitioner.

5. For brevity para 21 to 25 is quoted hereinbelow; “21. The stand of the State is that mistake committed by the Department / State can be rectified at any moment. The judgments cited by the learned counsel for the respondents are of the peculiar facts of those cases. No doubt corrections / rectifications by the employer are permissible, if there is apparent error on the face of the record. However, in the present case, it is not a case of mere correction in taking away the benefits which has accrued to the petitioners during the service tenure, though the petitioners have passed the departmental examination belatedly. Therefore, the judgments relied upon by the respondents are of no help to the respondents and the issue is decided accordingly in favour of the petitioners. Re : Issue no. 2 (whether passing of departmental examination is mandatory requirement for grant of ACP/MACP benefits, and Re: Issue no. 3: Whether the requisite qualification prescribed for regujlar promotion is also a condition must for extending the benefits 11 of financial up-gradation?

22. These issues fell for consideration before Hon’ble Supreme Court in the case of Amresh Kumar Singh & Ors. (supra), wherein all the aspects of the matter in respect of grant of ACP/MACP and the object thereto has been considered, which is evident from bare reading of pargraphs-12 to 20 of the judgment, which are as follows:- “12. It may be worth noting that the ACP scheme was enforced on the recommendation of the Fifth Central Pay Commission in context with Group C and D employees and it provided 4 monetary benefit to the employees on completion of 12 years and 24 years of regular service who were not able to get promotion. The scheme as such was anti-stagnation and envisages merely placement of the employees in the higher pay scale for the grant of financial upgradation only without grant of actual promotion. The benefit of the ACP as such is like granting non-functional in situ promotion.

13. At the cost of repetition, it must be borne in mind that the object of ACP is to avoid stagnation where no promotional avenues are available. The grant of ACP is not technically a grant of promotion but increase in the pay scale to the next higher grade retaining the employee on the post held by him. This is only to accord monetary benefit without disturbing any seniority or actually effectuating promotion to any higher post to avoid stagnation on a particular post or pay scale for a very long period.

14. The object and purpose of ACP/MACP Scheme has been reiterated by this Court in Union of India v. C.R. Madhava Murthy, (2022) 6 SCC 183, as one to relieve the frustration on account of stagnation and it does not involve actual grant of promotional post but merely monetary benefits in the form of next higher grade subject to fulfilment of qualifications and eligibility criteria.

15. In sum and substance, both ACP and MACP Schemes are schemes devised with the object of ensuring that the employees who are unable to avail of adequate promotional opportunities, get some relief in the form of financial benefits. Accordingly, the schemes provide for regular financial upgradation on completion of 12-24 years and 10-20-30 years of service without promotion. They are incentive schemes for the employees who complete a particular period of service but without getting promotion for lack of promotional avenues. The effect of the schemes must be judged keeping in view the object and the purport of the scheme.

16. In Union of India v. G. Ranjanna reported in (2008) 14 SCC 721, the three-Judges Bench of this Court held that in situ promotions are made to remove stagnation of grade C and grade D employees by giving them certain monetary benefits.

17. It was further observed that fulfilment of educational qualifications prescribed under the recruitment rules for the purposes of promotion are not necessary for non-functional in situ promotion. In other words, educational qualification required for the purposes of promotion is not necessary for the grant of in situ promotion, i.e., only for extending the monetary benefit where there are no promotional avenues and the employees are likely to be stagnated.

18. In the aforesaid case, the employees were working as malis (Gardeners) and had claimed promotion in the higher pay scale. 5 The Central Administrative Tribunal seized of the original applications observed that the employees cannot claim the scale of the next higher post by way of in situ promotion. On the matter being taken to the High Court by way of a writ petition, the contention of the employees was accepted and it was observed that the object of in situ promotion on non-functional posts, is to ensure that the group C and D employees are not stagnated in the same cadre/pay scale and that they should be provided with certain monetary benefits. Therefore, the rejection of the claim for such nonfunctional in situ promotion on the ground that the employees do not possess the necessary minimum qualification of matriculation as per the rules is not justified and renders the order erroneous in law. The view so taken by the Division Bench of the High Court was affirmed by this Court in the above referred Civil Appeals holding that the High Court has correctly analysed the object of the in situ promotion and fixation of pay scales to Group C and D employees to avoid stagnation.

19. In view of the aforesaid legal position coupled with the fact that the qualification of graduation prescribed is for the promotion to the post of Accounts Officer rather than for the grant of in situ promotion on the non-functional post or for extending the benefit of ACP which is purely and simply in the nature of grant of monetary benefit without actually effectuating any promotion to any higher post, we are of the opinion that the judgment and order of the Division Bench of the High Court impugned in the appeals cannot be sustained. It is accordingly hereby set aside and that the judgment of the writ court dated 28.11.2017 is restored. The appellants are extended the benefit of ACP, as directed by the writ court.

20. We have not considered it necessary to deal with the two cases on the basis of which the Single Judge has allowed the writ petitions and granted the benefit of the ACP to the appellants, as we have independently of those two decisions have considered and held that the appellants are entitled to financial upgradation under the ACP Scheme on completion of requisite regular service ignoring the higher qualification prescribed for the next higher post as grant of such benefit is not actually a promotion but only financial upgradation and if the higher qualification is insisted it would frustrate the purpose of the entire scheme.”

23. The Hon’ble Apex Court considering the earlier judgment rendered in the case of Union of India v. C.R. Madhava Murthy, reported in (2022) 6 SCC 183, clearly held that “the purpose of the ACP Scheme/MACP Scheme is to relieve the frustration on account of stagnation and the Scheme does not involve the actual grant of promotional post to the employees, but to merely monetary benefits in the form of next higher grade subject to fulfilment of qualifications and eligibility criteria.” 6

24. Therefore, it is now settled by the Hon’ble Supreme Court of India that the requirement of regular promotion is not necessarily required to be fulfilled for the purpose of grant of ACP/MACP. In that case, the employee who did not even have the qualification of graduation which the requirement of regular promotion, but the Hon’ble Apex Court held that those requirement of regular promotion are not required to be fulfilled for the purpose of grant of ACP/MACP, as the benefit of grant of ACP is like granting of non-functional in situ promotion.

25. Further the Patna High Court in the case of Shambhu Baitha Vs. State of Bihar & Ors., reported in 2023 SCC OnLine Pat 4676 relying upon the judgment rendered by the Hon’ble Supreme Court in the case of Amresh Kumar Singh (supra) directed the respondents to grant the benefit of ACP/MACP without there being impeded by the issue of non-passing of the departmental examination in time. In the said case, specific stand of the State was that the employee became entitled to grant of benefit of 2nd MACP from the date of passing of Accounts Examination and not from the earlier date, but the Patna High Court was of the view that the issue is no more res integra, inasmuch as in catena of decisions, the Hon’ble Apex Court has consistently held that non-passing of departmental account examination would not be an impediment for grant of promotion of the assured career progression scheme.”

6. After perusing the aforesaid judgment and after fair submission of learned counsel for the respondents, the instant writ application is allowed and the impugned order dated 24.12.2020 as contained in memo no. 806 and order dated 09.01.2021 as contained in memo no. 13; are hereby, quashed and set aside. The respondents are directed to pay 1st ACP as well as 2nd ACP with all consequential benefits within a period of six weeks the date of receipt/production of copy of this order.

7. Accordingly, the instant writ application stands allowed in the manner indicated hereinabove. Amardeep/ (Deepak Roshan, J.) 7