Kamal Kumar Singh & Ors v. the State of Jharkhand & ors.). The Hon
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S). No. 4560 of 2016 ---------- Raman Kumar ………. Petitioner Versus 1. The State of Jharkhand through the Additional Chief Secretary, Planning & Finance (National Savings Division), Ranchi. 2. The Director, Planning & Finance (National Savings Division), Ranchi. 3. The Joint Director, Planning & Finance (National Savings Division), Ranchi ………. Respondents. ---------- CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner ----------- :
Legal Reasoning
Mr. R.N. Sahay, Sr. Advocate Mr. Yashvardhan, Advocate Mr. Kirtivardhan, Advocate Mr. Ritesh Singh, Advocate Mr. Aditya Aman, Advocate Mr. Ravi Kerketta, SC-VI Ms. Deepika Jojower, AC to SC-VI For the Respondents : 19/ 24.04.2024 Heard the parties. ---------- 2. Petitioner has approached this Court with following prayers: (I) To quash and set-aside Office Order No. 16 dated 27.06.2017 (Annexure-12) issued by Director, National Savings Directorate, Jharkhand, Ranchi whereby the respondents have granted the benefits of 2nd MACP after rendering services of 27 years instead of 20 years. (II) To quash and set aside the Office Order No. 87 dated 22.12.1998 (Annexure-4) issued by the Joint Director, National Savings Finance Department, the then Govt. of Bihar, whereby petitioner has been directed to discharge the duties of national Savings Executive Officer, Daltonganj but without any financial benefits. (III) Petitioner has further prayed for direction upon the respondents to grant the benefits of 2nd MACP w.e.f. 07.03.2009 and 3rd MACP w.e.f. 07.03.2019 since no examination was held in 1 between the year 1989 to 2009, which led to the stagnation on the same post without time bound promotion/ACP/MACP benefits. (IV) Further to hold the petitioner deemed to have taken charge as National Savings Executive Officer on which post was already working since 04.01.1999 as Incharge. 3. Earlier the petitioners along with others have preferred W.P.(S). No. 6780 of 2012 (Kamal Kumar Singh & Ors. Vs. the State of Jharkhand & ors.). The Hon’ble Court was pleased to dispose of the said writ petition vide its order dated 30.11.2016 directing the respondents to consider the cases of petitioners for promotion to the post of National Savings Executive Officer. 4. As per the facts of the case, the petitioner was selected to the post of Assistant Savings Officer vide notification dated 04.03.1989 issued by the Finance (National Savings) Department, Patna wherein his name stood at Sl. No. 10 and was posted as Assistant Savings Officer, Saraikela. Thereafter, he was transferred and posted as Incharge, National Savings Executive Officer, Palamau vide Office Order dated 28.12.1998 to perform the duties of the said post without any financial benefits. Subsequently, he was given additional charge to perform duties of National Savings Executive officer, East Singhbhum. It is the case of petitioner that in his entire service tenure not a single substantive promotion was granted to him. Aggrieved by the same, petitioner has approached this Court. 5. Mr. R.N. Sahay, learned senior counsel assisted by Mr. Yashvardhan, learned counsel appearing for the petitioner vociferously argues that petitioner is entitled for promotion to the post of Executive Officer, National Savings. It has been further argued that earlier petitioner was officiating on the said post from 04.01.2000 though with a stipulation that he will not claim financial benefits. Learned senior counsel further argued that petitioner superannuated on 31.05.2019 and promotion order was granted on said post on 28.05.2019 but because of lack of proper communication, he did not receive his promotional order within time and as 2 such, could not join the promoted post at Hazaribagh since the same was received by the petitioner on 31.05.2019 only and the distance of Hazaribagh was 175 kms. from the place of posting of petitioner i.e. Palamau. It has been further argued that since the petitioner has already retired, he should be given financial benefits which has accrued to him on account of grant of promotion. Learned senior counsel further argues that law is well settled that when an employee officiates on a particular post and thereafter, promoted to the said post, he is entitled for the benefits from the date the promotion was given to him. Learned senior counsel places heavy reliance on the judgment of Hon’ble Apex Court in case of State of Punjab Vs. B.K. Dhir, reported in (2017) 9 SCC 337 and submits that petitioner was at the verge of retirement and only because he did not join his promoted post due to lack of communication, the financial benefits which has accrued to him cannot be denied and a direction be given to the respondents to extend the same within a stipulated period of time. 6. On the other hand, learned counsel for the respondent-State by opposing the contention of learned senior counsel for the petitioner submits that benefits can be given to an employee on promotion only from the date of joining. Since the petitioner did not join the promoted post, he is not entitled for any benefits of the same. Learned counsel submits that petitioner was properly communicated through Email which he did not receive or respond and when he received the same through his Driver then also did not bother to rush to the place of posting and join the promoted post and as such, he is not entitled for any benefits. As far as extending the benefits of MACP and other benefits, the same shall be considered in accordance with law. 7. Having heard the rival submissions of learned counsel for the parties, this Court is of the considered view that case of petitioner needs consideration for the following facts and reasons: (I) Admittedly, petitioner was granted promotion on 28.05.2019 and was to superannuate on 31.05.2019. (II) Promotional order was communicated to him only on 31.05.2019. 3 (III) The stand of the respondents that petitioner was duly informed through Email/ Whatsapp is not tenable rather not accepted to this Court on the ground that nothing has been brought on record to show as to whether any Email/ Whatsapp message was sent to the petitioner. (IV) Petitioner was to join the transferred post at Hazaribagh which is at a distance of about 175 kms. from Daltonganj where petitioner was working. It is one thing to say that whenever an employee receives the promotion order he should rush to join the same. However, it is not possible for everybody to rush and join the promoted post when there is paucity of time and place of new posting is far away from the present place of posting. (V) It is not a case that petitioner is claiming promotion after his retirement. Admittedly, promotion was given to the petitioner owing to his satisfactory services. Hence, petitioner is entitled for the financial benefits accrued to him on account of his promotion. 8. Similar issue fell for consideration before the Hon’ble Apex Court in case of State of Punjab Vs. B.K. Dhir, reported in (2017) 9 SCC 337 wherein the Hon’ble Court held as under: 1060] “5. This Court today in State of Punjab v. Dharam Pal [State of Punjab v. Dharam Pal, (2017) 9 SCC 395] after referring to the authorities in P. Grover v. State of Haryana [P. Grover v. State of Haryana, (1983) 4 SCC 291 : 1983 SCC (L&S) 525 : AIR 1983 SC Engineer v. Hari Om Sharma [Secy.-cum-Chief Engineer v. Hari Om Sharma, (1998) 5 SCC 87 : 1998 SCC (L&S) 1273] and appreciating the similar factual matrix has held thus : (Dharam Pal case [State of Punjab v. Dharam Pal, (2017) 9 SCC 395] , SCC p. 403, para 22) and Secy.-cum-Chief “22. In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in P. Grover [P. Grover v. State of Haryana, (1983) 4 SCC 291 : 1983 SCC (L&S) 525 : AIR 1983 SC 1060] and Hari Om Sharma [Secy.- cum-Chief Engineer v. Hari Om Sharma, (1998) 5 SCC 87 : 1998 SCC (L&S) 1273] . As far as the authority in A. Francis [A. Francis v. Metropolitan Transport Corpn. Ltd., (2014) 13 SCC 283 : (2015) 1 4
Decision
SCC (L&S) 376] is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma [Secy.-cum- Chief Engineer v. Hari Om Sharma, (1998) 5 SCC 87 : 1998 SCC (L&S) 1273] and resultantly we hold that the view expressed by the High Court is absolutely impeccable.” 6. The learned counsel for the State of Punjab referring to the Punjab Civil Services Rules (for short “the Rules”), urged that the respondent was not eligible to hold the post. Be it noted, the said stand was not taken before the High Court and, in any case, we are disposed to think that when the respondent had worked in the officiating post and had been granted the benefits by the High Court, he should be extended the said benefits. Had there been a contest on the score of eligibility of the respondent, possibly the matter would have been different. That not being the fact situation, we are not inclined to interfere with the order passed by the High Court.” 9. Petitioner has also claimed benefits of MACP. It has been brought to the notice of the Court by learned senior counsel for the petitioner that already the benefits of 2nd MACP has been granted to the petitioner from the date of clearing the exams. Learned senior counsel submits that petitioner is entitled for the benefits from the date of his entitlement as per rules i.e. on completion of 10/20/30 years of services. It has also been argued that between the intervening period, no examinations were held and as such, it is not the petitioner who has not appeared in the examination, rather, delay has been caused by the respondent-State and petitioner cannot be faulted for the same. 10. The Hon’ble Apex Court in case of Amresh Kumar Singh & Ors. Vs. State of Bihar & Ors., reported in 2023 SCC OnLine SC 496 has held as under: “18. In the aforesaid case, the employees were working as malis (Gardeners) and had claimed promotion in the higher pay scale. The Central Administrative Tribunal seized of the original applications observed that the employees cannot claim 5 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 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. the claim 19. …………………. 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.” 11. 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”. 12. 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 is the requirement of regular promotion, the Hon’ble Apex Court held that those 6 requirement of regular promotion are not essentially to be fulfilled for the purpose of grant of ACP/MACP, as the grant of ACP is like granting of non- functional in situ promotion. 13. Further, the Hon’ble 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 becomes entitled for grant of benefit of 2nd MACP from the date of passing of Accounts Examination and not from the earlier date, but the Hon’ble 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 benefits of the Assured Career Progression Scheme. 14. This Court in case of Jharkhand Police Association Vs. State of Jharkhand & Ors., reported in (2007) 1 JLJR 499 (HC) has held that training is a compulsory part for grant of promotion under the A.C.P. Scheme. However, it is the Department, who has to depute a person for the training and the concerned employee has no choice. In the present case since no examinations were held there is no question of passing the said examination and when the examinations were held the petitioners duly appeared and clear the same. The stand of the respondents to deny the benefits from the cut-off date on the ground of non-clearance of examinations is not justifiable. 15. In view of ratio laid by the Hon’ble Apex Court as well as by different High Courts, the petitioner is also entitled for the benefits of MACP from the date of entitlement and not from the date of passing of the examination, when admittedly no examinations were held earlier. 16. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned order dated 7 27.06.2017 (Annexure-12) and dated 22.12.1998 (Annexure-4) are hereby quashed and set aside. Since the petitioner has already retired, the pensionary benefits shall be revised after giving all the benefits which has accrued to the petitioner on account of promotion and grant of MACP from the date of his actual entitlement, in accordance with law. 17. Resultantly, the writ petition stands allowed. (Dr. S.N. Pathak, J.) kunal/- 8