Dr. Birendra Kumar … v. 1. State of Jharkhand 2. The Principal Secretary, Health & Medical Education, Government of
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (S) No. 3590 of 2013 --- Dr. Birendra Kumar … … Petitioner Versus 1. State of Jharkhand 2. The Principal Secretary, Health & Medical Education, Government of Jharkhand, Ranchi 3. The Director, AYUSH, Government of Jharkhand, Ranchi 4. The Accountant General (A & E), Government of Jharkhand, Ranchi … … Respondents ---
Legal Reasoning
moved this Court in W.P.(S) No. 310 of 2012, seeking benefit of increment from 14.07.2004 and the said writ petition was disposed of by order dated 23.03.2012 with a direction to the respondent- authority to decide the representation of the petitioner within a period of twelve weeks. By impugned order dated 01.06.2012, the claim of the petitioner for benefit of increment w.e.f. 14.07.2004 has been rejected. 3. A counter-affidavit has been filed taking a plea that in view of the Government letter/circular, the exemption from passing departmental examination becomes effective from the date on which the exemption order is passed. Paragraph nos. 8 to 11 are extracted below:- 8. “That in view of the order dated 23.03.2012 passed by the Hon'ble High Court of Jharkhand in the W.P.(S) No. 310 of 2012 the Respondent- Principal Secretary, Health Department passed a reasoned order bearing No. 110(20) dated 01.06.2012 and disallowed the claim of the petitioner to grant increment w.e.f. 14.07.2004 as letter No. 11691 dated 09.11.1983 and letter No. 4674 dated 15.05.1992 clearly provides that exemption from passing examination become effective from the date on which the exemption order is passed. Similarly it has been provided in the instant case that the exemption order in case of the petitioner was issued on 11.05.2011 and therefore the petitioner is entitled to increment w.e.f. 11.05.2011 and not 14.07.2004. 9. That the petitioner has claimed the Notification No. 4674 dated 15.05.1992 is not applicable in his case as the post held by him was declared Gazetted w.e.f. 14.07.2004 vide Government order No. 3 148(8) dated 14.07.2007. the Government letter No. 4674 dated 15.05.1992 under reference is applicable in case of Gazetted and Non-Gazetted Employees both as provided in paragraph-1 of the said letter. However, 10. That the petitioner has further claimed that he crossed the age of 50 years on 19.11.2001 as his date of birth is 19.11.1951, whereas the post held by him was declared gazetted w.e.f. 14.07.2004. This means that the petitioner has crossed the age of 50 years prior to the declaration of his post as gazetted. He intends to argue that passing of examination was not essential in such situation as he had already crossed the age of 50 years, only application for grant of exemption from passing the examination was required in his case which he did. This interpretation of the Government Circular under reference (i.e. letter No. 4674 dated 15.05.1992) is wrong as the exemption takes effect from the date of the order of exemption and not from the date of filing of an application for exemption. 11. That the case of Dr. Mahesh Prasad Rai is different from the case of the petitioner. All the records relating to examination in which Dr. Mahesh Prasad Rai appeared were not only missing from the office but also could not be obtained from the Bihar School Examination Board despite repeated request in this regard. Even the results of these examinations were not made available to the Jharkhand hence the order was passed on compelling circumstance. This fact is evident from the Reasoned Order No. 81(3) dated 07.03.2011 passed by the Principal Secretary, Department of Health, Government of Jharkhand. 4. The learned counsel appearing for the petitioner has raised two fold contentions namely, (i) the requirement of passing departmental examination which is applicable in the case of non-gazetted employees and in terms of circular dated 15.05.1992, the petitioner who had crossed the age of 50 years on 18.11.2001, became entitled for grant of such exemption, and (ii) alternatively, 4 since the post which the petitioner was holding was declared a gazetted post w.e.f. 14.07.2004, the requirement of passing departmental examination cannot be made applicable in the case of the petitioner after 14.07.2004 and therefore, the petitioner was entitled for grant of benefit of increment w.e.f. 14.07.2004. 5. Reiterating the stand taken in the counter-affidavit, the learned counsel appearing for the respondents has submitted that since the petitioner had completed 50 years of age on 18.11.2001, i.e., prior to declaration of the post of Homeopathic Medical officer as a gazetted post, in terms of circular dated 15.05.1992, the exemption would be operative from the date it is granted. 6. The only issue involved in the present writ petition is 'the date from which the benefit of exemption from passing the departmental examination granted to the petitioner w.e.f. 11.05.2011, would be operative'. A perusal of the documents on record would indicate that the petitioner was appointed on the post of Homeopathic Medical officer on 05.11.1973. He cleared the 'Hindi' examination in the year, 1977. The petitioner has disclosed his date of birth as 19.11.1951 and thus, he had completed 50 years of age on 18.11.2001 and thus, became entitled for applying for grant of exemption in terms of circular dated 15.05.1992. Since the petitioner made first application on 15.10.2005, a fact which has not been denied by the respondents in the counter-affidavit filed in the present proceeding, I am of the opinion that the petitioner was entitled for grant of benefit of exemption from passing the departmental examination w.e.f. 15.10.2005. I further find that one Dr. Mahesh Prasad Rai was granted such exemption by order dated 28.02.2011 w.e.f. 11.05.2004. No reason has been disclosed by the respondents in the counter-affidavit why such benefit of exemption with retrospective date, has not been extended to the petitioner. I further find that in the counter- 5 affidavit, the respondents have not denied that the petitioner made his first application on 15.10.2005 and the respondents have also not disclosed why the decision on the application preferred by the petitioner was taken only on 11.05.2011. 7. In view of the aforesaid, the present writ petition is allowed to the extent that the petitioner would be entitled for the benefit of increment from 15.10.2005, the date on which the petitioner would be deemed to have been granted benefit of exemption from passing the departmental examination. Manish (Shree Chandrashekhar, J.)
Arguments
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner For the State For the A.G. --- : Mr. Rajendra Krishna, Advocate Mr. Amit Sinha, Advocate : Mr. Vaibhav Kumar, J.C. to A.G. : Mr. Sudarshan Srivastava, Advocate --- 03/13.11.2013 The petitioner has sought quashing of order dated 01.06.2012, whereby the benefit of increment w.e.f. 14.07.2004, has been denied. 2. Heard the learned counsel appearing for the parties and perused the documents on record. 3. The brief facts of the case are that, the petitioner was appointed as Homeopathic Medical Officer under memo dated 05.11.1973. On 14.07.2004, the post of Homeopathic Medical Officer has been declared a gazetted post. The petitioner who had crossed 50 years of age on 19.11.2001, applied for grant of exemption from passing departmental examination. In terms of memo dated 15.05.1992, the first application was made by the petitioner on 15.10.2005. The petitioner again sought such exemption on 16.05.2006. Since no action was taken, the petitioner on 12.07.2010, again applied for grant of exemption from passing the departmental examination. Finally, by an order contained in memo dated 11.05.2011, the petitioner was granted exemption 2 from passing departmental examination. Since the petitioner was not granted the benefit of exemption from 14.07.2004, the petitioner submitted a representation before the Principal Secretary, Department of Health, on 18.11.2011. The petitioner superannuated from service w.e.f. 30.11.2011. The petitioner