Baidya Nath Mandal vs State Of Jharkhand And Others

Anubha Rawat Choudhary, J

Heard learned counsel for the parties.

This writ petition has been filed for the following reliefs:

“(i)”For quashing the office order dated 25.02.2010 contained in Memo No. 456 (Annexure-7) by which the Respondent No. 6, Superintending Engineer has cancelled/annulled the financial benefits of the first time bound promotion and financial benefits or first A.C.P. from the retrospective date and ordered to recover the financial benefits of time bound promotion and first A.C.P. given to the petitioner from his salary month March, 2010, which is without application of mind, without jurisdiction, unconstitutional, unreasonable, irrational, discriminatory, vexatious, malicious, against the principle of natural justice, illegal and bad in law.

(ii) Hon’ble Court may please to stay/suspend the impugned order dated 25.02.2010 as contained in Memo No. 456 (Annexure-7) during the pendency of this writ petition.”

Learned counsel for the petitioner submits that the petitioner was initially appointed as peon on 16.10.1973 and thereafter he was promoted to the post of correspondence clerk on 01.08.1981 in the office of Executive Engineer, Palamu Division, Daltonganj. He further submits that the financial benefit of first-time bound promotion was allowed w.e.f. 01.08.1991 vide order dated 12.08.1992 and memo No. 727 dated 14.08.1992 issued by Respondent No. 6. The respondent No. 8 had also confirmed the financial benefits of first time-bound promotion to the petitioner vide letter No. 437 dated 06.07.1996 (Annexure-1).

It is submitted that the petitioner had appeared in the Departmental Accounts Examination, 2005 held on 17th and 18th of January, 2006 and was declared successful in the first, second and fifth paper of primary stage vide letter date 19.01.2007. The petitioner was granted the ACP by the Circle Screening Committee according to Resolution No. 5207 dated 14.08.2002 issued by the Finance Department, Government of Jharkhand w.e.f. 09.08.1999 vide Memo No. 2392 dated 12.11.2003 issued by Respondent No. 6. The learned counsel submits that the respondent No. 6 issued letter dated 22.01.2010 with respect to cancellation of financial benefits of first time bound promotion and first ACP on the ground that the petitioner had not passed the departmental accounts examination in all the three papers. The petitioner responded vide letter dated 11.02.2010 and stated that the petitioner was declared successful in all the three papers of primary stage held in the year 2006 and second paper of final stage held in the year 2007-08 and had made an application before the competent authority for exemption. Ultimately vide impugned order dated 25.02.2010, the respondent No. 6 has not only cancelled the financial benefits of 1st time bound promotion and 1st ACP with retrospective effect, but has also ordered to recover the financial benefits from the salary of the petitioner vide office order dated 25.02.2010.

Learned counsel for the petitioner has submitted that the petitioner had passed the required departmental examination and has also filed application for exemption, but this aspect of the matter has not been considered by the authority while passing the impugned order dated 25.02.2010. He also submits that otherwise also, the recovery from the salary of the petitioner as has been directed by the impugned order is not sustainable in the eyes of law.

Learned counsel appearing on behalf of the respondents, on the other hand, has opposed the prayer of the petitioner and has submitted that the grant of financial benefit to the petitioner was also subject to the condition that the petitioner would pass the departmental examination and the petitioner having not passed the departmental examination in terms of the various circulars, the financial benefit has been withdrawn and an order of recovery has also been passed. Learned counsel has referred to the counter affidavit and has submitted that the respondents have acted in terms of the circular issued by the government annexed with the counter affidavit and in terms of benefit granted to the petitioner vide letter dated 12.11.2003 (Annexure-D) and memo dated 19.08.2005 (Annexure-E). Learned counsel for the respondents has also relied upon para 9 and 10 of the counter affidavit.

Findings of this Court

After hearing the learned counsel for the parties and going through the records of this case, this Court finds that the petitioner was appointed as peon on 16.10.1973 and he was promoted to the post of correspondence clerk on 01.08.1981 in the office of Executive Engineer, Palamu Division, Daltonganj. The financial benefit of 1st time bound promotion was allowed with effect from 01.08.1991 vide order dated 12.08.1992 and vide memo no. 727 dated 14.08.1992 issued by respondent no. 6 - the Superintending Engineer. The respondent no. 8 confirmed the financial benefits of 1st time bound promotion vide letter no. 437 dated 06.07.1996. The petitioner has brought on record the letter dated 06.07.1996, but the order dated 12.08.1992 and memo no. 727 dated 14.08.1992 have not been brought on record. Thereafter, the petitioner was granted 1st ACP vide resolution no. 5207 dated 14.08.2002 with effect from 09.08.1999 vide memo no. 2392 dated 12.11.2003 issued by respondent no. 6. The counter affidavit reveals that further financial benefits were granted vide memo no. 972 dated 19.08.2005.

The respondent no. 6 issued a show cause vide a letter no. 151 dated 22.01.2010 for cancellation of financial benefits of 1st time bound promotion and ACP granted to the petitioner from 1.8.91, 9.8.99 and 1.8.05 on the ground that the petitioner was granted the benefits on the ground that the petitioner would pass the departmental examinations but the petitioner had not passed the Departmental Accounts Examination in all the papers.

This Court finds that the aforesaid show-cause dated 22.01.2010 (Annexure- 2) was issued by referring to the proceedings of the screening-cum-establishment committee held on 15.01.2010.

The petitioner filed his response to the said show-cause on 10.02.2010 (Annexure-3) by stating that he has been declared successful in all the three papers of primary stage held in the year, 2006 and paper of final stage held in the year 2007-08 and that the petitioner had made application to the competent authority through proper channel seeking exemption from passing the departmental examination after completion of 50 years in terms of the circular of the government and therefore, he requested that the cancellation order be not passed until and unless appropriate order is passed on the point of exemption by the Divisional Commissioner, Hazaribagh.

It is the case of the petitioner that the petitioner appeared in the Departmental Accounts Examination, 2005 held on 17th and 18th January, 2006 and was declared successful in the 1st, 2nd and 5th paper of primary stage vide letter dated 19.01.2007. A supplementary counter-affidavit has also been filed in the present case on 23.02.2021 stating that the petitioner had passed all the three papers of the preliminary level, but had passed only two papers of final level and had not passed the third paper being termed as “Pancham Patra”.

The petitioner has also filed further affidavits and relied upon the judgment passed by the Hon’ble Patna High Court in the case of one “Uday Kant Jha and Others Vs. The State of Bihar and Others” in C.W.J.C. No. 1824 of 1995 (R) decided on 14.12.1995 and also the judgment passed by this Court in W.P.(S) No. 5579 of 2010 (Saryug Prasad Vs. The State of Jharkhand and Others) decided on 06.01.2011. In the affidavit, the petitioner has also dealt with the follow up orders which were passed in connection with Saryug Prasad.

It is important to note that the case of Saryug Prasad has been distinguished by the Hon’ble Division bench of this court in Paragraph 5 of the judgement passed in L.P.A. No. 49 of 2017 wherein it was also observed that the appellant of the said case had also not approached the department seeking exemption. Para 5 of the judgement passed in L.P.A. No. 49 of 2017 is quoted as under:

“5. Having heard learned counsel for the appellant and learned counsel for the respondents and from perusal of the papers attached with this appeal as well as the record of the writ application, it appears that the appellant did not pass the Departmental examination which is mandatory for entitlement of Assured Carrier Progression scheme. It is not available to every employee merely on the completion of few years of service but other conditions are also to be fulfilled. The case of Saryug Prasad is totally different from the case of this appellant as Saryug Prasad had passed the mandatory Departmental examination before he approached the Writ Court, while the appellant had never cleared that examination. Appellant cannot claim parity with an employee who has passed the Departmental examination which was a necessary ingredient for grant of Assured Carrier Progression. Even the appellant did not approach the Department for exemption in this regard.”

It is not in dispute that the petitioner had submitted application on 25.09.2008 to the respondent no. 6 through proper channel for exemption from passing the departmental accounts examination after completion of 50 years. In the said application, it had been stated by the petitioner that no departmental examination was held since last continuous five years before his completion of 50 years. The application is contained at Annexure- 4 to the writ petition. The records of the case clearly demonstrate that the application seeking exemption was forwarded to respondent no. 6 by respondent no. 7 vide letter dated 18.02.2009 (Annexure- 5) and the respondent no. 6 had also forwarded the same to the Divisional Commissioner, North Chhotanagpur Division, Hazaribagh- respondent no. 3 vide memo dated 07.03.2009 (Annexure- 6), but no final order was passed on the application of the petitioner seeking exemption.

From the perusal of the impugned order dated 25.02.2010 (Annexure- 7), this Court finds that the same has been passed by only referring to the proceeding dated 15.01.2010. The show-cause reply filed by the petitioner asking the authority to await the decision in the matter of grant of exemption from passing the departmental examination, which was pending before the respondent no. 3, has not been considered. This Court is of the considered view that the claim of the petitioner seeking exemption from passing the departmental examination, which was pending before the respondent no. 3, has an important bearing in the matter of cancellation of earlier benefits granted to the petitioner, for which show cause notice for cancellation was issued. It is specific case of the respondents that the petitioner was granted the said benefits subject to passing the departmental examination.

The fact remains that the impugned order dated 25.02.2010 has not at all taken into consideration the show-cause reply filed by the petitioner and the consequence of filing his application seeking exemption from passing the departmental accounts examination which was admittedly pending before the respondent no. 3. In such circumstances, the impugned order dated 25.02.2010 cannot be sustained in the eyes of law and the same is accordingly set-aside. The matter is remitted back to the respondent no. 6 for passing fresh order in accordance with law.

It is further observed that the matter regarding exemption from passing the departmental examination which remained pending with Respondent No. 3 is also required to be taken to a logical end and accordingly, the respondent no. 3 is directed to take a final decision in accordance with law considering the applicable circulars /decisions etc in the matter of grant of exemption to the petitioner from passing the departmental examination which is said to be pending before the said authority. It is also important to observe that the matter regarding grant of exemption from passing the departmental examination has remained pending before the respondents since 2008 and the petitioner is not at all responsible for such pendency. This aspect of the matter should also be taken into consideration by the Respondent No. 3 while finally disposing off the application of the petitioner seeking exemption from passing the departmental examination. The decision in the matter of exemption from passing the departmental examination be taken within a period of 3 months from the date of communication of this order to the respondent no.3 along with a detailed representation to be filed by the petitioner with a copy of the writ records.

After the decision of the respondent no.3, the matter be placed before the concerned screening cum establishment committee who had deliberated upon the case of the petitioner in the proceedings dated 15.01.2010 on the basis of which the show cause dated 22.01.2010 was issued. The screening committee shall pass a fresh order after granting appropriate opportunity of hearing to the petitioner by issuing a notice through the Respondent no.6. Upon such notice, the petitioner shall file a detailed representation before the Respondent no.6 to be placed before the screening committee for consideration. The screening committee shall also consider the point that once the petitioner was granted the financial benefits subject to passing of departmental examination in future , whether any order of recovery can be passed if the petitioner does not pass the departmental examination. This question would arise only if the respondent no.3 refuses to grant the exemption from passing the departmental examination. The entire exercise be completed within a period of 6 months from the date of passing of the order by the Respondent no. 3 on the prayer seeking exemption from passing the departmental examination.

All the communication with the petitioner be made through speed post at the address to be provided by the petitioner in his representation (s) and the final order (s) to be passed in terms of this order be also communicated to the petitioner through speed post.

This writ petition is disposed of with the aforesaid observations and directions.

Pending interlocutory application, if any, is closed.