State Of Jharkhand And Ors vs Dhananjay Kumar

Heard learned counsel for the appellants State and learned counsel for the private respondent.

The appellants State is aggrieved by the impugned order dated 8.2.2016, passed by the Hon’ble Single Judge, in WP(S) No.5558 of 2012,

whereby the writ application filed by the respondent writ petitioner challenging the order dated 29.08.2012, rejecting his claim for the benefit of the 2nd

ACP w.e.f. 16.10.2004, and giving the benefit of 1st ACP w.e.f. 16.10.2004 and 2nd ACP w.e.f. 7.7.2008, has been allowed, quashing the said order

dated 29.8.2012, with all the consequential benefits.

The facts, which are not in dispute, are that the respondent writ petitioner was appointed on the post of Assistant in the Office of Advocate

General, Bihar, on 30.04.1979 and he also superannuated from service on 31.12.2011. On the basis of the Departmental Screening Committee for

giving the benefits of the Assured Career Progression scheme to the employees, pursuant to the State Government's Resolution dated 14.08.2002, by

order dated 16.12.2004, even though the writ petitioner had not been given the benefit of 1st ACP as had not cleared the departmental examination for

the same and was not entitled thereto, he was directly given the benefit of 2nd ACP w.e.f. 16.10.2004, i.e., the date from which he was exempted

from passing in the departmental examination, on completion of the age of 50 years. The aforesaid order dated 16.10.2004, whereby the petitioner was

given the 2nd ACP directly w.e.f. 16.10.2004, was also approved by the State Government and thereafter the writ petitioner superannuated from

service on 31.12.2011.

Subsequently, by order dated 25.01.2012, the benefit of the 2nd ACP was recalled by the State Government, and the writ petitioner was allowed the

benefit of 1st ACP w.e.f. 16.12.2004 and 2nd ACP w.e.f. 7.7.2008. The writ petitioner challenged the said order before this Court in WP(S) No.1223

of 2012, and in view of the fact that the said order was issued without any show-cause to the petitioner, the same was quashed by the Writ Court by

order dated 29.06.2012, passed in WP(S) No.1223 of 2012, giving the liberty to the respondent State to take action in accordance with law and after

giving the show-cause notice to the writ petitioner.

In compliance of the aforesaid order, the writ petitioner was given a hearing by the respondent No.2, the Principal Secretary to the State

Government, in its Department of Personnel, Administrative Reforms and Rajbhasa, who passed the impugned order as contained in Memo No.10005

dated 29th August 2012, in which, the reason for recalling the 2nd ACP granted to the petitioner w.e.f. 16.10.2004 has been explained, stating that the

writ petitioner was not entitled to the 2nd ACP on that date, as he had not passed the departmental examination for getting the benefits of ACPs, and

when he was exempted from passing the departmental examination, he could first be given the 1st ACP and not the 2nd ACP, and accordingly, the

benefit of the 1st ACP was allowed w.e.f. 16.10.2004, and 2nd ACP was allowed w.e.f. 7.7.2008. It was further made clear in the said order that the

petitioner would have become entitled to the 3rd MACP on 6.07.2014, but in view of the fact that the petitioner had superannuated prior to that date,

the same was not applicable to him. It is this order, which has been challenged by the respondent writ petitioner before this Court in WP(S) No.5558

of 2012. The said writ application was allowed by the Hon’ble Single Judge, vide the impugned order dated 08.02.2016, quashing the order dated

29.08.2012 giving the following reasons:-

“9. After hearing the learned counsel for the respective parties, the petitioner has been able to make out a case for interference due to

the reasons stated herein below:-

Admittedly, the petitioner had been granted the exemption in the year 2004 and he had been exempted from appearing in the departmental

examination on the basis of completion of terms, as contained in the departmental resolution dated 15.05.1992 vide Memo dated 16.10.2004

and the petitioner had been entitled to get the 1st and the 2nd ACP from 9.08.1999 and 16.10.2004 respectively i.e. after completion of 12

and 24 years of service and the petitioner is also entitled to get the 3rd MACP after completion of 30 years of service on 30.04.2009 as per

the resolution dated 14.08.2002. So far as shifting of the date of exemption from passing the departmental examination from 16.10.2004 to

10.01.202, which is the date of completion of 50 years of age, the petitioner does not want to press the same relief.â€​

Aggrieved by the said order, the present LPA has been filed the appellants State.

Learned counsel for the appellants State submitted that the impugned order passed by the Writ Court cannot be sustained in the eyes of law,

inasmuch as, the Writ Court has held that in view of the resolution of the State Government, the petitioner would be entitled to the 1st and 2nd ACPs

w.e.f. 9.08.1999 and 16.10.2004 respectively, i.e., after completion of 12 and 24 years respectively, of his service and he would also be entitled to the

MACP after completion of 30 years of service on 30.04.2009. It is submitted by learned counsel for the State that the Hon'ble Single Judge has

committed a manifest error of law in allowing the benefits of ACPs and MACP from these dates to the respondent writ petitioner, ignoring the fact

that the respondent writ petitioner had not passed the departmental examination, which is a pre condition for granting such benefits, and he became

entitled for the same only when he was exempted from passing the departmental examination upon completion of 50 years of age. Learned counsel

accordingly, submitted that the impugned order passed by the Writ Court cannot be sustained in the eyes of law.

Learned counsel for the respondent writ petitioner on the other hand, has opposed the prayer, and submitted that the entire exercise of granting the

2nd ACP w.e.f. 16.10.2004 and its confirmation by the State Government had taken place prior to the superannuation of the writ petitioner, i.e., prior

to 31.12.2011. After his superannuation the benefits granted to the petitioner have been illegally withdrawn. Learned counsel accordingly, submitted

that there is no illegality in the impugned order passed by the Writ Court.

Having heard learned counsels for both the sides and upon going through the record, we find that the resolution of the State Government dated 14th

August 2002, giving the benefits of the Assured Career Progression Scheme to its employees is absolutely clear in its terms. It provides that the 1st

ACP is to be granted upon the completion of regular service of 12 years of service, and thereafter on completion of another 12 years of regular

service, an employee is entitled to the 2nd ACP, if he fulfills the conditions therefor. It is further made clear that if for any disqualification of the

employee, the 1st ACP is delayed, the 2nd ACP has also to be delayed accordingly.

It is also stated that subject to the conditions for granting the ACPs, if an employee completes 24 years of regular service without getting any

promotion or the benefit of ACP to him, he would be directly given the benefit of 2nd ACP. It was in view of this provision that the writ petitioner had

been given the benefit of 2nd ACP w.e.f. the date he was exempted from passing the departmental examination. This clearly shows that the 2nd ACP

was given to the writ petitioner, after removing his disqualification. It was not the case that the writ petitioner was otherwise entitled for getting the 1st

and the 2nd ACPs on their due dates, and he could not be given both the benefits due to no fault of his, even after completion of 24 years of his

service, rather this is a clear case in which the writ petitioner was not fulfilling the conditions for those benefits. On completion of 50 years of service,

he was given the exemption from the condition precedent, i.e., passing the departmental examination, in accordance with to the Government circular,

and though by that time, he had completed 24 years of service, but he could only be given the 1st ACP, and not the 2nd ACP directly. It is well settled

that if an employee is not getting any benefit due to some of his disqualification and if that disqualification is removed, he would get that benefit only

which was denied due to the disqualification, and not any higher benefit. As such, on 16.10.2004, when his disqualification was exempted, he would be

entitled to the 1st ACP only, and only after completion of 12 years of regular service thereafter, he would be entitled to the 2nd ACP, and this is what

was squarely done by the respondent No.2, the Principal Secretary to the State Government, in the Department of Personnel, Administrative Reforms

and Rajbhasa, by the impugned order as contained in Memo No.10005 dated 29th August 2012. It was also clarified that since the petitioner had

superannuated prior to the date of his entitlement to the MACP, the same could not be given to him. As such, we do not find any illegality in the

aforesaid order passed by the appellant No.2.

We accordingly, find that the Hon’ble Single Judge has misguided himself in quashing the aforesaid order, without taking into consideration the

aforesaid facts discussed above. As such, the impugned order dated 08.02.2016, passed by the Writ Court in WP(S) No.5558 of 2012, cannot be

sustained in the eyes of law, which we hereby, set-aside.

At the same time, we would like to clarify that there was an order dated 4.7.2014, whereby the petitioner was directed to deposit Rs.1,58,073/-in

the Treasury, which was paid in access to the petitioner. This order has been passed after the retirement of the petitioner, and we also find that the

impugned action of the State Government in fixing the pay scale of the petitioner directly in the 2nd ACP directly w.e.f. 16.10.2004, was neither due to

any misrepresentation made by the writ petitioner, nor he can be held responsible for the same. We accordingly, direct that no recovery of the

aforesaid amount can now be made from the respondent writ petitioner.

The retiral benefits of the respondents writ petitioner shall be re-fixed by the State Government in accordance with the order contained in memo

No.10005 dated 29.08.2012 issued by the Appellant No.2, and till that time, there shall not be any stoppage of the payment of pension to the writ

petitioner. The delay in re-fixing the pension, shall not be to any detriment to the respondent, and no recovery of the differential amount shall be made

from his pension, due to any delay made by the appellant State in this exercise.

This Letters Patent Appeal is accordingly, allowed with the directions and observations as above.