State of Jharkhand @APPELLANT@Hash Prem Chandra Prasad Verma

The dispute in this appeal is on the question of conferring on the writ petitioner the benefit of Assured Career Progression Scheme (A.C.P.) of the

State of Jharkhand. The respondent-writ petitioner was a Clerk with the Drinking Water and Sanitation Department, Government of Jharkhand. His

date of birth is 1st August, 1948. As per the applicable rule of A.C.P., he became entitled to such benefit on a date later to 1st August, 1998 on

attaining the age of fifty years, provided he otherwise fulfilled the criteria stipulated in the applicable rules. The entitlement of A.C.P. benefit originates

from the Assured Career Progression Scheme framed by the State authorities. The eligibility for getting such benefit is specified in a memorandum

dated 15th May, 1992 bearing Memo No. 3/R-1-109/91/Ka-4674. The Clauses 1, 2 and 3 of this memorandum stipulates :-

1& foHkkxh; ijh{kk ls foeqfDr dk vknsâ€​k mu jktif=r@vjktif=r ljdkjh lsodksa ij ykxw gksuk ftUgksus 50 o""kZ vk;q iwjh dj yh gSA

1 â€" Exemption from appearing at departmental examination will be applicable to those Gazetted/Non-Gazetted Government servants, who have

completed 50 years of age.

2&ftl frfFk ls foeqfDr dk vknsâ€​k fuxZr fd;k tk;xk mlh frfFk ls foeqfDr dk vknsâ€​k izHkkoh gksxkA

2 â€" The order of exemption will be effective from the date of issuance of the said exemption order.

3& foeqfDr mUgha ljdkjh lsodksa dks nh tk ldsxh] ftUgksaus ijh{kk esa Hkkx ysus dk yxkrkj iz;Ru fd;k] ijUrq vlQy jgsa] vFkok ljdkjh dkj.kksa ds pyrs

ijh{kk esa Hkkx ugha ys lds] vFkok muds 50 o’kZ dh vk;q iwjk djus ds 5 ¼ ikap o’kZ ½ iwoZ fu/kkZfjr foHkkxh; ijh{kk dHkh vk;ksftr

ugha dh x;h gksA

3 â€" The exemption would be granted only to those employees who have continuously tried to appear at the examination but could not succeed, or

who could not appear in the examination due to governmental work, or the scheduled departmental examination could not be held during last five years

with respect to those who have completed fifty years of age.

The respondent-writ petitioner had appeared in the departmental examination for the first time in 1994 and cleared one paper only. He again

appeared in the departmental examination in 1997 but could not clear the second and third papers. He had applied again for sitting in the examination

in 1999. We find from a communication originating from the Superintending Engineer, Public Health and Engineering Circle, Ranchi dated 16th May,

2001 that due to his official engagement he could not appear in the 1999 examination. A copy of this communication has been annexed at page 79 of

the Memorandum of Appeal.

The initial order of rejection of the respondent’s claim was made on 6th September, 1999 and the reason given therein is that he was not

fulfilling the conditions stipulated in Clause 3 of the aforesaid memorandum. It has however not been clarified on which particularÂ

requirement of Clause 3 there was default on the part of the writ petitioner. There was another rejection letter which was issued

subsequent to the recommendation made by the Superintending Engineer. In this rejection letter dated 10th October, 2001, a copy of which has

been annexed at page 80 of the Memorandum of Appeal, the reason shown for rejection is that the writ petitioner’s plea stood earlier rejected and

there was appeal provision to contest such rejection order. Learned First Court upon considering the materials available held and directed:-

“Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner

needs consideration. The petitioner is fully entitled for the benefits of ACP though he has retired in the year, 2008 itself. It cannot be said by the

respondents as there was an exemption order in the year, 2014, the petitioner is not entitled for the benefits of ACP. This argument of learned counsel

for the respondents is not acceptable to this Court, the petitioner has applied for exemption in the year, 1999 itself, which was considered in 2001.

Now, in the year, 2014 an order of exemption has been issued, which clearly shows callous approach of the respondents.

It is an admitted fact that much prior to the date of retirement, the petitioner had applied for exemption. It is the respondents, who are at fault and not

the petitioner. Though an exemption was given to the petitioner in the year, 2014 but in view of the fact that before the Division Bench, it was

accepted by the respondents that the petitioner had applied way back in the year, 1999 and there was a clear cut finding of the Hon’ble Division

Bench, which was never challenged before the Hon’ble Apex Court and as such, it has attained finality. Moreover, the Cont. Application was

dismissed on the technical ground that the petitioner had not challenged the impugned order dated 14.11.2014. In view of the order of Hon’ble

Division Bench and in view of the Resolution of the State Government, the petitioner is fully entitled for the benefits of ACP.

The order of exemption dated 24.07.2014 will not come in the way of grant of benefits of ACP to the petitioner. Even going through the impugned

order, it transpires that earlier order of exemption was passed by the Superintending Engineer. Now again the order has been reviewed by the same

authority i.e, Successor in the Office, which is not permissible in the eyes of law. The authority, who has reviewed the order of his predecessor might

not be aware of the Rules. The Hon’ble Apex Court in case of R.T. Rangachari vs. Secretary of State for Indian in Council reported in 1937 0

AIR (PC) 27 has observed that the successor in office cannot review the decision of his predecessor.

As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, I hereby quashed the impugned order dated 14.11.2014

(Annexure-13) and direct the respondent No.5 to consider the case of the petitioner regarding grant of financial up-gradation under 1st Assured

Career Progression Scheme (ACP) by exempting the petitioner from necessity of passing of departmental examination with effective from 01.08.1998

with all consequential benefits viz. payment of arrears, re-fixation of pension etc. The entire exercise be completed within a period of six weeks from

the date of receipt of a copy of this order.â€​

As would be evident from the order of the learned First Court, the exemption from departmental examination was granted to the respondent-writ

petitioner during pendency of a contempt proceeding in the year 2014 and the date of the exemption order was 24th July, 2014. It is contended on

behalf of the appellants that since exemption was granted in the year 2014, the writ petitioner could not be given any benefit thereof as he had

superannuated on 31 st July, 2008. The writ petitioner otherwise became eligible for the A.C.P. on 1 st of August, 1998, but for the rejection orders.

Mr. Agarwal, learned Advocate for the State has assailed the judgment of the learned First Court mainly on the ground of misconstruction of the

conditions for grant of A.C.P. His submission is that to become eligible, there must have had been successive failures in the departmental examination

but the respondent-writ petitioner did not appear in the 1999 departmental examination. That is the main ground on which the appeal is founded and

has been argued before us. But we find from the aforesaid Clause 3 that there is an exception carved out on the requirement of successive failures.

That exception entails a situation in which for discharge of governmental duties the incumbent is unable to appear in the examination. In that case,

requirement of sitting in successive examination would be waived.

The letter of the Superintending Engineer to which we have referred to earlier, specifically cites this reason for which the respondent-writ petitioner

could not sit in the 1999 examination. No other ground has been shown to us in course of hearing on the basis of which the respondent’s claim for

A.C.P. benefit was or could be rejected. There is no denial of the factual position outlined in the letter of the Superintending Engineer that the

respondent was discharging his governmental duty for which he could not sit in the examination. In the light of these facts, we do not think the second

rejection order issued on 10th October, 2001 was in compliance of the applicable rules.

The authorities sought to apply reasoning akin to the principle of res judicata in rejecting the respondent’s claim. The earlier rejection order was

passed on 6th September, 1999. The letter of the Superintending Engineer was issued on 16th May, 2001, subsequent to the date of first order of

rejection. Thus, there was development after the initial order of rejection which the authorities failed to take into account. Moreover, we fail to

understand as to why exemption order was made in the year 2014 as the respondent’s eligibility on account of successive failures in the

departmental examination stood fulfilled in the year 1999 itself. We find that attempt on the part of the authorities to give effect to exemption in the

year 2014 is only an illusionary exercise. If such an exemption could be ordered in the year 2014, no additional ground has been shown as to why it

was not given in the year 1999 or 2001 itself. There was no other change of circumstances in the interim period.

In these circumstances, we do not find any reason to interfere with the judgment and order of the learned First Court. The appeal shall stand

dismissed. We however extend the timeframe for complying with the order of the learned First Court till 21st December, 2018.

As we are dismissing the main appeal itself, the application (I.A. No. 1011 of 2018) for stay of operation of the judgment and order of the learned

First Court shall also stand dismissed.

There shall be no order as to costs.