Yogeshwar Ram vs State Of Jharkhand And Others

Deepak Roshan, J

Heard learned counsel for the parties through V.C.

The instant writ application has been preferred by the petitioner praying therein for quashing of the order dated 05.12.2013 passed by Respondent No.2, whereby the petitioner's claim for grant of 2nd A.C.P in the scale of Rs.14,300 - 18,300/- has been rejected.

The petitioner further prays for a direction upon the respondents to grant the 1st A.C.P w.e.f. 09.08.1999 in the scale of Rs. 12,000-16,500/- and 2nd A.C.P w.e.f. 11.08.2002 in the next higher scale of Rs.14,300 -18,300/-.

The case of the petitioner is that he was appointed as Assistant Registrar on 11.08.1978 and retired on 01.03.2008 as Deputy Registrar; as such, he completed 12 years of service on 11.08.1990 and 24 years of service on 11.08.2002; thus, he is entitled for 1st A.C.P. w.e.f. 09.08.1999 in the scale of Rs. 12,000-16,500/- and 2nd A.C.P w.e.f. 11.08.2002 in the next higher scale of Rs.14,300-18,300/-.

Earlier, the petitioner had moved before the Patna High Court in C.W.J.C. No. 13339 of 2004 with a prayer for promotion to the post of Senior Selection Grade. The said writ application was disposed of with a direction to the respondent-authorities to decide the issue in accordance with law. Pursuant to the aforesaid order passed by the Patna High Court; the respondent-authorities vide order dated 14.12.2006 has allowed the promotion in Senior Selection Grade in the scale of Rs. 3700-5000/- with replacement scale of which is Rs.12000-16500/- w.e.f. 01.12.1992.

Ms. Sheela Prasad, learned counsel for the petitioner submits that the scheme of grant of Selection Grade had been abolished w.e.f. 01.01.1996 vide Finance Department Resolution No. 660 dated 08.02.1999 and the A.C.P Rules, 2002 has been implemented. Subsequently, an amendment was notified on 23.03.2006 to be implemented w.e.f. 09.08.1999 and Rule 3 (1) has been added whereby it has been mentioned that any benefit granted under selection grade prior to 01.01.1996 cannot be considered to be benefit granted under A.C.P. Relying upon the aforesaid amended Rule, learned counsel submits that petitioner is entitled for 1st as well as 2nd A.C.P w.e.f. 09.08.1999 and 11.08.2002 respectively, in the next higher scale of Rs.14300-18300/-. Earlier, the petitioner had also moved before the Lokayukt, wherein the respondent appeared and submitted the order whereby the claim of the petitioner for grant of A.C.P in the scale of Rs.14300-18300/- has been rejected and thus the petitioner moved before this Court challenging the order denying the benefit.

Mr. S. Garapati, learned counsel for the respondent-State submits that vide Notification No. 3641 dated 14.12.2006 issued by the Co-operative Department, Bihar in compliance to the order passed in C.W.J.C. No. 13339 of 2004, the petitioner has been granted higher pay scale of Rs.3700-5000/- for the period from 01.12.1992 to 31.12.1995.

He further submits that vide order as contained in memo No. 660 dated 08.02.1999 of the Finance Department, Bihar Patna, the provision of benefit of higher pay scale of the post of Senior Selection Grade has been withdrawn. Since the benefit of the higher pay scale was granted to the petitioner for a limited period from 01.12.1992 to 31.12.1995 to the pay scale of Rs. 3700-5000/- and after the order of the Finance Department, Bihar, Patna, the said benefit of higher pay scale granted to the petitioner automatically came to an end.

He further contended that the Finance Department, State of Jharkhand vide Letter No. 437 dated 15.02.2006 fixed the pay scale for the persons employed under the Co-operative Department. The pay scale of Assistant Registrar, Co-operative was Rs. 3,000-4500/- being unrevised pay scale and salary under revised pay scale is Rs.10000-15200/-. He further submits that the writ petitioner herein has already been granted benefit of the revised pay scale of Rs.10,000-15200/- by the notification of the Co-operative Department, Bihar, Patna vide Notification No. 2136 dated 31.07.2002 with effect from 01.01.1996. Hence, the petitioner has already been granted benefit of revised scale for the post which he is holding i.e. Assistant Registrar, Co-operative with effect from 01.01.1996 i.e. much prior to the letter no. 437 dated 15.02.2006.

He further submits that after completion of 24 years of service, the petitioner vide office order No. 178 dated 27.01.2011, has been granted benefit of 2nd A.C.P with effect from 11.08.2002 in the revised pay scale of Rs.12000-16500/-.

Learned counsel strenuously contended that since the petitioner was granted promotion from Assistant Registrar to Deputy Registrar, as such he was not entitled for 1st A.C.P and since the petitioner was entitled for 2nd A.C.P which was granted to him in the scale of Joint Registrar (Rs.12000-16500/-) and since the petitioner did not completed 30 years of service, as such he was not entitled for M.A.C.P.

Learned counsel further referred to the resolution dated 08.02.1999 of the Finance Department and submits that this has been passed pursuant to the report of Fitment Committee, wherein at Clause- 11 it has been stated that the State Government has decided to abolish the existing facilities of Time Bound Promotion and Selection Grades and they shall cease to be applicable w.e.f. 01.01.1996 and since the writ petitioner has already been granted benefit of revised pay scale of Rs.10,000-15,200/- by the notification of Co-operative Department, Bihar Patna dated 31.07.2002 w.e.f. 01.01.1996 that is the post of Assistant Registrar, Cooperative with effect from 01.01.1996 and while working as Assistant Registrar, Co-operative he has been granted 2nd A.C.P benefit of the revised pay scale i.e. of the post of Deputy Registrar and as such the claim of the petitioner as mentioned in the instant writ application is not maintainable in the eye of law.

Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein, it appears that the petitioner belongs to 25th batch that passed the combined competitive examination of the Bihar Public Service Commission. Earlier he has moved before the Patna High Court for grant of promotion by filing a writ application which was disposed of with a direction to the concerned respondent to decide his claim for promotion and pursuant to that vide order dated 14.12.2006, the respondents has allowed the promotion in Senior Selection Grade in the scale of Rs.3700-5000/- "replacement scale of was Rs.12000-16500/- w.e.f. 01.12.1992."

By going through the aforesaid order, it appears that the Senior Selection Grade was given from 01.12.1992 till 31.12.1995. From resolution dated 08.02.1999 it appears from Clause- 11 that the State Government has decided to abolish the existing facilities of Time Bound Promotions and Selection Grades (discussed in paras 10 and 12 of Finance Department Resolution No. 6021 dated 18-12-1989) and they shall cease to be applicable with effect from 01-01-1996 and thereafter in the existing pay scales.

It further transpires that if any such promotion, however, is due under the Rules before 01-01-1996, it shall be given and the payment of arrears in the existing scale shall be made only up to 31st December, 1995 after which the promotion would be deemed to have been automatically terminated. While fixing pay in the revised scales, such promotions given after 31-12-1995 will not be taken into consideration. If such promotions have been given after 31-12-1995, then the question of adjustment of such additional emoluments obtained in the process will be decided after the Fitment Committee submits its recommendations on promotion policy.

Further, promotion to any vacancy of a post identified as 'need based post' would be admissible. The 5th Pay revision w.e.f. 01-01-1996 is not based on existing scales; rather it is on post-to-post basis as the terms of reference is to merge the State Government scales with the Central Government Scales.

Thus, by going through the facts of the case and the resolution, it appears that the Government has decided to abolish the existing facilities of the time bound promotions and the selection grade and was ordered to cease from 01.01.1996.

It further transpires that the Finance Department, State of Jharkhand vide its Letter No. 437 dated 15.02.2006 fixed the pay scale for the persons employed under the Co-operative Department. The pay scale of Assistant Registrar, Co-operative was Rs. 3,000-4500/-being unrevised pay scale and salary under revised pay scale is Rs.10000-15200/-.

It further transpires that the writ petitioner herein has already been granted benefit of the revised pay scale of Rs.10,000-15200/- by the notification of the Co-operative Department, Bihar, Patna vide Notification No. 2136 dated 31.07.2002 with effect from 01.01.1996. Hence, the petitioner has already been granted benefit of revised scale for the post which he is holding i.e. Deputy Registrar, Co-operative with effect from 01.01.1996 i.e. much prior to the letter no. 437 dated 15.02.2006. As aforesaid, 5th Pay revision is not based on existing scales; rather it is on post-to-post basis as the terms of reference is to merge the State Government scales with the Central Government Scales

In view of the aforesaid discussions it appears that since the petitioner was promoted as Deputy Registrar from Assistant Registrar, thus he is not entitled for 1st A.C.P. However, the petitioner was entitled for 2nd A.C.P and the same was granted to him in the scale of Joint Registrar. The law in this regard is very clear, inasmuch as, A.C.P benefits will be applicable only to the employees who have not been promoted, but in the instant case; the petitioner got the promotion from Assistant Registrar to Deputy Registrar, as such, he was denied 1st A.C.P and since thereafter, he was not promoted; therefore, as per the A.C.P Scheme he was granted 2nd A.C.P. and since he has not completed 30 years of service, he is not entitled for 3rd M.A.C.P.

Accordingly, I do not find any error in the impugned order, hence no relief can be granted to this petitioner.

Consequently, the instant writ application stands dismissed.