STATE OF JHARKHAND Vs. ASHOK KUMAR SINHA

JUDGEMENT

(1.) The instant intra-court appeal preferred by the State of Jharkhand under Clause-10 of Letters Patent is directed against the order/judgment dtd. 19/2/2020 passed by the learned Single Judge of this Court in W.P.(S) No.1606 of 2010, whereby and whereunder, the decision was taken in Memo No.666 dtd. 22/3/2010 issued under the signature of the Superintending Engineer, Building Circle, Hazaribagh, by which, the decision taken, was communicated of recall of benefits of 1st Time Bound Promotion/ 1st and 2nd Assured Career Progression Scheme granted to the writ petitioner with effect from 3/9/1983 and 9/8/1999 on the ground that the writ petitioner has not passed the departmental accounts examination.

(2.) The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, are as hereunder:- It is the case of the writ petitioner that he was appointed to the post of Correspondence Clerk on ad hoc basis on 3/9/1973. However, he was appointed on regular basis in accordance with law against a sanctioned vacant post of Correspondence Clerk vide office order as contained in Memo No.348 dtd. 15/10/1973. He worked to the satisfaction of all concerned and no complaint of any kind was ever made against him from any corner. No departmental proceeding was ever initiated against the writ petitioner or any criminal cases were ever lodged against him. The writ petitioner along with others was granted regular promotion vide office order as contained in Memo No.431 dtd. 24/3/1985. In pursuance to an order passed by the Hon'ble Patna High Court, Ranchi Bench in C.W.J.C. No.241 of 1990 dtd. 30/7/1998, the regular promotion granted to the writ petitioner was cancelled vide office order as contained in Memo No.525 dtd. 5/7/1999. However, he was granted the 1st Time Bound Promotion with effect from 3/9/1983 in accordance with law on completion of ten years of successful service. In the meantime, the Resolution No.660 dtd. 8/2/1999 was implemented with effect from 1/1/1996 and as per the said Resolution, the Time Bound Promotion granted to the employees were withdrawn and they were placed in the basic scale and as such, the benefit of the 1st Time Bound Promotion granted to the writ petitioner with effect from 3/9/1983 had also been withdrawn. After creation of Jharkhand, the State of Jharkhand introduced the scheme of Assured Progression Scheme vide notification dtd. 14/8/2002 in terms thereof, if an incumbent not promoted within the period of 12 years, would be granted one higher scale of pay and another upon 24 years, if he has not been promoted. In pursuance to the notification dtd. 14/8/2002, a meeting of the Circle Establishment-cum-Screening Committee was held on 18/9/2003 and thereafter, in pursuance to the decision taken in the said meeting, the writ petitioner was granted benefit of 1st and 2nd Assured Career Progression Scheme w.e.f. 9/8/1989 vide office order contained in Memo No.2392 dtd. 12/11/2003. In pursuance to the said decision, the pay scale of the writ petitioner was revised vide office order contained in Memo No.2750 dtd. 27/12/2003. Another meeting of the Circle Establishment-cum- Screening Committee was held on 13/8/2005 and there was some rectification in the decision communicated vide office order contained in Memo No.2392 dtd. 12/11/2003 with regard to pay scale and the same was circulated vide office order contained in Memo No.972 dtd. 19/8/2005. As per Rule 157(3)(G) of the Bihar Board's Miscellaneous Rules, departmental examination has to be held twice a year on the 2nd Monday of March and September every year or on such other fixed by the Board but it is not being conducted twice in a year, rather it is not even being conducted every year. However, as and when the departmental examination was conducted, the petitioner appeared and he had cleared 1st (final) and 2nd paper (preliminary) on 29/10/1990. It is the further case that the writ petitioner has received a show cause notice contained in Memo No.153 dtd. 22/1/2010 issued under the signature of the Superintending Engineer, Building Circle, Hazaribagh by which he was directed to file response to the same as to why the benefit of time bound promotion/Assured Career Progression Scheme granted to him without passing the Accounts examination be not cancelled. The petitioner, thereafter, immediately filed reply to the show cause on 11/2/2010 bringing the entire facts of grant of benefit of time bound promotion/Assured Career Progression Scheme to him before the Superintending Engineer, Building Circle, Hazaribagh. The petitioner received another show cause notice contained in Memo No.364 dtd. 17/2/2010 issued under the signature of Superintending Engineer, Building Circle, Hazaribagh but the petitioner once again filed detailed reply to the show cause on 25/2/2010. It is the further case that the respondents did not consider the reply submitted by the writ petitioner and issued an office order contained in Memo No.666 dtd. 22/3/2010 under the signature of the Superintending Engineer, Building Circle, Hazaribagh communicating the petitioner that a decision has been taken that the benefits of 1st Time Bound Promotion/1st and 2nd Assured Career Progression Scheme granted to him w.e.f. 3/9/1983 and 9/8/1999 has been cancelled since it was granted without passing the Accounts examination and it was further directed to recover the excess amount paid to the writ petitioner from his salary/gratuity/leave encashment. Being aggrieved with the aforesaid order, the writ petitioner has filed writ petition being W.P.(S) No.1606 of 2010, but, the learned Single Judge, after taking into consideration the aforesaid facts, has quashed the impugned order as contained in Memo No.666 dtd. 22/3/2010 passed by the authority concerned, against which, the present intra-court appeal has been preferred.

(3.) It appears from the fact as referred herein based upon the pleading made in the writ petition that the writ petitioner was working under the Building Construction Department and while posted in the Building Circle, Hazaribagh, a decision as contained in Memo No.666 dtd. 22/3/2010 was communicated, by which, the benefit of upgradation granted w.e.f. 3/9/1983 and 9/8/1999 has been cancelled on the ground that the writ petitioner has not passed the departmental accounts examination.