HARIHAR PRASAD SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) In the captioned writ application, the petitioner has inter alia prayed for issuance of writ of certiorari for quashing the order dated 25.07.2009 (Annexure-6) passed by respondent no.1 disallowing exemption from passing departmental Accounts Examination after retirement from service and for declaration that Rule 157 (3) (J) of Bihar (now Jharkhand) Board Miscellaneous Rule 1958 cannot be insisted as a condition precedent for grant of ACP (Assured Career Progression) in the notification dated 14.08.2002 as the same is not a rule for promotion of Account Clerk nor there is any other Rule requiring passing of examination for promotion. The petitioner has further prayed for grant of 2nd Time Bound Promotion i.e. Senior Selection Grade with effect from 26.07.2002 i.e. after completion of 25 years of service or in the alternative grant 2nd ACP with effect from 26.07.2001 on completion of 24 years of the service and the petitioner has further prayed for direction to respondent no.2 for grant of full Pension, Leave, Salary, Gratuity etc. on the basis of last pay drawn which comes to be equivalent on grant of 2nd Time Bound Promotion with effect from 26.07.2002 in view of decision of this Court dated 11.12.1995 vide Annexure-2.

(2.) The facts as disclosed in the writ application is that the petitioner was promoted from Class-IV to Class III in the year 1977 and joined the post of lower Divisional Clerk. Subsequently, post of lower Divisional Clerk was merged with Upper Divisional Clerk. Since then, the petitioner had been working as Accounts Clerk till the date of his retirement i.e. 31.07.2009. It has been averred in the writ application that the petitioner has passed the Departmental Examination (Hindi noting and Drafting Examination) in the year, 1981. The petitioner has been granted 1st time Bound promotion with effect from 26.07.1987 and the same has been verified by District Account Officer in the year 1990 and he became entitled for second time bound promotion with effect from 26.07.200 The Circular of the State Government dated 15.05.1992 granting exemption to those Accounts Clerk who had crossed 50 years and had appeared thrice in the examination but could not pass. It has further been averred in the writ application that Rule 157 (3) (J) of Bihar (now Jharkhand) Board Miscellaneous Rule has been struck down by the Hon'ble Patna High Court in C.W.J.C No.42 of 1989 (R). It has further been submitted that in the wake of adoption of Central pay scale, the State of Jharkhand issued a notification to give benefit of 2nd ACP (Assured Career Promotion) by the Central Government a type of time bound scale enhancement on completion of 12 and 24 years of services. The petitioner has been granted benefit of only one ACP though completed more than 24 years service by an order dated 21.06.2003 on the ground that he had been promoted from grade IV, though in the Accounts Cadre he was not granted a single promotion during the span of last 32 years of service in that cadre. The petitioner applied for exemption i.e. application dated 05.06.2009 with affidavit which was forwarded to the Commissioner South Chotanagpur Division with recommendation of the concerned authority verifying the fact that no examination was held for recent past 5 years prior to his retirement. The application of the petitioner was forwarded to the Commissioner South Chotanagpur Division Ranchi through proper channel by the Superintending Engineer Rural Works Department Work Circle Ranchi vide letter dated 03.07.2009 and the Commissioner South Chotanagpur arbitrarily rejected application/recommendation for exemption vide letter dated 25.07.2009 as per Annexure-7 of the writ application. Being aggrieved by the impugned order dated 25.07.2009 vide Annexure-7 to the writ application, the petitioner left with no other alternative, efficacious and speedy remedy, has approached this Court invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances.

(3.) Learned counsel for the petitioner during course of hearing has strenuously urged that after attaining the age of 50 years, there was no requirement as per the Government Circular to appear the examination. Moreover, for the several years the departmental examination was not held. Therefore, the rejection of the application of the petitioner vide Annexure-7 is per se illegal. Learned counsel for the petitioner further submits that the respondent ought not to have insisted upon passing Accounts Examination for grant of ACP. Learned counsel for the petitioner further submits that the respondent is bound to fix the pension on the basis of last pay drawn under Rule 252 of the Jharkhand Pension Rules. Learned counsel for the petitioner further submits that the recommendation in respect of petitioner vide Annexure-8 to the writ application would clearly reveal as per the circular of the Government dated 15.05.1992 the petitioner having crossed the age of 50 years, is exempted from appearing for the examination. Therefore, the petitioner is entitled to 2nd Time Bound Promotion on completion of 24 years of service the Accounts Clerk i.e. 25.07.2002.