AI Structured Summary
Not yet generated for this judgment
Judgment
Pramath Patnaik, J
The facts giving rise to filing of the instant writ
application, in brief, is that petitioners have joined the establishment of Civil Courts at Dhanbad as Assistants on 21.05.1993, 11.07.1994 and 13.07.1994 respectively and since then they are working on the said post. Learned counsel for the
petitioners submitted that on completion of 12 years of service, the petitioners submitted representation before the respondents-authorities, which was though discussed in the Screening Committee and the Committee even recommended the
case of the petitioners for grant of 1st ACP in their favour, but respondent no. 5 rejected the claim of the petitioners vide office order dated 12.03.2012 on the ground that they have neither passed the required departmental examination nor
have completed the age of 50 years, which is impugned in this case.
Being aggrieved, the petitioner has approached this
Court for quashing order as contained in office order dated 12.03.2012. However, during pendency of the writ application, an amendment application was allowed vide order dated 26.11.2014 in I.A. No. 5751 of 2014, to challenge office
order dated 28.01.2014 whereby respondent no. 5 has given the benefit of 1st M.A.C.P to the petitioners from the date of passing of their departmental examination i.e. 12.01.2013.Â
Under such circumstances, the main grievance of the
petitioners are the date of grant of M.A.C.P and they want it to be ante dated from the date of completion of 12 years of service from their initial appointment.
Heard Mr. R.S. Mazumdar, learned senior counsel for
the petitioners and Ms. Chandra Prabha, learned S.C IV for the respondents-State.
Learned senior counsel for the petitioners straightway
coming to recent letter dated 23.06.2017, issued by Law
Department addressing to all District & Sessions Judge, Jharkhand submitted that in its letter the Law Department has clarified that exemption from mandatory passing of departmental examination for grant of MACP/ACP shall be applicable
to all such Class III employees for whom no departmental examination has been held in between their date of appointment to the date of their eligibility of MACP/ACP i.e. the date on which they have completed the prescribed length of
service. It has further been submitted that though between the date of joining of service and completion of 12 years of service once departmental examination was held on 12.08.1998 but till date even the services of the petitioner was not
confirmed as the same was confirmed vide order dated 20.12.2006. Hence, the petitioners were not afforded with sufficient opportunity to pass the departmental examination thereby it has been submitted that they are falling under the
category of employees as mentioned in letter dated 23.06.2017 of the Law Department and are entitled to get the benefit of ACP from the date of their completion of requisite 12 years of service. It has further been submitted that rationale
behind issuance of letter dated 23.06.2017 is that incumbents for grant of ACP/MACP benefits need not suffer for non-holding of departmental examination, which the respondents are bound to hold in a regular and timely manner.
Learned senior counsel for the petitioners further
submitted that in the case of typists working in Civil Court, Dhanbad for whom no departmental examinations were held till 2013, while considering the letter dated 23.06.2017, has directed the respondents to consider the case of such typists
vide order dated 25.08.2017 in W.P. (S) No. 1893 of 2012 and case of the petitioners stand on similar footing.
As against this, learned counsel for the respondent no. 6
submitted that in view of para 3 (vii) of Resolution No. 5207 (fa) dated 14.08.2002 of Jharkhand Government, petitioners were required to pass departmental examination for getting the benefits of ACP. It has further been submitted that it is
not the case where no departmental examination was conducted rather on 12.08.1998, 23.11.2008 and 12.01.2013
departmental examinations were conducted but the petitioners failed to crack the examinations and were declared unsuccessful and lastly when they passed the departmental examination held on 12.01.2013, they have been granted 1st
financial up-gradation from the date of passing of their departmental examination vide office order dated 28.11.2014. It has further been submitted that so far letter dated 23.06.2017 of the Law Department is concerned, it says that if no
departmental examinations is held between the date of initial joining and date of eligibility to get ACP/MACP, the employees are entitled to get the benefit of ACP from the date of their completion of requisite 12 years of service; hence it is not
applicable to petitioners.
From the pleadings available on record, it appears that
the petitioners seek their date of grant of 1st ACP/MACP ante dated i.e. from the date when they completed 12 years of continuous service since their joining on the strength of letter dated 23.06.2017 issued by the Law Department and order
dated 25.08.2017 passed in W.P. (S) No. 1893 of 2012.Â
For better appreciation, it would be apposite to quote
relevant portion of letter dated 23.06.2017:
           i= l[a;k&ch0&fof/k&LFkk0&04@2016&1331@ts0
           >kj[k.M ljdkj
fof/k foHkkx] >kj[k.M e=aky;
         /kqokZ] jkaph&834004
Â
izokl dqekj flag]
  iz/kku lfpo&lg&fof/k ijke'khZA
 lsok es]a
 lHkh iz/kku ftyk ,oa l= U;k;k/kh'k
 ¼U;k;k;qDr] jk¡ph lfgr½  >kj[k.M] jk¡phA
  jk¡ph] fnukda&23 twu] 2017
fo""k;%& jkT; ds O;ogkj U;k;ky;ksa es adk;Zjr oxZ&III ds dfeZ;kas ds foHkkxh;   ijh{kk eas mÙkh.kZrk eas NwV nsus ds laca/k esaA
 egk'k;]
 mijkDsr fo""k; ds lanHkZ eas dguk gS fd nso?kj ls izkIr izLrko ij dkfeZd] iz'kklfud lq/kkj rFkk jktHkk""kk foHkkx ,o a;ktsuk&lg&foÙk foHkkx dh lgefr ,o a rnuqlkj ekuuh; fof/k ¼eq[;½ e=ah }kjk iznÙk vuqeksnu ds vkykds eas fof/k
foHkkxh; i=kda&1287@ts0] fnukad&03-06-2016 }kjk O;ogkj U;k;ky;] nso?kj es adk;jZr dfeZ;kas dh fu;qfDr dh frfFk ls mUgs ans; ,0lh0ih0@,e0,0lh0ih0@izkUsufr dh frfFk ------------- foHkkxh; ijh{kk vk;ksftr ugha gksus ds QyLo:i mDr
vof/k es afoHkkxh; ijh{kk dh vfuok;Zrk dk s{kkra fd;k x;kAÂ
2- mijksDr ls gh vkPNkfnr le:i ekeys eas dqN vU; ftyks ads O;ogkj
U;k;ky;kas ls izkIr izLrkoksa ds vkykds esa dkfeZd] iz'kklfud lq/kkj rFkk jktHkk""kk foHkkx dk ijke'kZ izkIr fd;k x;kA mDr ijke'kZ ds mijkra lgefr grsq izsf""kr izLrko ij lHkh ftyks ads ln`'; ekeys dk slesfdr dj izLrko iszf""kr djus dk ijke'kZ
;ktsuk&lg&foÙk foHkkx }kjk fn;k x;kA
3- ;kstuk&lg&foÙk foHkkx ds mijkDsr ijke'k Zds vuqikyu eas fof/k foHkkx }kjk jkT;ks ads vU; O;ogkj U;k;ky;kas ls izklafxd ekeys ls lacaf/kr izfronsu dh ekax dh x;hA mDr ds vkykds eas jkT; ds U;k;eMaykas ls izkIr izfrosnuks adk
slesfdr dj izklafxd ekeys ls lacaf/kr izLrko ij ;kstuk&lg&foÙk foHkkx dk ijke'kZ izkIr fd;k x;kA
4- mDr ijke'kZ ds vkykds eas jkT; ds ,lss ekeykas ls vkPNkfnr U;k;eaMyks ads oxZ&3 ds dfeZ;kas dh fu;qfDr dh frfFk ls mUgs ans; ,0lh0ih0@,e0,0lh0ih0@izksUufr dh frfFk ds chp foHkkxh; ijh{kk vk;kfstr ugha gksus ds QyLo:i mDr vof/k
es a foHkkxh; ijh{kk dh vfuok;Zrk dks {kkra djus ds lac/ak eas fuEukafdr fu.kZ; lalwfpr fd;k tkrk gS%&
I. fu;qfDr frfFk ls izFke ckj vk;kfstr foHkkxh; ijh{kk ds chp dh vof/k ds fy, gh ijh{kk mÙkh.kZrk dks {kkra fd;k tk;]
II. bldk ykHk mUgha dfeZ;kas dk svuqekU; gksxk] tks izFke ijh{kk es agh lHkh fo""k;ks aes amÙkh.kZ gks pqds gksa]
III. fdlh dkj.ko'k izFke ijh{kk eas 'kkfey ugha gksus okys vFkok lHkh fo""k;ksa eas mÙkh.kZ ugha gksus okys dehZ dks bl NwV dk ykHk vuqekU; ugha gksxkA
4-Â vr% vuqjk/sk gS fd mDr fu.kZ; ds vkykds eas U;k;eMaykas ds oxZ&3 ds dfeZ;ks ads ,0lh0ih0@,e0,0lh0ih0@izkUsufr dh Lohd`fr ds laca/k vxzsrj dkjZokbZ djus dh d`ik dh tk;A
                                                                                                    Â
                                              fo'oklHkktu
                                                                                                              Â
                                               g0@&
Â
                                                                                                            Â
                                       ¼izokl dqekj flag½ Â
 iz/kku lfpo&lg&fof/k ijke'khZA
On plain reading of letter dated 23.06.2017 issued by the Law Department, which is clarifactory in nature, it appears that it nowhere it speaks about ‘sufficient opportunity’ rather it says exemption in circumstances where ‘No
Departmental Examination†is held in between their date of appointment to the date of their eligibility of MACP/ACP i.e. the date on which they have completed the prescribed length of service. In the case at hand, as per the averment made
in counter affidavit during the relevant period on two different dates departmental examinations were held, in which the petitioners declared unsuccessful. Even, the writ petitioner in the writ application has averred that once examination was
held, however, he harps on the fact that sufficient opportunity was not afforded to him to pass the departmental examination. Hence, for the reasons, as discussed, the letter dated 23.06.2017 is of no help to the petitioner.Â
Moreover, from the argument canvassed by learned counsel for the petitioners himself in W.P. (S) No. 1893 of 2012, it appears that no such examinations were held for the relevant period but in the case at hand from perusal of note of
respondent no. 6 as also from impugned order it appears that departmental examination was held on 12.08.1998 and 23.11.2008 in which the petitioners were declared unsuccessful.Â
So far second limb of argument advanced by learned counsel for the petitioner on the strength of order passed in W.P. (S) NO. 1893 of 2012 is concerned, to see the parity, it would be better to quote relevant paragraph of the said
judgment, which is quoted herein below:
  “4 Learned senior counsel further submits that the petitioners were required to clear the departmental examination but since no such examinations were held till 2013, there was no opportunity for the petitioners to appear in the said
examinations and without appearing in the examination, it cannot be said that the petitioners have not qualified in the departmental examination. …â€
From the submissions advanced by learned senior counsel for the petitioner it does appear that in that no departmental examination was held in between the period of appointment of the petitioner and his entitlement of ACP; hence the
Court has ordered to grant ACP from the date of entitled of the petitioner in that case. But, in the case at hand, admittedly the petitioners appeared in the departmental examination and were declared unsuccessful. Hence, the petitioner at hand
cannot claim parity. In this regard, the petitioner has also taken a technical ground stating that though between the date of joining of service and completion of 12 years of service once departmental examination was held on 12.08.1998 but till
date even the services of the petitioner was not confirmed as the same was confirmed vide order dated 20.12.2006. But, from the pleadings available on record, it is nowhere averred that petitioner before appearing in such departmental
examination in the year 2008 had made any demur that their services have not been confirmed, hence, they are otherwise not eligible to appear in the examination; for the reasons this argument at this stage will be no help to the petitioner.
As a logical sequitur to the aforesaid discussions, I find no reason to interfere with the impugned order as it does not suffer from any infirmity or suffers from any such errors of law or fact. Hence, the writ application, being devoid of any
merit, stands dismissed.
Accordingly, I.A. No. 2883 of 2018 stands disposed of. Â