Mahabir Pasi Vs. Forest

IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (S) No. 5638 of 2015 ­­­ Mahabir Pasi, Son of Late Budhan Pasi, Resident of Village Vidyapati Nagar, Saharsa, Anand Bhawan, Ward No. 19 in front of Anand Marg School., P.O. & P.S. Saharsa, District­ Saharsa .... ..... Petitioner Versus 1. The State of Jharkhand through the Principal Secretary, Forest and Environment Department, Ranchi, Nepal House, P.O. & P.S. Doranda, District­ Ranchi. 2. The Principal Secretary, Finance Department, Govt. of Jharkhand at Ranchi, Project Building, Dhurwa, P.S.­Jagarnathpur, District­ Ranchi.

3. The Principal Chief Conservator of Forests, Van Bhawan, Doranda, P.O. & P.S. Doranda, District­ Ranchi. 4. The Regional Conservator of Forest, Dumka, P.O., P.S. & District­ Dumka. 5. The Deputy Commissioner, Pakur, P.O., P.S. & District­Pakur. 6. The District Forest Officer, Pakur, P.O., P.S. & District­Pakur. 7. The Divisional Forest Officer, Social Forestry Division, Simdega, P.O., P.S. & District­Simdega.

8. The Deputy Secretary, Forest and Environment Department, Ranchi, Nepal House, P.O. & P.S. Doranda, District­Ranchi. .... ..... Respondents ­­­ CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR ­­­ For the Petitioner : Mr. Rahul Kumar, Adv. For the State : Ms. Ruchi Rampuria, JC to Sr. SC­I ­­­ 08/09.02.2017 Aggrieved of order dated 30.07.2015 which has been passed in compliance of direction issued by the Writ Court in W.P.(S) No.5123 of 2013, the petitioner has approached this Court. 2. At the outset, exception to the decision of the Screening Committee in its meeting on 14.10.2014 taken by the petitioner is rejected on the ground that after the order passed in W.P.(S) No.5123 of 2013, the legality of the recommendation of the Screening Committee cannot be re­opened. Challenge to the impugned order dated 30.07.2015 must be adjudicated on the basis of the grounds mentioned in the said order. 3. In the impugned order dated 30.07.2015, the 2 respondent­Principal Chief Conservator of Forest, Jharkhand has noticed pendency of two departmental enquiries against the petitioner; one is in respect of defalcation of Rs. 12,08,085.98/­ and the other is in respect of defalcation of Rs.56,20,383/­. The Screening Committee in its meeting held on 14.10.2014 opined that there is a prima facie case against the petitioner and on that ground grant of ACP/MACP was declined to him till conclusion of the proceeding. By the time the claim of the petitioner was examined by the respondent­Principal Chief Conservator of Forest charges were framed against the petitioner on 25.05.2015 and a show­cause notice was issued to him in the departmental proceeding. 4. Mr. Rahul Kumar, the learned counsel for the petitioner, however, contended that the petitioner on completion of 24 years of continuous service irrespective of promotion or grant of 1st ACP is entitled for 2nd ACP. The learned counsel has relied on Clause (iii) and (v) in para 3 of the Resolution dated 14.08.2002, which read as under: >kj[k.M jkT; dfeZ ; k s a d s fy, lq f uf'pr o` f Ÿk mUu;u ;k st uk l a[ ;k&3@,e&6¼iz k sU ufr½&02@2002&5207 fo0 >kj[k.M ljdkj] foŸk foHkkx l ad Yi jk¡ p h] fnuk ad &14-08-2002 (iii) ,0lh0ih0 ;kstuk dk ykHk fu/kkZfjr ik=rk vof/kiw.kZ djus dh frfFk vFkok fnukad 09-08-1999] tks ckn dh frfFk gks] ls iznku fd;k tk;sxkA fdUrq cdk;k dh x.kuk >kj[k.M jkT; ds xBu vFkkZr~ fnukad 15-11-2000 rd gh lhfer jgsxhA nwljs 'kCnksa esa] fnukad 15-11-2000 ds iwoZ dk dksbZ Hkh cdk;k vuqekU; ugha gksxkA (v) iwjs ljdkjh lsok vof/k esa ,0lh0ih0 ;kstuk ds vUrxZr nks foÙkh; vRØe.k dh x.kuk Js.kh fo'ks"k] ftlesa lEcfU/kr ljdkjh lsod lh/kh HkrhZ }kjk fu;qDr gqvk gks] ls miHkksfxr fu;fer izksUufr ds fo:) dh tk;sxhA rkRi;Z ;g fd ,0lh0ih0 ;kstuk ds vUrxZr nks foÙkh; mRØe.k rHkh miyC/k gksxk] tc fu/kkZfjr vof/k ¼12 o"kZ ,oa 24 o"kZ½ esa ljdkjh lsod 3 }kjk dksbZ fu;fer] izksUufr dk miHkksx ugha fd;k x;k gksxkA vxj dksbZ dehZ igys gh ,d fu;fer izksUufr ikdj ,0lh0ih0 ;kstukUrxZr vuqekU; f}rh; foÙkh; mUu;u dk osrueku izkIr dj jgk gks rks oSlh fLFkfr esa mUgsa vfrfjDr mUu;u dk ykHk izkIr gksxkA vxj dksbZ dehZ igys gh ,d fu;fer izksUufr ik pqdk gS] rks og ,0lh0ih0 ;kstukUrxZr f}rh; foÙkh; mRØe.k gsrq dsoy 24 o"kksZ dh yxkrkj lsok iwjh djus ds Ik'pkr~ gh ik= gksxkA vxj dksbZ dehZ fu;fer vk/kkj ij iwoZ esa gh nks izksUufr izkIr dj pqdk gS rks mUgsa ,0lh0ih0 ;kstukUrxZr dksbZ ykHk ns; ugha gksxkA English Translation: (iii) The benefit of A.C.P. scheme shall be granted with effect from the date of completion of the requisite period prescribed or from 09.08.1999, whichever date is later. But the calculation of arrears shall be from the date of reorganization of State of Jharkhand i.e., from 15.11.2000. In other words, no dues prior to 15.11.2000 shall be admissible. (v) Two financial upgradations under A.C.P. scheme in the entire service career of an employee shall be granted against the posts for regular promotion in the cadre in which the government employee was appointed as a direct recruit. This would mean that two financial upgradation under A.C.P. scheme shall be available only if no regular promotion during the prescribed periods (12 years and 24 years) has been availed by the government servant. If an employee has been receiving pay equivalent to second financial upgradation under A.C.P. scheme after getting one regular promotion, in such circumstance, he shall be granted benefit of additional upgradation. If an employee has already received one regular promotion, he shall qualify for second financial upgradation only on completing 24 years of regular service under A.C.P. scheme. In case two prior promotions on regular basis have already been granted to an employee, no benefit under A.C.P. scheme shall accrue to him.

5. A bare perusal of the conditions stipulated under Resolution dated 14.08.2002 would disclose that grant of ACP is subject to an employee fulfilling the conditions for promotion and other conditions, for example, passing the departmental examination. Clause (iii) and Clause (v) cannot be read in isolation rather, it has to be read in conjunction with other conditions. An 4 employee who does not fulfill the conditions for promotion cannot be extended A.C.P. benefits merely on completion of 12/24 years of service. The petitioner, who was appointed on 16.02.1980 on the post of Forester, was promoted as the Range Forest Officer on 09.11.1993. For the next promotional avenue whether the petitioner has obtained those qualifications or not is not known to the Court. In terms of the ACP scheme, the petitioner on completion of 12 years of continuous service from the date of his promotion would be entitled for 2nd ACP, however, subject to other conditions and if there is no legal impediment in grant of ACP/MACP benefits. It appears that the respondent­Principal Chief Conservator of Forest, Jharkhand has rejected petitioner's claim on the ground that a charge­memo has been served to him. At this stage, it would be relevant to record that grant of ACP/MACP benefits and other service benefits are always dependent on good conduct of a Government servant. Obviously, during the pendency of the departmental enquiry, the petitioner cannot be extended these service benefits. The decision taken by the respondent­Principal Chief Conservator of Forest does not suffer from any legal infirmity and accordingly, challenge to the said order fails. However, it is made clear that on conclusion of the departmental enquiries, if the petitioner is finally exonerated from the charges framed against him, his claim for ACP/MACP benefits shall be considered within two months of his making a representation disclosing outcome of the departmental proceeding against him. 5 6. At this stage, it is relevant to mention that in the counter­affidavit the respondent­State has disclosed that vide letter no. 1238 dated 05.04.2016, final pension papers of the petitioner have been forwarded to the Accountant General (A.G.), Jharkhand. The petitioner may take necessary steps in the matter. 7. The writ petition stands dismissed, at this stage. (Shree Chandrashekhar, J.) Animesh/Pankaj