Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3645 of 2014 ….. Devisal Hansda …. Petitioner Versus 1. The State of Jharkhand 2. Principal Secretary, Depart. Of Human Resources, Govt. of Jharkhand, Project Bhawan, P.O & P.S. Dhurwa, Dist. Ranchi 3. Deputy Secretary, Depart. Of Human Resources, Govt. of Jharkhand, Project Bhawan, P.O & P.S. Dhurwa, Dist. Ranchi 4. The Director, Secondary Education, Govt. of Jharkhand, Project Bhawan, P.O & P.S. Dhurwa, Dist. Ranchi …. Respondents CORAM: HON'BLE MR. JUSTICE DR. S.N. PATHAK For the Petitioner : Mr. S.K. Sharma, Advocate For the Respondents : Mr. S.K. Verma, Advocate th 14/ Dated 7 July, 2017 Heard the parties Vide order dated 17.6.2015 an interlocutory application preferred by the petitioner bearing no. 2634 of 2015 was allowed by this Court wherein a prayer was made to incorporate the prayer in the main writ petition regarding grant of exemption from passing departmental examination which has been rejected by the department during the pendency of the writ petition and that is also under challenge by way of amendment in the present writ petition.
1. Petitioner has approached this Hon'ble Court with a prayer for granting him M.A.C.P. after granting exemption from passing the departmental examination in the light of Circular No. 11691 dated 09.11.1983 issued by the Department of Personnel, Administrative Reforms and Rajbhasha, erstwhile Government of Bihar as petitioner has already completed 58 years of age and he was superannuated in the year 2016. Further prayer has been made for passing appropriate order with respect to services rendered by the petitioner since 26.04.1988 till 30.09.1997 under sub ordinate Education Service prior to joining in Bihar Education Service, ClassII to enable the petitioner to get monetary benefits in fixation of pension, gratuity, leave encashment etc. after his superannuation. 2 Factual Matrix: 2. It is a case of the petitioner that the petitioner was appointed on the post of Assistant Teacher, History, in Government Russel High School, Jagnathpur, West Singhbhum, vide notification contained in Memo No. 288 dated 15th April, 1988 on recommendation of School Services Board, Bihar by Human Resources Department, Govt. of Bihar. In view of the aforesaid notification, the petitioner joined on the post of Assistant Teacher, History on 26 th April, 1988. Thereafter, the petitioner served as Assistant Teacher, History in Govt. Russel High School, Jagnathpur, West Singhbhum till 30.09.1997. The petitioner was appointed under Pay Scale of Rs. 2200752800100 400 on the basis of joint competitive examination by recommendation of Bihar Public Service Commission under Bihar Education Service ClassII (Education Department) vide notification dated 22nd July, 1997 issued by Director, Secondary, Primary and Adult Education, Government of Bihar. Pursuant to the said notification, the petitioner assumed charge on the post of Principal, Zila School, Chaibasa on 30.09.1997 and received charge on the post of Principal on 04.10.1997. It is a case of the petitioner that since his joining on the post of Principal, Zial School, Chaibasa on 30.09.1997, he served under the respondents on different posts to best of his ability and petitioner is working as Lecturer, Government Teachers Training College, Ranchi. It is a case of the petitioner that petitioner had appeared in First and Second half yearly departmental examination, 2005 which was organized in the year, 2007 and his roll no. was 2. The petitioner, though appeared in the said examination but declared unsuccessful. On 7 th October, 2008 the petitioner made representation to the Secretary, Department of Human Resources, Govt. of Jharkhand, Ranchi stating therein that he had already completed more than 50 years of age and eligible for grant of exemption from passing the departmental examination as contained in departmental Circular No. 11691 dated 09.11.1983 issued by the Department of Personnel Administrative Reforms and Rajbhasha, Govt. of Bihar. It was specifically stated that in his 3 representation it has been stated that he had appeared first and second half in the yearly departmental examination, 2005 which was organized in the year but could not succeed. The petitioner requested the Secretary, Department of Human Resources, Govt. of Jharkhand, Ranchi to grant him exemption from passing the departmental examination. Again on 3rd March, 2009 he sent a representation to Deputy Secretary, Department of Human Resources, Govt. of Jhakrhand, Ranchi stating therein that he had appeared in first and second half in yearly departmental examination ,2005 which was organized in the year, 2007 but remained unsuccessful. It is a case of the petitioner that he had participated in the departmental examination only once and could not appear in departmental examination earlier because of work load. The petitioner requested the Deputy, Secretary, Department of Human Resources, Govt. of Jharkhand, Ranchi (respondent no.3) to grant him exemption from passing the departmental examination. It has been stated that petitioner has completed 50 years of age and going to superannuate in the year 2016 and he is working in the grade pay of Rs. 5400/ and has not been given benefits of MACP as he was declared unsuccessful in the departmental examination, 2005 which was held in the year 2007. Through, several representations were filed for grant of exemption form passing the departmental examination in the light of departmental Circular No. 11691 dated 09.11.1983 issued by the Department of Personnel, Administrative, Reforms and Rajbhasah, Govt. of Bihar but till date no decision has been taken and writ petition was filed in the year 2014. It has also stated that petitioner prior to joining cadre of Bihar Education Service ClassII was appointed on the recommendation of School Service Board vide notification no. 288 dated 15 th April, 1988 on the post of Assistant Teacher, History in Govt. High School, Russel, Jagnathpur, West Singhbhum, The petitioner since his joining on 24 th April, 1988 till 30.09.1997 served under the respondent, regularly without any break best of his ability and was relieved to join on the post of Principal, Zila School, Chaibasa pursuant to the recommendation of 4 the Bihar Public Service Commission based on joint competition examination. The service rendered by the petitioner since 26.04.1988 to 30.09.1997 prior to joining, the cadre Bihar Education Service ClassII is required to be counted for the purpose of monetary benefits such as pension, gratuity, leave encashment etc after his superannuation the petitioner again made representations on 15.04.2014 and 10.06.2014 to the Director, Secondary Education, Govt. of Jharkhand but till date, the respondent has not passed any order in this regard. Hence, the petitioner was compelled to move this Hon'ble Court.
3. Mr. S.K. Sharma, learned counsel for the petitioner submits that during the pendency of the writ application the respondent authorities have rejected the prayer of the petitioner for exemption from the departmental examination which is dehors the rules. Learned counsel relying on the amended Rule,1992 and submits that nowhere it has been mentioned in the Rule that how many times it's required for employee to appear in the examination. Learned counsel further submits that petitioner has appeared in the examination and declared unsuccessful. Learned counsel submits that there was no further occasion to appear in the departmental examination, as the petitioner has crossed the age of 50 years. The petitioner rightly made representation for exemption from the said departmental examination and the respondentauthorities ought to have considered his case by giving exemption from the said examination as petitioner had crossed 50 years of age. The petitioner has also mentioned that because of work load and other unavoidable circumstances, he could not appear in the examination. Learned counsel for the petitioner submits that in view of 1992 Rules, he should be exempted from the departmental examination. With regard to the second prayer, the learned counsel for the petitioner submits that though the respondentauthorities have mentioned in the counteraffidavit that the consideration has already been taken with respect to pensionary benefit to the petitioner and an order is 5 required in this regard by this Hon'ble Court for granting of the pensionary benefits. 4. Per contra, counteraffidavit has been filed. Learned counsel for the respondent Mr. D.K. Dubey, Senior S.C. I vehemently opposes the contention made by the learned counsel for the petitioner and submits that Rules, 1992 is very clear on the point that the petitioner has to appear on several occasions. The petitioner has appeared only once and that also declared unsuccessful and though he has crossed 50 years, his case cannot be considered in view of Circular, 1992. The petitioner never tried to appear in the said examination on several occasions prior to attaining the age of 50 years and, as such, his case was not considered. Learned counsel further submits that exemption under the law is not mandatory, it is the discretion of the authorities and as per the condition put in Rule 1992. With regard to second prayer, the learned counsel for the State submits that steps have already been taken which has been stated in paragraph nos. 7 to 11 of the counteraffidavit. Learned counsel submits that after completion of the process the benefits will be extended to the petitioner.
5. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. With regard to first prayer, there is a specific Rule for examination to the employees, who have crossed 50 years and who have appeared and declared unsuccessful. The petitioner appeared in the year, 2007 and at that time he had crossed the age of 50 years there was no occasion for the petitioner to appear again in the said examination as per Rule. The petitioner has rightly approached the respondentauthorities for giving the said relaxation as per Rule 1992, which was illegally rejected by the respondent authorities. 6. Resultantly, order dated 3.3.2015 is hereby quashed and set aside. I, hereby, direct the respondentauthorities to reconsider the case of the petitioner regarding grant of exemption in view of Rule 6 1992. With regard to second prayer, it has already been taken into consideration and steps have been taken by the respondents, I direct the respondent to complete the entire process within a period of 10 weeks from receipt of copy of this order. If, the petitioner is found entitle, the benefits may be extended within further period of six weeks after the decision of the respondentauthorities. (Dr. S.N. Pathak, J.) Anjali/