Urmila Devi Vs. State of Jharkhand and ors.

Urmila Devi vs State of Jharkhand and ors.

Type Court Judgment Court Jharkhand Decided Sep 25, 2008

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Citation: sooperkanoon.com/522681
Court: Jharkhand High Court
Judge: R.R. Prasad, J.
Decided On: Sep 25, 2008
Case Number: W.P. (S) No. 4265 of 2007
Subject: Service

Case Summary

AI-generated summary - not the official court judgment text.

Service-Pay-Increments-Rule 4(2) of Bihar Forest Rules-One needs to pass tribal language if he is posted within area of six districts-But, as soon as he would be transferred from other district or would be crossing age of 50, he would be entitled to increment-Petitioner was denied promotion which he was entitled to ...

Key legal issue: Service
Acts & sections: Bihar Pension Rules - Sections 43; Bihar Forest Rules - Rules 4(2) and 5

Parties & Advocates

Appellant / Petitioner

Urmila Devi

Advocate B.K. Dubey, Adv.

Respondent

State of Jharkhand and ors.

Advocate R.N. Sahay. Adv.

Legal References

Acts: Bihar Pension Rules - Sections 43; Bihar Forest Rules - Rules 4(2) and 5
Cases Referred: Dudh Nath Pandey v. State of Jharkhand and Ors. L.P.A.
Reported In: 2009(57)BLJR610

Excerpt

service-pay-increments-rule 4(2) of bihar forest rules-one needs to pass tribal language if he is posted within area of six districts-but, as soon as he would be transferred from other district or would be crossing age of 50, he would be entitled to increment-petitioner was denied promotion which he was entitled to on attaining age of 50-respondents directed to take decision in matter of fixation of pay, gratuity and other retiral dues (paras 7 and 11) bihar pension rules, 1950-rule 43(b)-recovery from amount of gratuity-departmental proceeding initiated while petitioner was in service and on charges being proved punishment was awarded by way of recovery-such action not in derogation of rule 43 (b)-order for recovery not suffering from any illegality (paras 9 to 11) - motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the..........both the grounds taken never seems to be tenable as the letter, under which passing of tribal language has been mandatory, has been issued on 4.4.2007 where as petitioner retired on 1.3.2007 and therefore, it was never applicable in the case of the petitioner whereas rule 4(2) of the bihar forest rules seems to be applicable which stipulates that all officers of the rank of deputy assistant, sub-assistant, conservator of forest, forest rangers, foresters and forest guards shall, if posted to any of the district namely, hazaribagh, ranchi palamu, singhbhum, santhal pargana and dhanbad should pass examination in the tribal language noted against that district within a period of 18 months from the date on which he is posted to one of the districts whereas rule 5 speaks as follows:an officer employed in chotanagpur division or in santhal parganas whose increments have been stopped for failure to pass the compulsory examination shall get his increment as soon as he is transferred to a district outside the district named in rule (1) above or as soon as he crosses the age of fifty years whichever is earlier7. thus, from the joint reading by both the rules, only conclusion comes out that one needs to pass tribal language if he is posted within the area of six districts but as soon as he would be transferred from other district or would be crossing the age of 50, he would be entitled to increment. but the respondent never seems to have given due regard to this provision and as such, the petitioner seems to have been denied increment which he was entitled to on attaining the age of 50. here it would be worth while to note that the respondent in the counter affidavit has referred to another circular relating to passing of the departmental examination but that circular in view of the aforesaid rules as mentioned hereinabove would not be applicable in case of the petitioner. however, there remains no doubt that the petitioner would be entitled to increment for the period he.....

Full Judgment

R.R. Prasad, J.

1. This writ application is directed against the order as contained in office order No. 26 dated 19.6.2006 (Annexure 7) passed by the Conservator of Forest, Afforestation and Social Forestry, Circle Hazaribagh whereby respondent having found the petitioner guilty, for the charges put in a departmental enquiry, passed an order of punishment for recovering of a sum of Rs. 68395.20 from the petitioner. Further prayer is to quash the consequential order as contained in letter No. 371 dated 16.4.2007 (Annexure 9) whereby respondent in order to realize Rs. 68395.20 has passed an order to adjust Rs. 9000/- from the salary and further a sum of Rs. 59,395.20 from the gratuity. Further prayer is to direct the respondent to fix the pay after including the annual increment which the petitioner was entitled to and to pay pension, gratuity and the amount of unutilized leave.

2. The fact of the case which has given rise to this writ application is that petitioner on being appointed as Forest Guard joined the service on 1.7.1966 and in course of time, he was promoted to the post of Forester on 23.12.1998 and worked as Forester in Giridih Afforstation Division till 1999 and thereafter he joined Chatra Afforstation Range in the year 2000 where the petitioner was allotted some of the Afforestation work like weeding, hoeing in different plantation sites but, according to the case of the respondent, when it was found that no such work of hoeing has been done at the plantation sites and there has been grazing at the plantation sites due to which department was put to loss to the extent of Rs. 2,27,984/-, a proceeding was initiated against the petitioner and others by the then Conservator of Forest, Hazaribagh, vide office order No. 46 dated 11.5.2004. One Kuldip Manjhi, ACF was appointed as enquiry officer, who after holding enquiry submitted report to the Disciplinary Authority, Conservator of Forest, Afforestation and Social Forestry, Circle Hazaribagh, who vide its office order No. 26 dated 19.6.2006 (Annexure 7) passed the order for recovery of Rs. 68,395.20 from the salary of the petitioner and also from the gratuity.

3. Being aggrieved with that, an appeal was preferred before the Regional Chief Conservator of Forest, Hazaribagh, respondent No. 4 but the same, according to respondents, was dismissed. In the meantime, the petitioner got retired on 1.3.2007. As per case of the petitioner, the provisional pension was fixed on the pay without adding annual Increment to which he was entitled to and being aggrieved with that, this writ application has been filed.

4. Learned Counsel appearing for the petitioner submits that while the petitioner was posted at Chatra, increment was not given on the plea that he was supposed to pass tribal language as per the Bihar Forest Rules but he did not pass that examination and on that count, increment was not given but the respondent forgot to take into consideration that barrier/restriction was limited to six districts and as per the other rule, whenever person gets transferred to other district or attains the age of 50, he would be entitled to increment and admittedly the petitioner had attained the age of 50 while he was posted at chatra and, therefore, the respondent illegally denied increment to the petitioner.

5. On the other hand, stand of the respondents is that under instruction as contained in letter No. 1794 dated 4.4.2007 issued by Personnel and Administrative Department, Rajbhasha passing of the tribal language has been made compulsory. Further it has been stated by giving reference letter No. 11691 dated 9.11.1983 that granting of exemption on attaining age of 50 is never mandatory, rather it is upon the discretion of the Departmental Head to dispense with requirement of passing departmental examination if one attains the age of 50 and his service record is good and in spite of repeated attempts being made, the person failed to clear that.

6. Both the grounds taken never seems to be tenable as the letter, under which passing of tribal language has been mandatory, has been issued on 4.4.2007 where as petitioner retired on 1.3.2007 and therefore, it was never applicable in the case of the petitioner whereas Rule 4(2) of the Bihar Forest Rules seems to be applicable which stipulates that all officers of the rank of Deputy Assistant, Sub-Assistant, Conservator of Forest, Forest Rangers, Foresters and Forest Guards shall, if posted to any of the district namely, Hazaribagh, Ranchi Palamu, Singhbhum, Santhal Pargana and Dhanbad should pass examination in the tribal language noted against that district within a period of 18 months from the date on which he is posted to one of the districts whereas Rule 5 speaks as follows:

An officer employed in Chotanagpur Division or in Santhal Parganas whose increments have been stopped for failure to pass the compulsory examination shall get his increment as soon as he is transferred to a district outside the district named in Rule (1) above or as soon as he crosses the age of fifty years whichever is earlier

7. Thus, from the joint reading by both the rules, only conclusion comes out that one needs to pass tribal language if he is posted within the area of six districts but as soon as he would be transferred from other district or would be crossing the age of 50, he would be entitled to increment. But the respondent never seems to have given due regard to this provision and as such, the petitioner seems to have been denied increment which he was entitled to on attaining the age of 50. Here it would be worth while to note that the respondent in the counter affidavit has referred to another circular relating to passing of the departmental examination but that circular in view of the aforesaid rules as mentioned hereinabove would not be applicable in case of the petitioner. However, there remains no doubt that the petitioner would be entitled to increment for the period he worked after attaining the age of 50.

8. Next submission is that the resident is not entitled to recover a sum of Rs. 68,395.20 from the amount of the gratuity without initiating a proceeding in terms of Section 43(b) of the Bihar Pension Rules. In support of his submission a decision rendered by a Full Bench in a case of Dudh Nath Pandey v. State of Jharkhand and Ors. L.P.A.714 of 2004 was referred to.

9. Submission advanced on behalf of the petitioner, in the facts and circumstances, appears to be devoid of merit. It has already been noted that while the petitioner was posted in the district of Chatra, a departmental proceeding was initiated when he was found negligent in disharging his duties causing the loss to the extent of Rs. 2,27,984/- to the Department and the Disciplinary authorities having found the charges being proved awarded punishment whereby a sum of Rs. 68,395.20 was sought to be recovered from the salary and also from the amount of gratuity of the petitioner and this action of the respondent never seems to be in derogation of Rule 43(b) of the Bihar Pension Rules rather seems to have been passed in consonance of the said rule which reads as follows:

43(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension of any part of it, whether permanently or for specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement.

10. So far decision of the Full Bench as referred to on behalf of the petitioner is concerned that never helps the petitioner rather it is against the petitioner as it has been held that Rule 43(b) does not contemplate the power to withhold the pension etc. during the pendency of a judicial proceeding or departmental proceeding. It contemplates such power only when that petitioner has been found guilty of grave misconduct in that proceeding.

11. Thus, order passed for recovery of the amount never seems to have been suffering from any illegality rather respondent seems to have acted absolutely in terms of Rule 43(b) of the Bihar Pension Rules.

12. Since the petitioner has been found to be entitled for the increment for the reason assigned hereinabove, the respondent is directed to take decision in the matter of fixation of pay, payment of gratuity and other retiral dues which the petitioner is entitled to and to make payment as early as possible, preferably within a period of four months from the date of receipt/production of a copy of this order.

13. With the aforesaid direction/observation, this writ application is disposed of.

Same Court & Year Jharkhand · 2008 Same Parties Urmila Devi vs State of Jharkhand and ors. Same Subject Service Same Judge R.R. Prasad, J. Acts & Sections Bihar Pension Rules - Sections 43; Bihar Forest Rules - Rules...

Service