Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P(S). No. 223 of 2014 Subodh Chandra Ambastha ….... Petitioner Versus 1. The State of Jharkhand 2. The Secretary, Road Construction Department, Ranchi 3. The Under Secretary, Road Construction Department, Ranchi 4. The Engineer-in-Chief, Road Construction Department, Ranchi 5.The Chief Engineer, Central Planning Organization,(Kendriya Nirupan Sanghthan) Road Construction Department, Ranchi 6. The Executive Engineer, Road Division, Road Construction Department, Latehar ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners : Mr. Sunil Kumar Sinha For the Respondents : Mr. Dhananjay Kr. Pathak, Sr.S.C.I0228.07.2015 Heard learned counsel for the parties. Petitioner has superannuated on 30.6.2011 while posted as Research Assistant in the office of Executive Engineer, Road Division, Lateher under the Road Construction Department, Government of Jharkhand. In the present case, his grievance is that his pension and gratuity etc have not been fixed taking into account the benefit of 3rd M.A.C.P which he was granted by the order dated 2.2.2011(Annexure-3) issued by the Executive Engineer, Road Division, Latehar in the scale of Rs.9300-34800 in the Grade Pay of Rs.4600. According to learned counsel for the petitioner, the pay on that basis at the time of his retirement should have been Rs. 15,430/-. However as it appears, just after petitioner's retirement, respondent- department through letter dated 11.11.2011(Annexure-4) modified the grant of 1st and 2nd A.C.P to the scale of Rs.4000-6000 and Rs.4500-7000 w.e.f. 9.8.1999 in terms of the Finance Department circular no. 5207 dated 14.8.2002, Para 3(v) thereof, instead of the scale of pay of Rs. 5000-8000 and 5500-9000. In the said communication it was also held that petitioner having got the benefit of substantive promotion as Research Assistant w.e.f 7.12.2001 in the scale of Rs.5000-8000, he was not entitled for 3rd M.A.C.P. This letter was -2- challenged by the petitioner in W.P.S. No. 3360 of 2012, preferred earlier, as pursuant thereto certain recovery was also directed to be made by another order dated 14.5.2012 issued by the Executive Engineer, Road Division, Latehar to the tune of Rs. 1,00,479/- from his leave encashment amount. In W.P.S. No. 3360 of 2012 vide judgment dated 16.2.2013 (Annexure-5), learned Single Bench of this Court, taking into account the fact that the order modifying the grant of A.C.P., which had been confirmed in service was issued after his retirement and sought to reduce the benefit with retrospective effect with which the petitioner was in no way involved in any act of fraud or misrepresentation, held it untenable in law in view of the ratio laid down by the Hon'ble Supreme Court in the case of Sahib Ram Vrs. State of Haryana reported in 1995(Supp.) 1 SCC18and other judgments rendered by this Court. Learned counsel for the petitioner submits that once the impugned order dated 11.11.2011, which also declined the claim of 3rd M.A.C.P was quashed, the respondent- department ought to have fixed his last pay by giving effect to the 3 rd M.A.C.P, which has been granted vide order dated 2.2.2011(Annexure-3) and accordingly revise the pensionary benefits. This contention of the petitioner is being strongly opposed by learned counsel for the respondent- State who submits that the 3rd M.A.C.P was not admissible to the petitioner as he had been granted substantive promotion to the post of Research Assistant on 7.12.2001. As per the 6 th Pay Revision Committee Report, if an employee has got regular promotion, he is not entitled to the benefit of such M.A.C.P. Petitioner has already got the benefit of 1st and 2nd A.C.P and also got regular promotion thereafter in 2001. Therefore, he was not entitled for grant of 3 rd -3- M.A.C.P. Learned counsel for the respondent has also pointed out that except the Grade Pay of Rs.4200/-, petitioner is getting the same scale of pay, which he could have got on grant of 3 rd M.A.C.P in the scale of Rs. 9300- 34800. Having considered the submission of the parties in the factual matrix of the case, it appears that the entire claim of the petitioner for revision in his pensionary benefits is based upon the contention that this Court in the judgment rendered in the W.P.S. No. 3360 of 2012 had quashed the order dated 11.11.2011 whereby it was also held that petitioner is not entitled to 3rd M.A.C.P on account of grant of substantive promotion as Research Assistant in December, 2001. Once, the said order goes, petitioner is automatically entitled to 3 rd M.A.C.P. The aforesaid contention of the petitioner can be dealt with in the following manner:- In the first place, by the Office order at Annexure-3 dated 2.2.2011 grant of 3 rd M.A.C.P was issued by the Executive Engineer, Road Division, Latehar based upon the communication of the Chief Engineer in his office order dated 9.12.2010. This grant of 3rd M.A.C.P however was not confirmed by the Department when it was sent before it and the order impugned dated 11.11.2011 was passed. However, learned Single Bench of this Court while noticing the fact of the case, found that the grant of A.C.P was confirmed by the Government vide Office order no.160 dated 30.7.2009. Therefore, it can be said that claim for 3 rd M.A.C.P was inchoate at the relevant point of time. The matter was considered relating to the challenge to the order dated 11.11.2011. The discussion in the petitioner's case by the learned Single Judge is on the lines that after confirmation of A.C.P and grant of monetary -4- benefits there upon, the impugned order had sought to modify the same and also effect consequent recovery from the petitioner giving it a retrospective effect by reduction of his pay scale at the time of his retirement and that too from the leave encashment amount. The petitioner was not found at fault by practicing misrepresentation or fraud in the whole process. Learned Single Judge found that such recovery and reduction of his pay scale was in teeth of the ratio laid down by the Hon'ble Supreme Court in the case of Sahib Ram Vrs. State of Haryana(supra) as the order of recovery is visited with adverse civil consequences, which could not have been passed without giving notice or opportunity of hearing. The discussion in the entire judgment however did not deal with the matter of confirmation of the 3rd M.A.C.P, which was not confirmed on the ground that petitioner had got the benefit of substantive promotion within 10 years in December, 2001 before this retirement. The scheme of M.A.C.P brought into effect from 1.9.2008 vide notification dated 1.9.2009 clearly lays that it is admissible in case where an employee has not been granted the benefit of substantive promotion despite being eligible and having satisfactory service, of course after 10/20/30 years of service. In the instant case, since the petitioner had got the benefit of substantive promotion within 10 years of his retirement vide order dated 7.9.2001 to the post of Research Assistant, the admissibility of 3rd M.A.C.P was always under question. Therefore, if the entire context of the petitioner's case is taken into light while considering the scope of the ratio laid down by this Court in the petitioner's case referred to herein above, the claim of M.A.C.P, if otherwise not legally admissible cannot be -5- lawfully sought on the part of the petitioner simply on the basis of quashing of the order dated 11.11.2011 by the learned Single Bench of this Court in his case in W.P.S. No. 3360 of 2012. If that course is adopted, it would be contrary to the M.A.C.P scheme and would amount to perpetuating illegality which no writ Court would advance in exercise of power under extraordinary jurisdiction of this Court. Therefore, I am afraid that petitioner has failed to make out a case for interference in the matter. The writ petition is dismissed accordingly. (Aparesh Kumar Singh, J.) A. Mohanty