IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2492 of 2009 --- Nandu Prasad son of Late Sukhdeo Singh, resident of Baliguma Bagan Area, P.O. and P.S. M.G.M., Jamshedpur, District East Singhbhum (Jamshedpur) … … Petitioner Versus 1. State of Jharkhand 2. The Secretary, Water Resources Department, Nepal House, Doranda, P.O. and P.S. Doranda, District Ranchi 3. The Chief Engineer, Swarnrekha Multi Purpose Project, Icha Galudih Complex, Adityapur, P.O. and P.S. Adityapur, District East Singhbhum At Jamshedpur 4. The Superintending Engineer, Kharkai Bandh Circle, Icha Chaliama, Jamshedpur, District East Singhbhum at Jamshedpur 5. The Executive Engineer, Minor Distributory Division No. II, Chandil, Camp Dimna, Jamshedpur, District East Singhbhum at Jamshedpur … … Respondents --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioner : Mr. Krishna Shankar, Advocate For the Respondents : Mr. Sunil Singh, J.
C. to S. C. (Mines) --- C.A.V. On 30/04/2015 Pronounced on 06/07/2015 In this writ application the petitioner has prayed for a direction upon the respondents to consider the case of the petitioner for grant of Junior Selection Grade/Senior Selection Grade and Supertime Scale (2.5%) as also the benefits of 1st and 2nd A.C.P.
2. The petitioner being a matriculate was appointed on the post of Officiating Orderly Peon vide Memo No. 93 dated 04.11.1972 in the office of Executive Engineer, Advance Planning & Investigation Division, Jamshedpur to which the petitioner duly joined. The petitioner was promoted to the post of Correspondence Clerk vide Letter No. 194 dated 28.01.1986 issued by the Chief Engineer and the petitioner has been given seniority in the cadre of Correspondence Clerk w.e.f. 01.03.1981. Since the petitioner was not granted Junior Selection Grade, Senior Selection Grade and Supertime Scale, the petitioner represented the authorities by bringing to their notice the aforesaid fact but inspite of the recommendation made by the respondent nos. 4 and 5 no decision was taken by the respondent no.
3. The petitioner has already superannuated from service on 31.05.2009 and, therefore, the petitioner by way of this writ application has prayed for grant of the Selection Grades and 1st and 2nd A.C.P. -2- 3. Heard Mr. Krishna Shankar, learned counsel appearing for the petitioner and Mr. Sunil Singh, learned J.
C. to S. C. (Mines).
4. It has been submitted by the learned counsel for the petitioner that as per the Circular issued by the Department of Personnel & Administrative Reforms the minimum period prescribed for grant of Junior Selection Grade is five years, from Junior Selection Grade to Senior Selection Grade five years and to Supertime Scale the minimum period required is three years. However, inspite of the petitioner having fulfilled the requisite criteria but only because of the fact that the petitioner did not pass the Accounts examination the Departmental Establishment Committee did not consider the claim of the petitioner. Learned counsel for the petitioner further submitted that the petitioner is also entitled for the benefits of 1st and 2nd A.C.P. on completion of 12 years and 24 years of service on 01.03.1993 and 01.03.2005 respectively.
5. Mr. Sunil Singh, leaned J.C. to S.C. (Mines) has submitted that the petitioner was denied the benefits of the Selection Grade and the 1st and 2nd A.C.Ps. on the ground that till the date of his superannuation the petitioner did not pass the Accounts examination. It has further been submitted that the request of the petitioner for exemption from passing the Accounts examination was rejected by the Commissioner, Kolhan, Chaibasa. It has also been submitted that in terms of the Rule 157 (3)(J) of the Bihar Board Miscellaneous Rule 1958 it was incumbent upon the petitioner to pass the Accounts examination to be promoted to the Selection Grade but having not done so the authorities have rightly not granted Selection Grades to the petitioner in terms of the said Rule.
6. The provision of 157 (3)(J) of the Bihar Board Miscellaneous Rule was under consideration by the Full Bench of the Patna High Court and relevant for the purpose of this present application are Paragraph 13, 14 and 15 which are quoted hereinbelow:- 13. On the basis of the above discussion have no hesitation in holding that the State Government was fully competent to amend rule 157 (3) (J) of the Boards Miscellaneous Rules by executive instructions and the amendment made vide correction slip no. 30 -3- dated 29.3.82 was a valid amendment. Thus, clerks were required to pass the final examination in Accounts as a condition for promotion to the selection grades after 29.3.82.
14. The above discussion, however, covers the period between 29.3.82 and 29.4.85. So far as the period between 1.5.80 and 29.3.82 is concerned, I am inclined to agree with the petitioners that after amalgamation of the posts of L.D. And U.C. Clerks, in the absence of any provision requiring the clerks to pass Accounts examination for promotion to selection grade, and the erstwhile provision having become redundant or otiose. The promotion could not be denied to them on account of non-passing of the Accounts examination during that period. The amendment dated 29.3.82 was result of administrative instruction and could not have nay retrospective effect. To that extent, I would also endorse the decision of this Court in Shamsuddins case.
15. As regards the period from 29.4.85; counsel for the petitioners fairly agreed that the amendment having been brought under article 309 of the Constitution, the statutory nature of which cannot be doubted, the clerks could not be promoted to the selection grade posts without passing the Accounts examination. In view of the fair stand of the counsel for the petitioners it is not necessary to discuss the case with respect to the period from 29.4.85 onwards.”
7. The petitioner was initially appointed vide Memo No. 93 dated 04.11.1972. The respondents never passed any order on the representation submitted by the petitioner although the petitioner had submitted alongwith the representation the copy of the order dated 28.01.1992 passed in C.W.J.C. No. 42 of 1999(R) and 1412 of 1995 passed in C.W.J.C. No. 1824 of 1995 (R ).
8. In the counter affidavit respondents have merely stated that since the petitioner had not passed the Accounts examination he was not granted the benefits of Selection Grades as well as the benefits under the A.C.P. Scheme. However, since the respondents-authorities have not considered the claim of the petitioner in its proper perspective and in terms of the order passed by the Full Bench of the Patna High Court reported in 2000 (4) PLJR262as well as the order referred above, it would be necessary that at the first instance the appropriate authority applies its mind and, thereafter, pass necessary orders. -4- 9. Accordingly, this writ application is disposed of directing the respondent no. 3 to consider the claim of the petitioner of Junior Selection Grade, Senior Selection Grade, Supertime Scale and 1st and 2nd A.C.Ps. in view of the judgments noticed above by passing a reasoned order in accordance with law after giving an opportunity of hearing to the petitioner within a period of eight weeks from the date of receipt/production of a copy of this order.
10. This writ application is disposed of with the aforesaid observations and directions.
11. Pending I.A.s, if any, stands disposed of. (R. Mukhopadhyay, J.) Umesh/-