The Division Bench of Jharkhand High Court set aside the order denying benefits of petitioners under the DACP scheme and held that vested right is a right independent of any contingency and it cannot be taken away without the consent of the person concerned and when the right has been accrued, the same can only be recalled by providing an opportunity of hearing otherwise the person concerned who is to face the civil consequence will have the result without providing an opportunity of hearing.
Brief Facts:
The petitioners were the medical practitioners employed under the state who had retired from their services. The Government of Jharkhand accepted the implementation of both the 5th and 6th pay revisions implemented by the Government of India. The petitioners, being qualified in terms of 5th and 6th pay revisions were granted the benefits of DACP but all of a sudden without any information or show cause notice the DACP granted to the petitioners was withdrawn. The petition filed by the petitioners challenging this was dismissed by the trial court on the ground that benefits to be granted under the DACP scheme are matters within the exclusive domain of the executive and not of the judiciary. The present petition was then filed by the petitioners challenging this order.
Contentions of the Applicant:
The learned counsel appearing for the appellants contended that there is no dispute that extending the benefit to the employees under the upgraded scheme is within the domain of the State Government but once the basis of such upgradation, i.e., recommendation of 5th Pay Revision and 6th Pay Revision has been adopted by the State, then it is incumbent upon the State to take decision strictly in accordance with law by assigning reason for notice of cancellation. It was further argued that there is no question of any double advantage of the upgradation in the pay scale to be extended in favor of the petitioners rather the question herein is the entitlement of the writ petitioners and the State cannot be allowed to take the ground that the writ petitioners cannot be allowed to take double advantage of upgradation in two schemes. It was further argued that the state had acted arbitrarily and only for the reason that the writ petitioners have been granted the benefit of upgradation under the ACP scheme, therefore, they are not entitled to the upgradation under the DACP Scheme, which cannot be said to be a justified ground since the State is only to consider that the writ petitioners may not be allowed to take advantage of both the schemes.
Contentions of the Respondent:
The learned counsel appearing for the respondent contended that the benefit to be granted under the DACP is the exclusive domain of the State Government which is to be based upon the policy decision and the scope of judicial review is very least in the matter of policy decision. It was further argued that the decision was taken by way of a policy decision to rectify the anomaly so that the doctors who have already got the benefit of ACP may not be allowed to take double advantage.
Observations of the Court:
The court observed that the policy decision of the state is not to be disturbed unless it is found to be grossly arbitrary or irrational and the interference by way of exercise of power under judicial review is only to the extent if it has been found that the action of the State is arbitrary and suffers from the vice or malice and is in teeth of Article 14.
It was further stated that the state has the power to take policy decisions for the purpose of upgrade or grant of upgradation but the same must be based upon valid reason. It was further stated that there was not any dispute in the reasoning of the state regarding double advantage under both the schemes and the employee, in any case, cannot be allowed to take advantage of benefits under both schemes but the question is that if the State Government has extended the benefit under the ACP Scheme in favour of the writ petitioners on the ground that on the day when the benefit of ACP scheme was given, there was no exclusive scheme for granting upgradation to the doctors even though there was a recommendation to that effect in the 5th Pay Revision Committee and 6th Pay Revision Committee.
It was further observed that the question of prejudice to be considered that who will be prejudiced and the balance of convenience lies in whose favour and if the excess amount will be exceeding the entitlement of the writ petitioners, the balance of convenience will be in favour of the State which will prejudice the interest of the State but if the excess amount paid is undertaken to be recovered by way of adjusting, then the question is whether the State can be said to be prejudiced or is suffering from any financial loss. The petitioners had already given an undertaking stating that they would return any excess amount paid under the scheme and were ready for its adjustment and the petitioners, therefore, will be at prejudice if the benefit which has been extended by the acceptance of resolution of 5th and 6th pay Revision Committee by the State Government holding the writ petitioners entitled for three upgradations under the DACP Scheme and if the said benefit will be denied, the same will highly prejudiced and detrimental to the interest of the writ petitioners.
The decision of the Court:
The court allowed the petition and set aside the impugned order as it was not justifiable in putting the petitioners in a detrimental position.
Case Title: Shyam Sundar Singh and ors. vs. The State of Jharkhand and ors.
Coram: Hon’ble Mr. Justice Sujit Narayan Prasad and Hon’ble Mr. Justice Subhash Chand
Case No.: L.P.A. No. 86 of 2018
Advocate for the Applicant: Mr. Anil Kumar Sinha and Mrs. Debolina Sen Hirani
Advocate for the Respondent: Mr. Sachin Kumar, Mr. Ravi Kerketta, Mr. Piyush Anand, Mr. Rupesh Singh and Ms. Jagdeesh
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