Dhrubajyoti Deb vs The State Of Assam
2022 Latest Caselaw 3687 Gua

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GAHC010194542019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/6010/2019

            DHRUBAJYOTI DEB
            S/O- LT. JYOTIRMOY DEB, ACS CADRE OF 1995 BATCH. PRESENTLY
            SERVING AS ADDITIONAL DEPUTY COMMISSIONER, DIMA HASAO,
            HAFLONG, R/O. RAHAMAN PATTY, WARD NO. 04, HOUSE NO. 12,
            STEAMERGHAT ROAD, MALUGRAM, PO SILCHAR, DIST.- CACHAR,
            ASSAM. PIN- 781002.



            VERSUS

            THE STATE OF ASSAM
            TO BE REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
            ASSAM, PERSONNEL (A) DEPTT., ASSAM CIVIL SECRETARIAT, DISPUR,
            GUWAHATI-6.



Advocate for the Petitioner   : MR. A K DUTTA

Advocate for the Respondent : SC, PERSONNEL DEPT.




                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                          ORDER

Date : 21-09-2022

The petitioner has instituted this writ petition under Article 226 of the Constitution of India seeking inter alia firstly, for a direction to the respondent Page No.# 2/8

authorities to confirm the services of the petitioner as per Rule 22[2] of the Assam Civil Services Rules, 1998 ['the 1998 Rules', for short] by invoking the power of relaxation vested in Rule 29 of the 1998 Rules and, secondly, for a direction to the respondent authorities to grant the benefit of financial up- gradation to the petitioner in terms of the provisions of the Modified Assured Career Progression Scheme [MACPS], as notified by a notification dated 17.03.2017 of the Government of Assam and published in the Assam Gazette in its issue dated 17.03.2017.

2. It is the case of the petitioner that after his selection in the selection process undertaken by the Assam Public Service Commission [APSC] for recruitment to the Assam Civil Service [ACS], the petitioner came to be appointed in the ACS Class-I Junior Grade in its 1995 Batch by a notification dated 12.06.1995. Prior to joining in the ACS Junior Grade, the petitioner completed the Combined Induction Course for the ACS & allied officers of the 1995 Batch. During his service career, the petitioner served at different places on orders of posting and transfer. After completion of 20 years of service in ACS Class-I Junior Grade, the petitioner was promoted and allowed to officiate in the Senior Grade-II of the ACS vide a notification dated 31.12.2015 and by the notification dated 31.12.2015, the petitioner was posted as Additional Deputy Commissioner, Karimganj.

3. I have heard Mr. B. Purkayastha, learned counsel for the petitioner and Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam for the State respondents.

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4. Mr. Purkayastha, learned counsel for the petitioner has submitted that he is not pressing the first prayer regarding confirmation. In so far as the second prayer regarding extension of benefit of financial up-gradation under the MACPS is concerned, he has submitted that the petitioner has completed 20 years of service and during such 20 years of service, the petitioner has got only one regular promotion. As such, the petitioner due to completion of 20 years, is at least entitled for the grant of financial benefit under the MACPS provisionally notwithstanding the pendency of a criminal proceeding against him. In support of his submissions, Mr. Purkayastha has referred to the Gazette notification dated 17.03.2017 wherein the provisions of the MACPS have been outlined.

5. Mr. Chutia, learned Additional Senior Government Advocate, Assam appearing for the State respondent has submitted that the ACS officers are promoted in the time scale as per the Office Memorandum dated 14.08.2018. It is his submission that a member of the ACS can be granted the next higher grade pay along with corresponding allowances on promotion of requisite qualifying period with the current Grade Pay as mentioned in the Table in the Office Memorandum dated 14.08.2018, only if the officer has not been regularly promoted during the aforesaid period. The Office Memorandum has further clarified that the financial up-gradation is subject to the condition that there is no disciplinary or criminal proceeding against the officer.

6. I have considered the submissions of the learned counsel for the parties and have also perused the materials placed on record by the parties through their pleadings.

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7. The State Government has framed and notified the MACPS for the regular State Government employees by the notification dated 17.03.2017, which was published in the Assam Gazette in its issue dated 17.03.2017. As per the MACPS, it provides only financial up-gradation and shall not entail any change in designation, place and nature of work and change in the seniority of the person concerned in the gradation list. The financial up-gradation involves grant of one increment in the Pay Band of the employee without changing its Grade Pay. The basis of the benefits under the MACPS has been outlined therein. The relevant clauses viz. Clause 5[B][vii], Clause 5[B][xiv] & Clause 5[C] are extracted herein for ready reference :

"5[B][vii] The financial benefit of the scheme shall be given with effect only from 1.1.2017. However, the services rendered by the employee before 1.1.2017 and promotions/ACPS benefit availed before 1.1.2017 shall be taken into account for deciding and determining the extent of benefit under MACPS. For example an employee who has joined regular service in 1995 and his case has been considered in 2016, the service for the purpose of MACPS shall be counted from 1995 and accordingly he will be entitled for one promotion in 2006 and another in 2016. The first benefit under MACPS will in this case start only from 1.1.2017 and not earlier.

5[B][xiv] Normally the benefits under MACPS shall be applicable from the 1st day of January of the year in which the Screening Committee has held the meeting and recommended the case. This would imply that any employee who has completed 10/20/30 years of service in the previous year shall get the benefit only from the 1st January of the year in which the Screening Committee meeting is held. However if there is a DP or criminal proceeding against the employee, the benefit will be granted provisionally from the same date as in normal case and subject to the condition as follows:- [a] If there is any amount to be recovered as penalty, the recovery will be made as usual under existing rules of the Government; [b] If stoppage of increment is ordered as penalty, the date of effect of MACPS benefit will be delayed by the number of years equal to the number of stopped increments and recovery for the excess drawn Page No.# 5/8

will be made as usual.

5[C] Procedure for grant of financial upgradation benefit-

[i] Every department shall have a Screening Committee with the senior-most Secretary or any other Secretary authorized by the Senior-most Secretary as Chairman. The Head of the Department under the control of that Secretary and Financial Advisor of the department shall be the members of the Committee and the Deputy Secretary of the department shall be the Member-Secretary of the Committee.

[ii] The Committee, in the month of January every year, will consider all the cases of Government servants who have completed 10 years of service/20 years of service/30 years of service in the previous calendar year. The list of such Government servants will be prepared by the HODs in the month of December of the previous year and submitted to the Secretary for holding the meeting of the Screening Committee.

[iii] The Committee will verify the length of service as on 1st January of the year in which the meeting is held and will verify if any DP/criminal case is contemplated or under process against the Government servants under consideration. ACRs need not be considered for deciding the MACP benefit.

8. During his service tenure, the petitioner has been arraigned as an accused in two criminal cases. In a complaint case, C.R. Case no. 504/2015, the petitioner was arraigned as one of the four accused. After trial, the Court of learned Additional Chief Judicial Magistrate, Hailakandi delivered its judgment on 21.07.2018 whereby the petitioner has been acquitted from charges under Sections 409/34, Indian Penal Code and he has been set at liberty. In another case, CBI Case no. 02/2017, the investigating authority, the CBI has submitted its charge sheet on 15.09.2016 and in the said charge sheet, the petitioner has been charge sheeted.

9. It has been asserted that during his service tenure after joining as a member of the Assam Civil Services [ACS] in the year 1995, the petitioner has Page No.# 6/8

got one regular promotion without any financial up-gradation under the MACPS. A stand has been taken by the State respondents in its affidavit-in-opposition to the effect that the benefit of financial up-gradation is subject to the condition that there shall not be any departmental proceeding or criminal proceeding pending against the officer. As per the Office Memorandum dated 14.08.2018, Time Scale is to be granted to the ACS Officers. A member of the ACS is to be granted the next higher Grade Pay subject to fulfillment of the other conditions mentioned therein. One of the conditions is that the financial upgradation is subject to the condition that there is no disciplinary or criminal proceeding against the officer. It has been averred that since prosecution sanction was granted against the petitioner by the order dated 12.01.2017 by the Personnel Department, the petitioner has not been considered for promotion to Senior Grade-I, as per Rule 13[3] of the 1998 Rules. It has been sought to project that the petitioner has not been granted financial benefits of fixed time scale of higher grade pay of ACS Senior Grade-I, as provided in the Office Memorandum dated 14.08.2018, because of the criminal proceeding pending against him.

10. A perusal of the provisions of the MACPS, more particularly, Clause 5[B] [xiv] goes to indicate that any employee who has completed 10/20/30 years of service in the previous year shall get the benefit only from 1st day of January of the year in which the Screening Committee meeting has been held. In case any departmental proceeding or criminal proceeding is pending against an employee, the financial benefit under the MACPS will be granted provisionally from the date as in normal case and subject to the conditions : [a] if there is any amount to be recovered as penalty, the recovery will be made as usual under existing rules of the Government; [b] if stoppage of increment is ordered Page No.# 7/8

as penalty, the date of effect of MACPS benefit will be delayed by the number of years equal to the number of stopped increments and recovery for the excess drawn will be made as usual.

11. A perusal of the said clause goes to indicate that there has to be a prior order either for recovery of any amount as penalty or stoppage of increment of the employee as penalty. Prima facie, none of the said two conditions is found to be present in the case of the petitioner and as such, the two conditions attached for grant of financial benefit under the MACPS provisionally appear to be non-existent. On the admitted position that a criminal proceeding is pending against the petitioner, it is not envisaged for stoppage of financial benefit under the MACPS and such employee like the petitioner can be considered for grant of financial benefit provisionally under the MACPS provisions.

12. The Office Memorandum dated 14.08.2018 has not dealt specifically on the grant of financial benefit provisionally. It transpires from the Office Memorandum dated 14.08.2018 that it speaks about higher Grade Pay whereas the MACPS mentions about financial upgradation which involves grant of one increment in the Pay Band without changing its Grade Pay and in case any employee is drawing the highest amount of the Pay Band, he would be granted an increment and the Pay Band for this purpose shall be deemed to have been extended to that extent.

13. In the light of the above discussion, this Court is of the considered view that the case of the petitioner may be considered for grant of financial benefit provisionally by the competent authority by taking into consideration the Page No.# 8/8

provisions of the MACPS, more particularly, Clause 5[B][xiv] and the Office Memorandum dated 14.08.2018 together. Accordingly, this writ petition is disposed of with a direction to the State respondent authorities to consider the case of the petitioner for extending the financial benefit provisionally in terms of the MACPS and the Office Memorandum dated 14.08.2018 by taking into account that the petitioner's more than 20 years of service in the ACS is without two regular promotions. After such consideration, a speaking order be passed. It is ordered accordingly. It is further observed that such speaking order is to be passed with a period of 2 [two] months from the date of receipt of a certified copy of this order from the petitioner. The speaking order so passed shall also be communicated to the petitioner.

JUDGE

Comparing Assistant