The State Of Jharkhand vs Surendrachoudhary
2021 Latest Caselaw 3883 Jhar

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       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       L.P.A. No. 171 of 2021
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1.The State of Jharkhand

2.The Secretary-cum-Commissioner, Commercial Taxes, Government of Jharkhand, Project Building, P.O & P.S.

-Dhurwa, Dist-Ranchi, Jharkhand.

3.The Joint Commissioner, Commercial Taxes (Administration), Jamshedpur Circle, P.O & P.S. - Jamshedpur, Dist- Singhbhum East, Jharkhand.

4.The Deputy Commissioner (Sales Tax), Jamshedpur Circle, P.O & P.S. - Jamshedpur, Dist- Singhbhum East, Jharkhand.

                                   ....Respondents/Appellants
                            Versus
      SurendraChoudhary,           son     of     late      Ram

SharanChoudhary, resident of Sanjay Colony, Sanjay Path, Road No. 1, Dimna Road, Mango, P.O & P.S. Mango, Jamshedpur, Dist-Singhbhum East, Jharkhand.

.... Petitioner/Respondent CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE AMBUJ NATH

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For the Appellants : Mr. Ashutosh Anand, A.A.G.III For the Respondent : --

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Order No. 04: Dated 18thOctober, 2021: Per Sujit Narayan Prasad, J:

The instant intra-court appeal under Clause 10 of

the Letters Patent is preferred against order/judgment

dated 23.02.2021 in W.P.(S) No.4631 of 2017 whereby

and whereunder, the learned Single Judge quashed the

order as contained in letter dated 26.04.2017, by which

the appellants-State refused to confirm the services of

the writ petitioner as also extend the benefits

MACP/ACP, and directed to issue the order of

confirmation with regard to petitioner and consequently

grant the benefit of 1st and 2nd ACP.

2. The brief facts of the case, as per the pleading

made in the writ petition, which require to be

enumerated, read hereunder as:

The writ petitioner was appointed vide order dated

04.07.1980 in terms of advertisement for appointment

on the post of Clerk in Commercial Taxes Department

in the erstwhile State of Bihar floated in the year 1979.

After his appointment, he started to discharge his

duties as Clerk atDarbhanga, Bihar wherefrom he was

transferred to Jamshedpur Division vide order dated

16.01.1985.

It is the case of the writ petitioner that he qualified

the requisite typing test as would be evident from letter

dated 16.10.1981 issued by the Joint Commissioner,

Commercial Taxes, Darbhanga, as such

recommendation for confirmation of his service was

made. He has further passed the requisite Hindi noting

and drafting examination, as would be evident from

letter dated 22.12.1983. The petitioner has also passed

the Accounts Examination, as would be evident from

letter dated 11.05.1994 issued by the Revenue

Department.But, even after completing 33 years of

service no order of confirmation of service was passed

till his retirement i.e. 31.03.2013.

Being aggrieved, the petitioner approached this

Court by filing writ petition being W.P. (S) No. 6480 of

2012, which was disposed of vide order dated

11.12.2012 with a direction to respondent no. 2-the

concerned competent authority to take appropriate

decision on the representation of the petitioner within a

stipulated period. Pursuant thereto, the writ petitioner

submitted representation before the competent

authority which was rejected vide order dated

20.02.2013.

Aggrieved thereof, the writ petitioner again

approached this Court by filing writ petition being

W.P.(S) No. 1437 of 2013, which was allowed vide order

dated 13.11.2013, whereby order dated 20.02.2013 was

quashed and direction was issued to pass fresh order

regarding confirmation of service of the petitioner and

on his claim for benefits of 1st and 2nd ACP maintaining

equality with the case of the similarly situated employee

and also pass order regarding payment of admitted

dues of salary and post retiral benefits within a

stipulated period. Pursuant thereto the competent

authority of the State passed order dated 02.12.2014

whereby claim of the petitioner for confirmation of

service and extending the benefit of ACP/MACP was

rejected.

Being dissatisfied with order dated02.12.2014 the

writ petitioner filed W.P. (S) No. 295 of 2015 which was

disposed of vide order dated 26.10.2015 in terms of

order dated 09.09.2015 passed in W.P. (S) No. 259 of

2013 [Manoj Kumar Sinha Vs. State of Jharkhand

& Ors] holding that the case of the present writ

petitioner is required to be considered by the

respondent-Department through the procedure evolved

and taking into consideration judgment passed in

Manoj Kumar Sinha (supra).The case of the writ

petitioner was again considered and rejected vide order

dated 26.04.2017.

The writ petitioner questioning order dated

26.04.2017 approached this Court by filing W.P. (S) No.

4631 of 2017. The learned Single Judge, after

appreciating the arguments advanced by the parties,

quashed order dated 26.04.2017 and directed the

respondents-authorities to issue confirmation order

with regard to service of the petitioner and

consequential order for granting the benefits of 1st ACP

and 2nd ACP, which is the subject matter of present

intra-court appeal

3. Mr. AshutoshAnand, learned A.A.G. III appearing

for the appellants-State of Jharkhand has questioned

the order passed by learned Single Judge on the ground

that the post in question on which the writ petitioner

was appointed was not sanctioned one as also

procedure for appointment was not followed, which was

not appreciated by learned Single Judge, therefore, the

order passed by the learned Single Judge is not

sustainable.

4. We have heard learned counsel for the appellant,

perused the documents available on record as also the

finding recorded by learned Single Judge.

5. This Court before proceeding to screening the

legality and propriety of the impugned order deem it fit

and proper to refer certain undisputed facts, which is

necessary for proper adjudication of the lis:

In pursuance to advertisement issued by the

competent authority of the State, the writ petitioner

participated and after being declared successful in the

skill test and interview was appointed on the post of

Clerk in Commercial Taxes Department in the erstwhile

State of Bihar vide order dated 04.07.1980. After his

appointment, he started to discharge his duties as

Clerk in Darbhanga, Bihar and thereafter he was

transferred to Jamshedpur Division vide order dated

16.01.1985.

The writ petitioner claims that he qualified the

requisite typing test as would be evident from letter

dated 16.10.1981 issued by the Joint Commissioner,

Commercial Taxes, Darbhanga, therefore, his services

was recommended for confirmation, as per clause (2) of

the terms and conditions of the offer of appointment

dated 04.07.1980 and thereafter, he was allowed to

continue in service till attaining the age of

superannuation and finally he retired on 31.03.2013

but neither his services was confirmed nor he was

granted applicable ACP/MACP. The petitioner has also

passed the Accounts Examination, as would be evident

from letter dated 11.05.1994 issued by the Revenue

Department.

The competent authority under the applicable

pension rule sanctioned pension in favour of writ

petitioner and forwarded the same to the Accountant

General for issuance of authority slip. The office of the

Accountant General issued authority slip and

thereafter, the writ petitioner is getting pension

regularly.

The writ petitioner seeking the benefit of regular

promotion as well as benefits of 1st and 2nd ACPs

approached this Court by filing W.P. (S) No. 6408 of

2012, which was disposed of vide order dated

11.12.2012 with a direction to respondent no. 2-the

concerned competent authority to take appropriate

decision on the representation of the petitioner within a

stipulated period. Thereafter, the writ petitioner

submitted representation which was rejected by the

authority concerned vide order dated 20.02.2013

whereby claim of the writ petitioner for confirmation of

service as also grant of ACP/MACP was rejected.

Against that the writ petitioner again filed writ

petition being W.P.(S) No. 1437 of 2013, which was

allowed vide order dated 13.11.2013, whereby order

dated 20.02.2013 was quashed and direction was

issued to pass fresh order regarding confirmation of

service of the petitioner and on his claim of benefits of

1st and 2nd ACP maintaining equality with the case of

the similarly situated employee and also pass order

regarding payment of admitted dues of salary and post

retiral benefits within a stipulated period. Pursuant

thereto, order was passed by the competent authority of

the State passed order dated 02.12.2014, whereby

claim of the petitioner for confirmation of his service

and extending the benefit of ACP/MACP was rejected.

Being aggrieved with order dated 02.12.2014,the

writ petitioner filed W.P. (S) No. 295 of 2015, which was

disposed of vide order dated 26.10.2015 in terms of

order dated 09.09.2015 passed in W.P. (S) No. 259 of

2013 [Manoj Kumar Sinha Vs. State of Jharkhand

& Ors] holding that the case of the present writ

petitioner is required to be considered by the

respondent-Department through the procedure evolved

and taking into consideration judgment passed in

Manoj Kumar Sinha (supra).

In the light of aforesaid direction, the case of the

writ petitioner was considered and claim of the writ

petitioner was rejected by the authority concerned vide

order dated 26.04.2017, which was challenged by filing

W.P. (S) No. 4631 of 2017. The writ Court considering

the material available before the Court quashed the

order dated 26.04.2017 directing the authority

concerned to issue confirmation order of service of the

petitioner and consequent thereupon grant the benefit

of 1st and 2nd ACP, which is the subject matter of

present intra-court appeal.

The appellants-State has raised the question about

non-sanction of the post on which the writ petitioner

was working since 198o. The advertisement and the

process of selection has not been disputed by the

appellants-State however statement has been made in

the counter affidavit filed in the writ petition to the

effect that it is a matter of record. The issue of post

having not been santioned is the main question raised

by the appellants for assailing the order passed by the

learned Single Judge.

In the factual aspect of the matter, this Court is of

the view that the question 'post having been sanctioned'

or 'post having not been sanctioned' is of paramount

consideration.

Admittedly, the writ petitioner was appointed after

going through the process of appointment and after

being declared successful in the typing test and

interview offer of appointment was issued vide order

dated 04.07.1980, wherein at clause (2) in unequivocal

terms it has been stipulated that the writ petitioner has

to again appear for typing test till 31.12.1980 and to

pass the typing test and only thereafter his services will

be regularized. The writ petitioner claims that he

qualified the requisite typing test as would be evident

from letter dated 16.10.1981 issued by the Joint

Commissioner, Commercial Taxes. Besides, the writ

petitioner had also passed the Hindi noting and drafting

examination, as would be evident from letter dated

22.12.1983 and also the Accounts Examination, as

would be evident from letter dated 11.05.1994 issued

by the Revenue Department.

The writ petitioner continued to discharge his

duties till his retirement without any demur. But, when

in the year 2012 before his retirement the writ

petitioner raised grievance for extending the benefit of

A.C.P./M.A.C.P, by way of filing W.P. (S) 6480 of 2012,

the writ Court directed to dispose of the representation

of the writ petitioner, whereupon case of the writ

petitioner was considered and his claim for

confirmation of service and grant of benefit of

ACP/MACP was rejected vide order dated 20.02.2013.

On the one hand, the claim of the writ petitioner

for confirmation of service and grant of benefit of

ACP/MACP was rejected vide order dated 20.02.2013

but on the other hand, the competent authority of the

State under the applicable pension rule sanctioned

pension in favour of writ petitioner and forwarded the

same to the Accountant General for issuance of

authority slip. The office of the Accountant General

issued authority slip and thereafter, the writ petitioner

is getting pension regularly, which has been accepted

by both the parties.

Herein, it would be required to mention that

pension is only paid, if appointment of the public

servant is made on the substantive post, as would be

evident from Rule 58 of the Jharkhand Pension Rule.

Thus, it is evident that entitlement for qualifying

pension will only come on the basis of fulfilment of

three conditions, i.e.:

First--The service must be under Government. Second--The employment must be substantive and permanent.

Third--The service must be paid by Government.

Therefore, the sine qua non for getting the pension

is that the appointment must be substantive and

permanent.

The substantive post denotes that appointment, if

made in the regular establishment of the State

Government in a particular pay-scale and against

sanctioned post and only when the appointment will be

found to be in the regular establishment of the State

Government in a particular pay-scale, will be treated to

be appointment on substantive capacity. No objection

regarding sanction of the post was raised before

sanction of the authority slip of the pension of the writ

petitioner rather the same was forwarded and pension

was sanctioned by the competent authority of the

Accountant General from where the authority slip for

pension has been issued and writ petitioner has been

extended the benefit of pension.

It is also not the case of the State that even though

the service of the writ petitioner was temporary as such

resorting to the provision of Rule 59 of the Pension

Rule, pension has been sanctioned rather case of the

State is that pension has been sanctioned considering

Rule 58 of the Pension Rules.

This action of the State Government clearly

indicates that the appointment of the writ petitioner

cannot be treated to be made on non-sanctioned post.

Therefore, on the basis of stand of the State

Government it cannot be accepted that the post of the

petitioner was not sanctioned since no such document

has been annexed by the State Government that the

post was not sanctioned rather it will be treated to be

admission on the part of the State Government that

writ petitioner was appointed against sanctioned post

on the basis of their action that the pension has been

sanctioned considering the provision as under Rule 58

of the Jharkhand Pension Rule.

Further, we have considered the order passed by

the writ Court in W.P. (S) No. 1437 of 2013 dated

13.11.2013.

For ready reference, the relevant paragraph is

quoted hereunder as:

"I have heard learned counsel for the parties and considered the facts and materials on record.

It is an admitted position that the petitioner was appointed in the year 1980; he remained in service for more than three decades; he was given salary and other service benefits during his entire tenure of more than three decades. After attaining the age of superannuation, the petitioner retired on 31.3.2013. It is also not disputed that the services of one Yogendra Prasad, who was similarly appointed on the post of Clerk in the Department of Commercial Taxes, was confirmed and he has been given the benefits of 1st and 2nd A.C.P. In view thereof, the respondents cannot discriminate, withhold or deny the petitioner's confirmation and benefits of 1st and 2nd A.C.P.

It appears ridiculous that the matter regarding confirmation of the petitioner's service will be considered after framing of the scheme, when the petitioner has already completed his long tenure of service and retired. In the counter affidavit, nothing has been stated to justify the different treatment to the petitioner while the services of similarly situated Yogendra Prasad was confirmed and benefits of 1st and 2nd A.C.P have already been given to him. The impugned order (Annexure-4) rejecting the petitioner's prayer for confirmation and giving benefits of 1st and 2nd A.C.P is, thus, wholly arbitrary, discriminatory and unsustainable. The said order contained in Letter No. 839 dated 20.2.2013 (Annexure-4) is quashed.

This writ petition is allowed.

The respondents are directed to pass a fresh order regarding confirmation of the petitioner's service and on his claim of benefits of the 1st and 2nd M.A.C.P maintaining equality with the case of the similarly situated

employee, as mentioned above, within six weeks from the date of receipt / production of a copy of this order. Since the petitioner has already retired, the respondents shall pass order regarding payment of admitted amounts of difference of salary and post retiral benefits in terms of the said order with statutory interest, within six weeks thereafter".

Thus, it is evident from perusal of the order, as

quoted herein above that even this Court sitting under

Article 226 of the Constitution of India has noted that

the admitted fact is that appointment of the writ

petitioner was made three decades ago and he was

given salary and other benefits during the entire period

of service till his retirement. Learned Single Judge

further observed that services of one Yogendra Prasad,

who was similarly appointed on the post of Clerk in the

Department of Commercial Taxes, was confirmed and

he has been given the benefits of 1st and 2nd A.C.P, as

such the respondents-State cannot discriminate,

withhold or deny the petitioner's confirmation and

benefits of 1st and 2nd A.C.P. Accordingly, quashed the

order dated 20.02.2013, whereby claim of the petitioner

for confirmation of service and grant of ACP was

rejected, and directed to pass order regarding

confirmation of petitioner's service and on his claim of

benefits of 1st and 2nd ACP maintaining equality with

the case of the similarly situated employee.

The State authority even after finding recorded by

the learned Single Judge and direction made thereon,

rejected the claim of the petitioner as if the State-

authority is sitting as an appellate forum upon the

order passed by the writ Court under Article 226 of the

Constitution of India. If the State was at all aggrieved by

the order passed by the learned Single Judge, he had

remedy of appeal, but instead of preferring any appeal,

it has taken a contrary view treating it to be appellate

forum.

This Court on the basis of factual aspect of the

matter is of the view that when the conclusive

findingwas recorded by the learned Single Judge, the

State cannot be allowed to agitate the issue that the post

having not been sanctioned.

So far the argument of the State that process of

appointment having not been followed according to our

considered view, the same is also having no force as the

fact about issuance of advertisement participation of the

writ petitioner in skill as well as interview has not been

disputed by the State in the counter affidavit filed before

the writ Court, only the statement pertaining to issuance

of advertisement has been replied by making statement

that the same is matter of records so needs no comment

which clearly goes to suggest that the fact about

issuance of advertisement has not been denied by the

State-respondent, therefore, there is no question of non-

observance of principles laid down under Article 14 and

16 of the Constitution of India.

We, on the basis of entirety of facts and

circumstances of the case travelled towards the order

passed by the learned Single Judge has found therefrom

that the learned Single Judge has considered the

aforesaid aspect of the matter more particularly finding

recorded in W.P. (S) No. 1437 of 2013 as also the long

tenure of the writ petitioner, which was allowed by the

State to serve and to allow the writ petitioner to retire on

attaining the age of superannuation, and therefore, the

learned Single Judge quashed impugned order dated

26.04.2017 whereby claim of the petitioner for

confirmation of service and grant of ACP/MACP was

denied, are of the considered view that the order passed

by the learned Single Judge suffers from no infirmity.

18. Accordingly, the appeal fails, and is dismissed.

(Sujit Narayan Prasad, J.)

(AmbujNath, J.) Alankar/ -

A.F.R.