Jharkhand High Court

Ram Kumar Bhagat vs The State Of Jharkhand on 21 September, 2021

                                  1

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P.(S) No.6497 of 2010
                                      -------

        Ram Kumar Bhagat                    ...    ...    Petitioner
                               Versus
        1.     The State of Jharkhand.
        2.     The   Secretary,   Road      Construction    Department,

               Government of Jharkhand, Project Building, Dhurwa,
               Ranchi.                           ...    ... Respondents
                                      -------
        CORAM        : HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                      -------
        For the Petitioner            :Mr. Sudarshan Srivastava, Adv.
        For the Res.State             :Mr. Ashok Kr. Yadav, G.A.-I
                                      -------
                     Through:- Video Conferencing
                                      -------
10/21.09.2021        Heard learned counsel for the parties through

        V.C.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing of the order

as contain in letter No.4557(S) dated 16.08.2010 issued

under the signature of Deputy Secretary, Road

Construction Department, Jharkhand Ranchi whereby the

claim of the petitioner for payment of arrears of increments

for the period from April, 2005 to 29.05.2009 has been

rejected and also for a direction upon the respondent

authorities to pay the arrears of increments for the said

period.

3. The facts of the case lie in narrow compass.

Petitioner was appointed as Junior Engineer on

09.12.1982. Subsequently, he was also promoted to the

post of Assistant Engineer in the quota of AMIE in the

revised pay scale of Rs.6500-10500/-. The petitioner

further passed the departmental examination held in June,

2002. The grievance of the petitioner is that since the State

of Jharkhand has not conducted any professional

examination so the petitioner could not appear and the

moment the respondent-State has conducted the

professional examination in the year 2009; this petitioner

qualified and pursuant to that his increments was directed

to be calculated since 2005 itself but arrears were denied.

The petitioner had earlier moved before this

Court for grant of ACP benefit as his junior obtained the

same benefit and he was discriminated. In the said writ

application the Writ Court quoted paragraph No.6 of the

counter affidavit filed in that case and the case was

disposed of by directing the respondent to issue

consequential order granting monetary benefit of ACP

scheme.

Paragraph No.6 of the counter affidavit filed in

that case is quoted herein below

"6. That it is further stated and submitted that as mentioned in para-6 of the counter affidavit process of examination has been conducted and the petitioner succeeded.

In view of the above fact for which the petitioner will get Assured Career Progression Scheme and he also get the monitory benefits only after getting the vigilance clearance and other confidential report. The matter will be

scrutinized by the Departmental Promotion Committee under the Chairmanship of Development Commissioner. Under the above circumstances it will take some time to grant the benefits to the petitioner.

The Respondents craves leave of this Hon'ble Court to do all this formalities as soon as possible."

Subsequently, the examination was conducted in

the year 2009 and the petitioner passed the examination

and the respondent-department gave the benefit of

increments to the petitioner after fixing his increment in

proper channel and paid the same with effect from

13.05.2009; however, the arrears of increment from April,

2005 till 29.05.2009 was not paid to him.

The petitioner made representation in which he

has specifically mentioned that for passing of departmental

professional examination he has requested the department

several times and finally the State of Jharkhand conducted

the examination in 2009, which he qualified in first

attempt, as such it was not the petitioner who was

responsible for non passing the departmental professional

examination; rather due to not holding examination by the

department, the petitioner could not pass within three

years.

His representation was disposed of in most

cursory manner by only saying that since the petitioner has

passed the departmental professional examination in the

year 2009 as such; notionally his increments will be fixed

from 2005 itself, however the monetary benefit from 2005

will not be paid to the petitioner.

4. Mr. Sudarshan Srivastava, learned counsel for

the petitioner contended that when there is no fault of this

petitioner for not holding the examination then there is no

reasoning for not giving him arrears of increments. He

further submits that his pension has already been fixed

and since increment has already been revised from 2005

itself, as such even if the arrears of increments is given to

him, there will be no change in his pensionary benefit.

Learned counsel reiterated that though the

petitioner requested the department several times to hold

the departmental professional examination but since the

same was conducted for the first time in the year 2009 in

which he duly passed which is apparent from Annexure-2

itself; as such non giving of arrears of the increments is

inconsistent and the respondent cannot take the plea of

Rule 7 of Part II of Bihar P.W.D. Code which deals with

professional examination of Assistant Executive Engineer,

Assistant Engineer and Assistant Electrical Engineer in

which it has been mentioned that failure to pass the

examination within the prescribed period will not affect the

amount of an officer's salary when he has subsequently

passed the examination, but the arrear will not be paid to

him.

Relying upon the aforesaid arguments, learned

counsel submits that the respondent-State be directed to

pay the arrears of increments from April, 2005 to

29.05.2009.

5. Mr. Ashok Kumar Yadav, learned counsel for the

respondent-State submits that the claim of the petitioner to

pay arrears of increments is not admissible because he has

not passed the required professional examination within

the specified period. He further submits that since the

petitioner had pass the departmental examination

conducted by Central Examination Committee State of

Bihar in the year 2002; as such according to the provision,

the petitioner should have appeared for the professional

examination in the year 2003 itself which is being regularly

conducted by the Government of Bihar because the final

Cadre division of Assistant Engineer due to bifurcation was

finalized in the year 2006; as such the petitioner himself is

responsible for not appearing in the required examination.

Mr. Yadav further referred to the Bihar P.W.D

Code (hereinafter to referred as Rule) wherein Part-II of the

Index-IV deals with rule with respect to professional

examination and its effect. He strenuously contended that

Rule-1 categorically says that all Assistant Engineers of the

P.W.D and other departments must pass the professional

examination as prescribed in Bihar Public Works

Department Code within three years of joining their

appointment in the State. He further submits that Rule-2

and 3 prescribed the procedure and finally in Rule-7 the

effect for non passing of the examination has been given

wherein it has been stated that an officer failing to pass the

examination within the period specified in Rule 1; his

increments will be withheld and arrears of increments so

withheld will not be granted to him on his passing the

examination except in special cases where his failure to

pass has been due to the circumstances beyond his own

control. As such the department has acted in accordance

with the Bihar P.W.D Code for not giving him the arrears of

increments.

He lastly submits that the petitioner's pension

has already been fixed by taking the period of 2005 itself,

however, it is only due to Rule-7 the arrears of

increments/monetary benefit has not been made as the

same was sanctioned notionally. He concluded his

argument by submitting that the petitioner has not stated

anywhere that as per Rule-3 of the aforesaid Rule, he

applied for permission to appear for the examination; as

such all the submissions of the petitioner is non-est in the

eye of law.

6. Having heard learned counsel for the parties and

after going through the relevant documents available on

record; it appears that the petitioner was promoted to the

post of Assistant Engineer in the revised pay scale of

Rs.6500-10500/- vide order dated 28.04.2000. Admittedly;

the petitioner passed the departmental examination in the

year 2002, and was required to pass a professional

examination within three years of promotion i.e. till 2003.

However, due to bifurcation of State, the petitioner's

services remained in the State of Jharkhand and his entire

service book is with the State of Jharkhand.

From Annexure-2 of the writ application, it

appears that the petitioner passed the first half yearly

professional examination which was held in the year 2009.

7. It is a specific case of the petitioner that since

there was no examination conducted by the respondent

department; he could not pass the professional

examination and the moment the first professional

examination was held in the year 2009; he succeeded in

that which was notified by notification dated 06.08.2009.

By critically examining of the notification, it

appears that it was definitely first half yearly professional

examination. It further transpires from the representation

(Annexure-3) that when the petitioner succeeded in the

departmental professional examination his increment was

allowed since 2005 itself; inasmuch as, he was entitled for

the same since 2005 as he succeeded in the first

departmental examination.

However, since the arrears of increments was not

paid to him; he represented the respondent department in

which he has categorically stated that he has requested

several times to the department to hold professional

examination and only in the year 2009, the same was

conducted and he passed in the first attempt as such he

requested for arrears of increments. The said

representation was disposed of by simply saying that since

he has passed the departmental examination in 2009

which was conducted for the year 26.05.2009 to

30.05.2009 as such; he is entitled for increments from the

year April, 2005 but that will be notional and the monetary

benefit will be given from 01.06.2009.

This impugned order falsifies the arguments of

the respondent-State to the extent that the petitioner did

not apply for holding departmental professional

examination.

8. Enough has been argued by State counsel on the

rules of Bihar PWD relating to professional examination.

For better appreciation of the case and to decide the issue

involved; Rule-1, 2, 3 and 7 are quoted as under:-

1. All Assistant Engineers of the P. W. D. (B & R) Public Health Engineering Departmenrt, Irrigation & Electricity Department must pass the professional examination prescribed in Jharkhand Public Works Department Code, paragraph 55 within three years of joining their appointments in the State.

2. On first appointment these officers will be employed in such a manner as will afford them the experience of work necessary to enable them to pass the examination laid down in these rules and will personally compile for one month the accounts of a subdivision including the checking of measurement books, preparation of bills and posting of day books, contractor's ledgers and other subdivisional registers. They will subsequently spend a period of at least fifteen days in a divisional office where, with the Accountant's assistance, they will compile the divisional accounts of the month.

3. No officer will be permitted to appear for the examination until he has undergone the training prescribed in rule 2 and in addition has been satisfactorily

reported on by the Executive Engineer and Superintending Engineer as regards his physical energy any efficiency in practical work and his capacity to manage those under his authority. A special report regarding these qualifications will be submitted to the Chief Engineer when an officer applies for permission to appear for examination.

7. In the event of an officer failing to pass the examination within the period specified in rule 1 his increment will be withheld and arrears of increments so withheld will not be granted to him on his passing the examination except in special cases where his failure to pass has been due to the circumstances beyond his own control. Failure to pass the examination within the prescribed period will not however affect the amount of an officer's salary when he has subsequently passed the examination and he will then be entitled to the rate of pay corresponding to the length of his service. In exceptional cases, when, owing to the exigencies of the public service or illness, an officer is unable to pass the Professional Examination within the prescribed period the State Government may grant such extension of time as they may consider necessary, and if the officer passes within this further period, no penalty will be enforced.

The main argument of the respondent-State is

that as per Rule-7 the petitioner is not entitled for the

arrears of increments as the aforesaid rules clearly

stipulates that in the event of an officer failing to pass the

examination within the period specified in rule 1 his

increment will be withheld and arrears of increments so

withheld will not be granted to him on his passing the

examination.

This aforesaid contention of the respondent State

that as per Rule-7 the petitioner is not entitled for the

arrears of increments is not accepted by this Court,

inasmuch as, the same Rule-7 clarified further that in

exceptional cases, when, due to the exigencies of the public

service or his illness an officer is unable to pass the

professional examination within the prescribed period the

State Government may grant such extension of time as

they may consider necessary, and if the officer passes

within this further period, no penalty will be enforced.

9. Even otherwise, after examining the aforesaid

Rules it clearly transpires that in none of the Rules of it has

been indicated that if the examination will not be

conducted by the department then the petitioner will not be

entitled for arrears of increments. So far as the arguments

of the respondent-State that "circumstances beyond control"

means "non holding of examination" is not accepted by this

Court, inasmuch as, the rule itself says owing to the

exigencies of the public service or illness if an officer is

unable to pass the examination within the prescribed

period, the State Government may grant such extension of

time and if the officer passes within this further period, no

penalty will be enforced.

At the cost of repetition; Annexure-2, which is

notification of the passing of departmental professional

examination itself says that it was the first half yearly

departmental professional examination which was

conducted in the year 2009. Subsequently, in the

representation the petitioner has categorically stated that

he has requested several times to hold the professional

examination and the moment the examination was held in

the year 2009 for the first time by the State of Jharkhand;

he qualified in the first attempt as such none of the rules

as relied by the State counsel applies in the case of the

petitioner when the examination itself was held for the first

time after creation of the State of Jharkhand.

During course of hearing it was especially asked

by the learned counsel for the respondent-State as to

whether any examination was conducted from the year

2002 to 2005, however no answer was given on the pretext

that the records are not available in the State of Jharkhand

for the previous period but the fact remains that the

documents annexed with the counter affidavit; it appears

that the entire service book is with the department of State

of Jharkhand.

          Moreover,      the     entire     arguments        of    the

respondent   State    that     petitioner   did    not    apply    for

professional examination and/or he should have passed

the examination within three years is falsified, inasmuch

as, paragraph 6 of the counter affidavit dated 23.11.2009

quoted in the earlier writ application which has been filed

by the petitioner wherein it has been stated as under:-

1. Before the counsel for the petitioner argues in detail that the petitioner is entitled for the benefit of the Assured Career Progression Scheme as his junior has already obtained the said benefit and the petitioner is discriminated illegally, it is fairly submitted by learned counsel for the respondents by stating on oath in the

affidavit filed on 23rd November, 2009 in paragraph 6, which reads as under:-

"6. That it is further stated and submitted that as mentioned in para-6 of the counter affidavit process of examination has been conducted and the petitioner succeeded.

In view of the above fact for which the petitioner will get Assured Carrer Progression Scheme and he also get the monitory benefit only after getting the vigilance clearance and other confidential report. The matter will be scrutinized by the Departmental Promotion Committee under the Chairmanship of Development Commissioner. Under the above circumstances it will take some time to grant the benefits to the petitioner.

The Respondents craves leave of this Hon'ble Court to do all this formalities as soon as possible.:"

(Emphasis supplied) By going through the aforesaid paragraph quoted

in the earlier judgment it is clear that process of

examination has been conducted and petitioner has

succeeded; as such, nothing remains to believe that it was

the petitioner who was responsible for not passing of the

professional examination and since the examination itself

has been conducted for the first time in the year 2009 and

this petitioner pass the said examination and pursuant to

that fruits has also been given to him. I see no reason not

to give the arrears of I ncrements from 2005 when the

petitioner was entitled.

10. In view of the aforesaid findings; the impugned

order as contained in letter No.4557(S) dated 16.08.2010,

issued by the Deputy Secretary, Road Construction

Department, Jharkhand is quashed and set aside. The

matter is remitted back to respondent No.2 to pass an

order of payment of arrears of increments from April, 2005

till 29.05.2009. It goes without saying that since the

notional increments has already been given to the

petitioner the payment of arrears of increments will not

affect the pension of the petitioner.

11. Since the matter is of the year 2010 as such the

respondent No.2 is directed to pass the necessary order of