Md. Akhtar Hussain vs The Jharkhand State Agricultural ...
2023 Latest Caselaw 1701 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI

                         L.P.A. No.689 of 2018

Md. Akhtar Hussain, son of late Md. Amir Hussain, r/o Raushan Manzil,
Meena Bazar, PO & PS Madhupur, District Deoghar (writ petitioner)
                                                               .... Appellant
                                   Versus
1. The Jharkhand State Agricultural Marketing Board, Ranchi, Itaki Road,
Hehal, Ranchi-5, through its Secretary
2. The Managing Director, Jharkhand State Agricultural Marketing Board,
Ranchi, Itaki Road, Hehal, Ranchi-5
       both of PO Hehal, PS Sukhdeo Nagar, District Ranchi.
3. Amlendu Kumar, son of late Murari Prasad, r/o B/85, Police Colony, PO
Anishabad, PS Gardanibag, District Patna.
4. Birendra Kumar, son of late Gavendra Prasad Singh, r/o PO & PS Riga,
District Sitamarhi.
5. Vinay Kumar, son of late Jitendra Prasad, r/o Mohalla Rasulpur, Maner,
PO & PS Maner, District Patna.
            [Respondent No.3 to 5 are the writ petitioners in writ application]
6. The Administrator, Bihar State Agricultural Marketing Board Patna, Pant
Bhawan, Beli Road, Patna

                                                            ....   Respondents
                         ------

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Appellant : Mr. V.P. Singh, Sr. Advocate For the Respondent-Board : Dr. Ashok Kumar Singh, Advocate Mr. Shivam Singh, Advocate Mr. Prabhat Kumar, Advocate For the State of Bihar : Mr. S.P. Roy, G.A., Bihar

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Order No.08/ Dated: 24th April 2023

The instant intra-court appeal under Clause 10 of the Letters Patent is directed against the order/judgment dated 19 th March 2018 passed by learned Single Judge in W.P.(S) No. 6280 of 2017 with analogous matters, whereby and whereunder the claims of post retiral benefits of the appellant has been decided but the learned Single Judge has not taken into consideration the claim of the appellant for up-gradation in pay-scale either under Assured Career Progression (in short, ACP) Scheme or the Modified Assured Career Progression (in short, MACP) Scheme.

2. Dr. Ashok Kumar Singh, the learned counsel appearing for the respondents-Jharkhand State Agricultural Marketing Board has submitted that the co-ordinate Division Bench of this Court has already decided the

issue which is being said to be not decided by the learned Single Judge, i.e., the entitlement of up-gradation under ACP/MACP in L.P.A. No. 749 of 2019. It has been submitted that since the aforesaid issue has already been decided by the Co-ordinate Division Bench of this Court, therefore, it will be sufficed if the impugned order will be modified to the extent by granting liberty to the writ petitioner to make a representation before the competent authority, i.e., Managing Director, Jharkhand State Agricultural Marketing Board for consideration of the case of the appellant then the decision in accordance with law will be taken up and if the appellant will be found to be eligible for up-gradation either under ACP or MACP the consequential benefits of such up-gradation will be provided.

3. Mr. V.P. Singh, the learned senior counsel appearing for the appellant has submitted that he has no objection with regard to such submission made by the learned counsel for the respondents.

4. We have considered the aforesaid submission and taking into consideration the fact that the issue of up-gradation in pay scale either under ACP or MACP has already been dealt with by the learned Division Bench of this Court in L.P.A. No. 749 of 2019, as would appear from paragraph nos. 7 to 15, which is being quoted herein for the ready reference:

"7. Admitted facts in the case in hand is that petitioner while serving on the post of Accountant in the establishment of Board retired on 30.09.2016 on attaining the age of superannuation. The State of Jharkhand has come out with Modified Assured Career Progression (MACP) Scheme by virtue of circular dated 01.09.2009 replacing the earlier scheme of up-gradation in pay- scale granted by virtue of Assured Career Progression (ACP). The respondents-Board has adopted the aforesaid resolution/circular in its meeting dated 21.10.2013, as would be evident from Office Order No. 287 dated 25.06.2014 issued by the Board.

For ready reference, relevant portion of Office Order dated 25.06.2014 is reproduced as under:

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funs'kd eaMy dh cSBd fnukad 21-10-2013 ds dk;kZoyh la[;k 6 esa fy, x, fu.kZ; ds vkyksd esa >kj[k.M ljdkj foÙk foHkkx ds ladYi la[;k [email protected]Ùk fnukad 01-09-2009 }kjk jkT; ljdkj ds vuq:i i"kZnh; dfeZ;ksa dks dsUnzh; osrueku ,oa vU; lqfo/kk,a iznku djus ds mn~ns'; ls d`f"k ,oa xUuk fodkl foHkkx] jkWaph ls izkIr lgefr

ds vkyksd esa >kj[k.M jkT; d`f"k foi.ku i"kZn ,oa blds fu;a=.kk/khu dk;kZy;ksa esa dk;Zjr lsodksa dks jkT; ljdkj dfeZ;ksa dh Hkkafr la'kksf/kr lqfuf'pr o`fÙk mUu;u ;kstuk ykxw djus dh Lohd`fr nh tkrh gSA izcU/k funs'kd ds vkns'k g0 lfpo >kj[k.M jkT; d`f"k foi.ku i"kZn jkWaphA Admittedly, the writ petitioner on the date of such adoption was in the roll of the service of the Board as he retired from service on 30.09.2016. Therefore, the finding pertaining to retrospective applicability of the aforesaid circular, as has been referred in the impugned order, according to our considered view, will not be attracted in the case in hand, for the reason, that the Board has adopted the scheme of the government by virtue of order dated 25.06.2014 and the writ petitioner retired from service w.e.f. 30.09.2016 which is after order dated 25.06.2014. Even accepting its prospective applicability then also the writ petitioner will be entitled to get the benefit of grant of the aforesaid order of adoption of ACP/MACP scheme adopted vide order dated 25.06.2014.

8. So far as one of the grounds of dismissal of writ petition, as referred in the impugned order about delay and laches is concerned, according to our considered view, it is not sustainable for the reason that the learned Single Judge considering that the writ petitioner has retired long back and has approached this Court after more than 7 to 10 years, dismissed the writ petition, but from where such finding has been recorded by learned Single Judge we fail to understand since cause of action to file writ petition arose on or after 25.06.2014, the date when the scheme of ACP/MACP was adopted and order to that effect was passed by the Board. The writ petition was filed in the year 2018, thus, the writ petition was filed after four years from the date of adoption of such scheme by the Board in the year 2014. Further, it is settled position of law that for filing writ petition there is no question of applicability of period of limitation, however, the principle of delay and laches is to be considered, but it also depends upon the date of occurrence of cause of action.

Since we are delving upon the issue of up-gradation in pay-scale, it will have the bearing in pay-scale of one or the other employee on month to month basis and further it will have affect the retiral benefits, so far service condition of the writ petitioner is concerned. Therefore, according to our considered view, it will have the recurring cause of action.

Reference in this regard be made to the judgment rendered by Hon'ble Apex Court in M.R. Gupta Vs. Union of India & Ors [(1995) 5 SCC 628], in particular paragraph 5, which reads as under:

"5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is

paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1-8-1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action."

Therefore, according to our considered view, principle about delay and laches will not be applicable in the facts and circumstances of the present case.

9. So far as the submission of respondents-Board that the Board is suffering from financial crunch, and as such it took a decision not to extend the benefit of up-gradation of pay-scale under ACP/MACP scheme vide its resolution dated 13.08.2019, annexed as Annexure B to the supplementary counter affidavit dated 03.09.2019 filed in writ petition, is concerned, we are not impressed with such submission, for two reasons. First, the up- gradation in pay-scale by virtue of scheme is nothing but salary, which is being granted in favour of one or other employee in case of no regular promotion. The question would be that in such a situation once the promotion has been granted in favour of employee, the writ petition herein, can such plea be taken for denial of the salary of the petitioner on the ground of financial crunch? It cannot be, since salary, by no stretch of imagination, can be denied so long as the establishment is functioning. If the salary is not being denied, then how and why the pay-scale, which is to be replaced by way of up-gradation in pay-scale, can be denied on the ground of financial crunch. Therefore, according to our considered view, since the benefit of up- gradation under the ACP/MACP Scheme is being granted in order to avoid stagnation in the pay-scale since one or the other employee is not being granted regular promotion and when the pay-scale of the promoted post cannot be denied on the ground of financial crunch, then where is the question of denial of the upgraded pay-scale on that ground. Second, the office order for extending the benefit of ACP/MACP was issued by the Board vide order dated 25.06.2014 and even accepting the submission of the Board that it was withdrawn vide office order dated 13.08.2019, during interregnum period the petitioner retired from service on 30.09.2016 that is before withdrawal of such scheme by the Board. Hence, he is entitled for the benefit of ACP/MACP as per the prevailing office order of the Board i.e. as per Office Order dated 25.06.2014.

Therefore, the contention about financial crunch, in denial of the disbursement of up-graded pay-scale, is hereby rejected.

10. This Court, having discussed the fact in entirety, has

gone across the judgment rendered by learned Single Judge and has found therefrom that the learned Single Judge has failed to appreciate the question of delay and laches and applicability of retrospective application of order dated 25.06.2014 in right prospective. The learned Single Jude has also not considered while dealing with the ground of delay and laches, that in the case in hand, the principle of recurring cause of action will apply, as discussed above.

Therefore, according to our considered view, the order passed by learned Single Judge suffers from patent illegality.

11. The learned Single Judge has further observed in impugned order that order dated 25.06.2014 nowhere mentions about its retrospective application. Even accepting that it has prospective application then also the writ petitioner is entitled to get the benefit of up-gradation in pay-scale by virtue of ACP/MACP since he has retired from service w.e.f. 30.09.2016 whereas decision of adoption of MACP Scheme was adopted by the Board vide order dated 25.06.2014. Therefore, the learned Single Judge has not considered the fact in right prospective.

12. This Court, therefore, is of the view that the order passed by the learned Single requires interference by this Court.

13. Accordingly, the order dated 24.09.2019 passed in W.P. (S) No. 5821 of 2018 is hereby quashed and set aside.

14. In consequence thereof, the respondents-Board is directed to disburse the amount of arrears of difference of salary by virtue of applicable ACP/MACP in favour of writ petitioner, within a period of three months from the date of receipt/production of copy of this order.

15. With the aforesaid observations and directions, the instant appeals stands allowed."

5. On the basis of aforesaid fact this Court thinks fit to modify the order passed by the learned Single Judge to the extent that the appellant will make due representation regarding up-gradation of pay under ACP/MACP by giving the entire details within the period of three weeks from the date of receipt a copy of the order.

6. If the such representation will be filed before the concerned competent authority- Managing Director, Jharkhand State Agricultural Marketing Board, the same will be decided in accordance with the law on the basis of the decision already rendered by this Court in LPA. No. 749 of 2019.

7. Suffice it to say that if the authority will come to the conclusion that the appellant is entitled for the such benefits the consequential benefits thereof will be granted within further period of eight weeks from the date of such decision.

8. However, if the concerned authority will dispute the claim by holding the appellant not entitled on the basis of law already laid down by this Court in L.P.A. No. 749 of 2019, the decision so taken will be

communicated to the writ petitioner within the aforesaid period.

9. Accordingly, the order dated 19th March 2018 passed by the learned Single Judge in W.P.(S) No. 6280 of 2017 with analogous matters modified to that extent as above.

10. Accordingly, the instant appeal stands disposed of.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) RKM