Jharkhand High Court
Dr. Shyam Sundar Singh vs The State Of Jharkhand on 2 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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L.P.A. No. 86 of 2018
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1. Dr. Shyam Sundar Singh, aged about 68 years, son of Late Anup
Narayan Singh, resident of B-III-510, HEC Campus, Dhurwa, P.O. and
P.S. Dhurwa, District-Ranchi.
2. Dr. Rabindra Nath Das, aged 70 years, son of Late Sachinandan Das,
resident of 403, Sri Tower, Old A.G. Colony, Kadru, P.O. Doranda, P.S.
Argora, District Ranchi.
3. Renu Sahay, aged about 67 years, w/o Late Dr. Bhola Nath Sahay, r/o
145/C, Grihasti Marg No.3, Mandir Marg, behind Maheshwari High
School, Ashok Nagar, Ranchi, P.O. & P.S. Argora, District-Ranchi,
834002.
4. Dr. Elbina Shital, age-68 years, wife of late Eok Belington Shital,
resident of Prakash Nagar, Birsa Chowk, Hinoo, P.S. Hinoo, P.S.
Doranda, District Ranchi.
5. Rita Gyan Prakash, aged about 64 years, w/o Late Gyan Prakash, r/o
Harihar Singh Road, Ranchi Urology Centre, 1-D, Vikash Apartment,
Shivaji Lane, Morabadi, P.O. & P.S. Morabadi, District-Ranchi-834009
(Jharkhand).
6. Dr. Alakh Niranjan Kashyap, age-71, son of late Shivpriya Nath Ganju,
resident of D.L. Bose Lane, Tharpakna Ranchi, P.O. GPO, P.S. Kotwali,
District-Ranchi.
... ... Petitioners/Appellants
Versus
1. The State of Jharkhand.
2. The Principal Secretary, Department of Finance, Government of
Jharkhand, Project Bhawan, HEC Dhurwa, P.O. Dhurwa, P.S.
Jagannathpur, District-Ranchi.
3. The Secretary, Department of Health, Medical Education & Family
Welfare, Government of Jharkhand, Nepal House, Doranda, P.O. and
P.S. Doranda, District-Ranchi.
4. The Joint Secretary, Department of Health, Medical Education & Family
Welfare, Government of Jharkhand, Nepal House, Doranda, P.O. and
P.S. Doranda, District-Ranchi.
5. The Accountant General, Jharkhand, P.O. and P.S. Doranda, District-
Ranchi.
.. ... Respondents/Respondents
6. Dr. Ratneshwar Prasad Verma, son of Late Kushewar Prasad Verma,
resident of Saraswati Nagar, near Chas Block Office, Chas, P.O. and P.S.
Chas, District-Bokaro.
7. Dr. Nand Kishore Rajpal, son of late Tulshi Prasad Rajpal, resident of
23, Jail Road East, P.O. GPO, P.S. Kotwali, District Ranchi.
8. Dr. Shailesh Kumar Sinha, son of Late Drawika Prasad Sinha, resident
of 39, Cooperative Colony, Bokaro Steel City, P.O. and P.S. Bokaro
Steel City, District-Bokaro.
9. Dr. Indra Mohan Prasad Gupta, son of Late Kashi Nath Prasad, resident
of Bariatu Firing Range, P.O. and P.S. Bariatu, District-Ranchi.
10. Dr. Pramod Kumar, son of Late Byas Upadhaya, resident of Plot No.
F/3, Central Market, Sector-5, B.S. City, P.O. and P.S. B.S. City,
District-Bokaro.
11. Dr. Sidhnath Prasad, son of Late Shivjatan Sah, resident of Nagar Untari,
P.O. and P.S. Nagar Untari, District Garhwa.
12. Dr. Sitaram Gupta, son of Late Haricharan Ram, resident of Seva Sadan
Road, Nawahata, Daltonganj, P.O. and P.S. Daltonganj, District
Palamau.
13. Dr. Suresh Sahu, son of Late Raghunandan Sahu, resident of Jori, P.O.
Jori, P.S. Chatra, District-Chatra.
14. Dr. Meera Jha, daughter of Late Madan Mohan Jha, resident of
Bhahmani Arogya Sadan, Daltonganj, P.O. and P.S. Daltonganj,
District-Palamau.
15. Dr. Suredra Prasad Singh @ Suresh Prasad Singh, son of Late Rup
Narayan Singh, resident of near Children Paradise School, Ward No.16,
Abad Ganj, Daltonganj, P.O. and P.S. Daltonganj, District-Palamau.
16. Dr. Akhilesh Pratap Singh, son of Late Markandey Singh, resident of
Purana Talab, Dumraon, P.O. and P.S. Dumraon, District Buxar (Bihar).
17. Dr. Shashi Shekhar Verma, son of Shri R.B. Verma, resident of Nagar
Untari, P.O. ande P.S. Nagar Untari, District Garhwa.
18. Dr. Awadhesh Kumar Singh, son of Late Shivdhar Singh, resident of
Godawari Milay, Shahdeonagar, Hehal, Ranchi, P.O. Hehal, P.S.
Sukhdeonagar, District-Ranchi.
19. Dr. Ram Chandra Prasad, son of Late Asharfi Lal Yadav, resident of
Poonam Colony, Road No.1, Ramjaipal Path, Bailey Road, Danapur,
P.O. and P.S. Sekhpura, District Patna (Bihar).
20. Dr. Amar, son of Late Dr. J.N. Verma, resident of Janki Niwas, 119,
Basant Vihar, Harmu, P.O. Harmu, P.S. Argora, District Ranchi.
... ... Proforma Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellant : Mr. Anil Kumar Sinha, Sr. Advocate
Mrs. Debolina Sen Hirani, Advocate
For the Respondents : Mr. Sachin Kumar, AAG-II
Mr. Ravi Kerketta, SC-VI
Mr. Piyush Anand, AC to SC-VI
Mr. Rupesh Singh, Advocate
Ms. Jagdeesh, Advocate
.....
C.A.V./Reserved on 10.07.2023 Pronounced on 02nd August, 2023
Per Sujit Narayan Prasad, J.:
1. The instant appeal under clause 10 of the Letters Patent is directed
against the order/judgment dated 18.12.2017 passed by the learned
Single Judge of this Court in W.P.(S) No. 1940 of 2014, whereby and
whereunder, the writ petition has been dismissed by declining to
interfere with the decision of the Government as contained in Memo
No. 2394 dated 11.09.2013 issued under the signature of respondent
no.2 by which the implementation of Dynamic Assured Career
Progression Scheme (in short DACP) w.e.f. 05.04.2002 and 29.10.2008
as per the 5th Pay Revision recommendation and 6th Pay Revision
recommendation respectively has been shifted to 01.09.2008, as also
prayer for quashing of the notification contained in Memo Nos. 51(3)
and 52(3) both dated 15.01.2014 by which the benefit granted in favour
of the writ petitioner under DACP have been withdrawn.
2. The brief facts of the case as per the pleading made in the writ petition,
which require to be enumerated herein, read as under:
The writ-petitioners, were medical practitioners and they were
employed under the respondent-State and all of them have already
retired from their services on different dates. The Govt. of India,
Ministry of Health & Family Welfare (Department of Health) vide
letter dated 05.04.2002 implemented the 5th Pay Revision regarding
grant of D.AC.P. which was applicable to the medical practitioners
only whereby it has been mentioned that the promotion under said
D.A.C.P. scheme shall be made without linkage to the vacancy
position. In other words, no vacancy is required for giving the benefits
under D.A.C.P. Scheme.
As per this letter dated 05.04.2002, benefits under D.A.C.P. has
to be granted after completion of 4 years, 9 years and 13 years of
continuous services. It has further been stated that pursuant to 6 th Pay
Revision, Govt. of India, Ministry of Health & Family Welfare, issued
another office memorandum dated 29.10.2008 which was made
effective from 29.10.2008. Thereafter, the Govt. of Jharkhand vide
resolution dated 28.11.2011 accepted implementation of both 5th and 6th
pay revisions after approval of the Cabinet and the benefits under
D.A.C.P. was made effective from 05.04.2002 in light of 5th Pay
Revision and the benefit of D.A.C.P. from 29.10.2008 in light of 6th
pay revision. The writ-petitioners after being qualified in terms of 5th
and 6th pay revision were granted the benefits of D.A.C.P. vide
notification Nos. 446(3) and 447(3) both dated 02.04.2013, issued by
the Department of Health, Govt. of Jharkhand Ranchi. As per cut-off
date, as notified by the State Government vide Annexure-3, the writ-
petitioners were then in service and they have rightly been granted
benefits of D.AC.P. by the respondents. It is the specific case of the
petitioners that all of a sudden, without any information or show-cause
to the petitioners, the cut-off date which was fixed by the Government
has been modified to 01.09.2008 vide resolution dated 11.09.2013,
whereas, as per resolution dated 22.01.2013 (Annexure the petitioners
were entitled for all the financial benefits. Accordingly, pursuance of
order dated 11.09.2013, the Department of Health & Family Welfare,
Govt. of Jharkhand issued notification dated 15.01.2014 whereby the
benefits of D.A.C.P granted to the writ-petitioners notification dated
02.04.2013 has been withdrawn.
3. It is evident from the factual aspect that in view of the decision of the
Government of India, Ministry of Health and Family Welfare, the
scheme of DACP was implemented w.e.f. 05.04.2002 on the basis of
the recommendation made by the Central Pay Commission as under 5th
Pay Revision recommendation. The aforesaid scheme contains a
provision that promotion under the said D.A.C.P. scheme shall be made
without linkage to the vacancy position. In other words, no vacancy is
required for giving the benefits under D.A.C.P. Scheme.
(i) As per the resolution dated 05.04.2002, benefits under D.A.C.P.
has to be granted after completion of 4 years, 9 years and 13 years of
continuous services. It further appears that pursuant to 6th Pay Revision,
Govt. of India, Ministry of Health & Family Welfare, another
memorandum was issued on 29.10.2008 making it effective from
29.10.2008. The State of Jharkhand vide resolution dated 28.11.2011
accepted implementation of both 5th and 6th pay revisions after approval
of the Cabinet and the benefits under D.A.C.P. was made effective
from 05.04.2002 in light of 5th Pay Revision and the benefit of
D.A.C.P. from 29.10.2008 in light of 6th pay revision. The writ-
petitioners after being qualified in terms of 5th and 6th pay revision were
granted the benefits of D.A.C.P. vide notification Nos. 446(3) and
447(3) both dated 02.04.2013, issued by the Department of Health,
Govt. of Jharkhand Ranchi.
(ii) The writ petitioners, in pursuance of the cut-off date, as notified
by the State Government vide Annexure-3, after having been found to
be in service has been granted benefits of D.AC.P. But, the aforesaid
benefit extended in favour of the writ petitioners, all of a sudden,
without any information or show-cause to the petitioners, the cut-off
date which was fixed by the Government has been modified to
01.09.2008 vide resolution dated 11.09.2013, whereas, as per resolution
dated 22.01.2013 by which the benefit said to have been granted
notionally from 05.04.2002 and actual benefit from 01.04.2009 but by
passing the impugned order dated 11.09.2013, the aforesaid benefit has
been recalled by modifying it that the benefit will be extended
notionally w.e.f. 01.09.2008 and actual benefit from 01.04.2009.
Thereby, the date of the notional benefit which earlier was w.e.f.
05.04.2002 has been shifted to 01.09.2008.
(iii) The writ petitioner, being aggrieved with the aforesaid decision,
approached to this Court by filing writ petition being W.P.(S) No. 1940
of 2014. The ground was taken that while taking such decision no
notice of hearing was given since once the said benefit was extended in
favour of the writ petitioner, then the right having been accrued, the
same cannot be recalled without providing an opportunity of hearing.
(iv) The learned Single Judge while considering the aforesaid ground
has dismissed the writ petition by recording a finding that the benefit is
to be granted under the DACP scheme are matters within the exclusive
domain of executive and not of the judiciary, against which the instant
appeal has been preferred.
4. Mr. Anil Kumar Sinha, learned senior counsel assisted by Mrs.
Debolina Sen Hirani, learned counsel for the appellants has submitted
that the learned Single Judge has failed to appreciate that by virtue of
notification dated 05.04.2002, based upon the recommendation of the
5th Pay Revision Committee, the benefit of upgradation under DACP
Scheme was extended notionally from 05.04.2002 and actual benefit
from 01.04.2009. Further, the said benefit was directed to be disbursed
w.e.f. 29.10.2008 as per the memorandum dated 29.10.2008 on the
basis of the acceptance of the recommendation of 6th Pay Revision
Committee.
The aforesaid benefit having once been granted, the same is only
allowed to be recalled after providing an opportunity of hearing. But,
without issuing notice or show cause, the impugned orders have been
passed which has not been appreciated by the learned Single Judge
rather no finding to that effect has been made in the impugned order
and the writ petition has been dismissed solely on the ground that
extending the benefit of upgradation under the DACP is the exclusive
domain of the State.
It has been 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, i.e., by assigning
reason of such recall followed by the notice of cancellation of such
benefit which has already been extended. The learned Single Judge
since has failed to consider this aspect of the matter, therefore, the order
impugned requires interference.
5. The ground has been agitated that the reason so far as disclosed by the
State in the counter affidavit that the writ petitioners have been given
the benefit of upgradation under the ACP scheme, as such, they cannot
be allowed the benefit under DACP scheme implementing from
05.04.2002, otherwise, the writ petitioners will be at double advantage
by upgradation of pay scale.
6. Learned senior counsel appearing for the appellants has submitted that
there is no question of any double advantage of the upgradation in the
pay scale to be extended in favour of the writ petitioners rather the
question herein is the entitlement of the writ petitioners who happens to
be the doctors for whom the scheme known as Dynamic Assured
Progression Scheme has been implemented based upon the
recommendation of the 5th Pay Revision and 6th Pay Revision and once
it has been adopted and in pursuance thereof, the benefit was given in
favour of the writ petitioners, 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, i.e., already taken under the
ACP and another under the DACP.
(i) Learned senior counsel, however, submits that if as per the State-
respondent, any benefit said to be double in nature has been granted in
favour of the writ petitioners, they are ready for adjustment of the said
amount but the question is, due to arbitrary action of the State
respondent by shifting the date of benefit w.e.f. 05.04.2002 to
01.09.2008, the writ petitioners have been deprived from getting the
benefit of 3rd upgradation under the DACP since in the meanwhile, they
have attained the age of superannuation. Therefore, the writ petitioners
have been put at great loss due to the arbitrary exercise of the State.
(ii) It has further been contended that there is no dispute that the
State is having jurisdiction to make policy decision for upgradation in
the pay scale but such policy decision must be based upon the
rationality and not by way of arbitrary exercise.
(iii) According to the learned senior counsel, herein, the State has
acted arbitrarily and only for the reason that the writ petitioners have
been granted benefit of upgradation under the ACP scheme, therefore,
they are not entitled for 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.
(iv) Since the writ petitioners are ready for adjustment of the amount
if the benefit of ACP and the DACP both have been given during the
same period and in that view of the matter, the State will not be
prejudiced but if the scheme of DACP which has been shifted from
05.04.2002 to 01.09.2008 and in the meanwhile, since the writ
petitioners have retired, therefore, the same prejudices the interest of
the writ petitioners by way of deprivation of the 3rd upgradation under
the DACP.
(v) The learned senior counsel, in the aforesaid premise, has
submitted that the learned Single Judge has not considered all these
aspects of the matter, therefore, the impugned order suffers from error
and the same is fit to be quashed and set aside.
7. Per contra, Mr. Sachin Kumar, learned AAG-II appearing for the
respondent has submitted that the shifting of date of effectiveness of the
benefit to be granted under the DACP from 05.04.2002 to 01.09.2008 is
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.
8. According to the learned State counsel that since the decision as
contained in Annexure-6 has been taken by way of policy decision in
order to rectify the anomaly so that the doctors who have already got
the benefit of ACP may not be allowed to take double advantage and
taking into consideration the aforesaid fact, the date of 05.04.2002 was
shifted to 01.09.2008.
9. According to the learned counsel, the learned Sigle Judge after taking
into consideration the aforesaid fact, if declined to interfere with the
impugned order, the same cannot be said to suffer from error and
hence, the instant appeal is having no merit.
10. We have heard the learned counsel for the parties, perused the
documents available on record as also the finding recorded by the
learned Single Judge in the impugned order.
11. The core issue herein is regarding the action of the State Government in
shifting the benefit of upgradation under DACP scheme from
05.04.2002 to 01.09.2008. The question has been raised that the
shifting of date from 05.04.2002 to 01.09.2008 cannot be said to be a
rational decision rather it is arbitrary since once the right has been
accrued in favour of the writ petitioners, the same cannot be allowed to
be taken away on frivolous grounds/reasons.
The contention has also been made that even in case of policy
decision, the State Government is to act fairly and without any malice
and arbitrariness and if the decision suffers from any vice of malice or
is the teeth of Article 14 of the Constitution of India, the same
ultimately will come under the fold of judicial scrutiny of the High
Court sitting under Article 226 of the Constitution of India in exercise
of power of judicial review of the action taken by the State.
This Court, in order to examine the aforesaid argument/ground,
first deems it fit and proper to refer the position of law regarding the
power of judicial review to be exercised in the matter of policy decision
taken by the State.
This Court is aware of the settled law that the policy decision of
the State are not to be disturbed unless they are found to be grossly
arbitrary or irrational.
(i) In this context, reference may be made to the judgment rendered
by the Hon'ble Apex Court in Federation of Railway Officers
Association and Ors. vs. Union of India, (2003) 4 SCC 289 wherein at
paragraph-12, it has been held as follows:
"12. In examining a question of this nature where a policy is evolved by
the Government judicial review thereof is limited. When policy according
to which or the purpose for which discretion is to be exercised is clearly
expressed in the statute, it cannot be said to be an unrestricted
discretion. On matters affecting policy and requiring technical expertise
the court would leave the matter for decision of those who are qualified
to address the issues. Unless the policy or action is inconsistent with the
Constitution and the laws or arbitrary or irrational or abuse of power,
the court will not interfere with such matters."
(ii) Reference may also be made to the judgment rendered in
Directorate of Film Festivals and Ors. vs. Gaurav Ashwin Jain and
Ors., (2007) 4 SCC 737, wherein the Hon'ble Apex Court has been
pleased to hold as under paragraph-16 which reads as under:
"16. The scope of judicial review of governmental policy is now well
defined. Courts do not and cannot act as Appellate Authorities examining
the correctness, suitability and appropriateness of a policy, nor are
courts advisors to the executive on matters of policy which the executive
is entitled to formulate. The scope of judicial review when examining a
policy of the Government is to check whether it violates the fundamental
rights of the citizens or is opposed to the provisions of the Constitution,
or opposed to any statutory provision or manifestly arbitrary. Courts
cannot interfere with policy either on the ground that it is erroneous or
on the ground that a better, fairer or wiser alternative is available.
Legality of the policy, and not the wisdom or soundness of the policy, is
the subject of judicial review."
(iii) Further, in Ugar Sugar Works Ltd. Vs. Delhi Administration
and Ors., (2001) 3 SCC 635, the Hon'ble Apex Court has been pleased
to hold that "The challenge, thus, in effect, is to the executive policy
regulating trade in liquor in Delhi. It is well settled that the courts, in
exercise of their power of judicial review, do not ordinarily interfere
with the policy decisions of the executive unless the policy can be
faulted on grounds of mala fide, unreasonableness, arbitrariness or
unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala
fide will render the policy unconstitutional. However, if the policy
cannot be faulted on any of these grounds, the mere fact that it would
hurt business interests of a party, does not justify invalidating the
policy. In tax and economic regulation cases, there are good reasons
for judicial restraint".
(iv) In Parisons Agrotech Private Limited and Anr. Vs. Union of
India and Ors., (2015) 9 SCC 657, the Hon'ble Apex Court has
observed as under paragraph-14 which reads as under:
"14. No doubt, the writ court has adequate power of judicial review in
respect of such decisions. However, once it is found that there is
sufficient material for taking a particular policy decision, bringing it
within the four corners of Article 14 of the Constitution, power of judicial
review would not extend to determine the correctness of such a policy
decision or to indulge into the exercise of finding out whether there could
be more appropriate or better alternatives. Once we find that parameters
of Article 14 are satisfied; there was due application of mind in arriving
at the decision which is backed by cogent material; the decision is not
arbitrary or irrational and; it is taken in public interest, the Court has to
respect such a decision of the executive as the policy making is the
domain of the executive and the decision in question has passed the test
of the judicial review."
(v) In Jacob Puliyel vs Union of India and Others 2022 SCC
OnLine SC 533 wherein at paragraphs-21 & 23, it has been observed
which reads as under:
"21. ... It is well settled that the Courts, in exercise of their power of
judicial review, do not ordinarily interfere with the policy decisions of
the executive unless the policy can be faulted on grounds of mala fide,
unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness,
irrationality, perversity and mala fide will render the policy
unconstitutional. It is neither within the domain of the courts nor the
scope of judicial review to embark upon an enquiry as to whether a
particular public policy is wise or whether better public policy can be
evolved. Nor are the courts inclined to strike down a policy at the behest
of a petitioner merely because it has been urged that a different policy
would have been fairer or wiser or more scientific or more logical.
Courts do not and cannot act as appellate authorities examining the
correctness, suitability and appropriateness of a policy, nor are courts
advisors to the executive on matters of policy which the executive is
entitled to formulate. The scope of judicial review when examining a
policy of the Government is to check whether it violates the fundamental
rights of the citizens or is opposed to the provisions of the Constitution,
or opposed to any statutory provision or manifestly arbitrary.
23. There is no doubt that this Court has held in more than one judgment
that where the decision of the authority is in regard to a policy matter,
this Court will not ordinarily interfere since decisions on policy matters
are taken based on expert knowledge of the persons concerned and
courts are normally not equipped to question the correctness of a policy
decision. However, this does not mean that courts have to abdicate their
right to scrutinize whether the policy in question is formulated keeping in
mind all the relevant facts and the said policy can be held to be beyond
the pale of discrimination or unreasonableness, bearing in mind the
material on record. In Delhi Development Authority (supra), this Court
held that an executive order termed as a policy decision is not beyond the
pale of judicial review. Whereas the superior courts may not interfere
with the nitty-gritty of the policy, or substitute one by the other but it will
not be correct to contend that the court shall lay its judicial hands off,
when a plea is raised that the impugned decision is a policy decision.
Interference therewith on the part of the superior court would not be
without jurisdiction as it is subject to judicial review. It was further held
therein that the policy decision is subject to judicial review on the
following grounds:
a) if it is unconstitutional;
b) if it is dehors the provisions of the Act and the regulations;
c) if the delegatee has acted beyond its power of delegation;
d) if the executive policy is contrary to the statutory or a larger policy.
(vi) Further, in Union of India and Others vs. Bharat Forge Ltd. and
Another, 2022 SCC OnLine SC 1018, the Hon'ble Apex Court at
paragraph-20 has observed as under:
"20. This Court also laid down paragraph 46 as follows:
"46. In Census Commr. v. R. Krishnamurthy [Census Commr. v. R.
Krishnamurthy, (2015) 2 SCC 796 ], a three-Judge Bench of this Court,
after noting several decisions, held that (SCC p. 809, para 33) it is not
within the domain of the courts to embark upon an enquiry as to
whether a particular public policy is wise and acceptable or whether a
better policy could be evolved and the courts can only interfere if the
policy framed is absolutely capricious or not informed by reasons or
totally arbitrary and founded on ipse dixit offending the basic
requirement of Article 14 of the Constitution. It further observed that in
certain matters, as often said, there can be opinions but the court is not
expected to sit as an appellate authority on an opinion.""
Thus, it is evident that 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.
12. It is evident from the aforesaid judgment that the scope of judicial
review in the matter of showing interference with the policy decision is
in a case where the decision is arbitrary and suffers from the vice of
malice and is in the teeth of Article 14 of the Constitution of India.
13. This Court is now proceeding to scrutinize the decision of shifting of
date from 05.04.2002 to 01.09.2008 as to whether the said decision
taken by the State can be said to be a fair one and the serious prejudice
has been caused to the writ petitioners. But, before examining the same,
it requires to refer herein the nature of scheme as under ACP and
DACP with its implication.
ACP scheme has been notified by the State Government by
virtue of resolution no.5207 dated 14.08.2002, whereby and
whereunder, the decision has been taken in terms of recommendation of
6th Pay Revision Committee that in order to avoid stagnancy in the
service and if there is no chance of consideration of one or the other
employee for promotion to the higher post, then the one or the other
employee will be entitled for two upgradations under the ACP, i.e., on
completion of 12 years of service, first upgradation will be granted and
on completion of 24 years of service, taking together 24 years of
service, second upgradation will be granted. As per the resolution dated
14.08.2002, the notional benefit was decided to be given from
09.08.1999 up to 15.11.2000 and after 15.11.2000, the actual benefit
has been decided to be extended in favour of one or the other employee.
While, under the DACP scheme, three upgradations in the pay scale are
to be granted i.e., after completion of 4 years, 9 years and 13 years of
continuous service taking together 26 years of service.
In the 5th Pay Revision Committee recommendation, the doctors
have also been held entitled for upgradation under the scheme known
as DACP. As such, the scheme has been implemented by virtue of
notification dated 05.04.2002 having its effect from 05.04.2002. The
said scheme stipulates that one or the other employee will be entitled
for the notional benefit from 05.04.2002.
Likewise, after the acceptance of the recommendation of the 6th
Pay Revision Committee w.e.f. 01.01.2006, the benefit under the
DACP scheme has been allowed to be granted w.e.f. 29.10.2008.
Relevant part of the said resolution dated 28.11.2011 is being referred
here, as under:
"5. सम्यक विचारोपरात राज्य सरकार द्वारा पंचम केन्द्रीय िेतन आयोग की अनुसंशा स्वास्थ्य एिं पररिार
कल्याण मंत्रालय, भारत सरकार नई विल्ली के पत्रां क 21/14/97-PC (H) CHS-V विनां क 05/04/2002 में
अंवकत प्रािधान, वित्त विभाग विहार सरकार के संकल्प संख्या 660/वि० विनां क 08/02/1999 तथा स्थानीय
पररस्स्थवतयों को दृविपथ रखते हुये राज्य स्वास्थ्य सेिा को गैर-शैक्षवणक संिगग के वचवकत्सकों के वलये स्वास्थ्य
वचवकत्सा वशक्षा एिं पररिार कल्याण विभाग की अवधसूचना संख्या 158(2) विनाक 03/03/2011 द्वारा
अवधसूवचत वनयुस्ि वनयमािली में स्वीकृत पि सरचना के अनुसार विनां क 05/04/2002 के प्रभाि से डी०ए०
सी०पी० योजन िैचाररक रूप से वनम्न रूपेण लागू करने का वनणगय वलया गया है :-
गैर शैक्षवणक सम्वगग
Promotion Under DACP Scheme No. of years of regular
service required for
From To promotion
Medical Officers/equivalent Senior Medical On completion of 6 years of
post (Rs.6500- Officers/equivalent post regular services as Medical
10500/Rs.8000-13500 w.e.f. Officer
15.11.2000) (Rs.10000-15200)
Senior Medical Chief Medical On completion of 6 years of
Officer/equivalent post Officers/equivalent post regular services as Senior
(Rs.10000-15200) Medical Officer
(Rs.12000-16500)
Chief Medical Chief Medical Officers (Non On completion of 6 years of
Officers/equivalent post function Selection Grade) regular services as Chief
Rs.14300-18300) Medical Officer
(Rs.12000-16500)
6. सम्यक् विचारोपरान्त राज्य सरकार द्वारा छठे केन्द्रीय िेतन आयोग के अनुसंशा स्वास्थ्य एिं पररिार
कल्याण मंत्रालय, भारत सरकार के संकल्प A45012/2/2008-CHS-V विनाक 29/10/2008 में अंवकत
प्रािधान, वित्तत विभाग, झारखण्ड के संकल्प संख्या 660/वि० विनाक 28/02/2009 तथा स्थानीय पररस्स्थवतयों
को दृविपथ रखते हुए राज्य स्वास्थ्य सेिा के वचवकत्सकों के वलये स्वास्थ्य वशक्षा एिं पररिार कल्याण विभाग की
अवधसूचना संख्या 158(2) विनांक 03/03/2011 द्वारा अवधसूवचत वनयुस्ि वनयमािली में स्वीकृत पि संरचना
के अनुसार विनां क 29/10/2008 के प्रभाि से डी०ए०सी०पी० योजना िैचाररक रूप से लागू करने का वनणगय
वलया गया है ।
Promotion Under DACP Scheme No. of years of regular
service required for
From To promotion
Medical Officer & Deputy Superintendent 6 years in Grade Pay of
equivalent Post (Grade pay Sadar Hospital/District Rs.5400 in PB-II including
Rs.5400 in PB-II) R.C.H. officer and service rendered in the pre-
equivalent Post (Grade Pay revised scale of Rs.8000-
Rs.6600 in PB-III) 13500.
Deputy Superintendent Civil Surgeon and 6 years in Grade Pay of
Sadar Hospital/District equivalent post (Grade Pay Rs.6600 in PB-III including
R.C.H. officer and Rs.7600 in PB-III) service rendered in the pre-
equivalent Post (Grade Pay revised scale of Rs.10000-
Rs.6600 in PB-III) 15200.
Civil Surgeon and Additional Director/Joint 6 years in Grade Pay of
equivalent post (Grade Pay Director and equivalent Post Rs.7600 in PB-III including
Rs.7600 in PB-III) (Grade Pay Rs.8700 in PB- service rendered in the pre-
IV) revised scale of Rs.12000-
16500.
Additional Director/Joint Director in Chief (Grade 7 years in Grade Pay of
Director and equivalent Post Pay Rs.10000 in PB-IV) Rs.8700 in PB-IV including
(Grade Pay Rs.8700 in PB- service rendered in the pre-
IV) revised scale of Rs.14300-
18300 or 25 years of regular
service.
7. डी०ए०सी०पी० योजना को केन्द्र सरकार द्वारा लागू योजना के अनुरूप विनां क 05.04.2002 (पंचम िेतन
आयोग की अनुशंसा से) तथा विनां क 29.10.2008 (छठे िेतन आयोग की अनुशंसा से) से िैचाररक रूप से लागू
करने का प्रस्ताि है । इस योजना का िास्तविक आवथगक लाभ विनां क 01.04.2009 से अनुमान्य होगा।"
14. Although, there was no notification to that effect having been notified
the day when the resolution dated 14.08.2002 was in existence,
however, the DACP scheme was notified by the resolution issued on
28.11.2011 and while accepting the recommendation of 5th and 6th Pay
Revision, after approval of the Cabinet, the benefit under the DACP
was made effective from 05.04.2002 in the light of the 5th Pay Revision
recommendation and the benefit of DACP from 29.10.2008 in the light
of 6th Pay Revision.
15. Further, admitted position is that since the ACP was notified w.e.f.
14.08.2002, as such, in order to avoid stagnancy, the doctors have also
been given the benefit of ACP and they have continued to be paid
upgraded pay scale under the upgraded ACP Scheme. The State since
has accepted the recommendation of 5th Pay Revision Committee as
would appear from 6th Pay Revision Committee and accordingly, came
out with the resolution on 28.11.2011 for the purpose of extending the
benefit of upgradation to the doctors under the DACP scheme making it
effective from 05.04.2002 and from 29.10.2008 in terms of 5th Pay
Revision and 6th Pay Revision, respectively by virtue of the notification
Nos. 446(3) and 447(3) both dated 02.04.2013, issued by the
Department of Health, Govt. of Jharkhand Ranchi.
16. The State has modified the cut-off date as was fixed in the notification
dated 28.11.2011 to be as 05.04.2002 and 29.10.2008 respectively to be
01.09.2008 vide resolution dated 11.09.2013 and accordingly, by virtue
of notification dated 15.01.2014, the benefit of DACP granted in favour
of the writ petitioners vide notification dated 02.04.2013 has been
withdrawn.
17. The writ petitioners approached to this court by raising issue of
prejudice having been caused since in the meanwhile, they have
attained the age of superannuation, as such, the separated from service
and thereby, according to the writ petitioners they have been denied the
benefit of three upgradations to be given under the DACP scheme on
acceptance of the 5th and 6th pay Revision Committee, whereby and
whereunder, the benefit of DACP scheme has been decided to be given
w.e.f. 05.04.2002 notionally and actually from 01.04.2009.
18. There is no dispute that the State has got power to take policy decision
for the purpose of grant of upgradation in the pay scale but the said
decision must be based upon the valid reason. The reason which has
been shown as would appear from the impugned order that the writ
petitioners since had been given the benefit of upgradation under the
ACP, therefore, in order to rectify the anomaly, the DACP which was
decided to be granted w.e.f. 05.04.2002 notionally had been recalled.
19. The aforesaid decision is required to be considered by this Court as to
whether the decision can be said to be proper and whether the said
decision has caused serious prejudice to the interest of the writ
petitioners.
20. Herein, as per the scheme of ACP, which was notified on 14.08.2002,
the Government by way of policy decision has also extended the
benefit of upgradation in the pay scale on the basis of the ground that
the upgradation in the pay scale was mandatorily to be given to all the
employees working in the State Government so as to maintain a parity
with the employees working under the Central Government by way of
following the recommendation of the Central Pay Commission.
21. The day when the ACP scheme was notified, there was no separate
scheme for the doctors. Although the ACP scheme was also of result of
the recommendation of 5th Pay Revision Committee but there was no
separate decision of the Central Government in this regard, although,
there was already recommendation of the 5th Pay Revision Committee
to have separate upgradation scheme of doctors also as also, in the 6th
Pay Revision. However, the Central Government in order to implement
the recommendation of 5th and 6th Pay Revision Committee so far as the
benefit of upgradation to be given to the doctors, had come out with the
notification on 05.04.2002 and 29.10.2008 based upon the
recommendation of 5th and 6th Pay Revision Committee, respectively.
22. Since the DACP scheme was notified by virtue of notification Nos.
446(3) and 447(3) dated 02.04.2013 for implementing the benefit of
upgradation to be given under the DACP scheme based upon the
recommendation of 5th Pay Revision w.e.f. 05.04.2002 and from
29.10.2008 based upon the recommendation of 6th Pay Revision
Committee, as such, during the intervening period, i.e., from
09.08.1999 till 15.11.2000, the doctors have already been given
notional benefit and from 15.11.2000, actual benefit after granting two
upgradation under the ACP.
23. However, the writ petitioners have also been extended the benefit of 3rd
upgradation under the DACP scheme on the basis of the resolution
dated 02.04.2013 as appended in Notification Nos. 446(3) and 447(3).
24. The writ petitioners although have been extended the benefit of
upgradation under the ACP scheme by granting two upgradations in
absence of any scheme exclusively made applicable to the doctors but
the scheme has come exclusively applicable to the doctors by virtue of
notification Nos. 446(3) and 447(3) dated 02.04.2013, such, the writ
petitioners had been granted the benefit of upgradation under the DACP
scheme.
25. The State has taken decision that how the writ petitioners can be
allowed to take double advantage both under ACP and DACP Scheme.
There is no dispute over this reasoning of the State that an employee
cannot be allowed to take double advantage, i.e., the upgradation of a
public servant in the service who is entitled for it will have to be given
two upgradations under ACP scheme and three upgradations under the
DACP scheme and now three upgradations under the MACP scheme
also. The employee in any case cannot be allowed to take advantage of
both the benefits under the ACP and DACP scheme 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
recommendation to that effect in the 5th Pay Revision Committee and
6th Pay Revision Committee. The aforesaid recommendation made in
the 5th and 6th Pay Revision Committee has been adopted by the State
vide resolution dated 28.11.2011 after approval of the Cabinet and
thereafter, the same was made effective from 05.04.2002 and
29.10.2008 basis upon the 5th and 6th Pay Revision respectively.
26. The writ petitioners since were doctors working in the Health
Department will automatically be entitled for the benefit of upgradation
under the DACP scheme based upon the 5th and 6th Pay Revision
Committee.
27. The question of prejudice is required to be considered that who will be
prejudiced and balance of convenience lies in whose favour.
Admittedly, 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 making
adjustment, then the question is whether the State can be said to be
prejudiced or is suffering from any financial loss.
28. The writ petitioners have given specific undertaking that if any excess
amount has been paid under the ACP scheme, they are ready for its
adjustment but their concern is that once the entitlement of the writ
petitioners have been fixed by virtue of recommendation made in the
5th and 6th Pay Revision Committee, which has been adopted by the
State after approval of the Cabinet and a resolution to that effect had
been issued on 28.11.2011, a right has been accrued in favour of the
writ petitioners for the purpose of grant of benefit under the DACP
scheme.
Further, the aforesaid benefit has already been granted in favour
of the writ petitioners but subsequent thereto, on passing the impugned
order, it was recalled.
29. This Court had made a comparative assessment of the prejudice of the
writ petitioners vis-à-vis the State Government in the light of the fact
that under the DACP scheme, there is provision of three upgradations,
i.e., after completion of 4 years, 9 years and 13 years while under the
ACP scheme, only two upgradations are there on completion of 12
years and 24 years of service.
The writ petitioners, therefore, will be at prejudice if the benefit
which has been extended by virtue of the acceptance of resolution of 5 th
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.
30. Serious prejudice will be caused to the writ petitioners since in the
meanwhile, the writ petitioners have retired from service, therefore,
they have been deprived from the 3rd upgradation under the DACP
scheme. The DACP scheme as per the 5th and 6th Pay Revision
Committee was implemented w.e.f. 05.04.2002 in the light of the 5th
Pay Revision Committee and from 29.10.2008 in the light of the 6th Pay
Revision Committee and the day when it was implemented, i.e., w.e.f.
05.04.2002 all the writ petitioners were in the roll of the service and
hence, they become entitled for the upgradation in the pay scale under
the DACP scheme and thereby, they have become entitled for the
consequential benefit in the fixation of pension, etc. but due to the
decision taken by the State for shifting the date from 05.04.2002 to
01.09.2008 and since in the meanwhile, the writ petitioners had retired
from service, their interest has seriously been prejudiced and they have
been deprived in getting the upgraded pay scale rather they have also
been deprived the consequential benefits in fixation of their pension.
31. The question of prejudice which the State is taking, according to our
considered view, is less in comparison to that of the prejudice to be
caused to the writ petitioners. It is due to the reason that the writ
petitioners have been paid excess under the ACP and DACP upgraded
scale and as such, if that be so, the said amount can well be
recovered/adjusted from the writ petitioners and to that effect, an
undertaking has also been furnished and thereby the State Exchequer is
not at loss and hence, no prejudice is caused to the State Government.
32. While, on the other hand, if the action of the State will be approved
then admittedly, the employees who are now retired from service, will
be deprived from the 3rd upgradation in the pay scale under the DACP
scheme and hence, they will be at loss in the consequential benefit in
fixation of pension, etc.
Moreso, the right has been accrued once the benefit under DACP
scheme has been granted but without issuing any show cause notice,
such decision has been taken, hence, on this ground also, the said action
cannot be approved.
33. The law is well settled that once the right has been vested, the same can
only be recalled by observing the principles of natural justice. The
vested right has been defined by the Hon'ble Apex Court in MGB
Gramin Bank Vs. Chakrawarti Singh [(2014) 13 SCC 583] at
paragraph 11, 12 and 13, which read under as:
"11. The word "vested" is defined in Black's Law Dictionary (6th Edn.)
at p. 1563, as:
"Vested.--fixed; accrued; settled; absolute; complete. Having the
character or given in the rights of absolute ownership; not contingent;
not subject to be defeated by a condition precedent. Rights are 'vested'
when right to enjoyment, present or prospective, has become property
of some particular person or persons as present interest; mere
expectancy of future benefits, or contingent interest in property founded
on anticipated continuance of existing laws, does not constitute 'vested
rights'."
12. In Webster's Comprehensive Dictionary (International Edition) at p.
1397, "vested" is defined as law held by a tenure subject to no
contingency; complete; established by law as a permanent right; vested
interest.
13. Thus, vested right is a right independent of any contingency and it
cannot be taken away without consent of the person concerned. Vested
right can arise from contract, statute or by operation of law. Unless an
accrued or vested right has been derived by a party, the policy
decision/scheme could be changed.
It is, thus, evident that vested right is a right independent of any
contingency and it cannot be taken away without consent of the person
concerned. Vested right can arise from contract, statute or by operation
of law. Unless an accrued or vested right has been derived by a party,
the policy decision/scheme could be changed.
34. Thus, the law is also settled 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. Reference in this
regard be made to the judgment rendered by the Hon'ble Apex Court in
Maneka Gandhi vs. Union of India and Anr., (1978) 1 SCC 248.
Relevant paragraph, i.e., paragraph-184 of the said judgment is being
referred as under:
"184. It was submitted on behalf of the state that an order under sub-
clause 10(3)(c) is on the subjective satisfaction of the passport authority
and that as the decision is purely administrative in character it cannot
be questioned in a court of law except on very limited grounds. Though
the courts had taken the view that the principle of natural justice is
inapplicable to administrative orders, there is a change in the judicial
opinion subsequently. The frontier between judicial or quasi-judicial
determination on the one hand and an executive or administrative
determination on the other has become blurred. The rigid view that
principles of natural justice applied only to judicial and quasi-judicial
acts and not to administrative acts no longer holds the field. The views
taken by the courts on this subject are not consistent. While earlier
decisions were in favour of administrative convenience and efficiency at
the expense of natural justice, the recent view is in favour of extending
the application of natural justice and the duty to act fairly with a
caution that the principle should not be extended to the extreme so as to
affect adversely the administrative efficiency. In this connection it is
useful to quote the oft-repeated observations of Lord Justice Tucker
in Russell v. Duke of Norfolk [(1949) 1 All ER 109, 118] "The
requirements of natural justice must depend on the circumstances of the
case, the nature of the inquiry, the rules under which the tribunal is
acting, the subject-matter that is being dealt with, and so forth ... but,
whatever standard is adopted, one essential is that the person
concerned should have a reasonable opportunity of presenting his
case." In R. v. Gaming Board ex. p. Benaim [(1970) 2 QB 417 : (1970)
2 All ER 528] Lord Denning held that the view that the principle of
natural justice applied only to judicial proceedings and not to
administrative proceedings has been overruled
in Ridge v. Baldwin [(1964) AC 40] . The guidance that was given to
the Gaming Board was that they should follow the principles laid down
in the case of immigrants, namely, that they have no right to come in,
but they have a right to be heard. The Court held in construing the
words the Board "shall have regard only" to the matter specified, the
Board has a duty to act fairly and it must give the applicant an
opportunity of satisfying them of the matter specified in the section.
They must let him know what their impressions are so that he can
disabuse them. The reference to the cases of immigrants is to the
decisions of Chief Justice Parker in Re H. K. (An infant [(1967) 2 QB
617, 630] ). In cases of immigrants though they had no right to come
into the country it was held that they have a right to be heard. These
observations apply to the present case and the plea of the petitioner that
the authority should act fairly and that they must let her know what
their impressions are so that, if possible, she can disabuse them, is
sound."
35. This Court, after discussing the facts and the legal position is now
proceeding to examine the legality of the impugned order and has
found that the learned Single Judge has dismissed the writ petition by
putting reliance upon the judgment rendered by the Hon'ble Apex Court
in State of U.P. and Ors. vs. J.P. Chaurasia & Ors., (1989) 1 SCC 121
wherein issue was that the Bench Secretaries in the High Court of
Allahabad are entitled to pay scale admissible to Section Officers and
whether the creation of two grades with different pay scales in the cadre
of Bench Secretaries who are doing the same or similar work is
violative of the right to have "equal pay for equal work"?
The Hon'ble Apex Court while answering the issues involved in
the aforesaid case has observed that the answer to the question depends
upon several factors and it does not just depend upon either the nature
of work or volume of work done by Bench Secretaries and the quantity
of work may be the same, but quality may be different that cannot be
determined by relying upon averments in affidavits of interested
parties. Further, the Hon'ble Apex Court held that the equation of posts
or equation of pay must be left to the executive Government and it must
be determined by expert bodies like Pay Commission and the court
should not try to tinker with such equivalence unless it is shown that it
was made with extraneous consideration.
36. Another judgment which has been relied upon by the learned Single
Judge has been rendered by the Hon'ble Apex Court in Shiba Kumar
Dutta and Ors. vs. Union of India and Ors., (1997) 3 SCC 545
wherein the petitioners, who are working as Fitters (T&G), had sought
to be fused in the category of, and to be on a par with, Jig Borers. They
sought equal pay on a par with them. They contend that they were
drawing higher pay scales than the Fitter instead of elevating their
cadre and placing them in the higher pay scales, they have been brought
down in the category as a Fitter after removing the two nomenclatures.
Thereby, it is arbitrary on account of invidious discrimination.
Accordingly, the Third Pay Commission had gone into that aspect of
the matter and fixed the scales of pay. Thereafter, Expert Classification
Committee and Anomalies Removal Committee had also gone into the
matter and made distinction between them. Subsequently, nomenclature
of all of them were removed and fused into one category, namely,
Fitter.
In the light of aforesaid fact the Hon'ble Apex Court has
observed that nomenclature and fitment is one of executive policy of
the Government and unless the action is arbitrary or there is invidious
discrimination between persons similarly situated, doing same type of
work, as is pointed out, it would be difficult for the courts to go into the
question of equation of posts or fitment into a particular scale of pay.
37. The learned Single Judge has also taken consideration of the judgment
passed by the Division Bench of this Court in Dr. Ajit Kumar and Ors.
vs. State of Jharkhand and Ors. wherein the same view has been taken
that in the matter of policy decision, the Court should be loth in
exercise the power of judicial review.
38. There is no dispute that so far as the decision of the Pay Commission to
be taken, the Court is not required to interfere with since the decision
was taken by the expert committee. The law is well-settled that the
applicability of the judgment is to be tested on the basis of the facts and
circumstances governing the case. Reference in this regard be made to
the judgment rendered by the Hon'ble Apex Court in Dr. Subramanian
Swamy vs. State of Tamil Nadu and Others, (2014) 5 SCC 75,
paragraph 47 of which reads hereunder as:
"47. It is a settled legal proposition that the ratio of any decision must
be understood in the background of the facts of that case and the case
is only an authority for what it actually decides, and not what logically
follows from it. "The court should not place reliance on decisions
without discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed.""
39. Herein, it is not the case that the recommendation of the Pay
Commission as 5th or 6th Pay Revision was sought to be quashed rather
the relief sought for in the writ petition is that once the recommendation
made of the 5th and 6th Pay Revision Committee for making effective
the benefit of upgradation under the DACP scheme w.e.f. 05.04.2002
and the benefit having been extended on the basis of the aforesaid
recommendation of the Pay Commission, then without any justifiable
reason, shifting the date is not proper.
40. The shifting of date since herein is by the State Government and the
reason assigned therein is that the writ petitioner cannot be allowed to
take double advantage. The question of double advantage both under
ACP and DACP scheme can well be rectified by the State Government
by making adjustment from the writ petitioners and therefore, it cannot
be said that the benefit of upgradation which has been paid in favour of
the writ petitioners are incurable rather it is curable by making
adjustment and to that effect, undertaking has already been furnished
by the writ petitioner/appellant.
41. There is also no dispute of the fact that there cannot be interference
with the policy decision rather the policy decision can be interfered
with in view of the power of judicial review if such policy decision
suffers from arbitrariness and is in the teeth of Article 14 of the
Constitution of India as has been as referred hereinabove.
42. It appears from the factual aspect that while taking decision by virtue of
circular dated 11.09.2013 that has been taken in pursuance of the
objection raised by the office of the Accountant General. It further
appears that the decision so taken since is based upon the objection of
the Accountant General, therefore, this Court is of the view that the
State has not acted independently and merely on the basis of the
objection raised by the office of the Accountant General, said decision
has been taken by modifying the earlier decision dated 28.11.2011.
It also appears from the impugned order that there is no cogent reason
of recalling the benefit already granted in favour of the appellants, save
and except, the objection of the Accountant General.
The question herein arises that when the State Government has
taken policy decision based upon the recommendation of the Central
Pay Commission having been adopted, i.e., by way of adoption of 5th
and 6th recommendation of the Pay Commission which has been
approved by the State Cabinet so its modification of the decision based
upon the objection of the Accountant General, according to our
considered view cannot be said to be proper and based upon no
justifiable ground.
43. It is required to refer herein about the decision so taken by the State
while issuing the circular dated 28.11.2011 wherein it would be evident
from paragraph-5 thereof that the State Government on due
consideration of the recommendation of 5th Pay Revision as contained
in letter dated 05.04.2002 issued by the Health and Family Welfare
Department, Government of India, Circular No.660 dated 08.02.1999
of the Finance Department of the State of Bihar and by taking into
consideration the local conditions, the said decision was taken, But,
while recalling the said decision the authorities have passed the order as
would appear from paragraph-3 that the decision as contained in
paragraph-5 & 6 of the circular dated 28.11.2011 is based upon the
objection of the Accountant General.
44. It further appears that the decision so taken by the State Government by
the circular dated 28.311.2011 it is the conscious decision of the State
Government. But, the modification so made vide resolution dated
11.09.2013, impugned, is not based upon the independent decision of
the State Govender rather it is based upon the objection of the office of
the Accountant General. Therefore, once the State Government has
taken conscious decision and it is not that the State itself has taken a
decision to modify the aforesaid circular which itself suggest that the
State was also of the view on the basis of the adoption of the
recommendation of the 5th/6th Pay Revision Commission to extend the
benefit of upgradation under the DACP making it effective from
05.04.2002. But, such decision is modified on the basis of the objection
made by the Accountant General, as such, Accountant General has got
no jurisdiction to be part of the decision of the State Government under
the rules of executive business rather, it is the power of the Finance
Department of the State to take diction basis upon which the Finance
Department has taken decision which has been confirmed by the
Cabinet and thereafter, the State has come out with the resolution and
hence, in that view of the matter also, the impugned order of
modification is not sustainable.
45. However, the grounds have been tried to be justified by putting it in
affidavit that the writ petitioners/appellants concerned will have the
benefit of two upgradations under two schemes.
46. We have already discussed hereinabove the aforesaid issue in the
preceding paragraphs and as such for the sake of brevity, the same is
not repeated herein. But, the fact remains that once the State has
approved by having discussion with the Cabinet as per the rules of
executive business, it cannot be allowed to be cancelled on the basis of
the objection made by the office of the Accountant General. It is for the
reason that the Accountant General has got nothing to do with the
policy decision taken by the State Government based upon which the
recommendation of 5th/6th CPC.
It would be evident from the rules of executive business that the
Finance Department has been conferred with the power to take decision
in view of allocation of business to the different departments.
47. So far as the issue of prejudice is concerned, this Court has also dealt
with the issue hereinabove with comparative assessment of the issue of
prejudice. It is the writ petitioners who will be more prejudiced in
comparison to that of the State. But, since the excess benefit if found to
be given in favour of the writ petitioners, the same is to be recovered
and in that view of the matter, the State interest will be safeguarded but
the extent of prejudice will be more so far as the writ petitioners are
concerned since they will be deprived from all time to come regarding
the consequential benefits in lieu of the third upgradation.
48. This Court, therefore, is of the view that the question of interference of
the High Court under the power of judicial review so far as it relates to
the policy decision of the State Government is concerned, the same is
fit to be judicially reviewed if the same is based upon the arbitrary
exercise of power and is having no justifiable reason therein. The fact
of the present case is exactly the same and as such, this Court
exercising the power of judicial review as per the law laid down by the
Hon'ble Apex Court in Federation of Railway Officers Association
and Ors. vs. Union of India (supra); Directorate of Film Festivals and
Ors. vs. Gaurav Ashwin Jain and Ors. (supra); Ugar Sugar Works
Ltd. Vs. Delhi Administration and Ors. (supra); Parisons Agrotech
Private Limited and Anr. Vs. Union of India and Ors. (supra); Jacob
Puliyel vs Union of India and Others (supra) and; Union of India and
Others vs. Bharat Forge Ltd. and Another (supra), is of the view that
the impugned order requires interference.
49. Herein, as per the reason explained above, this Court is of the view that
the aforesaid reason is not justifiable putting the writ
petitioners/appellants at detrimental position.
50. This Court, therefore, is of the view that the order passed by the learned
Single Judge requires interference.
51. Accordingly, the impugned order is quashed and set aside so far as it
relates to the appellants/writ petitioners.
52. In the result, the instant appeal stands allowed.
53. In consequence thereof, the writ petition also stands allowed.
54. Pending interlocutory application(s), if any, also stands disposed of.
55. Before parting with the order, this Court requires to clarify that the
State Government is at liberty to make adjustment of the amount which
has been paid excess to the entitlement by making assessment of the
entitlement of one or the other appellants/writ petitioners of their
financial upgradation under the ACP and DACP scheme by taking
conscious decision in this regard, in accordance with law and while
doing so, the writ petitioners will be provided an opportunity for the
purpose of calculation of amount.
(Sujit Narayan Prasad, J.)
I agree,
(Subhash Chand, J.) (Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated: 02/08/2023
Saurabh /N.A.F.R.
