Jharkhand High Court
Baidyanath Singh vs The State Of Jharkhand on 9 May, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No.4595 of 2021
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Baidyanath Singh .......... Petitioner.
-Versus-
1. The State of Jharkhand
2. Home Secretary, Government of Jharkhand, Dhurwa, Ranchi.
3. Director General-cum-Inspector General of Police, Jharkhand,
Ranchi.
4. Additional Director General of Police, Jharkhand Armed Police,
Raja Rani Kothi, Doranda, Ranchi.
5. Inspector General of Police (Provision), Jharkhand, Ranchi.
6. Commandant, Jharkhand Armed Police-8, Lesliganj, Palamau.
7. Accountant General, Jharkhand, Ranchi.
.......... Respondents.
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Diwakar Upadhyay, Advocate
For the State : Mr. Sreenu Garapati, S.C.III
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Order No.05 Date: 09.05.2023
1. The present writ petition has been filed for quashing part of the order
as contained in memo no.751/T.S. dated 2nd August 2019 (Sl. No.5),
so far as the same relates to the petitioner, passed by the Inspector
General of Police (Provision), Jharkhand, Ranchi- respondent no.5,
whereby the petitioner has been denied the benefits of 2 nd and 3rd
MACP on the ground that he has passed "Hindi Reading and Writing
Examination" on 23rd March, 2016 and, therefore, he would be entitled
for grant of 1st MACP from the date of passing of the aforesaid
examination and thereby he goes out from the zone of consideration
for 2nd and 3rd MACP. The petitioner has also prayed for declaration
that he has rightly been granted the benefit of 2nd MACP and,
therefore, no recovery can be made from his retiral benefits.
2. Learned counsel for the petitioner submits that the petitioner was
appointed on the post of Constable on 22.06.1981 and he retired from
service on 31.07.2021. It is submitted that the petitioner was granted
1st ACP in the year 1999 and 2nd ACP in the year 2005. It is further
submitted that the petitioner was entitled to the benefit of 3rd MACP
in the year 2011 after completion of 30 years of service however the
same was not given to him. It is submitted that while the petitioner
was working as Hawaldar, a letter bearing no.575/P. dated 14th
February, 2014 was issued by the In-charge Deputy Inspector General
of Police (Personnel) to all the Superintendents of Police and
Commandants to ensure that in the light of Rule 678(D) of the
Jharkhand Police Manual, all constables and Hawaldars shall have to
pass Hindi Reading and Writing Examination within one year of their
appointment. If they have not passed the matriculation examination
with Hindi or in any such examination in Hindi which is recognized from
time to time by the State Government as equivalent to matriculation
examination, such constables or Hawaldars will not be entitled for
annual pay increment. It is submitted that the petitioner appeared in
Hindi Writing and Reading Examination and passed the same on
23.03.2016.
3. It is further submitted that the petitioner despite having passed the
Hindi Reading and Writing Examination in terms with Rule 678(D) of
the Jharkhand Police Manual, an erroneous order as contained in
Memo no.751/T.S. dated 2nd August, 2019 was issued by the
respondent no.5, denying benefits of 2nd and 3rd MACP to the
petitioner on the ground that he passed the said examination on 23rd
March, 2016 and, therefore, he was entitled only for the benefit of 1st
MACP from the date of passing of the said examination. By reasons of
the order, the petitioner goes out from the zone of consideration for
grant of 2nd and 3rd MACP.
4. It is also submitted that even if assuming that the petitioner was
wrongly given the benefits of 2nd MACP, it was due to the mistake of
the department and of not the petitioner. It is well settled that in a
case where some excessive payment has been mistakenly made by the
employer, no recovery of excess payment shall be made if no fraud or
misrepresentation is attributed on the part of the employee. The
aforesaid fact finds support from the resolution dated 8th September,
2018 published in the Jharkhand Gazette on 15th January, 2019, which
was issued in compliance of the judgment rendered by the Hon'ble
Apex Court in the case of State of Punjab & Others Vs. Rafiq Masih
(White Washer) & Others (Civil Appeal No. 11527 of 2014).
5. A counter affidavit has been filed on behalf of the respondent no.6,
stating, inter alia, that the prevailing rules and guidelines as contained
in memo no.5207 dated 14th August, 2002 and memo no.1779 dated
21st May, 2014 issued by the Finance Department mandate that the
date of passing of departmental examination is important for the grant
of benefit of ACP/MACP. It clearly demonstrates that non-passing of
examination affects the date on which ACP/MACP can be granted and
will only be from the date of passing of the examination. This affects
the date of subsequent ACP/MACP as well. The petitioner has passed
the said examination on 23rd March, 2016 and in terms with the
aforesaid circulars, the date of ACP/MACP has been changed and
accordingly the petitioner has gone out of the eligibility criteria for
grant of 2nd ACP and 3rd MACP. The petitioner was given two regular
promotions; first on the post of Hawaldar on 28th August, 2002 and
second on the post of Transport Assistant Sub Inspector in the year
2016. He has also been granted the benefit of 1st MACP with effect
from 23rd March, 2016 i.e. the date of passing of Hindi Reading and
Writing Examination. Therefore, nothing remains to be paid to the
petitioner. It is further submitted that the Screening Committee in its
meeting dated 15th October, 2018 has duly rectified the 1st and 2nd
MACP wrongly granted to the petitioner earlier and has approved the
1st MACP from the date of passing of the said examination i.e. 23 rd
March, 2016, stating that the petitioner was not found eligible for the
benefits of 2nd and 3rd MACP.
6. Learned counsel for the petitioner puts reliance on the order dated 20th
July, 2021 passed by a co-ordinate Bench of this Court in W.P.(S)
No.404 of 2021 (Mangal Singh Deogam Vs. The State of
Jharkhand & Anr.) and submits that it has categorically been held in
the said case that the benefit of ACP cannot be granted from the date
of passing of Hindi Noting and Drafting Examination, rather the same
has to be granted from the date of initial appointment as per the ACP
Rules. The said order dated 20th July, 2021 was challenged by the State
of Jharkhand in L.P.A. No.33 of 2022, which has been dismissed by the
learned Division Bench of this Court vide order dated 19th January,
2023.
7. It, thus, appears that the issue with respect to passing Hindi Reading
and Writing Examination for grant of benefit of ACP/MACP is no more
res integra. Paragraph nos.6 to 8 of the order dated 20th July, 2021
passed in the case of Mangal Singh Deogam (Supra.) read as
under:-
"6. Be that as it may, having gone through the rival
submissions of the parties, this Court is of the considered view
that the case of the petitioner needs consideration. The
petitioner was granted the benefit of 1st ACP on 06.02.2000 on
completion of 12 years of service and benefit of 2nd ACP was
granted on 06.12.2012 after completion of 24 years of service
as per the Rules of ACP. The said benefit cannot be granted
from the date of passing of Hindi Noting and Drafting
Examination and was rightly granted to the petitioner from the
date of initial appointment as per the ACP Rules, which talks of
grant of ACP benefits on completion of 12/24 years of service
at that point of time. The Memo No. 409/P, dated 31.03.2003
issued by the office of Director General of Police, Jharkhand
clearly speaks of the fact that Constables and Havaldaars are
not supposed to furnish the report and as such, Hindi Noting
and Drafting Examination is not required to be cleared by
them. The same view was reiterated in Letter dated
18.03.2014 issued by the office of Director General of Police,
which is at Annexure-B to the counter-affidavit. The
arguments of the learned counsel for the respondents that as
per the Rule of 678 (gha) of the Police Manual, the Constable
and Havaldars, who have not cleared the matric examination,
are required to pass the Hindi, Noting and Drafting
Examination, are not entitled for increment, is not acceptable
to this Court. The petitioner was appointed in the year 1988
along with others, notification for conducting Noting and
Drafting Examination was not issued by the respondents,
within a year as per the Rule of 678 (gha) of the Police Manual.
However, the petitioner had passed the Hindi Noting and
Drafting Examination in the year, 2006 when the examination
was held. The argument of the learned counsel for the
respondents that as the petitioner had passed Hindi Noting and
Drafting examination on 22.03.2006, therefore, 1st ACP is
admissible to him from 22.03.2006 and subsequently, 2nd
MACP is to be granted from 17.10.2016, is not acceptable to
this Court as the petitioner was granted the said benefits
w.e.f. 2000 and 2012 respectively and without any show
cause, the impugned order has been issued. It is settled
principles of law that any order visiting with civil or evil
consequences cannot be passed without adhering with the
provisions of the principles of natural justice. In the instant
case, the petitioner was never issued a notice and without any
notice the order of shifting of dates of benefits given to him
much earlier, is in complete violation of principles of natural
justice and as such, on this score itself the impugned order is
not tenable in the eyes of law.
7. It has been held by this Court in a case of Kamal Kant
Sahay Vs. State of Jharkhand & Ors., reported in 2010 (2) JCR
558 (Jhr.) that without giving notice and without giving an
opportunity of being heard, the benefit of ACP, which is already
granted, cannot be withdrawn.
8. Further, for grant of ACP benefits, the passing of the
Department Examination is condition precedent, which came
into effect vide Resolution dated 21.05.2014, but the said
Resolution will not have any retrospective effect, so the
accrued benefit could not have been extinguished by passing
of the impugned order thereby infringing Article 300 A of the
Constitution."
8. In the present case also, the petitioner was not served with any show
cause notice before passing the impugned order dated 02.08.2019
which had severe civil consequences. Moreover, the resolution dated
21.05.2014 has been applied retrospectively while shifting the 1st ACP
of the petitioner to the date when he passed the "Hindi Reading and
Writing Examination" and the said action of the respondents cannot be
said to be in accordance with law.
9. Under the aforesaid facts and circumstances, the part of the impugned
order, as contained in memo no.751 dated 2nd August, 2019, passed
by the respondent no.5 to the extent same pertains to the petitioner
at serial no.5 is hereby quashed. The said respondent shall ensure that
the petitioner's pension is re-fixed ignoring the order dated 02.08.2019
and he shall be paid all admissible dues in accordance with law. The
arrears of pension on the basis of enhanced pay scale shall also be
paid to the petitioner within eight weeks from the date of
receipt/production of a copy of this order.
10. The writ petition is allowed.
(Rajesh Shankar, J.)
Sanjay/AFR
