Jharkhand High Court
Rabindra Prasad Son Of Late Mahadeo ... vs The State Of Jharkhand Through The ... on 9 April, 2025
Author: Ananda Sen
Bench: Ananda Sen
2025:JHHC:10874
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (S) No. 816 of 2021
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Rabindra Prasad son of Late Mahadeo Prasad, resident of village Lohsinghna
Road, Near Dr. Bhanu Shankar, Ambedkar-puri Hazaribag, P.O. Hazaribag,
P.S. Sadar Hazaribag, District Hazaribag, Jharkhand PIN-825315.
... ... Petitioner
Versus
1. The State of Jharkhand through the Secretary, Department of Finance,
Government of Jharkhand, having its office at Project Bhawan Dhurwa,
P.O. & P.S. Dhurwa, District Ranchi, Jharkhand. PIN 834004
2. The Secretary, Road Construction Department (R.C.D), Govt. of
Jharkhand, having its office at Project Bhawan Dhurwa, P.O. & P.S.
Dhurwa District Ranchi, Jharkhand. PIN 834004
3. The Under Secretary, Road Construction Department (R.C.D), Govt. of
Jharkhand, having its office at Project Bhawan Dhurwa, P.O. & P.S.
Dhurwa District Ranchi, Jharkhand. PIN 834004
4. The Superintending Engineer, Road Construction Department (R.C.D),
Road Circle Hazaribag having its office at nearby Jharkhand State Govt.
Bus Stand Hazaribag, P.O. GPO Hazaribag, P.S. Sadar Hazaribag
District. Hazaribag, Jharkhand PIN- 825301
5. The Executive Engineer, Road Construction Department (R.C.D.) Road
Division Giridih having its office at Barachowk Giridih, P.O.GPO Giridih,
P.S. Sadar Giridih, District Giridih, Jharkhand PIN 815301.
... ... Respondents
CORAM : SRI ANANDA SEN, J.
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For the Petitioner : Mr. Sahadeo Choudhary, Advocate
For the Respondents: Mr. Indranil Bhaduri, SC IV
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ORDER
RESERVED ON 11.03.2025 PRONOUNCED ON 09.04.2025
10/ 09.04.2025 By way of filing this writ petition, the petitioner has prayed for the
following reliefs: -
(1) For quashing of Letter No. 148 dated 22.02.2020 (Annexure-8)
issued by Respondent No.4 in compliance of order dated
04.02.2019 passed in W.P(S) No. 4109 of 2013 wherein the
illegal recommendation has been made for fixation of ACP/MACP
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to the petitioner by shifting 10 years 14 days in pursuant to the
Finance Department Resolution No. 1779 dated 21.05.2014 as
the said resolution is effective with immediate effect;
(2) For quashing of Memo No. 2361 (S) dated 29.09.2020
(Annexure-9) issued under the signature of Under Secretary
(Respondent No.3), Road Construction Department (R.C.D),
Government of Jharkhand by which the admissible date of 2nd
ACP has been fixed with effect from 29.04.2014 by shifting the
period for 10 years 14 days with reference to the Finance
Department Resolution No. 1779 dated 21.05.2014, the same
being made effective with immediate effect;
(3) For quashing Memo No. 1094 dated 29.10.2020 (Annexure-
10) issued by the Executive Engineer, Road Construction
Department Giridih Division (Respondent No.5) by which the
petitioner's pay scale with 1st ACP of Rs. 21150/- has
been sanctioned with effect from 23.08.2009 and the Pay Scale
with 2nd ACP of Rs. 24950/- has been sanctioned with effect from
29.04.2014 in pursuance to letter No 2361 (S) dated 29.09.2020
of the Under secretary, Road Construction Department, Govt. of
Jharkhand and the 3rd MACP was not considered which had
already been granted to the petitioner with effect from 15.04.2010
along with 1st & 2nd ACP with effect from 23.08.2009 through
Memo No. 2040 dated 13.10.2010 issued by Respondent no. 3,
but subsequently the 2nd and 3rd ACP were illegally cancelled
through Memo No. 360 dated 11.02.2013, but the same memo no.
360 dated 11.02.2013 had already been set aside/ quashed by
this Hon'ble Court vide Order dated 04.02.2019 passed in W.P(S)
No. 4109 of 2013.
AND/OR
Direct the respondents to grant 1st & 2nd ACP with effect from
23.08.2009 and 3rd MACP with effect from 15.04.2010 as granted
to him earlier through Memo No. 2040 dated 13.10.2010 in view of
order dated 09.04.2019 of this Hon'ble Court passed in W.P(S)
No. 4109 of 2013 as because Memo No. 1779 of 21.05.2014 is
not at all applicable to the petitioner which has been made
effective from the date of its issuance, prospectively not
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retrospectively and also direct the respondents authorities to
make payment of consequential benefits with statutory interest
there upon for delayed payment thereof.
2. The petitioner was appointed on 15.04.1980 in Road Construction
Department of Bihar and had completed 30 years of service. The petitioner
passed the accounts examination on 23.08.2009 and was granted the 1st and
2nd ACP (Assured Career Progression) benefits with effect from 23.08.2009
and the 3rd MACP (Modified Assured Career Progression) with effect from
15.04.2010, which was approved by the Commissioner, North Chhotanagpur,
Hazaribagh vide letter No.1913 dated 26.04.2011. Vide Memo No.360 dated
11.02.2013, the benefits of the 2nd ACP and 3rd MACP granted to the petitioner
were cancelled without any notice to the petitioner. Challenging the same, the
petitioner had moved before this Court in W.P(S) No. 4109 of 2013. This Court
by an order dated 04.02.2019 while quashing the orders vide Memo No.124
dated 21.01.2013 and Memo No.360 dated 11.02.2013, had remanded the
matter to the concerned authority to take appropriate decision. There was also
Memo No. 1779 in 2014 regarding shifting the effective date for ACP/MACP
benefits due to delayed passing of Departmental Examination, but the said
resolution was not applicable in the case of the petitioner inasmuch as the
claim of the petitioner relates to the period prior to issuance of the said memo.
Vide letter No.148 dated 22.02.2020, recommendation was made to shift the
date of ACP/MACP of the petitioner by 10 years 14 days in the light of
Resolution No.1779 dated 21.05.2014. Subsequently, vide Memo No.2361
dated 29.09.2020, the admissible date of 2nd ACP of the petitioner was fixed
as 29.04.2014 by shifting the period by 10 years 14 days in light of the Memo
No.1779 dated 21.05.2014. Thereafter vide Memo No.1094 dated 29.10.2020,
petitioner's pay scale with 1st ACP of Rs.21,150/- was sanctioned with effect
from 23.08.2009 and the pay scale with 2nd ACP of Rs.24950/- was sanctioned
with effect from 29.04.2014, but the 3rd MACP was not considered which was
already granted to the petitioner with effect from 15.04.2010 along with 1st and
2nd ACP with effect from 23.08.2009 through Memo No.2040 dated
13.10.2010. Petitioner had made several representations and reminders
pointing out the inapplicability of Resolution No.1779 dated 21.05.2014 to the
petitioner, but the authority concerned cancelled his 2nd ACP and 3rd MACP in
the garb of resolution dated 21.05.2014. Accordingly, the petitioner has moved
this Writ Petition claiming 1st ACP, 2nd ACP and 3rd MACP from the dates on
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completion of qualifying years of service.
3. Learned counsel for the petitioner and the learned counsel for the
state-respondents were heard on the issue. The counsel for the petitioner
argued in support of claim of the petitioner whereas the counsel for the
respondents had supported the action of the respondents in shifting the date
for granting ACP/MACP by 10 years 14 days.
4. The issue, which is involved in this Writ Petition is that the
petitioner was granted ACP and MACP from the date he had passed the
Departmental Examination, i.e., 23.08.2009. It is the claim of the petitioner that
he is entitled to get the said benefit from much anterior date, i.e., the date
when he had completed his qualifying service. On the other hand, it is the case
of the respondents that since the petitioner had passed the Departmental
Examination in 2009, he is entitled for the benefits of ACP/MACP from August
2009 and not from 1999. The impugned orders also reflect that since the
petitioner had passed the Departmental Examination on 23.08.2009, the
period for purposes of extending the benefits of ACP/MACP should be counted
from the aforesaid date.
5. The Hon'ble Supreme Court, very recently, in the case of Amresh
Kumar Singh & Others versus State of Bihar & Others reported in 2023
SCC OnLine SC 496 had considered similar issue, where the sole question
for consideration was whether the qualification of graduation prescribed for
promotion to the next higher post of Accounts Officer from that of Accounts
Clerk is necessary even for the purpose of extending the benefit of ACP. The
Hon'ble Supreme Court in the said judgment, at paragraphs 12 to 20, while
referring to various earlier judgments of the Hon'ble Supreme Court, has held
as under: -
12. It may be worth noting that the ACP scheme was
enforced on the recommendation of the Fifth Central Pay
Commission in context with Group C and D employees and
it provided monetary benefit to the employees on
completion of 12 years and 24 years of regular service who
were not able to get promotion. The scheme as such was
anti-stagnation and envisages merely placement of the
employees in the higher pay scale for the grant of financial
upgradation only without grant of actual promotion. The
benefit of the ACP as such is like granting non-functional in
situ promotion.
13. At the cost of repetition, it must be borne in mind that
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the object of ACP is to avoid stagnation where no
promotional avenues are available. The grant of ACP is not
technically a grant of promotion but increase in the pay
scale to the next higher grade retaining the employee on the
post held by him. This is only to accord monetary benefit
without disturbing any seniority or actually effectuating
promotion to any higher post to avoid stagnation on a
particular post or pay scale for a very long period.
14. The object and purpose of ACP/MACP Scheme has been
reiterated by this Court in Union of India v. C.R. Madhava
Murthy, (2022) 6 SCC 183, as one to relieve the frustration
on account of stagnation and it does not involve actual
grant of promotional post but merely monetary benefits in
the form of next higher grade subject to fulfillment of
qualifications and eligibility criteria.
15. In sum and substance, both ACP and MACP Schemes
are schemes devised with the object of ensuring that the
employees who are unable to avail of adequate promotional
opportunities, get some relief in the form of financial
benefits. Accordingly, the schemes provide for regular
financial upgradation on completion of 12-24 years and 10-
20-30 years of service without promotion. They are incentive
schemes for the employees who complete a particular
period of service but without getting promotion for lack of
promotional avenues. The effect of the schemes must be
judged keeping in view the object and the purport of the
scheme.
16. In Union of India v. G. Ranjana reported in (2008) 14 SCC
721, the three-Judges Bench of this Court held that in situ
promotions are made to remove stagnation of grade C and
grade D employees by giving them certain monetary
benefits.
17. It was further observed that fulfillment of educational
qualifications prescribed under the recruitment rules for the
purposes of promotion are not necessary for non-functional
in situ promotion. In other words, educational qualification
required for the purposes of promotion is not necessary for
the grant of in situ promotion, i.e., only for extending the
monetary benefit where there are no promotional avenues
and the employees are likely to be stagnated.
18. In the aforesaid case, the employees were working as
malis (Gardeners) and had claimed promotion in the higher
pay scale. The Central Administrative Tribunal seized of the
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original applications observed that the employees cannot
claim the scale of the next higher post by way of in situ
promotion. On the matter being taken to the High Court by
way of a writ petition, the contention of the employees was
accepted and it was observed that the object of in situ
promotion on non-functional posts, is to ensure that the
group C and D employees are not stagnated in the same
cadre / pay scale and that they should be provided with
certain monetary benefits. Therefore, the rejection of the
claim for such nonfunctional in situ promotion on the
ground that the employees do not possess the necessary
minimum qualification of matriculation as per the rules is
not justified and renders the order erroneous in law. The
view so taken by the Division Bench of the High Court was
affirmed by this Court in the above referred Civil Appeals
holding that the High Court has correctly analysed the
object of the in situ promotion and fixation of pay scales to
Group C and D employees to avoid stagnation.
19. In view of the aforesaid legal position coupled with the
fact that the qualification of graduation prescribed is for the
promotion to the post of Accounts Officer rather than for the
grant of in situ promotion on the non-functional post or for
extending the benefit of ACP which is purely and simply in
the nature of grant of monetary benefit without actually
effectuating any promotion to any higher post, we are of the
opinion that the judgment and order of the Division Bench
of the High Court impugned in the appeals cannot be
sustained. It is accordingly hereby set aside and that the
judgment of the writ court dated 28.11.2017 is restored. The
appellants are extended the benefit of ACP, as directed by
the writ court.
20. We have not considered it necessary to deal with the two
cases on the basis of which the Single Judge has allowed
the writ petitions and granted the benefit of the ACP to the
appellants, as we have independently of those two
decisions have considered and held that the appellants are
entitled to financial upgradation under the ACP Scheme on
completion of requisite regular service ignoring the higher
qualification prescribed for the next higher post as grant of
such benefit is not actually a promotion but only financial
upgradation and if the higher qualification is insisted it
would frustrate the purpose of the entire scheme.
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6. As has been observed by the Hon'ble Supreme Court in the
above case, "appellants are entitled to financial upgradation under the ACP
Scheme on completion of requisite regular service ignoring the higher
qualification prescribed for the next higher post as grant of such benefit is not
actually a promotion but only financial upgradation and if the higher
qualification is insisted it would frustrate the purpose of the entire scheme", in
the case in hand also, the petitioner is entitled to 1st & 2nd ACP and 3rd MACP
with effect from the respective dates on which he completed the respective
qualifying years of service. Thus, the letter No. 148 dated 22.02.2020
(Annexure-8) issued by Respondent No.4; Memo No. 2361 (S) dated
29.09.2020 (Annexure-9) issued under the signature of Under Secretary
(Respondent No.3), Road Construction Department (R.C.D), Government of
Jharkhand; and Memo No. 1094 dated 29.10.2020 (Annexure-10) issued by
the Executive Engineer, Road Construction Department Giridih Division
(Respondent No.5) are hereby quashed. Respondents are directed to
calculate the benefits of 1st and 2nd ACP and 3rd MACP in terms of this order
and extend the monetary benefits emanating from such calculation within a
period of twelve weeks from the date of receipt of a copy of this order.
7. This writ petition is, accordingly, allowed. Pending interlocutory
application, if any, stands disposed of.
(Ananda Sen, J.)
Kumar/Cp-02
