Quashed

Chandra Prakash Tewari v. State of U.P.through Prin. Secy. Deptt. of Home Lko.and Ors.

Allahabad HC8 Apr 2024WRIA/9063/2011

Case brief

AI extract

What is this about?

Petitioner challenged rejection of third promotional pay (ACP) claim due to adverse entry and punishments. Court held eligibility was met in 2002 based on continuous service, rendering later penalties inapplicable. Writ allowed; impugned order quashed.

What did the court decide?

Impugned order dated 24.05.2011 quashed; Mandamus issued to grant third ACP in compliance with Government order dated 04.05.2010.

Chandra Prakash Tewari Vs State of… — Pension and Retirement Benefits | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:29074

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Court No. - 6

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Case :- WRIT - A No. - 9063 of 2011 Petitioner :- Chandra Prakash Tewari Respondent :- State Of U.P.Through Prin. Secy. Deptt. Of Home Lko.And Ors.

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Counsel for Petitioner :- Rana Mritunjay Singh,Bhanu Dutt Dwivedi,Chandra Prakash Dwivedi,Monika Dwivedi Counsel for Respondent :- C.S.C.

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Hon'ble Abdul Moin,J.

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Heard learned counsel for the petitioner and learned Standing counsel appearing on behalf of the State-respondents.

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Instant writ petition has been filed challenging the order dated 24.05.2011 passed by the respondent no. 4, a copy of which is annexure 1 to the writ petition whereby the claim of the petitioner for third ACP has been rejected. A further prayer is for a mandamus commanding the respondents to provide the third promotional pay to the petitioner w.e.f 01.12.2008.

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Bereft of unnecessary details, the contention of learned counsel for the petitioner is that the petitioner had been appointed in the year 1976. He has already been accorded the first & second ACP benefit. The third ACP benefit was due to him after completion of twenty six years of service as per the Government order dated 04.05.2010, a copy of which is annexure 1 to the supplementary affidavit dated 22.01.2024.

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However, the respondents vide order impugned dated 24.05.2011, a copy of which is annexure 1 to the writ petition have rejected the claim of the petitioner for grant of third ACP on the ground that the petitioner has been awarded an adverse entry vide order dated 08.01.2004; he has been given a punishment of withholding of pay for three days vide order dated 30.11.2006 and a punishment of withholding of ten days salary vide order dated 18.04.2007 which all indicate the

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unsatisfactory service of the petitioner and which thus does not entail the petitioner to be granted the third ACP. The said order has been passed after placing reliance on the Government order dated 04.05.2010 a copy of which is annexure 1 to the supplementary affidavit dated 22.01.2024.

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The argument of the learned counsel for the petitioner while placing reliance on the aforesaid Government order dated 04.05.2010 is that paragraph 2 (ii) (Kha) proviso specially provides that the third ACP is to be granted after successful and continuous service of 26 years or after eight years of grant of the second ACP whichever is earlier and the second ACP had been granted to the petitioner in the year 2000. As per the said Government order, the petitioner thus became entitled for grant of third ACP immediately on completion of 26 years of service, he having been appointed in the year 1976 which would be the year 2002. At the same time considering that the Government order has been issued on 04.05.2010 and entails the grant of the ACP w.e.f 01.12.2008 as per clause 1 of the said government order as such, the adverse entry for the year 2004 and punishment for the year 2006 and 2007 being subsequent to the petitioner's entitlement of third ACP which fell due in the year 2002, the said the said adverse entry and punishment orders could not have been considered while considering grant of the third ACP to the petitioner.

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On the other hand, learned Standing counsel on the basis of averments contained in the counter affidavit argues that the petitioner is required to have satisfactory service for grant of ACP as has been specifically set forth in the Government order dated 30.06.1993, a copy of which is annexure 4 to the writ petition which entails that the said ACP can only be granted after satisfactory service. However, considering the adverse

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entry and two punishment orders against the petitioner, it cannot be said that the petitioner was having a satisfactory service so as to entail grant of third ACP to him.

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Having heard the learned counsel appearing on behalf of the contesting parties and having perused the records it emerges that admittedly the petitioner was appointed in the year 1976. Subsequent to the Government order dated 30.06.1993, the respondents had issued a Government order dated 04.05.2010 which pertains to grant of the ACP. The claim of the petitioner for grant of third ACP was considered but rejected vide order impugned dated 24.05.2011 on the ground that the petitioner has been awarded an adverse entry in the year 2004 and two punishments in the year 2006 & 2007 and thus the petitioner is not having a satisfactory service so as to entail the grant of the third ACP.

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A perusal of the Government order dated 04.05.2010 would indicate that paragraph 2 (Kha) proviso would be applicable with respect to the petitioner inasmuch as the said proviso provides that the grant of third ACP would be granted after twenty six years of service or after eight years of grant of the second ACP whichever is earlier. As per the specific averment made in paragraph 4 of the supplementary affidavit dated 22.01.2024, the second ACP has been granted to the petitioner in the year 2000. Thus, considering paragraph 2 (Kha) proviso, the petitioner was entitled for grant of the third ACP in the year 2002 counting his service since 1976 and thus the adverse entry for the year 2004 and the punishments for the year 2006 and 2007 would have no applicability in the facts of the instant case more particularly when the petitioner had already completed 26 years of service prior to the award of adverse entry and punishment orders and there is nothing on record to indicate

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that the petitioner was having any adverse entry upto the year 2002.

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Keeping in view, the aforesaid discussion, the writ petition is allowed. A writ of certiorari is issued quashing the order impugned dated 24.05.2011, a copy of which is annexure 1 to the writ petition. A writ of Mandamus is issued commanding the respondents to consider the case of the petitioner for grant of the third ACP keeping in view the Government order dated 04.05.2010 and discussion made above.

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Let such consideration be done within a period of six weeks from the date of receipt of a certified copy of this order. Order Date :- 8.4.2024 Pachhere/-

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Digitally signed by :- SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench

Chandra Prakash Tewari v. State of U.P.through Prin. Secy. Deptt. of Home Lko.and Ors.

Case brief

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What did the court decide?

Chandra Prakash Tewari v. State of U.P.through Prin. Secy. Deptt. of Home Lko.and Ors.

Case brief

What is this about?

What did the court decide?

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