Dismissed

The State of Jharkhand v. Ajoy Kumar Mukherjee

Jharkhand HC12 Apr 2022LPA/101/2018

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed three Letters Patent Appeals filed by the State challenging writ court orders that restored financial benefits to Research Assistants. The court distinguished promotion from financial upgradation, holding that while promotion cannot be retrospective, financial benefits under established schemes are not barred by the lack of specific promotional post rules if g

What did the court decide?

The Letters Patent Appeals filed by the State of Jharkhand in WP(S) Nos. 5262 of 2014, 291 of 2013, and 671 of 2013 were dismissed, confirming the granting of financial ACP benefits.

The State of Jharkhand Vs Ajoy Kumar Mukherjee — Service and Employment | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction)

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LPA No. 99 of 2018

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with

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LPA No. 100 of 2018

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with LPA No. 101 of 2018

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------

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LPA No. 99 of 2018

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The State of Jharkhand.

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The Principal Secretary, Water Resources Department, Government of Jharkhand, office at Nepal House, PO & PS-Doranda, District-Ranchi.

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The Secretary, Department of Finance, Government of Jharkhand, office at Project Building, PO & PS-Dhurwa, District-Ranchi. ….. ...... Appellants

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Versus

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Shyam Narayan Dubey, s/o late Ram Chandra Dubey, r/o Flat No. 303, Meena Enclave, Pomi Janki Road, Harmu Housing Colony, PO-Harmu, PS-Argora, District-Ranchi.

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Atanu Sarkar, s/o late R.N. Sarkar, r/o Bhalla Second Lane, Kumhar Toli, Purlia Road, PO & PS- Lalpur, District-Ranchi.

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Malay Kumar, s/o late Basudeo Narazan Ambasth, r/o Flat No. D/4, Tapowan Apartment, Niwarnpur, PO-Doranda, PS-Chutia, District-Ranchi. 4. Binod Kumar, s/o late Ram Chandra Prasad, r/o Prem Nagar, Road No.6, Latma Road, Singhmore, PO-Hatia, PS-Jagarnathpur, District-Ranchi.

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…. …...Respondents

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with

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LPA No. 100 of 2018

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The State of Jharkhand.

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The Principal Secretary, Water Resources Department, Government of Jharkhand, office at Nepal House, PO & PS-Doranda, District-Ranchi. 3. The Executive Engineer, Subarnrekha Project, Chandil Complex, Adityapur, PO & PS-Adityapur, District-Seraikella Kharsawan.

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The Executive Engineer, Design Division No.II, Ichagaludih, Adityapur, PO and PS-Adityapur, District-Seraikella Kharsawan.

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The Deputy Director (Scientific), Quality Control Division, PO & PSJamshedpur, District-East Singhbhum, Jamshedpur. ….. ...... Appellants

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Versus

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Ajoy Kumar Mukherjee, s/o late Dr. N. P. Mukherjee, r/o New Subhash Colony, Road No.3 PO & PS-Mango, Town Jamshedpur, District-East Singhbhum. …. …...Respondents

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with

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LPA No. 101 of 2018

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The State of Jharkhand.

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The Principal Secretary, Water Resources Department, Government of Jharkhand, office at Nepal House, PO & PS-Doranda, District-Ranchi.

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The Secretary, Department of Finance, Government of Jharkhand, office at Project Building, PO-Dhurwa, PS-Jagarnathpur, District-Ranchi.

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….. ...... Appellants

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2 LPA No. 99 of 2018 and analogous cases

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Versus

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Ajoy Kumar Mukherjee, s/o late Dr. N. P. Mukherjee, r/o New Subhash Colony, Road No.3, PO & PS-Mango, Town Jamshedpur, District-East Singhbhum. …. …... Respondents

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CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellants : Mr. Manish Mishra, GP-V [in all cases] For the Respondents : Mr. Jitendra S. Singh, Advocate; Mr. Amit Kumar Tiwari, Advocate

O R D E R

12^th April 2022

Per, Shree Chandrashekhar,J.

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The State of Jharkhand has challenged the orders passed in WP(S) No. 5262 of 2014 in LPA No. 99 of 2018, WP(S) No. 291 of 2013 in LPA No. 100 of 2018 and WP(S) No. 671 of 2013 in LPA No. 101 of 2018.

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Shyam Narayan Dubey, Atanu Sarkar, Malay Kumar and Binod Kumar approached the writ Court in WP(S) No. 5262 of 2014 against the order dated 10^th September 2014 by which financial benefits under 1^st and 2^nd ACP given to them in the next higher pay scales of Rs. 6500-10500/- and Rs. 8000-13500/- were reduced to Rs. 5500-9000/- and Rs. 6500-10500/respectively.

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The order dated 10^th September 2014 was passed by the Principal Secretary, Water Resources Department, Government of Jharkhand in compliance of the order dated 13^th November 2013 passed in WP(S) No. 93 of 2013 which was preferred by Shyam Narayan Dubey and Atanu Sarkar.

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In the first round of litigation, Shyam Narayan Dubey and Atanu Sarkar had approached the writ Court being aggrieved by the order dated 2^nd March 2013 by which financial upgradations granted to them in the pay scale of Rs. 6500-10500/- and Rs. 8000-13500/- were reduced to Rs. 5500-9000/- and Rs. 6500-10500/- respectively. By an order dated 13^th November 2013, the writ Court quashed the said order on the ground that before recalling the order dated 31^st December 2005 no notice was issued to the respondents.

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Ajoy Kumar Mukherjee approached the writ Court in WP(S)

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3 LPA No. 99 of 2018 and analogous cases

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No. 671 of 2013 against the order dated 1^st December 2012 by which financial upgradations in terms of 1^st and 2^nd ACP granted to him were fixed in the pay scale of the next promotional scale of pay as per Schedule-I to the Resolution dated 14^th August 2002, issued by the State of Jharkhand. Ajoy Kumar Mukherjee again came to the writ Court in WP(S) No. 291 of 2013 against the order dated 23^rd December 2011 for recovery of Rs. 6,74,942/- from him, which according to the State of Jharkhand was excess amount paid to him on account of grant of financial upgradation to him in the higher scale of pay.

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The writ Court vide order dated 5^th July 2016 allowed WP(S) No. 5262 of 2014 and quashed the order dated 10^th September 2014. WP(S) No. 291 of 2013 and WP(S) No. 671 of 2013 followed the aforesaid decision dated 5^th July 2016 passed in WP(S) No. 5262 of 2014 and consequent thereupon the order of recovery which was challenged in WP(S) No. 291 of 2013 was quashed.

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Mr. Manish Mishra, the learned GP-V would submit that (i) any service linked benefit must be granted to a Government employee in terms of the existing rules, regulations, circular etc. governing the service conditions and (ii) the Jharkhand Water Resources Department, Research Assistant Cadre Rule, 2012 (in short, “Rule, 2012”) cannot be implemented with a retrospective date to grant financial benefits under 1^st and 2^nd ACP to the respondents in a scale of pay for the next promotional post which did not exist on the date of the writ petitioners' entitlement for financial upgradation.

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The writ Court has recorded that the date on which the respondents became eligible for grant of 1^st and 2^nd ACP was not under challenge. In the present proceeding also we do not find any objection by the State of Jharkhand as regards (i) eligibility of the respondents to receive 1^st and 2^nd ACP benefits and (ii) the date on which they became entitled for such benefits.

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The respondents who were initially appointed on the post of Research Assistant between the period 1972 to 1990 were granted 1^st and 2^nd ACP by an order dated 31^st December 2005. By the said order the respondents were granted 1^st financial upgradation in the scale of Rs. 6500-10500/- and 2^nd ACP in the scale of Rs.8000-13500/-. The aforesaid financial upgradations were given to the respondents on the understanding that they were entitled for scale of pay of the next “promotional post” which on an objection raised by the Finance Department was recalled by an order dated 2^nd March 2013. After the decision in

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4 LPA No. 99 of 2018 and analogous cases

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WP(S) No. 93 of 2013 the department re-visited the said decision and reaffirmed the same by issuing the order dated 10^th September 2014 which was impugned before the writ Court in WP(S) No. 5262 of 2014.

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There is a fundamental distinction between grant of promotion and financial benefits in terms of ACP/MACP. The entitlement for grant of financial upgradation is always decided on completion of the period of service upon fulfillment of other conditions under ACP/MACP scheme and the same can always be granted from a retrospective date though a decision in this regard may be taken much later in time. But a Government employee even though may be eligible for grant of promotion and there were vacancies available gets promotion and the order of promotion becomes effective only from the date a decision is taken and in no case an order of promotion can take effect from a retrospective date, except in some cases where the period spent on officiating, additional charge etc. may be counted for calculating the period spent on a post.

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The State of Jharkhand took a stand before the writ Court that after bifurcation of the erstwhile State of Bihar rules for Research Assistants, Research Officers and Deputy Director (Research) were not framed and notified and, therefore, as on the date when the aforesaid ACP benefits were extended to the respondents they were continuing on single post for which there was no promotional avenue. The State of Jharkhand referring to the scheme of ACP as notified under Resolution dated 14^th August 2002 took a stand before the writ Court that the respondents were entitled for next “higher scale of pay” as per the table provided under Schedule-I.

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However, it was brought on record before the writ Court that the respondents were governed under Resolution dated 2^nd February 1980 which was notified after restructuring the cadre structure of Research Assistants under Water Resources Department – under the said restructuring the post of Additional Research Officer was abolished. Under the Resolution of 1980, it was provided that promotion to the post of Research Officers shall be made from the cadre of Research Assistants and promotion to the post of Deputy Director (Research) shall be made from the cadre of Research Officers.

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Section 73 of the Bihar Re-organisation Act provides that immediately before the appointed day the employee serving under the erstwhile State of Bihar shall continue on same conditions of service and that shall not be varied to his disadvantage except with the previous approval of the Central

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5 LPA No. 99 of 2018 and analogous cases

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Government. Section 74 which deals with “provisions as to continuance of officers in the same post provides that every Government employee immediately before the appointed day shall continue to hold the same post or office in the successor State as he was holding or discharging the duties of any post or office in connection with the affairs of the existing State of Bihar”. In our opinion, till the time new rules were framed in 2012 the Resolution of 1980 shall govern the service conditions of the respondents.

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To make the things clearer, we would indicate that under the Rules of 2012, the State of Jharkhand has also provided the same cadre structure as was provided under the Resolution of 1980. The Rules of 2012 also provide that promotion to the post of Research Officers shall be made from the cadre of Research Assistants and next promotional post to the post of Research Officers shall be the post of Deputy Director (Research). That being the understanding of the department, 1^st and 2^nd ACP granted to the respondents vide order dated 31^st December 2005 was the correct approach of the State of Jharkhand. There is no dispute that the respondents became entitled for 1^st and 2^nd ACP on 9^th August 1999 and the stand taken before the writ Court that the respondents were holding a single post is factually not supported by the materials on record.

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In view of the aforesaid discussions, these Letters Patent Appeals are dismissed.

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Pending interlocutory applications, if any, stand disposed of.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 12^th April 2022 SB/Amit-NAFR

The State of Jharkhand v. Ajoy Kumar Mukherjee

Case brief

What is this about?

What did the court decide?

The State of Jharkhand v. Ajoy Kumar Mukherjee

Case brief

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What did the court decide?

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