Bindhyachal Devi Vs the State of Jharkhand through Pr Secretary Deptt of Personnel Administrative Refroms and Rajbhasha

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1045 of 2020

Bindhyachal Devi, wife of late Shiv Gobind Ram, R/o Village- Sindur Nawadiha Siyari, P.O. + P.S.- Sadar, District- Hazaribagh.

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… Petitioner

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- Versus -

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The State of Jharkhand through Principal Secretary, Department of Personnel, Administrative Reforms & Rajbhasha, Government of Jharkhand at Ranchi, P.O. & P.S.-Dhurwa.

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Commissioner, North Chotanagpur Division, Hazaribagh, At, P.O. + P.S. & District- Hazaribagh.

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Secretary, Building Construction Department, office at Nepal House, P.O. + P.S.- Doranda & District- Ranchi.

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Engineer-in-Chief, Building Construction Department, Officer at Nepal House, P.O. + P.S.- Doranda & District – Ranchi.

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Executive Engineer, Building Construction Department, Building Division, Chatra. Office At, P.O. + P.S. & District- Chatra.

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Superintendent Engineer, Building Construction Department, Building Circle, Hazaribagh, Office at, P.O.+ P.S. & District- Hazaribagh.

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… Respondents

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CORAM: - HON’BLE MR. JUSTICE AMBUJ NATH

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----For the Petitioner : Mr. Saurabh Shekhar, Advocate : Ms. Shail Lakra, Advocate For the Resp.-State : Mr. Navneet Toppo, A.C. to GP-I

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05/08.08.2024

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Heard the parties.

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The petitioner Bindhyachal Devi has filed this writ application for quashing of the order dated 09.04.2019 (Annexure-5) passed by respondent No.2 Commissioner, North Chotanagpur Division, Hazaribagh in Case No. 85-04/2019, whereby and wherein the benefits of 1^st & 2^nd A.C.P. granted to her husband late Shiv Gobind Ram and time bound promotion was withdrawn. The petitioner has also prayed for direction upon respondents to release Rs.33, 956/- which was be recovered from her deceased husband after the recall of 1^st & 2^nd A.C.P.

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The husband of the petitioner late Shiv Gobind Ram was appointed on temporary basis as Peon-cum-Typist at the officer of Assistant Engineer, Education Department, Singhbhum. After his service was confirmed, he died on 06.06.2007 while he was working on the post of Steno-cum-Clerk. The benefit of 1^st ACP was extended to late Shiv

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Gobind Ram on 12.11.2003 and the benefit of 2^nd ACP was extended to him on 26.06.2008 and time bound promotion was given to the husband of the petitioner on 16.01.1993. The order extending him on the benefit of 1^st and 2^nd ACP and time bound promotion was recalled by the respondent No.2 Commissioner, North Chotanagpur Division, Hazaribagh as he had not passed in the departmental examination.

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Mr. Saurabh Shekhar, learned counsel for the petitioner submitted that the passing of departmental examination for extending the benefit of ACP is not a sine qua non and this issue has been laid down to rest by a learned Single Bench of this Court passed in W.P.(S) No.6081 of 2014 alongwith Analogous cases, wherein the learned Single Judge of this Court relying upon the decision of the Hon'ble Supreme Court in the case of Amresh Kumar Singh & Ors. Vs. State of Bihar & Ors. , reported in 2023 SCC OnLine SC 496 has held that:-

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“22. These issues fell for consideration before Hon’ble Supreme Court in the case of Amresh Kumar Singh & Ors. (supra) , wherein all the aspects of the matter in respect of grant of ACP/MACP and the object thereto has been considered, which is evident from bare reading of pargraphs-12 to 20 of the judgment, which are as follows:-

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“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.

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13. At the cost of repetition, it must be borne in mind that 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

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to avoid stagnation on a particular post or pay scale for a very long period.

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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.

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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.

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16. In Union of India v. G. Ranjanna 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.

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17. It was further observed that fulfillment of educational qualifications prescribed under the recruitment rules for the purposes of promotion are not necessary for nonfunctional 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.

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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 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,

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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.

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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.

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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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23. The Hon’ble Apex Court considering the earlier judgment rendered in the case of Union of India v. C.R. Madhava Murthy, reported in (2022) 6

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SCC 183, clearly held that “the purpose of the ACP Scheme/MACP Scheme is to relieve the frustration on account of stagnation and the Scheme does not involve the actual grant of promotional post to the employees, but to merely monetary benefits in the form of next higher grade subject to fulfillment of qualifications and eligibility criteria.”

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24. Therefore, it is now settled by the Hon’ble Supreme Court of India that the requirement of regular promotion is not necessarily required to be fulfilled for the purpose of grant of ACP/MACP. In that case, the employee who did not even have the qualification of graduation which the requirement of regular promotion, but the Hon’ble Apex Court held that those requirement of regular promotion are not required to be fulfilled for the purpose of grant of ACP/MACP, as the benefit of grant of ACP is like granting of non-functional in situ promotion.”

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The order passed by learned Single Judge of this Court in the aforesaid writ applications was challenged by the State Government in LPA No.262 of 2018, but this LPA was also dismissed and the decision of learned Single Bench was upheld.

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Now the settled principal of law is that passing of departmental examination is not a sine qua non for extending the benefit of ACP/MACP to the employees of the State Government.

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In view of the aforesaid facts, the order dated 09.04.2019 (Annexure-5) passed by respondent No.2 Commissioner, North Chotanagpur Division, Hazaribagh to grant of benefits of 1^st & 2^nd A.C.P. and also time bound promotion is quashed.

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The respondents shall grant all the benefits which was earlier extended to the husband of the petitioner by way of giving him benefit of 1^st and 2^nd ACP and time bound promotion. The amount of Rs.33,956/which was realised from the salary of husband of the petitioner shall also be released to the petitioner.

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Accordingly, this writ application is allowed with consequential relief.

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Pending I.A., if any, stands disposed of.

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(Ambuj Nath, J.)

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Jay/-

Bindhyachal Devi v. the State of Jharkhand through Pr Secretary Deptt of Personnel Administrative Refroms and Rajbhasha

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Bindhyachal Devi v. the State of Jharkhand through Pr Secretary Deptt of Personnel Administrative Refroms and Rajbhasha

Case brief

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