- (1.) The petitioner has sought quashing of order dated 01.06.2012, whereby the benefit of increment w.e.f. 14.07.2004, has been denied.
(2.) Heard the learned counsel appearing for the parties and perused the documents on record. The brief facts of the case are that, the petitioner was appointed as Homeopathic Medical Officer under memo dated 05.11.1973. On 14.07.2004, the post of Homeopathic Medical Officer has been declared a gazetted post. The petitioner who had crossed 50 years of age on 19.11.2001, applied for grant of exemption from passing departmental examination. In terms of memo dated 15.05.1992, the first application was made by the petitioner on 15.10.2005. The petitioner again sought such exemption on 16.05.2006. Since no action was taken, the petitioner on 12.07.2010, again applied for grant of exemption from passing the departmental examination. Finally, by an order contained in memo dated 11.05.2011, the petitioner was granted exemption 2 from passing departmental examination. Since the petitioner was not granted the benefit of exemption from 14.07.2004, the petitioner submitted a representation before the Principal Secretary, Department of Health, on 18.11.2011. The petitioner superannuated from service w.e.f. 30.11.2011. The petitioner moved this Court in W.P.(S) No. 310 of 2012, seeking benefit of increment from 14.07.2004 and the said writ petition was disposed of by order dated 23.03.2012 with a direction to the respondent authority to decide the representation of the petitioner within a period of twelve weeks. By impugned order dated 01.06.2012, the claim of the petitioner for benefit of increment w.e.f. 14.07.2004 has been rejected.
(3.) A counter affidavit has been filed taking a plea that in view of the Government letter/circular, the exemption from passing departmental examination becomes effective from the date on which the exemption order is passed. Paragraph nos. 8 to 11 are extracted below: 8. That in view of the order dated 23.03.2012 passed by the Hon'ble High Court of Jharkhand in the W.P.(S) No. 310 of 2012 the Respondent Principal Secretary, Health Department passed a reasoned order bearing No. 110(20) dated 01.06.2012 and disallowed the claim of the petitioner to grant increment w.e.f. 14.07.2004 as letter No. 11691 dated 09.11.1983 and letter No. 4674 dated 15.05.1992 clearly provides that exemption from passing examination become effective from the date on which the exemption order is passed. Similarly it has been provided in the instant case that the exemption order in case of the petitioner was issued on 11.05.2011 and therefore the petitioner is entitled to increment w.e.f. 11.05.2011 and not 14.07.2004. 9. That the petitioner has claimed the Notification No. 4674 dated 15.05.1992 is not applicable in his case as the post held by him was declared Gazetted w.e.f. 14.07.2004 vide Government order No. 3 148(8) dated 14.07.2007. However, the Government letter No. 4674 dated 15.05.1992 under reference is applicable in case of Gazetted and Non Gazetted Employees both as provided in paragraph 1 of the said letter. 10. That the petitioner has further claimed that he crossed the age of 50 years on 19.11.2001 as his date of birth is 19.11.1951, whereas the post held by him was declared gazetted w.e.f. 14.07.2004. This means that the petitioner has crossed the age of 50 years prior to the declaration of his post as gazetted. He intends to argue that passing of examination was not essential in such situation as he had already crossed the age of 50 years, only application for grant of exemption from passing the examination was required in his case which he did. This interpretation of the Government Circular under reference (i.e. letter No. 4674 dated 15.05.1992) is wrong as the exemption takes effect from the date of the order of exemption and not from the date of filing of an application for exemption. 11. That the case of Dr. Mahesh Prasad Rai is different from the case of the petitioner. All the records relating to examination in which Dr. Mahesh Prasad Rai appeared were not only missing from the office but also could not be obtained from the Bihar School Examination Board despite repeated request in this regard. Even the results of these examinations were not made available to the Jharkhand hence the order was passed on compelling circumstance. This fact is evident from the Reasoned Order No. 81(3) dated 07.03.2011 passed by the Principal Secretary, Department of Health, Government of Jharkhand.;