Dhirubhai Naranbhai Patel, J. - (1.) THIS Letters Patent Appeal has been finally heard by the consent of the Advocates for both the sides and we have taken up final hearing of the Letters Patent Appeal.
(2.) THIS Letters Patent Appeal has been preferred against the judgment and order delivered by the learned Single Judge in W.P. (S) No. 1267 of 2009 dated 20th June, 2013, whereby, petition preferred by the respondent (original petitioner) was allowed and the benefit of 1st Assured Career Progression was given treating the original petitioner in Government service since 23rd June, 1989. Being aggrieved and feeling dissatisfied by the aforesaid order of the learned Single Judge, the original respondents have preferred the present Letters Patent Appeal. Factual Matrix: (i) The present respondent (original petitioner) was appointed on temporary basis as Village Level Worker on 20th June, 1989. (ii) By the order of the Deputy Commissioner, Hazaribagh, dated 26th April, 1994 the respondent (original petitioner) was adjusted on the post of Clerk and the original petitioner has been working on the said post since the date of his joining. (iii) The original petitioner has completed 12 years of service on the post of Clerk in April 2006 and, therefore, he was given benefit of 1st Assured Career Progression upon completion of 12 years of service after he was regularized into the service as a Clerk. (iv) The petitioner agitated the Governmental authorities that as he was working as a Village Level Worker since 20th June 1989, 12 years period starts from the said date for grant of 1st Assured Career Progression benefit, whereas, the Government has rejected his claim of calculation 12 years from 20th June 1989 mainly for the reason that the original petitioner was regularised into the services with effect from 26th April 1996 on the post of Clerk. The previous period as a temporary/ad -hoc etc. cannot be calculated because in fact the services of the original petitioner starts with the Government upon his regularisation. (v) Being aggrieved by this calculation of 12 years period, the present respondent/original petitioner preferred W.P.(S) No. 1267 of 2009 which was allowed by the learned Single Judge vide order dated 20th June, 2013 and being aggrieved by the order of the learned Single Judge, this letters patent appeal has been preferred by the State of Jharkhand.
(3.) ARGUMENTS canvassed by the counsel for the appellants -State: (i) It is submitted by the learned counsel for the appellants that as per Assured Career Progression Scheme of the year 2002 and more particularly looking to Clause XV, the services of any employee prior to his regularisation cannot be calculated for 12 years. Ad -hoc employee, seasonal employee, muster roll employee, temporary employee etc. if are working for some period and, thereafter, they are regularised into the Governmental services, in those cases, period prior to regularisation will not be reckoned in the calculation of 12 years, for grant of Assured Career Progression benefit. The calculation of 12 years' period starts only when the employee is regularised into the services. This is a policy decision of the Government which is annexed as Annexure -3 to the memo of the letters patent appeal, which was also part and parcel of the record of the writ petition. This aspect of the matter has not been properly appreciated by the learned Single Judge and, hence, the judgment and order passed by the learned Single Judge deserves to be quashed and set aside. (ii) Counsel for the appellants has further submitted that even as per Modified Assured Career Progression Scheme which is at Appendix -I to the Government policy decision which is at Annexure -F to the counter affidavit in this letters patent appeal which is also part and parcel of the writ petition and looking to Clause 12 thereof also the benefit can be given to the employee only when he is working as a regular employee. (iii) It is also submitted by the learned counsel for the appellants -State that looking to Annexure -A/3 of the counter affidavit filed by the original petitioner in the letters patent appeal, which is a letter of the Government dated 8th April, 1994, written by the Deputy Commissioner, Hazaribagh that the seniority of the appellant will be reckoned only from the date on which he is joining the duty and he has regularised on the post of Assistant. Thus, at the relevant time in the month of April 1994, when the services of the original petitioner was regularised in the said letter of regularisation which was clearly mentioned that his seniority will be calculated from the date on which he is regularised. Thus, earlier services of the original petitioner from 1989 till his regularisation i.e. up to April 1994 will not be calculated for seniority. This order was never challenged by the original petitioner from 1994 onwards. This order was inbuilt condition of the regularisation of the original petitioner in the month of April 1994. This order has attained its finality since last two decades. This aspect of the matter has also not been properly appreciated by the learned Single Judge. (iv) Normally, the Court will be very slow in reviewing the policy decision of the Government. As per Assured Career Progression benefit policy, if any employee has worked for 12 years of service without promotion on the same post, he will be entitled to the benefit of Assured Career Progression. The calculation of 12 years will start from the date on which the employee is regularised and if there is any previous service of the said employee either in the form of ad -hoc, seasonal, temporary etc., the said period will not be calculated for the purpose of calculation of 12 years because the said employee is not a regular employee of the Government and, therefore, in the facts of the present case though the original petitioner was working on temporary basis from 1989, but his services were regularised since 28th April, 2006. This policy decision of exclusion of period of service of ad -hoc, temporary, casual, seasonal employees may not be interfered by this Court while exercising the writ jurisdiction. Normally, the Court cannot replace or even modify the clauses of the Governmental policy. This aspect of the matter has also not been properly appreciated by the learned Single Judge and, hence, the judgment and order passed by the learned Single Judge deserves to be quashed and set aside.;