- (1.) Heard, learned counsel for the appellants-State and writ petitioner/sole respondent herein.
(2.) State is aggrieved by the impugned judgment dated 13.09.2017 rendered in W.P.(S) No.2000 of 2014 by the learned Single Judge whereby two orders vide letter no. 1380 dated 20.10.2011 and letter no.601 dated 21.03.2014 issued by the State were quashed.
(3.) By the order dated 20.10.2011 (Annexure-5), A.C.P./M.A.C.P. granted to the writ-petitioner earlier was cancelled and the amount paid in excess was directed to be recovered since he had not passed the Departmental Accounts Exam, a pre- requisite for grant of A.C.P./M.A.C.P. The matter was remitted to the respondent-authorities in W.P.(S) No.8 of 2012 preferred by the writ-petitioner seeking challenge to the order dated 20.10.2011. The respondent, after consideration of reply of the petitioner, affirmed their stand taken earlier in the order dated 20.10.2011, vide order dated 21.03.2014 (Annexure-4). In order to appreciate the issue at hand, the relevant material facts undisputed by the parties is briefly narrated hereunder: On 06.12.1972 the petitioner was appointed on the post of Accounts Clerk in Water Resources Development Department on a pay scale of Rs.105-145/- which was revised to Rs.220-315/- on 13.02.1973. By a decision of the Government, the two scales applicable to the post of Accounts Clerk were merged with effect from 01.05.1980 into the pay scale of Rs.260-408/-. The petitioner got first Time Bound Promotion on 06.12.1982 in terms of the Department Circular dated 18.02.1981. As per the decision of the Water Resources Development Department of Government of Jharkhand contained in Memo No.1256 dated 09.05.2003 (Annexure-7), such employees who had got promotion without passing the departmental exam prior to 01.09.1983 would be exempted from passing the departmental exam as an eligibility criteria for consideration for higher promotion. The State of Jharkhand had adopted the stand on this issue of the erstwhile State of Bihar. Petitioner got the benefit of 2 nd A.C.P. with effect from 09.08.1999 vide Letter No.2287 dated 30.10.2006 (Annexure-8) on completion of 24 years of service. That was recalled by the order dated 20.10.2011 bearing letter No.1380 (Annexure-5) without any show cause notice. It was impugned in W.P.(S) No.8 of 2012. After quashing the said order, the matter was remitted to the respondents to take a fresh decision after show-cause notice to the petitioner. On fresh consideration, the department has affirmed their earlier stands vide letter no.601 dated 21.03.2014 (Annexure-4). Another significant fact though not placed before the Writ Court has been sought to be brought on record through I.A. No.2399 of 2018 by the appellants-State. It seeks to bring on record letter no.827 dated 09.05.2014 (Annexure-2 to the I.A. No.2399 of 2018) by which the first Time Bound Promotion granted to the petitioner on 06.12.1982 has been cancelled. This has also been issued without any show-cause notice and after passing of the order dated 24.03.2014 impugned in the writ petition. The writ-petitioner has superannuated on 31.05.2014. Learned Single Judge after consideration of the submission of the parties and the pleadings on record has dealt it in the following manner:- "6. Be that as it may, having gone through the rival submission of the parties, this Court is of the considered view that case of the petitioner needs consideration. Admittedly, petitioner was granted ACP and MACP as his case is exempted in view of series of Circulars issued by the Finance Department, Government of Bihar as also successor State of Jharkahnd such as Circular dated 21.11.2000, 29.11.2001, 13.02.1995 and the clarification made in the latest Resolution dated 28.04.2014 issued by the Finance Department (Para-9 thereof). It is thus crystal clear that those who have been granted even first promotion after 01.09.1983 are required to pass departmental accounts examination while those who have been granted first promotion for first time before 01.09.1983, are exempted from doing so in the matter relating to subsequent promotion as also for financial upgradation provided other conditions are satisfied. As in the instant case, petitioner had received promotion, though not a regular one, prior to 01.09.1983, he is not required to pass accounts examination rather he is exempted from doing so in the matter relating to their subsequent promotion as also for financial upgradation provided he fulfilled other conditions. 7. As a cumulative effect of the aforesaid observations, rules, guidelines and judicial pronouncements, I am of the considered view that impugned order no.1380, Dated 20.10.2011, whereby ACP/MACP granted to him long back has been canceled and order has been passed for recovery of excess amount on the ground that he has not passed Departmental Accounts Examination and the letter no.601, dated 21.03.2014, issued by the respondent no.3 are not tenable in the eyes of law and resultantly, the same are quashed. The respondents are directed to grant ACP and MACP respectively. Respondents are further directed to pay differences of salary, other admissible allowances as applicable under revised scale and retirement benefits including gratuity, leave encashment and pension with statutory interest over the dues amount. It is made clear if any amount has already been recovered, the same shall be refunded to the petitioner within a period of six weeks from the date of receipt/production of a copy of this order." ;