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IN THE HIGH COURT OF JUDICATURE AT PATNA
Hemant Gupta And Ahsanuddin Amanullah, JJ.
The State of Bihar - Appellant
Versus
Dhirendra Prasad Shrivastava, son of late Baidyanath Prasad - Respondent
Letters Patent Appeal No. 758 of 2015 (Arising out of Civil Writ Jurisdiction Case No. 5030 of 2008 Along with Interlocutory Application No. 3146 of 2015)
Decided On : 17-05-2016
Delay Condonation - Service Matter - Bihar State Employees Conditions of Service (Assured Career Progression Scheme) Rules, 2006 - ACP Rules - Article 309 of the Constitution of India - Rule 5 of the ACP Rules - Resolution No. 7457 of the Government of Bihar - Government Circular No. 9270 - Samrendra Singh v. Union of India - K.K. Chaubey v. High Court of Judicature at Patna
Fact of the Case:
The respondent sought 2nd ACP under the ACP Rules, but the appellants denied it due to pending departmental proceedings and a vigilance case. The respondent retired while under suspension, and his claim for 2nd ACP was rejected multiple times.
Finding of the Court:
The court found that the respondent was not entitled to the 2nd ACP due to pending departmental proceedings and the vigilance case, as per the ACP Rules and relevant government resolutions. The court also noted that the previous punishment order against the respondent was not relevant to the consideration for the 2nd ACP.
Issues: The main issue was whether the respondent was entitled to the 2nd ACP under the ACP Rules despite pending departmental proceedings and a vigilance case.
Ratio Decidendi: The court held that as per the ACP Rules and relevant government resolutions, the respondent was not entitled to the 2nd ACP due to the pending departmental proceedings and the vigilance case, even though the effective date of the ACP was technically from a time before the proceedings.
Final Decision: The Letters Patent Appeal was allowed, setting aside the order granting the 2nd ACP to the respondent and dismissing the writ petition.
Ahsanuddin Amanullah, J.
Heard learned counsel for the parties.
Re.: Interlocutory Application No. 3146 of 2015
2. The present Interlocutory Application has been filed seeking condonation of delay of 131 days in filing of the Letters Patent Appeal. Taking into consideration the averments made in the Interlocutory Application and after hearing learned counsel for the parties, we find that sufficient cause has been shown for the appeal being filed beyond the limitation period.
3. For the reasons aforesaid, the delay in filing of Letters Patent Appeal stands condoned. Interlocutory Application No. 3146 of 2015 stands disposed off.
Re.: Letters Patent Appeal No. 758 of 2015
4. The present intra-court appeal under Clause X of the Letters Patent of Patna High Court is directed against the order dated 17.10.2014 passed by the learned Single Bench by which CWJC No. 5030 of 2008 filed by the respondent has been allowed and direction has been issued granting him 2nd ACP and all consequential benefits with effect from 09.08.1999 within a period of 8 weeks.
5. The writ petitioner, respondent herein, joined Government service as Engineer Assistant on 30.12.1971. The post was later on merged with the post of Assistant Engineer. Subsequently, he was promoted to the post of Executive Engineer in the year 1998. Thereafter, the State Government, in exercise of powers under proviso to Article 309 of the Constitution of India, notified the Bihar State Employees Conditions of Service (Assured Career Progression Scheme) Rules, 2006 (hereinafter referred to as the ‘ACP Rules’). The same was made effective from 09.08.1999. The respondent claimed grant of 2nd ACP on the basis of having completed 24 years of service, but the same was denied on the ground of pendency of departmental proceeding by the Screening Committee on 25.11.2006. Earlier, on 20.08.2001, the respondent was suspended and departmental proceeding initiated which culminated in punishment order dated 13.09.2004 of withholding of two increments with cumulative effect and censure for the year 2000-01. He was again suspended on 19.05.2006 and departmental proceeding initiated and an FIR/Vigilance Case was also lodged on 26.06.2006. The respondent retired while under suspension on 31.07.2007 and the departmental proceeding was made to continue under Rule 43 (b) of the Bihar Pension Rules, 1950. The case of the respondent was again placed before the Screening Committee on 28.11.2007 for grant of 2nd ACP but once again he was not recommended in view of the pendency of departmental proceeding and the vigilance case. He was ultimately awarded punishment under order dated 05.01.2009 by which 50% of pension and gratuity were deducted. The matter was again placed before the Screening Committee for consideration on 18.08.2010 and his claim was rejected in view of him having been awarded punishment. However, the retirement benefit after punishment was paid to the respondent on 17.06.2009. The respondent filed revision against the punishment order dated 05.01.2009 in which the punishment was revised to deduction of 25% of pension and gratuity in place of 50%.
6. Learned counsel for the appellants submits that charges against the respondent pertain to the period 1999-2001 and the ACP Rules came into being only in the year 2003. He further submits that Rule 5 of the ACP Rules clearly stipulates that condition for grant of ACP shall be the same as required for grant of regular promotion. Learned counsel refers to Resolution No. 7457 of the Government of Bihar in the Department of Personnel and Administrative Reforms dated 11th September, 2002 to contend that at the time of consideration for promotion, the decision to initiate departmental proceeding and pendency of criminal case shall have adverse impact. The same has also been reiterated by Government Circular No. 9270 dated 17.12.2013. Learned counsel refers to the decision of this Court in the case of Samrendra Singh v. Union of India reported as 20
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