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2015 Supreme(Jhk) 951
IN THE HIGH COURT OF JHARKHAND AT RANCHI
PRAMATH PATNAIK, J.
Radha Kishore Prasad – Petitioners
Versus
The State of Jharkhand through the Chief Secretary, Govt. of Jharkhand, Ranchi & Ors. – Respondents
W.P. (S) No. 5663 of 2010
Decided On : 24.07.2015
Advocate Appeared:
For the Petitioner: Mr. Anjani Kumar Verma, Adv.
For the Respondents: Mrs. Rakhi Rani, J.C. to Sr. S.C.II.
The impugned order and memo were not legally sustainable as they infringed Article 300A of the Constitution of India.
Headnote:
Gratuity - Retirement Benefits - 1st A.C.P., 2nd A.C.P. - Circular no.5207 dated 14.08.2002 - Article 300A of the Constitution of India
Fact of the Case:
The petitioner sought direction for payment of gratuity, leave encashment, and arrears of pension. The respondents issued an order and memo without notice, resulting in financial loss to the petitioner.
Finding of the Court:
The court found that the impugned order and memo were not legally sustainable as they infringed Article 300A of the Constitution of India.
Issues: Violation of Article 300A, Legality of the impugned order and memo, Entitlement to retirement benefits
Ratio Decidendi: The impugned order and memo were quashed as they infringed Article 300A and resulted in financial loss to the petitioner.
Final Decision: The impugned order and memo were quashed, and the petitioner was entitled to draw the pension as per the last pay drawn at the date of retirement.
Pramath Patnaik, J.
1. In the instant writ application, the petitioner has inter alia prayed for direction to the respondents for payment of due gratuity, leave encashment arising out of 1st A.C.P. w.e.f. 09.08.1999 and 2nd A.C.P. w.e.f. 27.04.2001 granted to the petitioner vide letter no.1047 dated 26.04.2006 (Annexure-2) and also to pay the arrears of pension etc. after fixation of final pension in the revised scale alongwith statutory interest. The petitioner has further prayed for quashing the letter dated 15.03.2010 (Annexure-8) as well as memo dated 31.03.2010 (Annexure-8/A) issued by respondent no.6 without issuing any notice as well as for disposal of the case in terms of the order dated 15.12.2008 (Annexure-10) passed in W.P.(S) no.5939 of 2005, Jwala Prasad vs. The State of Jharkhand and Others.
2. Initially a counter affidavit was filed on behalf of the respondents but this Court vide order dated 12.12.2014 directed the respondents to file a supplementary counter affidavit clarifying the following position:
“(i) as to whether any recruitment and promotion rules for the post which the petitioner belonged, has been formulated or not,
(ii) on what basis the ground has been taken for shifting the date of granting ACP benefits w.e.f. 7.6.2004, the date of passing Accounts examination while it has not been mentioned in Clause-3(vii) of the Circular, as contained in circular no.5207 dated 14.8.2002.”
3. In pursuance to order dated 12.12.2014 a counter affidavit has been filed by the respondents wherein it has been mentioned that with regard to release of retiral dues of the petitioner, Leave Encashment, Group Insurance Scheme as well as General Provident Fund have been paid to the petitioner but so far as recruitment/promotion rules is concerned, it has been mentioned that circular issued for Class-III employees vide letter no.3/R/1-103/73-ka-16440 dated 3rd December, 1980 and regarding Clause 3(vii) of the Circular no.5207 dated 14.08.2002, a clear order was issued by the Finance Department, Government of Jharkhand vide letter no.1779 dated 21.05.2014. In this letter, in para (x) all doubts regarding date of ACP in case of departmental examination has been cleared that ACP to any employee will be awarded with the date of passing the departmental examination and accordingly, MACP will be affected as evident from Annexure-M to the counter affidavit.
4. Heard Mr. Anjani Kumar Verma, learned counsel for the petitioner and Mrs. Rakhi Rani (J.C. to Sr. S.C.II) appearing for the respondents.
5. Learned counsel for the petitioner has submitted that the impugned order under Annexures-8 is not legally sustainable in view of the fact that prior to issuance of order dated 15.03.2010 no notice has been issued nor any opportunity has been given in violation of Article 300A of the Constitution of India and the impugned order has visited the petitioner with civil consequences resulting in financial loss. Moreover, the petitioner is aggrieved by the order of recovery mentioned in Annexure-8/A of the writ petition. Learned counsel for the petitioner has strenuously urged that the case of the petitioner is squarely covered by the decision rendered in Ajit Kant Sahay vs. State of Jharkhand & Ors. reported in [2012 (1) JCR 113 (Jhr)]. Learned counsel for the petitioner has submitted that the case of the petitioner is squarely covered by the aforesaid decision and the similar benefit be extended to the petitioner.
6. As against this learned counsel for the State has dexterously argued the case that the Government has got right to rectify a bonafide mistake at any point of time. Learned counsel for the State by referring to the counter affidavit has submitted that Clause 3(vii) of the Circular no.5207 dated 14.08.2002 a clear order was issued by the Finance Department, Government of Jharkhand. In the said letter in para (x) all doubts regarding date of ACP in case of departmental examination has been cleared that ACP to any employee will
