Passing the departmental examination is necessary for ACP benefits.

JUDGMENT :

Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner praying therein for quashing the part of the order as contained in Memo No. 4821 dated 16.08.2011 (Annexure-4) passed by the Principal Secretary, Personnel, Administrative & Reforms Department, Government of Jharkhand, Ranchi (Respondent No.2), whereby certain claim towards the payment of death-cum-retiral dues standing in the name of the deceased husband of the petitioner has been rejected and also for a direction to the respondents to reconsider the case of petitioner’s-husband with regard to payment of benefit under Assured Career Progression (ACP) with all consequential benefits and also for quashing the part of the order whereby certain period has been declared as extra ordinary leave.

3. The facts of the case is that the petitioner is the wife of the deceased employee-Saryu Prasad Choudhary who was appointed and joined on the post of Block Development Officer, Barhet, Sahebganj in the year 1978-79 on the recommendation of Bihar Public Service Commission, Patna and worked till 31.08.2005. At the time of death the deceased employee was working as Assistant Director in the office of the Tribal Welfare Commissioner, Ranchi.

This petitioner had earlier moved before this Court praying for a direction to the respondents to pay the deathcum- retiral benefits on account of petitioner’s deceased husband, who died in harness on 31.08.2005. This court after considering the entire facts and circumstance, directed the petitioner to file a fresh representation, stating her entire claim before the concerned respondents and further directed the respondents to consider and take a decision on the petitioner’s claim and pay the amount which are legally payable under different heads.

Pursuant thereto; the petitioner filed a detailed representation, however, when the same was not disposed of and a contempt case was also filed being Cont. Case (Civil) No. 673 of 2009. However, in the meantime an order dated 16.08.2011 was passed admitting certain claims. The grievance of the petitioner is only with regard to two aspects; one is that since he worked for almost 27 years, as such nonpayment of ACP benefit to this petitioner is non-est in the eye of law as the basic principle of ACP scheme is up-gradation of financial benefit. The other grievance is with regard to treating some period as extra ordinary leave which has adversely affected the pension of this petitioner.

4. Mr. Samvesh Bhanj Deo, learned counsel for the petitioner submits that the deceased employee was entitled to get the first time bound promotion after completion of 10 years of service and thereafter, when the ACP scheme came into force, he was accordingly entitled for the benefit of financial up-gradation, but for the reason that the petitioner’s-husband did not pass the accounts examination; the benefit of ACP was not given.

5. Learned counsel further draws attention of this Court towards the impugned order and submits that the reasons for denying the ACP benefit is that petitioner never passed the departmental examination and also his services were not confirmed and as such, as per the approval by the competent authority the ACP benefit has been denied.

The contention of the petitioner is that the employee was entitled for first time bound promotion after completion of 10 years and the second time bound promotion after 20 years and after coming into force the ACP scheme, he was duly entitled. He specifically contended that since no departmental examination was held by the respondents he could not pass the departmental examination; as such the ground for rejecting the claim of the ACP benefit on the ground of departmental examination is non-est in the eye of law.

He further submits that confirmation of service is not in the hand of the employee. The fact remains that he served the respondents-State for about 27 years and if regular promotion was not given, it