The passing of Department Examination is a condition precedent for the grant of MACP benefits, and any order with civil consequences cannot be passed without adhering to the principles of natural justice.

JUDGMENT :

1. The present writ petition has been filed for quashing part of the order as contained in memo no.751/T.S. dated 2nd August 2019 (Sl. No.5), so far as the same relates to the petitioner, passed by the Inspector General of Police (Provision), Jharkhand, Ranchi- respondent no.5, whereby the petitioner has been denied the benefits of 2nd and 3rd MACP on the ground that he has passed “Hindi Reading and Writing Examination” on 23rd March, 2016 and, therefore, he would be entitled for grant of 1st MACP from the date of passing of the aforesaid examination and thereby he goes out from the zone of consideration for 2nd and 3rd MACP. The petitioner has also prayed for declaration that he has rightly been granted the benefit of 2nd MACP and, therefore, no recovery can be made from his retiral benefits.

2. Learned counsel for the petitioner submits that the petitioner was appointed on the post of Constable on 22.06.1981 and he retired from service on 31.07.2021. It is submitted that the petitioner was granted 1st ACP in the year 1999 and 2nd ACP in the year 2005. It is further submitted that the petitioner was entitled to the benefit of 3rd MACP in the year 2011 after completion of 30 years of service however the same was not given to him. It is submitted that while the petitioner was working as Hawaldar, a letter bearing no.575/P. dated 14th February, 2014 was issued by the In-charge Deputy Inspector General of Police (Personnel) to all the Superintendents of Police and Commandants to ensure that in the light of Rule 678(D) of the Jharkhand Police Manual, all constables and Hawaldars shall have to pass Hindi Reading and Writing Examination within one year of their appointment. If they have not passed the matriculation examination with Hindi or in any such examination in Hindi which is recognized from time to time by the State Government as equivalent to matriculation examination, such constables or Hawaldars will not be entitled for annual pay increment. It is submitted that the petitioner appeared in Hindi Writing and Reading Examination and passed the same on 23.03.2016.

3. It is further submitted that the petitioner despite having passed the Hindi Reading and Writing Examination in terms with Rule 678(D) of the Jharkhand Police Manual, an erroneous order as contained in Memo no.751/T.S. dated 2nd August, 2019 was issued by the respondent no.5, denying benefits of 2nd and 3rd MACP to the petitioner on the ground that he passed the said examination on 23rd March, 2016 and, therefore, he was entitled only for the benefit of 1st MACP from the date of passing of the said examination. By reasons of the order, the petitioner goes out from the zone of consideration for grant of 2nd and 3rd MACP.

4. It is also submitted that even if assuming that the petitioner was wrongly given the benefits of 2nd MACP, it was due to the mistake of the department and of not the petitioner. It is well settled that in a case where some excessive payment has been mistakenly made by the employer, no recovery of excess payment shall be made if no fraud or misrepresentation is attributed on the part of the employee. The aforesaid fact finds support from the resolution dated 8th September, 2018 published in the Jharkhand Gazette on 15th January, 2019, which was issued in compliance of the judgment rendered by the Hon’ble Apex Court in the case of State of Punjab & Others Vs. Rafiq Masih (White Washer) & Others (Civil Appeal No. 11527 of 2014).

5. A counter affidavit has been filed on behalf of the respondent no.6, stating, inter alia, that the prevailing rules and guidelines as contained in memo no.5207 dated 14th August, 2002 and memo no.1779 dated 21st May, 2014 issued by the Finance Department mandate that the date of passing of departmental examination is important for the grant of benefit of ACP/MACP. It clearly demonstrates that non-passing of examination affects the date on which ACP/MACP can be granted and will only be from the date of passing of the