Essential conditions for grant of financial upgradation should be fulfilled, and no notice is required to be given to the government employee if the conditions are not met.

ORDER :

(Shree Chandrashekhar, J.)

No one appears for the respondents.

2. We find that on 11th July 2011 a Division Bench of this Court stayed operation of the impugned order passed in W.P.(S) No. 1298 of 2008.

3. The State of Jharkhand has challenged the order dated 18th January 2011 passed in W.P.(S) No. 1298 of 2008.

4. The writ petitioners who are made respondents in the present proceeding approached the writ Court with a grievance that the first financial upgradation given to them in the pay scale of Rs.5,000-8,000/- was reduced to Rs.4,000-6,000/- without any notice to them.

5. In paragraph nos. 6 and 7 of the order dated 18th January 2011, the writ Court has observed as under :

“6. In view of the above, the action of the respondents is held to be unjustified and illegal. The respondents are directed to resume the benefit of ACP granted to the petitioners and also to pay arrears thereof within a period of two months from the date of receipt/production of a copy of this order.

7. It is made clear that if there is any error in computation or fixation of scale, as alleged by the respondents, they are always at liberty to deal with the same in accordance with law after giving opportunity of hearing to the petitioners.”

6. From a reading of the order dated 18th January 2011 it appears that the scheme of ACP was brought to the notice of the writ Court, however, on the ground that no notice was issued to the respondents the writ petition was allowed with a direction to the respondents to resume benefit of ACP and pay arrears within a period of two months.

7. We further find that the writ Court has also permitted the respondents to proceed in the matter afresh if there was any error in computation or fixation of scale. We are of the opinion that the order dated 18th January 2011 besides other infirmity in the said order is flawed for the reason that on one hand the writ Court directed the respondents to resume ACP benefits but simultaneously permitted the respondents to proceed in the matter afresh. The directions issued by the writ Court in paragraph nos.6 and 7 are conflicting and contradictory to each other.

8. Besides the above, we may observe that the writ Courts exercising the powers under Article 226 of the Constitution of India do not issue prerogative writs in a futile matter. For example, if it is found that an employee did not fulfill the essential educational qualification for appointment or the essential conditions for grant of financial upgradation and other service linked benefits no notice is required to be given to the government employee and the writ Court would not interfere in the matter on mere technicality. As we can see, under the scheme of ACP an employee gets financial upgradation according to the pay scale provided under Appendix-I in cases where two promotional avenues are not provided in the service or the government employee has already availed two promotions. The writ Court's order dated 18th January 2011 does not deal with the scheme of ACP and whether the respondents fulfilled essential conditions for grant of financial upgradation.

9. Mr. Sachin Kumar, the learned Additional Advocate-General-II has drawn our attention to the supplementary affidavit dated 11th July 2011 alongwith which a copy of the order dated 7th July 2011 has been annexed to show that pursuant to the liberty granted to the State of Jharkhand under paragraph no.7 of the order dated 18th January 2011, the department after issuing notices to the respondents took a final decision in the matter and the respondents were granted financial upgradation in the pay scale of Rs.4,000-6,000/-.

10. For the aforesaid reasons, the order dated 18th January 2011 passed in W.P.(S) No. 1298 of 2008 is set-aside.

11. L.P.A. No.227 of 2011 is allowed.