JHARKHAND HIGH COURT ISSUES ORDER ON ANAND KACHHAP V/S THE STATE OF JHARKHAND AND ORS.

RANCHI, India, March 25 -- Jharkhand High Court issued the following order on Feb. 20:

1. Heard the parties.

2. The grievance of the petitioner is that Rs.6,03,970/- has been recovered from the amount of gratuity of the petitioner on the ground that his first time bound promotion in 1995 was wrongly fixed. It is an admitted case that the benefit of time bound promotion has been withdrawn and the salary of the petitioner has been re-fixed at a lesser scale on the ground that the petitioner has not passed the departmental accounts examination.

3. After hearing the parties, I find that admittedly the petitioner was not noticed prior to taking action, which is detrimental to the petitioner. Further the time bound promotion which was granted to the petitioner was recalled on the ground that the petitioner has not passed departmental accounts examination.

4. Time bound promotion/in situ promotion is not dependent on passing of the departmental examination. The Hon'ble Supreme Court in the case of Amresh Kumar Singh Vs. State of Bihar and Others, reported in 2023 SCC OnLine SC 496 in para 16, 17 and 18 has held as under:- 16. In Union of India v. G. Ranjanna reported in (2008) 14 SCC 721, the three-Judges Bench of this Court held that in situ promotions are made to remove stagnation of grade C and grade D employees by giving them certain monetary benefits. 17. It was further observed that fulfilment of educational qualifications prescribed under the recruitment rules for the purposes of promotion are not necessary for non-functional in situ promotion. In other words, educational qualification required for the purposes of promotion is not necessary for the grant of in situ promotion, i.e., only for extending the monetary benefit where there are no promotional avenues and the employees are likely to be stagnated. 18. In the aforesaid case, the employees were working as malis (Gardeners) and had claimed promotion in the higher pay scale. The Central Administrative Tribunal seized of the original applications observed that the employees cannot claim the scale of the next higher post by way of in situ promotion. On the matter being taken to the High Court by way of a writ petition, the contention of the employees was accepted and it was observed that the object of in situ promotion on non-functional posts, is to ensure that the group C and D employees are not stagnated in the same cadre/pay scale and that they should be provided with certain monetary benefits. Therefore, the rejection of the claim for such nonfunctional in situ promotion on the ground that the employees do not possess the necessary minimum qualification of matriculation as per the rules is not justified and renders the order erroneous in law. The view so taken by the Division Bench of the High Court was affirmed by this Court in the above referred Civil Appeals holding that the High Court has correctly analysed the object of the in situ promotion and fixation of pay scales to Group C and D employees to avoid stagnation."

5. Thus from the aforesaid judgment, it is quite clear that it is not necessary to pass the departmental examination for granting in situ promotion.

6. Considering the aforesaid facts, I find that the impugned order passed by the respondents is bad. It is also bad on the ground that no opportunity of hearing was given to the petitioner. On both these counts, the impugned order as contained in Memo No. 331 dated 27.12.2024 is set aside.

7. Consequently, the respondents are directed to refund the amount of Rs.6,03,970/- to the petitioner, which has been recovered from the amount of his gratuity. Further, the respondents will consider the case the petitioner for grant of 2nd and 3rd MACP and the fact that the petitioner has not passed the local language and regional language will not come in the way of the respondents in considering the claim of the petitioner in view of the judgment of the Hon'ble Supreme Court as cited above. The respondents are also directed to pay all retiral benefit including his pension after refixation of his salary.

8. Accordingly, this writ petition is allowed. Pending interlocutory applications, if any, also stand disposed of.

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