Prior Period Service Must Count Towards ACP/MACP Benefits For Absorbed Employees: Patna High Court.
Pranav Kumar
2 Nov 2024 5:24 PM IST
Patna High Court: A Single Judge Bench of Justice Harish Kumar directed the State of Bihar to count the petitioner's prior service period before retrenchment for granting Assured Career Progression (ACP) and Modified Assured Career Progression (MACP) benefits. It held that the principles applicable to fresh appointments do not apply to cases of absorption of retrenched employees.
Background
Mahendra Jha was initially appointed as a Clerk-cum-Typist (Class-III post) in the Directorate of Adult Education on August 22, 1984. His services, along with other employees, were terminated on February 28, 1993, due to the closure of the Adult Education Project. Following a successful legal challenge through CWJC No. 4716 of 1993, he was absorbed into the Non-formal Education wing. However, his services were again terminated on September 12, 2001, when the Central Government decided to close the non-formal project. While challenging this second termination through CWJC No. 13009 of 2001, the State issued absorption orders, and the petitioner was finally absorbed vide order dated June 15, 2007. This absorption order specified that the appointment shall be treated as fresh and no seniority or ACP/MACP benefits shall be given. This was challenged.
Arguments
The petitioner, through counsel Mr. Kishore Kumar Thakur, argued that he was entitled to 1st, 2nd, and 3rd ACP/MACP benefits from their due dates by counting his entire period of regular service in the Directorate of Adult and Non-formal Education. He relied on Rule 22 of the MACP Rules, 2010, and cited previous similar cases where such benefits were granted, particularly referencing CWJC No. 11936 of 2011 where similar relief was granted. The petitioner also presented evidence showing that other similarly situated persons had received these benefits. The State, represented by Ms. Sanghmitra Ghosh, opposed the petition primarily on the ground that since the petitioner never challenged the stipulations in his absorption letter, which treated it as a new appointment, he could not now claim that his earlier service should be counted for ACP/MACP benefits under Rule 22 of the Rules, 2010.
The Decision
Firstly, the court noted that these rules specifically address appointments and not cases where employees' services are absorbed following departmental closure; thus, the restrictions in Rule 10 regarding counting of past service apply only to fresh appointments and not to absorptions. Secondly, the court drew important parallels between the present case and the precedent set in LPA No. 438 of 2017. In that case, employees of the Dairy Development Corporation were absorbed into the Department of Animal Husbandry due to financial crisis. The court had held that in absorption cases, the principles applicable to fresh appointments would not apply. This precedent directly supported the petitioner's case as he too was a retrenched employee whose services were later absorbed.
Thirdly, the court emphasized the significance of the absorption order's stipulation that the period rendered prior to retrenchment would count for pension purposes. The court reasoned that if the service was considered continuous enough for pension benefits, there was no logical basis for treating it differently for ACP/MACP benefits. Fourthly, the court referenced CWJC No. 11936 of 2011, where a coordinate bench had already settled this issue in favor of similarly situated employees. The principle of judicial consistency required following this precedent, particularly given the identical factual matrix. Fifthly, the observed that other similarly situated persons had already been granted these benefits, as evidenced by Annexures P-15 and P-16 to the supplementary affidavit. This demonstrated not only the feasibility of granting such benefits but also the need to maintain parity among similarly situated employees.
Finally, the court rejected the State's argument about the petitioner's failure to challenge the absorption terms earlier. The court held that since the absorption itself recognized the continuity of service for pension purposes, the same principle should extend to ACP/MACP benefits under Rule 22 of the Rules, 2010. Thus, the court allowed the petition and directed the respondents to consider the petitioner's claim for 1st, 2nd, and 3rd ACP/MACP benefits from the due date, counting his entire period of regular service.
Date: 24-10-2024
Citation: CWJC No.1937 of 2019
Counsel for the Petitioner: Mr. Kishore Kumar Thakur, Advocate
Counsel for the Respondent-State: Ms. Sanghmitra Ghosh, Advocate
