IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2132 of 2011 Lalan Chaubey son of Late Malik Choubey, resident of village Navagaon, P.O. Rudrawar Kala p. s. Sonhan, district Kaimur, Bhabhua …Petitioner Versus 1. The Union Of India through the General Manager, East Central Railway, Hajipur, Vaishali 2. The Security Commissioner, Railway Protection Force, Divisional Railway Manager East Central Railway, Hajipur, Vaishali 3. The Senior Divisional Personnel Officer, East Central Railway, Danapur, P.O.Khagaul, Patna 4. The Senior Divisional Security Commissioner, Railway Protection Force, East Central Railway, Danapur, P.O. Khagault, Patna 5. The Senior Divisional Financial Manager, East Central Railway Danapur, P.O. Khagaul, Patna. …Respondents ----------- 05. 12.08.2011 Heard learned counsel for the petitioner. Nobody appears on behalf of the Respondent-Union of India. Petitioner, a Constable in Railway Protection Force was made to superannuate from service on medical ground with effect from 12.07.2000. His claim for grant of benefit under Assured Career Progression(ACP) Scheme (for short „the Scheme‟) effective from September 1999 was subsequently considered and under orders of the Chief Security Commissioner, East Central Railways he was granted both the benefits under the said scheme with effect from 01.10.1999 since during his service career the petitioner was not given any promotion and/or upgradation of scale of pay and that in the case of members of the force there was no requirement of clearing physical test/examination. It is the grievance of the petitioner that an officer below in the status passed an order 2 dated 26.07.2010 (Annexure-5) whereby, on presumption, the benefit granted to him under order contained in Annexure-4 is sought to be withdrawn. Learned counsel for the petitioner states that the author of the order contained in Annexure-5 is the Senior Divisional Personnel Officer who is much below in rank than the Chief Security Commissioner (author of the order contained in Annexure-4) and, as such, it was not appropriate on the part of the said officer to pass order withdrawing the benefits which was granted to him under Annexure-4. Learned counsel next submitted that order impugned (Annexure-5) is based on presumption as would appear from bare perusal of the contents of the order wherein it has been observed as under: Þd`i;k mDr deZpkjh dk fnukad 29-3-95 ls 12-7-2000 rd dks vof/k dk fu;eu vkids i=kuqlkj fcuk osru NqV~Vh esa lohd`r fd;k x;k gS] rks mDr dk;ksZ ds lsok vof/k esa Hkh dVkSrh dkh x;h gksxhAÞ Learned counsel for the petitioner contends that while serving the force the petitioner suffered mental ailment and, as such, he was sent for medical treatment to railway hospital, Sialdah and thereafter he was referred to the State Government Hospital Calcutta and ultimately he was found medically unfit (Annexure-2) based whereon the respondents made him to superannuate with effect from 12.07.2000 on medical ground(s). It is stated that for grant of benefit under the Scheme what is required to be considered is whether an employee has put in 24 years of service without there being any promotion and/or 3 upgradation of pay scale. Payment of salary for part of the period is not relevant for such consideration. Relying on Annexure-3 (bio data) it is highlighted that during the period 1995,1996,1997,1998 and 1999 the respondents have vouched that there was no proceeding pending against the petitioner and/or he was not visited with any punishment pursuant to any departmental proceeding. In the submission of the petitioner, the order being presumptive in nature and having been passed by the authority who is subordinate to the authority under whose order he was granted the said benefit, is unsustainable in law. The respondents have sought to defend the said order based on the averment made in paragraph 5 which is extracted hereinbelow: “That the petitioner completed 24 years service and he was granted two terms financial benefit i.e. Ist term upgradation in scale of Rs.3200-4900 and 2nd term upgradation in scale of Rs. 4000-6000 under ACP Scheme which together would come under effection from 01/01/1999 vide CSC/RPF/FCR/Hazipur‟s Force order No. 32/2010 dated 01.4.2010 contained in Annexure-4 of the writ application. As a matter of fact the salary of the petitioner was lastly charged upto 28/03/1995 and he could not be paid for the remaining period i.e. w.e.f. 29/03/1995 to 12/07/2000 because no leave was due in his credit. The petitioner was granted the above financial benefit w.e. f. 01/10/1999 and his salary could not be charged against his last period w.e.f. 29/03/1995 to 12/07/2000. Therefore, monetary benefit under the ACP Scheme in scale of Rs. 4000-6000 could not be given to the petitioner.” It is not the case of the respondents in the counter affidavit that for the period between 29.3.1995 to 12.7.2000 4 petitioner was not treated in service of the force. Having heard learned counsel for the petitioner and on perusal of materials on record including the averments made in the counter affidavit, this Court is satisfied that the order (Annexure-5) requires interference at least on two counts; firstly, the said order has been passed by an authority who is subordinate to the authority under whose command/order the petitioner was granted the said benefit under the Scheme in question. Secondly, the order contained in Annexure-5 is based on mere presumption that during the period between 23.9.1995 to 12.7.2000 he was not treated in service of the force. It is apparent from Annexure-3 that the petitioner rendered more than 29 years of service. There is no dispute that during his service career he was not afforded any promotion and/or upgradation of scale of pay. Payment of actual salary for some of the periods would be not relevant. I have already noticed that petitioner has been treated to have rendered service for more than 29 years. Accordingly, the application is allowed. Order contained in Annexure-5 is quashed and set aside. hr ( Kishore K. Mandal )