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2015 DIGILAW 910 (JHR)

Kailsah Pati Jha v. State of Jharkhand

2015-08-03

RONGON MUKHOPADHYAY

body2015
ORDER : In this writ application, the petitioners have prayed for quashing the order as contained in Memo No. 6954 dated 05.06.2012 issued by the Respondent No. 2 whereby and whereunder the claim of the petitioners for being upgraded to the post of Personnel Assistant was rejected. Further prayer has been made by the writ petitioners to consider the claim of the petitioners who are working in the post of Steno Typist in the Water Resources Department since 1983-1984 for their merger/absorption/upgradation on the post of Personal Assistant with all consequential benefits from the date when their juniors have been granted the same benefits. 2. The facts emanating from the pleadings made in the writ application is that the petitioners were appointed on the post of Steno Typist against vacant sanctioned post by the Chief Engineer, Irrigation Department and pursuant to their appointment the petitioners had given their joining. The service of the petitioner No. 1 was approved/regularized vide Office order as contained in Memo No. 3320 dated 09.12.1985 whereas the service of the petitioner No. 2 was absorbed/regularized vide order as contained in Memo No. 1012 dated 31.03.1989. The Government of Bihar took a decision to absorb the Steno Typist who had been working under the different Departments of the State Government on the post of Personal Assistant and cut off date was fixed as 10.07.1979. Subsequently, the Government of Bihar enhanced the cut off date of the appointment of Steno Typist to 10.11.1988. Since the case of the petitioners were not being considered the petitioners preferred a writ application being W.P.(S) No. 2310 of 2009 which was disposed of on 17.11.2011 directing the respondent No. 2 to decide the claim of the petitioners keeping in mind Annexures – 5 and 6 to the writ application as well as Annexure – 19 of the supplementary affidavit wherein juniors to the petitioners were given a superior post. Subsequently the order passed in W.P.(S) No. 2310 of 2009 was modified to the extent that the representation was to be considered by the respondent No. 3. The impugned order as contained in Memo No. 6954 dated 05.06.2012 was passed by the respondent No. 2 whereby and whereunder the claim of the petitioners for regularization/absorption on the post of Personal Assistant was rejected which is under challenge in the present writ application. 3. Heard Mrs. The impugned order as contained in Memo No. 6954 dated 05.06.2012 was passed by the respondent No. 2 whereby and whereunder the claim of the petitioners for regularization/absorption on the post of Personal Assistant was rejected which is under challenge in the present writ application. 3. Heard Mrs. Ritu Kumar, learned counsel appearing for the petitioner and learned J. C. to A.A.G. for the State. 4. Mrs. Ritu Kumar, learned counsel appearing for the petitioner has submitted that the cut off date fixed for absorption/regularization to the post of Personal Assistant was 10.11.1988 and since the petitioners were working as Steno Typist prior to 10.11.1988 the petitioners automatically becomes entitled to be regularized/absorbed to the post of Personal Assistant. While assailing the impugned order dated 05.06.2012 passed by the respondent No. 2 it has been submitted by the learned counsel for the petitioners that the same was rejected on the ground that the petitioners belong to the Mufassil Cadre although at the time of fixing of the cut off date the Mufassil Cadre was not in existence and it had been created for the first time on 30.11.1997. Learned counsel for the petitioners further submits that the claim of the petitioners has been rejected on the ground that the petitioners do not belong to the Secretariat Cadre although the petitioners were appointed in the office of the Chief Engineer which was also known as attached office of the Secretariat Cadre and in such circumstances, the learned counsel for the petitioners submits that the petitioners should have been treated at par with those persons who have already been regularized/absorbed in the post of Personal Assistant. 4. Learned J. C. to A.A.G., on the other hand, has controverted the contention raised on behalf of the petitioners and has submitted that the impugned order dated 05.06.2012 had considered each and every aspect of the matter and since similarly situated persons as claimed by the petitioners belong to the Secretariat Cadre whereas the petitioners belong to the Mufassil Cadre the claim of the petitioners were rightly rejected by the respondent No. 2. It has further been submitted that not only the representation of the petitioners was rejected by the respondent No. 2 but the same has also been rejected by the respondent no. 3. 5. It has further been submitted that not only the representation of the petitioners was rejected by the respondent No. 2 but the same has also been rejected by the respondent no. 3. 5. The claim of the petitioners is for absorption/merger/upgradation to the post of Personal Assistant as has been granted to those Steno Typists who were in the Secretariat Cadre. Admittedly, the petitioners were appointed as Steno Typist much prior to the cut off date fixed for the appointment of Steno Typist as 10.11.1988. The only distinctive feature as would appear from the impugned order dated 05.06.2012 is that the petitioners were not considered because of the fact that the petitioners did not belong to the Secretariat Cadre, rather they belonged to the Mufassil Cadre. Initially in the order dated 17.11.2011 passed in W.P.(S) No. 2310 of 2009 the respondent No. 2 (Respondent No. 3 herein) was directed to consider the claim of the petitioners and pass a detailed and speaking order. Subsequently on a modification application the respondent No. 3 (respondent No. 2 herein) was directed to consider the grievance of the petitioners. The impugned order dated 05.06.2011 reflects that prior to the modification order dated 06.02.2012 the respondent No. 3 herein had already rejected the claim of the petitioner. Subsequent to modification the respondent No. 2 herein passed the order which is under challenge in the present writ application. In the earlier order passed by the respondent No. 3 herein the operative portion which has been quoted in the impugned order dated 05.06.2012 reveals that one of the factors which played in the mind of the respondent No. 3 was that the petitioners belonged to the Mufssail Cadre. However, it has also been indicated therein that from prior to 1988 the petitioners were working in the Secretariat and attached in Chief Engineer Offices successfully as a Personal Assistant. The impugned order dated 05.06.2012 although seems to be a detailed order but has merely concentrated on the Annexures appended to W.P.(S) No. 2310 of 2009 which mentions the name of the persons with whom the petitioners claim parity as regards the eligibility of the petitioners to be absorbed/upgraded/merged to the post of Personal Assistant. The impugned order seems to have been influenced by the order passed by the respondent No. 3 herein earlier rejecting the claim of the petitioners. The impugned order seems to have been influenced by the order passed by the respondent No. 3 herein earlier rejecting the claim of the petitioners. The respondent No. 2 herein seems not to have applied his mind independently while taking recourse to the order passed by the respondent No. 3 herein and have not considered the fact as to whether the petitioners were working in the attached office of the Secretariat or the fact that the Mufassil Cadre was created for the first time on 13.11.1997. The respondent No. 3 also seems to have back tracked from the earlier order passed as in the counter affidavit of the respondent No. 3 it has been stated that the petitioners were appointed in the Mufassil Office i.e. office of the Superintending Engineer which runs contrary to the earlier order passed by the respondent No. 3. In the absence of any clear cut findings with respect to the eligibility/non-eligibility of the petitioners for being absorbed/upgraded/merged in the post of Personal Assistant this Court has to no other option than to quash the impugned order dated 05.06.2012. 6. Accordingly, the impugned order as contained in Memo No. 6954 dated 05.06.2012 is, hereby, quashed and set aside and the matter is remanded back to the respondent No. 2 to take a fresh decision in the matter without being influenced by the earlier order passed by the Principal Secretary, Water Resources Department as contained in Memo No. 85 dated 06.01.2012. On consideration of the claim of the petitioners the respondent No. 2 shall pass a detailed and speaking order within a period of eight weeks from the date of receipt/production of a copy of this order. This application is disposed of in terms aforesaid. Application disposed of.