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2018 DIGILAW 107 (JHR)

Amrendra Kumar Amar v. State of Jharkhand

2018-01-12

ANIL KUMAR CHOUDHARY

body2018
ORDER : 1. Heard Mr. Mithilesh Singh, learned counsel appearing for the petitioner, and Mr. Atanu Banerjee, learned G.A., appearing for the State. A supplementary counter-affidavit has been filed on behalf of the respondent No. 3 before this Court today itself. Let it be kept on record. 2. This spirit application has been filed by the petitioner with the following prayers : (i) for quashing the letter No. 3717 dated 1.9.2006 (Annexure-13), by which seniority and grant of annual increment has been given to the petitioner from the date of passing the departmental examination, (ii) for commanding the respondents to grant seniority to the petitioner from the date of his initial appointment and further not to give effect to the order dated 1.9.2006, (iii) for commanding the respondents to grant ACP to the petitioner on completion of 12 years of service as counted from the date of substantive appointment on the post of Typist and (iv) other incidental relief’s. 3. The brief facts, involved in this case, are that in response to the advertisement for appointment on sanctioned post of Typist in the office of the respondent No. 5-Chief Engineer, Swarn Rekha Multipurpose Project, Chandil, East Singhbhum, Jamshedpur, being an allied office of the Secretariat, the petitioner was appointed on the sanctioned post of Typist against a post carrying the pay scale of Secretariat cadre post on 20.9.1985. The petitioner passed Hindi Noting and Drafting examination within six months from his appointment. The Water Resources Department confirmed the service of the petitioner as Secretariat cadre Typist on fulfilling two conditions; (i) the petitioner will have to pass examination of typing conducted by the Bihar State Subordinate Service Selection Board; and (ii) after passing of the typing examination, the petitioner will have to pass departmental examination and only thereafter the petitioner can get position in the seniority of typist of Secretariat cadre. It is also averred in the writ application that though the respondent No. 5 was vested with the power of confirmation the petitioner's service but he sent the matter for confirmation to the department and the department illegally and, without jurisdiction imposed two conditions for confirmation of the petitioner's service. 4. It is also averred in the writ application that though the respondent No. 5 was vested with the power of confirmation the petitioner's service but he sent the matter for confirmation to the department and the department illegally and, without jurisdiction imposed two conditions for confirmation of the petitioner's service. 4. It is contended by the petitioner that the departmental examination is essential only for promotion and not for seniority as the Bihar State Subordinate Service Selection Board was dissolved as a result of which said conditions for confirmation of the petitioner in service could not be complied with. After dissolution of Bihar State Subordinate Service Selection Board, the respondent No.5 wrote a letter to the respondent No. 2 to permit the petitioner to appear in the departmental examination but the petitioner was not allowed for the reasons best known to the respondents. The petitioner also tried his level best to appear in the departmental examination but he was not allowed to appear in the examination as no examination was ever conducted by the department. Subsequently, the Personnel, Administrative Reforms and Rajbhasa Department considered the petitioner to appear in the departmental examination after relaxing condition No. 1 i.e. to appear in typing test to, be conducted by Bihar State Subordinate Service Selection Board. Hence the petitioner appeared on 3.8.2003 and passed the examination. The respondent No. 5 allowed' regular increment to the petitioner and also allowed, him time bound promotion on the same post on completion of 12 years of service. After passing the departmental examination, the respondent No. 5 recommended for inclusion of the petitioner's name in the cadre of Secretariat Typist and also requested for grant of ACP after completion of, 12 years of service but no action has been taken by the department on such recommendation and request of the respondent No.5. It is also contended by the petitioner that the Personnel, Administrative Reforms and Rajbhasa Department has illegally and arbitrarily given the seniority and grant increment to the petitioner only from the date of passing the departmental examination in the cadre of Secretariat Typist, which is illegal, as according to the petitioner, he is entitled to get the seniority in the cadre of Secretariat Typist from the date of his appointment made in the year 1985. In the letter dated 30.5.2008 the respondent No. 5 intimated the respondent No.4 that if the period of service of the petitioner from 21.9.1985 to 2.1.2002 is treated as Mufassil service, then as per rule, he has to pass the Accounts Examination for grant of first ACP. In response to the said letter of the respondent No.5, the respondent No. 4 issued a letter dated 18.7.2008 stating therein that the petitioner is not entitled for first ACP on competition of 12 years rather he will be entitled for ACP from 3.1.2014 which will be counted from the date of passing of the examination. The petitioner averred that he is entitled for counting of service in Secretariat cadre from the date of his first joining i.e. 20.9.1985 and accordingly he is entitled for grant of ACP w.e.f. 9.8.1999. The Water Resources Department. Government of Jharkhand, Ranchi directed the respondent No. 5 to grant benefit of first ACP to the petitioner treating the period of service from 21.9.1985 to 2.1.2002 in Mufassil cadre. It is further contended by the petitioner that there are laches on the part of the Personnel, Administrative Reforms and Rajbhasa Department in conducting the departmental examination and also for not allowing him to appear in the said examination. Hence, the petitioner cannot be made responsible for the laches on the part of the authority. 5. Per contra in the counter-affidavit filed on behalf of the respondent Nos. 3 to 5. it has been averred that the petitioner was appointed on the post of Typist ill Mufassil cadre by the respondent No.5 vide Memo No. 1992 dated 20.9.1985 and the petitioner was allowed status of Secretariat cadre with some condition by the departmental Memo No. 103 dated 10.3.1989 issued by the erstwhile Water Resources Department, Bihar. On the recommendation of the Personnel, Administrative Reforms and Rajbhasa Department. the Water Resources Department Jharkhand permitted the petitioner to appear in Typist Departmental examination on 3.1.2002 and then the petitioner appeared in the 'examination ' and declared successful. Thereafter the matter of fixation of gradation was referred to the Personnel, Administrative Reforms and Rajbhasa Department and the said department advised to fix the gradation of the petitioner in Secretarial cadre from the date of passing of Typist Departmental examination i.e. 3.8.2003. The Personnel. Administrative Reforms and Rajbhasa Department further advised to grant regular increment to the petitioner w.e.f. 3.8.2003. The Personnel. Administrative Reforms and Rajbhasa Department further advised to grant regular increment to the petitioner w.e.f. 3.8.2003. It has been averred by this respondent that since the Personnel. Administrative Reforms and Rajbhasa Department is the competent authority to decide the matter of the petitioner. hence the claim of the petitioner for fixation of his gradation in Secretariat cadre from the date of his appointment in Mufassil cadre is not sustainable. It has categorically been denied by the respondents that the petitioner was ever appointed in Secretariat cadre but in fact he was appointed in Mufassil cadre. It has further been stated by the respondents that the respondent No. 5 has not been vested with power of making appointment of Typist in Secretarial cadre. 6. In the counter-affidavit filed by the respondent No.2. it has been averred that the petitioner was appointed on the post of Typist in Mufassil cadre by the respondent No.5 vide Memo No. 1992 dated 20.9.1985. 7. During pendency of the writ application. vide Order No. 14 dated 7.12.2016. This Court has passed the following order :- "Mr. Anil Kumar Sinha. the learned senior counsel for the petitioner submits that in terms of ACP scheme which became operative w.e.f. 9.8.1999 the petitioner is entitled for 1st ACP and 2nd ACP on completion of 12 years 24 years respectively. Prima facie order dated 1.9.2006 where under petitioner is included in Secretariat Typist cadre from 3.1.2002 does not debar the petitioner from claiming benefit of ACP counting his service from 20.9.1985 At this stage pending final decision on legality on Annexure-13 it is hereby ordered that the respondent No. 3 shall pass necessary order for grant of ACP benefits to the petitioner. however; subject to his fulfilling other conditions. if any." 8. Since in the supplementary counter-affidavit filed by the respondent No. 3 today it has been categorically mentioned that the crux of the dispute involved in the case is the issue "whether the services of the petitioner lie under the Mufassil Establishment or under the Secretariat Establishment' and the same is to be resolved by the Personnel, Administrative Reforms and Rajbhasa Department who is the competent authority. Hence this Court considering such facts and circumstances of the case, is of the considered view that as the Personnel, Administrative Reforms and Rajbhasa Department is already seized of the matter of deciding the crux of the dispute hence it will be not proper for this writ Court to adjudicate the same ahead of the department. 9. In this backdrop without expressing any opinion regarding the merit of the issue involved in this writ application, this matter is remitted to the respondent No.2-the Secretary. Personnel, Administrative Reforms & Rajbhasa Department. Government of Jharkhand, Ranchi with a direction to decide the issue "whether the services of the petitioner lie under the Mufassil Establishment or under the Secretariat Establishment" by a reasoned order within a period of two months from the date of receipt/production of a copy of this order. 10. Let it be made clear that the observations made hereinabove, shall not be treated as comment upon the merits of the case of the parties. 11. With the aforesaid observations and directions this writ application stands disposed of. There shall be no order as to the costs. Petition disposed of.