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2019 DIGILAW 757 (JHR)

Ashrit Bilchus Lakra v. State Of Jharkhand

2019-03-27

ANIRUDDHA BOSE, RATNAKER BHENGRA

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JUDGMENT Aniruddha Bose, C.J. -The appellant is aggrieved by the decision of the Personnel and Administrative Department of the Government of Jharkhand rejecting his plea for being treated as Private Secretary in the office of the Divisional Commissioner, South Chhotanagpur, Ranchi. The learned First Court has confirmed the decision of rejection of the said authority in the judgment under appeal. The appellant was engaged to the post of Personal Assistant through a selection process undertaken by the Divisional Commissioner at the local level in the year 1989 on the basis of an open advertisement through the employment exchange. At that point of time, such was the selection norm and there is no allegation of any irregularity in his initial selection. As it is revealed from his appointment letter, the appointment was temporary. Clause 3 of the appointment letter dated 2nd March, 1989 (Page 36 of the memorandum of appeal) further stipulated that he had to pass Steno-grapher''s GradeI Examination within one year failing which his appointment would be terminated. Admitted position, however, is that though he did not clear the said examination, his appointment was confirmed on 18th October, 1996 in the same post in which he was temporarily appointed with effect from 7th March, 1992. A copy of the confirmation letter has been annexed at Page 37 of the memorandum of appeal. 2. Earlier, by virtue of a circular of the unified State of Bihar adopted in the year 1991, office of the Divisional Commissioner had become attached to the office of Department of Revenue and Land Reforms. That decision was taken on 26th February, 1991. It has been pleaded in the memorandum of appeal that implication of the said resolution was that appointments in the office of the Commissioner in the posts of Assistants, their promotion etc. would be regulated by the Department of Personnel, Administrative Reforms and Rajbhasha Department. But in the case of the appellant writ petitioner, the selection took place at the local level only and there is nothing to show that at that point of time any centralized selection process was being undertaken for appointment in the said or similar posts in the subject office. On 2nd January, 2007 the Department of Personnel, Government of Jharkhand took a resolution to convert or re-designate all the posts of Senior Personal Assistants to the posts of Private Secretary with effect from 1st January, 1996. On 2nd January, 2007 the Department of Personnel, Government of Jharkhand took a resolution to convert or re-designate all the posts of Senior Personal Assistants to the posts of Private Secretary with effect from 1st January, 1996. The said resolution forms part of the memorandum of appeal, annexed at page 52 thereof. The said resolution reads :- English Translation Government of Jharkhand Department of Personnel, Administrative Reforms and Rajbhasha Resolution Sub:- Regarding re-designation of posts of Senior Personal Assistant, of the Secretariat Personal Assistant Joint Cadre, as Private Secretary. 1. Upon the recommendation of Fitment Committee revised pay-scale of Rs.6500-10500/- has been approved with effect from 01.01.1996 for Senior Personal Assistant as well as Private Secretary of State Secretariat and attached offices. Under such condition, promotion from Senior Personal Assistant to Private Secretary category is not admissible now. In the changed circumstances, the proposal for re-designation of posts of Senior Personal Assistant as Private Secretary was under consideration before the Government, from the posts of Senior Personal Assistant and Private Secretaries, on the basis of combined seniority list for giving promotion to the post of "Secretary to Secretary." 2. On the captioned subject, after due consideration the Government has decided to re-designate the posts of Senior Personal Assistant as Private Secretary with effect from 01.01.1996. 3. Consequent upon re-designation of the posts of Senior Personal Assistant as Private Secretary, the existing incumbent Senior Personal Assistant shall be known by the designation of Private Secretary. No new promotion shall be given against the post of Senior Personal Assistant and its re-designated post "Private Secretary" until number of posts at different levels is determined. After the constitution of Jharkhand Secretariat Stenographer Joint Cadre Rules, cadre strength of other posts and procedure with respect to promotion etc. against those posts shall be determined. Order: It is ordered that this Resolution should be published in the forthcoming issue of Jharkhand Gazette for information to the common people. By order of the Governor of Jharkhand Sd/- (Mukhtyar Singh) Principal Secretary to the Government. 3. The appellant''s case is that by virtue of the aforesaid resolution and its subsequent implementation, the post of Personal Assistant stood virtually abolished. On 3rd May, 2008, however, the appellant was given promotion to the post of Senior Personal Assistant. By order of the Governor of Jharkhand Sd/- (Mukhtyar Singh) Principal Secretary to the Government. 3. The appellant''s case is that by virtue of the aforesaid resolution and its subsequent implementation, the post of Personal Assistant stood virtually abolished. On 3rd May, 2008, however, the appellant was given promotion to the post of Senior Personal Assistant. In course of hearing before us it is submitted on behalf of the appellant that the appellant at present is the sole post holder in that designation. The appellant''s grievance is that re-designation of the post to Private Secretary would have entailed higher scale of pay in a higher grade. The learned First Court rejected his plea, holding, inter alia :- "6. Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that no illegality and infirmity has been committed by the respondents. No interference is required in the instant writ petition on following grounds: (i) The petitioner has not fulfilled terms and conditions of appointment. He has also not cleared the Stenographer''s Grade-I Examination; (ii) No right has accrued to the petitioner for inclusion in the cadre of P.A. as he has been appointed locally whereas the Rule talks of appointment through Public Service Commission. The petitioner is not a bona fide member of the cadre and hence, benefits of higher post of cadre is not at all acceptable. (iii) Case of the petitioner had been considered and accordingly rejected in the year 2006 itself. No challenge has been thrown to the said order of rejection. It is only after five years, said order has been challenged. The proposal regarding promotion of the petitioner in the Cadre has already been rejected by the competent authority i.e. Personnel and Administrative Reforms vide letter dated 07.1.2007. Appointment of the petitioner has been made at local level and that too, not by the Department of Personnel and Administrative Reforms, which is proper authority. The proposal regarding promotion of the petitioner in the Cadre has already been rejected by the competent authority i.e. Personnel and Administrative Reforms vide letter dated 07.1.2007. Appointment of the petitioner has been made at local level and that too, not by the Department of Personnel and Administrative Reforms, which is proper authority. Hence, there is no question of inclusion of petitioner in the Joint Cadre of P.A. (iv) Since appointment of the petitioner has been made locally and not by Department of Personnel and Administrative Reforms, which is cadre controlling authority, the prayer of inclusion in the cadre has rightly been rejected and the benefits as claimed under Jharkhand Secretariat Service Rule, 2010 as well as provisions as contained in Circular of 26.02.1991 is not at all substantial, as it is made for the cadre personnel only, the category to which petitioner does not belong." 4. On the aspect of the requirement of clearing Stenographer''s Grade-I Examination it is the appellant''s case that no rule prescribes such examination. In this regard he has relied on two replies received in response to his queries under the Right to Information Act which have been annexed at pages 26 and 28 of his rejoinder to the counter-affidavit in the main writ petition. The text of these responses with their English translation are reproduced below :- Government of Bihar Department of Personnel and Administrative Reforms Memo No. 9/Vi. 18-332/94(...) Ka. 820 Patna Dated 14th October, 1996 From, Md. Harun Rashid Deputy Secretary To, Sri U.K. Sangma Commissioner, South Chhotanagpur Division, Ranchi Sub:- Regarding confirmation of Personal Assistant. Ref:- Your Letter No. 930/dated 12.10.1996 Sir, As per direction, in the light of your letter No.930 dated 12.10.1996 on the aforesaid subject, it is to inform that there is no requirement of passing departmental examination for confirmation of services of Personal Assistant Joint Cadre under administrative control of Department of Personnal and Administrative Reforms. Yours faithfully 14.10.1996 Sd/- (Harun Rashid) Deputy Secretary File No.05/Vividh-19-07/06 In lieu of Buff Sheet Public Information Officer-cum-Under Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Jharkhand, Ranchi. In the light of your Buff Sheet, Gai.Sa.Pre. Yours faithfully 14.10.1996 Sd/- (Harun Rashid) Deputy Secretary File No.05/Vividh-19-07/06 In lieu of Buff Sheet Public Information Officer-cum-Under Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Jharkhand, Ranchi. In the light of your Buff Sheet, Gai.Sa.Pre. No.630 dated 06.11.2007 under Right to Information Act, 2005, it is to inform that at present, there is no provision for passing any type of departmental examination for promotion to the post of Senior Personal Assistant/Private Secretary for the employees working on the post of Secretariat Personal Assistant Joint Cadre. Sd/- 22.11.07 (Prem Chandra Verma) Joint Secretary Department of Personnel, Administrative Reforms & Rajbhasha, Jharkhand, Ranchi. 5. On behalf of the State, it is not disputed in the pleadings that there is no rule prescribing passing of such examination for being upgraded to the post of Private Secretary. The State''s stand, however, is that in the case of the appellant, it was a term or condition of his appointment. We are unable to accept this argument advanced on behalf of the State. The appellant was confirmed in the post in question without insisting upon clearance of such examination. Subsequently, he was given promotion. At this stage also no argument has been advanced by the State that initial appointment or confirmation of the appellant in the post in question was illegal. Thus, in our view, that condition by implication was waived by the State. Moreover, in absence of any rule or executive circular requiring passing of Stenographer''s Grade-I Examination for appointment to the subject-post, we cannot hold that such requirement was a fundamental condition to the appellant''s appointment. Next comes the question as to whether the appellant''s appointment at the local level creates any hindrance for his post being redesignated as that of a Private Secretary. On 27th February, 1991 the Divisional Commissioner''s office became attached office of Revenue and Land Reforms Department under a resolution dated 27th February, 1991. Thus, there was integration of the Divisional Commissioner''s office with the mainstream of the Secretariat. The decision to re-designate the post of Senior Personal Assistant to Private Secretary came in form of the resolution dated 2nd January, 2007, the text of which we have reproduced in the earlier part of this judgment. Thus, there was integration of the Divisional Commissioner''s office with the mainstream of the Secretariat. The decision to re-designate the post of Senior Personal Assistant to Private Secretary came in form of the resolution dated 2nd January, 2007, the text of which we have reproduced in the earlier part of this judgment. This resolution does not make any distinction between an incumbent promoted to the post of Senior Personal Assistant who was initially appointed in the post of Personal Assistant at the local level and those appointed through a selection process conducted by the Public Service Commission. No other resolution or any similar instrument has been shown to us by the learned counsel for the State that even after aforesaid integration of the department, for a senior Personal Assistant to be redesignated as Private Secretary, the former had to be part of a common cadre appointed by the Department of Personnel and Administrative Reforms. As no irregularity in the initial selection and subsequent confirmation of the appellant has been demonstrated before us, in our view, on integration of the office and blanket redesignation of the said post, a distinction between the appellant writ petitioner and the other senior Personal Assistants if made, would be on artificial grounds only. The question of delay would have to be addressed in relation to the reliefs prayed for by the appellant. He seeks redesignation of the post with attendant benefits. He is in a post which stands abolished. In such circumstances delay cannot be said to be fatal in this appeal. 6. For these reasons, we are unable to accept reasoning of the learned First Court. The decision of the learned First Court is accordingly set aside. We direct the authorities to re-designate the post of the appellant as that of Private Secretary with all consequential benefits from the applicable date. 7. The appeal is allowed in the above terms. There shall, however, be no order as to costs.