IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.3777 of 2006
GYAN RANJAN BASAK, son of late Dr. Jay Krishna Basak, resident
of Mohalla East Patel Nagar, P. S. Shastri Nagar, Town and District -
Patna.
Versus
1. THE STATE OF BIHAR through the Chief Secretary, Government
of Bihar, Patna.
2. The Chief Secretary, Government of Bihar, Patna.
3. The Commissioner and Secretary, Personnel & Administrative
Reforms Department, Government of Bihar, Patna.
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For the petitioner : M/S. Dhruba Mukherjee and Aruna Tripathy.
For the State: Mr. S K Ghose, AAG-2.
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04. 17/01/2011 Annexure-1 is the speaking order dated 4.6.2005 passed by
the Chief Secretary, Government of Bihar, on the basis of a direction
issued by the High Court in CWJC No.3216 of 2001. Since the speaking
order has rejected the claim of the petitioner for grant of promotion and
pay-scale on the post of Deputy Secretary, the same has been challenged
in the present writ application as Annexure-1. In other words this is
the second visit of the petitioner before the High Court for same or
similar relief in the background now that the claim of the petitioner has
been rejected at the level of the Chief Secretary.
2. The service history of the petitioner which emerges
from the pleadings is that the petitioner was appointed as a Class-I
Stenographer after he succeeded in the competitive examination on
11.3.1952. He was posted in the Political (Special) Department, now
known as Home (Special) Department, Government of Bihar. He joined
the post of a Personal Assistant on 1.1.1969 and as per the
recommendation of the UPSC was promoted to the post of Private
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Secretary and deputed to work with the Chairman of Ganga Flood
Control Commission as per the notification dated 5.5.1977 issued by the
Personnel Department.
3. Vide memo dated 17.9.1980 petitioner came to be
appointed as a Private Secretary to the Governor of Bihar in the pay-
scale of Rs.670-1155. There were two posts of Private Secretary one
post of which was upgraded in the pay scale of Under Secretary with a
pay scale of Rs.890-1415 with effect from 26.5.1980 vide notification
dated 20.8.1981 issued by the Cabinet Secretariat Department.
Petitioner was absorbed against the said upgraded post of the Private
Secretary with a pay scale of Under Secretary. The concerned
notification has been annexed as Annexure-2 to the writ application.
4. Vide yet another notification dated 7.9.1981 issued by
the Cabinet Secretariat Department petitioner was given the pay-scale
of Under Secretary w.e.f. 17.7.1980 i.e. the date petitioner was
appointed as a Private Secretary along with special pay of Rs.200/-.
This fact is evident from the notification annexed as Annexure-3.
Petitioner came to be confirmed on the post of Private Secretary to the
Governor of Bihar w.e.f. 14.9.1982 vide memo dated 11.10.1982 as
would be evident from perusal of Annexure-4.
5. The post of Private Secretary to the Governor Bihar was
further upgraded to the pay scale of Deputy Secretary with the pay scale
of Rs.1575-2300. This notification granting the benefit is dated
24.9.1986 and is Annexure-5 to the writ application.
6. It is the contention of the petitioner that the post of
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Private Secretary to Governor of Bihar, which was being occupied by
the petitioner, was redesignated as Principal Private Secretary to
Governor of Bihar in terms of notification dated 3.10.1986 which is
annexed as Annexure-6 to the writ application.
7. Vide yet another notification dated 14th October, 1986
(Annexure-7) the upgradation of the post of Private Secretary giving the
benefit of the pay-scale of Deputy Secretary was made effective with
retrospective date of 17.9.1985. Petitioner was confirmed on the post of
upgraded post of Principal Private Secretary cum Deputy Secretary to
the Governor in the pay scale of Rs.1575-2300 vide notification dated
18.4.1987 (Anneuxre-8). Petitioner is supposed to have been issued a
pay slip showing the pay scale of Deputy Secretary authorizing him to
draw salary on the post of Deputy Secretary.
8. The Department of Personnel and Administrative
Reforms issued a notification dated 17.12.1987 by virtue of which lien
of the petitioner in the joint cadre of Personal Assistant in the
department was terminated w.e.f. 14.9.1982.
9. It is the assertion of the petitioner that he was
performing his duty on the post to the satisfaction of one and all and
was drawing the pay scale of Deputy Secretary, by virtue of being
Principal Private Secretary cum Deputy Secretary to the Governor of
Bihar but all of a sudden vide order dated 23.3.1988 petitioner was
ordered to be compulsorily retired with immediate effect. It seems yet
another employee of Raj Bhawan namely Panchanand Jha who was
working as Deputy Secretary to the Governor was also given the same
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treatment.
10. Panchanand Jha challenged the order and a Division
Bench quashed the order of compulsory retirement vide judgment dated
25.5.1989. The benefit of the decision of the Division Bench was
extended to the present petitioner as he was similarly situated on the
advice of Advocate General of Bihar. Petitioner joined the State
Government (not the Governor Secretariat) on the basis of notification
dated 17.11.1989 issued by Personnel and Administrative Reform
Department but on the lower post of Under Secretary in the joint cadre
of Assistants in the Home (Special) Department. This notification has
been brought on record as Annexure-9 to the writ application.
Petitioner is stated to have raised serious objection on his being posted
on a lower post of Under Secretary when admittedly he was enjoying
the status of a Deputy Secretary at the time of his compulsory
retirement. According to the petitioner, he was made to believe that
since there was no post of Deputy Secretary available in the department,
therefore, his posting as an Under Secretary was a stop-gap arrangement
till things were worked out. Petitioner therefore joined the post of Under
Secretary as he had no option.
11. It is the further stand of the petitioner that the
government was pleased to grant pay scale of Deputy Secretary to the
petitioner from the date of his compulsory retirement i.e. 23.3.1988 till
the date of his rejoining on the post of Under Secretary i.e. 12th of
September, 1989. Petitioner retired with effect from 31.7.1992 but he
was not paid salary of the post of Deputy Secretary after his rejoining
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on the post as an Under Secretary till the date of his retirement. It is in
this background that he was compelled to file a writ application which
was CWJC No.3216 of 2001. The same was disposed of with a
direction upon the Chief Secretary to consider his case and pass a
speaking order. Annexure-1 is the result thereof which is under
challenge.
12. The primary submission of the petitioner is that once
petitioner was reinstated by the respondent State, he could not be put
down in terms of hierarchy of pay scale by bringing him to the level
of Under Secretary when admitted position was that petitioner was
working as Principal Private Secretary cum Deputy Secretary to the
Governor.
13. The respondent State have filed counter affidavit in
support of the speaking order passed by the Chief Secretary. The stand
of the State has been indicated in paragraph-8 of the counter affidavit.
Since the same has vital bearing to the issue, it is being reproduced
hereunder:
“It is submitted that actually the petitioner was
holding the upgraded post of Private Secretary in
the pay scale of Under Secretary, that was
designated as Private Secretary. The petitioner was
never granted the pay scale and status of Deputy
Secretary. The claim of the petitioner for scale and
status of Deputy Secretary is not tenable on
following grounds:
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(a) The post of Private Secretary to the Governor
was upgraded in the pay scale of Under Secretary
vide letter No.3149 dated 20.8.81 of the Cabinet
Secretariat and Co-ordination Department without
obtaining the approval of the Cadre Controlling
Department i.e. the Department of Personnel and
Administrative Reforms.
(b) The petitioner was the member of joint cadre of
Personal Assistants of Secretariat. The chain of
promotion in the Joint Cadre of P.A. was from (I)
Personal Assistant to Senior Personal Assistant, (II)
S. P.A. to Private Secretary, (III) P.S. to Secretary
whereas the chain of the promotion of Joint Cadre
of Assistants of Secretariat and its Joint Offices
was from (I) Assistant to Section Officer, (IV)
Section Officer to Registrar/Under Secretary (the
post of Registrar has been abolished w.e.f. 1.1.1996),
(v) Under Secretary to Deputy Secretary.
Similarly the another chain of promotion to the
Deputy Secretary is from the members of the Bihar
Administrative Services.
It is submitted that the petitioner was neither the
member of the Bihar Administrative Services nor
the member of the Joint Cadre of Assistants of the
Secretariat and its attached offices. Therefore, the
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claim of the petitioner for the pay scale and status
of Deputy Secretary can’t be entertained.
(c) Considering the case of the petitioner of similar
nature of the order passed in CWJC No. 2321 of
1998 Panchanand Jha v. The State of Bihar and
others, the petitioner was allowed to join after
compulsory retirement. The petitioner was also
posted against the cadre post of Under Secretary
conditionally in the Home (Special) Department vide
notification No.12605 dated 17.11.1989 of
Department of Personnel and Administrative
Reforms.
(d) That the petitioner has also made a claim that
shadow post of Deputy Secretary in the pay scale of
Rs.3700-5000/- has been created specifically for him
by the Administrative Committee on creation of post
vide its meeting on 18.9.2000. It is pertinent to
mention here that decision of the above committee
was not approved and implemented by the State
Government was also admitted by the petitioner in
paragraph No.26 of the instant writ petition.”
14. In fact, a supplementary counter affidavit has further
been filed rebutting the statements made in the rejoinder, which too has
relevance and is being reproduced hereinbelow:
“5. That in reply to the statement made in
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paragraph no.9 and 10 of the rejoinder, it is
submitted that the statement in paragraph no.8(a)
and 8(b) of the counter affidavit is correct as no
such record is available in the department that
shows that the controlling department had given
approval in the proposal of Cabinet Secretariat and
Co-ordination Department.
6. That in reply to the statement made in paragraph
no.12 of the rejoinder, it is stated that the statement
made in this paragraph is factually incorrect. The
petitioner has tried to misinterpret the language of
notification dated 17.11.89. In that notification it
has clearly mentioned that the petitioner was
temporarily posted against vacant cadre post of
Under Secretary in the joint cadre of Secretariat
Assistants. It does not mean that the petitioner was
taken into the cadre under the joint cadre of
Assistants.
7. That in reply to the statement made in paragraph
no.13 of the rejoinder, it is stated that the petitioner
claimed for the scale of Deputy Secretary but he did
not try to understand the official procedure. It is
pertinent to mention here that any committee of the
Govt. is authorized only to make recommendation
but not to take decision on the recommendation of
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the Committee. The State Govt. takes decision at its
own level. Since the recommendation of the
committee was not implemented by the State Govt.,
the claim of the petitioner has been denied as stated
in paragraph no.8 (b) of the counter affidavit.
8. That in reply to the statement made in paragraph
No.14 of the rejoinder of the petitioner, it is
submitted that it has already been stated on behalf
of the respondent in para-9 of the main counter
affidavit that the person junior to the petitioner
were never given promotion from the seniority list
of the joint cadre of Personal Assistant by the
respondent. However, it is clarified that the
seniority list published as on the 1st September, 1982
clearly shows that Sh. Lakhan Prasad at Sl. No. 44
of the above said seniority list was junior to the
petitioner. That is why the claim raised by the
petitioner was not denied by the respondent
earlier. But Sh. Lakhan Prasad was never
promoted on the post of Deputy Secretary from the
seniority list of joint cadre of Personal Assistant as
the records available with respondent. It is
pertinent to state here that it is not known to
respondent as to how as by whom Sh. Lakhan
Prasad and other persons of Joint Cadre of
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Personal Assistant was promoted to the post of
Deputy Secretary.
It is further submitted that the petitioner has also
not annexed any such documents related to the
promotion of the above mentioned persons.”
15. If what has been stated by the State in the counter
affidavit and the supplementary counter affidavit is read with the
reasoning given by the Chief Secretary in the impugned order
contained in Anneuxre-1, then the Court has no hesitation in coming to
a finding that the petitioner has no claim to the post of Deputy
Secretary or the pay scale which is being claimed by him. In fact, it
seems that petitioner was a beneficiary by giving a go-by to rules which
is evident from the manner in which benefits kept coming his way by
upgradation of posts and pay scales at times from back dates so long as
he was working under His Excellency, the Governor of Bihar but the
petitioner cannot get a better right or position than what was decided by
the Division Bench in the case of Panchanand Jha in CWJC No. 2321
of 1988. The Chief Secretary has quoted para 19of the decision of the
High Court rendered in the case of Panchanand Jha and the petitioner’s
case therefore has been dealt with in light of the observation of the High
Court. Once the petitioner was treated to be an employee of the State
Government, his right or position as well as his status will have to be
determined by the State Government in accordance with the rules
applicable to the State employees. If what the High Court had decided
in the case of Panchanand Jha was to be applied to the case of petitioner
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by analogy then petitioner can get benefit of the said decision only to
that extent and he has no better claim now. The Chief Secretary has
done no wrong in rejecting the claim of the petitioner in absence of
similar post or similar promotional avenue being available in the joint
cadre of Personal Assistants under the State Government more so since
in the first place his lien on the post was terminated way back on
14.9.1982. Petitioner should thank his stars that he was taken back by
the State Government in the job by due indulgence shown to him.
16. In the above factual matrix and the decision of the
High Court rendered in the case of Panchanand Jha , there is no legal
infirmity in the decision given by the Chief Secretary, Government of
Bihar dated 4.6.2005, contained in Annexure-1. The order in question
does not require any interference.
17. The writ application is dismissed.
rkp ( Ajay Kumar Tripathi, J.)