IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P.(S) No. 5546 of 2008
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Phuleshwar Rabidas ... Petitioner
-V e r s u s-
The State of Jharkhand & Others ... Respondents
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CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
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For the Petitioner : - Mr. Anil Kr. Sinha, Sr. Advocate.
For the Respondents : - Mr. Manoj Tandon, S.C.-II.
...
C.A.V on : 21.05.2009 Pronounced on : 26.05.2009
5/ 26.05.2009
Heard Sri Anil Kumar Sinha, Learned senior advocate for the
petitioner and Sri Manoj Tandon, Standing Counsel-II for the
respondents and with their consent, this case is taken up for disposal
at the stage of admission itself.
2. Challenge in this writ application is to the order dated
08.02.2008 (Annexure-9) issued under the signature of the Deputy
Secretary, Department of Personnel, Administrative Reforms,
Government of Jharkhand whereby the petitioner, who was posted
as Member Secretary of the State Commission for Backward Classes,
has been directed to submit his papers in prescribed proforma for
processing of his death-cum-retiral dues.
Besides praying for quashing the aforesaid impugned order,
the petitioner has also prayed to issue a direction upon the
respondents to allow the petitioner to complete three years tenure of
service on the post of Member Secretary in the Commission and to
restrain the respondents to dispense with the services of the
petitioner, on the said post.
3. The petitioner, who was earlier holding the substantive post of
Joint Secretary in the Government of Jharkhand, was posted as
Member Secretary of the State Commission for Backward Classes,
Jharkhand at Ranchi by Notification dated 05.04.2007 (Annexure-4).
By filing his representation (Annexure-5) on 05.04.2007 itself,
he expressed his unwillingness to join on the said post and requested
for cancelling the notification.
His request was not accepted by the Government and he was
directed to submit his joining as per notification (annexure-4).
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Pursuant to the aforesaid direction, he submitted his joining on
the post of Member Secretary of the Commission on 10.05.2007.
Almost eight months thereafter, he was served with the
impugned order whereby he was intimated that he would retire on
31.12.2008 and was called upon to submit his pension papers.
4. Assailing the impugned letter, the petitioner has raised inter-
alia the following grounds :-
(i) The petitioner’s appointment to the post of Member Secretary
was made in exercise of powers conferred under Section 3 of
the State Commission for Backward Classes Act, 1993.
(ii) The post of Member Secretary, being a tenure post, the
provision of Section 4(1) of the Act stipulates that every
member shall remain on the post for three years from the date
of his appointment.
(iii) The corresponding rules framed under the provisions of
Section 17(2)(a) of the Act stipulates that members who on the
date of his appointment to the Commission was in the service
of the Central or a State Government shall be deemed to have
retired from such service with effect from the date of his
appointment as member of such service.
(iv) The petitioner, having joined the post of Member Secretary on
10.05.2007, has the right therefore to continue in office for the
entire tenure period i.e. three years from the date of his
joining.
(v) The petitioner’s service conditions in the post of Member
Secretary, being guided by the statutory rules of the post, the
respondents cannot curtail the tenure of service of the
petitioner on the aforesaid post.
5. Elaborating the grounds and explaining the background facts,
Sri Anil Kumar Sinha, learned senior advocate for the petitioner
submits that vide Notification dated 05.04.2007, the petitioner was
appointed on the post of Member Secretary of the Commission by
transferring him from the post of Joint Secretary in the Department
of Planning and Development, Government of Jharkhand, till further
orders. The petitioner had protested seeking clarifications as to why
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he has been posted till further orders instead of posting on the post
for three years. Instead of taking cognizance of the protest, he was
asked to give his joining on the post of Member Secretary and submit
compliance report. Learned counsel argues that even though the
petitioner’s appointment on the post was indicated as a posting till
further orders from the date of notification, but this in itself would
not deprive the rights accrued to the petitioner under the Act and the
Rules thereunder since the tenure of service of the petitioner on the
aforesaid post cannot be guided by the statutory rules and his service
conditions shall have to be guided only in accordance with service
conditions applicable to the particular post.
The letter of posting, according to the learned counsel, is
concerned only with the entry of the petitioner in the particular
service/cadre and thereafter, the service conditions relating to the
period of working shall prevail. To gain support to his arguments,
learned counsel refers to and relies upon the judgement of the
Supreme Court in the case of P.Venugopal vs. Union of India 2008(5)
SCC 1.
6. Per contra, the stand taken by the respondents, as explained by
Sri Manoj Tandon, learned counsel for the respondents, is as follows
:-
(i) By the notification dated 05.04.2007 (Annexure-4), the
petitioner was posted as Member Secretary in the Commission.
The notification had clearly stipulated that such posting would
be till further orders and not in terms of the provisions of
Section 4 of the Act which mentions the tenure of three years.
The petitioner’s posting was thus on deputation allowing him
to retain his lien in the substantive post of Joint Secretary
under the State Government.
(ii) Though the petitioner had initially expressed his
unwillingness to join the post seeking clarification in respect of
his tenure of posting, he had accepted the fact that his posting
as Member Secretary of the Commission was by way of
deputation only. Such admission would be evident from the
fact that he availed the pay scale of Joint Secretary with all
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benefits/allowances and has also availed the Special pay for
officiating in the post of Member Secretary which was allowed
to him.
(iii) The petitioner who had retained his lien on the substantive
post, has to be guided by the conditions of service under the
statute and he cannot claim to be retained in service beyond
the date of his superannuation.
(iv) The judgement in the case of P.Venugopal (Supra) would not
be applicable to the facts of the petitioner’s case since the
questions involved in the case of Venugopal was significantly
different from the issues raised in the present application.
7. From the rival submissions the facts which emerge and the
logical and reasonable inference drawn is that the petitioner’s posting
on the post of Member Secretary of the Commission was not strictly
an appointment to the post. As declared in the notification (Annexure-
4), his posting as Member Secretary of the Commission was by way of
his transfer with privilege to retain his lien on his substantive post.
The petitioner was thus allowed to officiate in the post of Member
Secretary and for which he was allowed to draw the Special Pay by
way of officiating allowance, in addition to the scale of pay of his
substantive post. The fact that his posting was only for a limited
period, the inference therefore is that such posting was not in
consonance with the conditions of service as laid down under Section
4(1) of the Act and for all practical purposes it was only a stop gap
arrangement.
Since the petitioner’s posting was not by way of appointment
on substantive post of Member Secretary, he cannot claim to be
guided under the service conditions as laid down under Section 4 of
the Act and neither would the corresponding Rules of the Act apply to
the petitioner. For the same reason, the Rules relating to the salary and
allowances applicable to the member Secretary of the Commission
will not apply to the petitioner and as indicated, it was in acceptance
of this aspect that the petitioner had not claimed the salary and
allowances applicable to the post of Member Secretary of the
Commission. Rather, he had claimed and was allowed to draw the
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salary in the scale of Joint Secretary together with all allowances. The
petitioner shall therefore have to be guided by the conditions of his
service applicable to his original substantive post.
8. The judgement in the case of P.Venugopal (Supra) would not
apply to the facts of the present case. In the case of P.Venugopal, his
was a direct appointment on a substantive tenure post of Director
whereas in the instant case, the petitioner was not appointed on a
tenure post since, as declared in the annexure-4, he was posted as
Member Secretary only till further orders and not in terms of the
provisions of Section 4 of the Act.
9. In the light of the above discussions, I do not find any merit in
this application. Accordingly, this writ application is dismissed. The
interim order passed by this Court on 04.12.2008 is hereby vacated.
(D.G.R. Patnaik, J.)
Birendra/N.A.F.R.