Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 5375 of 2011 Ashrit Lakra, son of Late Bilchus Lakra … … Petitioner VERSUS1 The State of Jharkhand 2. The Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand.
3. The Principal Secretary, Revenue & Land Reforms Department, Govt. of Jharkhand.
4. The Principal Secretary, Department of Finance, Govt. of Jharkhand 5. The Divisional Commissioner, South Chhotanagpur, Ranchi … ... Respondents CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK For Petitioner : Mr. Saurabh Shekhar, Advocate. Mr. R.R. Verma, Advocate. For Respondents: Mr. Anoop Kumar Agarwal, JC to SC - X C.A.V. On 14/09/2017 Pronounced on 18 /12/2017 Dr. S.N.Pathak, J.
Heard learned counsel for the parties.
2. Initially petitioner had approached this Court with a prayer to treat services of Senior Personal Assistant in the office of Divisional Commissioner, South Chhotanagpur Commissionary, Ranchi at par with Senior P.A. (Private Secretary) in consonance with the Jharkhand Secretariat Services Rules, 2010. Further prayer has been made to redesignate post of Sr. Personal Assistant as Private Secretary on the ground that posts of Sr. Personal Assistant have already been redesignated as Private Secretary in the Revenue and Land Reforms Department of the State of Jharkhand and all consequential benefits be given to the petitioner as attached with the post of Private Secretary. Further prayer has been made for a direction to pay all benefits at par with Sr. P.A. (now redesignated as Private Secretary) of the Secretariat Services and to fix pay at par with Sr.P.A. (Private Secretary) posted in the Secretariat Cadre. Further prayer has been made for a direction to refix his pay on the basis of Grade Pay of Rs.4,600/ and to give him upgradation in the pay scale on the basis of Modified Assured Career Progression Scheme and to pay difference of salary with interest. I.A. No. 5464 of 2016 preferred by the petitioner had been allowed vide order dated 28.10.2016 and petitioner was allowed to incorporate further prayer for quashing the order dated 11.10.2006, issued under the signature of Joint Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand whereby it has been RC2decided that petitioner is not a member of Joint Cadre of Private Secretary which is being claimed on the basis of his initial appointment in the office of Divisional Commissioner. 3. Case of the petitioner in narrow campass is that pursuant to an open advertisement from Employment Exchange, petitioner applied for the post of Personal Assistant in the pay scale of Rs.785 – 1,210 which is also scale of Personal Assistants posted in Secretariat of the State Government. Petitioner belonged to Scheduled Tribes category. After being found successful, he was appointed and thereafter joined the service on 07.03.1989. Thereafter, pursuant to order dated 18.10.1996, service of the petitioner was confirmed in the said pay scale with effect from 07.03.1992. He was also given 1st ACP on 07.03.2001 and his pay scale was enhanced from Rs.5,500 – 9,000 to Rs. 6,500 – 10,500 (revised). Petitioner was thereafter promoted in the same pay scale to the post of Sr. Personal Assistant vide order dated 03.05.2008. After the recommendation of 6th Pay Revision Committee, pay scale of the petitioner has been fixed in the Pay Scale of Rs.9,300 – 34,800 with Grade Pay of Rs.4,200 while his pay ought to have been fixed in the Grade Pay of Rs.4,600. Further, petitioner's pay scale has been fixed by giving him first upgradation in pay scale under the Assured Caree Progression Scheme while it should have been fixed on the Grade Pay of Rs.4,600/ and, thereafter, his pay scale ought to have been fixed on the basis of promotion to the higher post of Sr. P.A. (Private Secretary) in the Grade Pay of Rs.4,800/, which is being paid to the coemployees posted in the same cadre in different Secretariat of the State. Grievance of the petitioner is that he has been denied equal treatment at par with other Sr.P.A. (Private Secretary) posted in different Secretariats of State on the basis of Circular issued on 26.02.1991, as contained in Memo No. 46 and in the said Circular, at para4, the State Government has taken decision to notify the offices of the Divisional Commissioner as attached offices of the concerned Secretariat i.e. under the Secretariat of Revenue and Land Reforms Department, accordingly office of the Divisional Commissioner was declared as part and parcel of the Revenue and Land Reforms Department. In pursuance of the Circular dated 26.02.1991, petitioner has been given equal treatment at par with the coemployees of the Revenue & Land Reforms Department without creating any pay anomaly, due to the reason that the offices of the Divisional Commissioner have been treated as RC3the attached offices of the Revenue and Land Reforms Department of State of Jharkhand. However, the moment the 6th Pay Revision Committee's recommendation came into effect, a different treatment has been given to the petitioner by fixing lower pay scale by giving him the Grade pay of Rs.4,200 instead of Gread Pay of Rs.4,600, the Grade Pay which is being paid to the coemployees posted in the Revenue & Land Reforms Department of the State and as such the respondents – State have violated its own Circular dated 26.02.1991. It is further case of the petitioner that apart from the office of the Divisional Commissioner, South Chhotanagpur, there are other Commissionaries also and their employees are being given equal treatment, treating them at par with the employees of the Revenue & Land Reforms Department, appointed from the source, meaning thereby they have already been given benefits of Circular dated 26.02.1991. Even the other employees holding different posts apart from the post of Sr. Personal Assistant in the office of respondent no. 5 are also being given similar treatment at par with the employees, posted in the Revenue and Land Reforms Department of the State but only the post of Sr. Personal Assistant is being discriminated, without any rhyme and reason. It is further averred that the State of Jharkhand has come up with Jharkhand Secretariat Services Rules, 2010 in which it has been provided that the office of the Divisional Commissioner, Ranchi will be a Department under the Revenue & Land Reforms of the State and thus the moment Rules have been framed and office of the respondent no. 5 has been declared an office under respondent no. 3, there cannot be discrimination with respect to fixation of pay scale and in view of said Rules, the petitioner is entitled to get equal treatment at par with the employees posted in the office of the respondent no. 3. It is further averred that recently in the office of respondent no. 3 the post of Sr. Personal Assistant has been redesignated as Private Secretary but in the same pay scale of the Sr. Personal Assistant, posted in the office of the respondent no. 5. It is contended that since in pursuance of Rule 2010 the office of respondent no. 5 has been declared an office under respondent no. 3 and since the post of Sr. Personal Assistant has been redesignated as Private Secretary, as such, the post of Sr. Personal Assistant in the office of respondent no. 5 is also to be redesignated as Private Secretary but that has RC4not been done which is arbitrary and unreasonable exercise of the respondent – state and thus they are acting contrary to their own statutory Rules, framed in the year 2010. It is further case of the petitioner that at present he is getting pay scale of Rs.9,300 – 34,000 with pay grade of Rs.4,200 while he is entitled for grade pay of Rs.4,600/ and accordingly entitled to be paid upgradation of pay scale in grade pay of Rs.5,400/. The office of the Commissioner has been declared to be attached office of Secretariat by Circular dated 27.02.1991 and hence, petitioner is entitled to be paid pay scale of Senior Personal Assistant at par with the pay scale of regular employees of same rank in Secretariat Services. Petitioner is further aggrieved by the order dated 11.10.2006 whereby claim of the petitioner has been rejected by Joint Secretary, Personnel Administrative Reforms and Rajbhasha Department, Government of Jharkhand, without describing any underline reasoning as to why petitioner's claim has been declined. Petitioner has further brought on record the memo no. 28, dated 02.01.2007, wherein the post of Senior Personal Assistant has been redesignated to the post of Private Secretary with effect from 01.01.1996. Since act of respondents authorities is contrary to the provisions of law, is arbitrary and unreasonable, petitioner has preferred instant writ petition for redressal of his grievance. 4. Mr. Saurabh Shekhar, learned counsel appearing for the petitioner strenuously urges that act of the respondents authorities in not considering case of the petitioner is contrary to provisions of law, is arbitrary and unreasonable. Learned counsel further submits that till recommendation of 5th Pay Revision Committee, petitioner was being paid salary at par with co employees, posted in different Secretariats of the State Government. Learned counsel further submits that though petitioner is entitled for the Grade Pay of Rs.4,600 but it has wrongly been fixed in the Grade Pay of Rs. 4,200. The petitioner is being discriminated and a class amongst class has been created, which is against the Circular of the Government and also against the Statutory Rules, framed by the State Government and, thereby, petitioner is being victimised. Learned counsel further argued that petitioner is being discriminated and a class amongst class has been created, which is against the Circular of the Government and also statutory rules framed by the Government and as such petitioner is being victimised and suffers from RC5discontentment by giving different treatment to him. Further, it has been argued that in view of Annexure10, dated 02.01.2007, the Principal Secretary, Personnel, Administrative Reforms and Rajbhasa Department has accepted that the post of Senior Personal Assistant has been redesignated to the post of Private Secretary with effect from 01.01.1996. Learned counsel further argued that though petitioner has been given benefits of 2nd Modified Career Progression but the same has been given in Grade Pay of Rs.4,200 to 4,800 instead of Rs.5,400. Petitioner is claiming for Grade Pay of Rs.4,800 on the post of Private Secretary and consequential benefits on that basis on the ground that the post of Sr. P.A. has been redesignated as Private Secretary and there is no post of Sr. P.A. in the Secretariat Service. Learned counsel further argued that it is only the petitioner who has been discriminated as other employees in the office of the Commissioner, South Chhotanagpur Division is enjoying the benefits of attached service of Secretariat Services and only the case of the petitioner has been separated and left alone. 5. Per contra counter affidavit has been filed. Mr. Anoop Kumar Agarwal, learned counsel appearing on behalf of the State vehemently opposes contention of the learned counsel for the petitioner. Learned counsel further argue that appointment of the petitioner itself was not in accordance with Rules as contained in Resolution dated 29.06.1973 neither he was appointed by the competent authority and as such, his inception in the Joint P.A. Cadre of Secretariat is not admissible and hence, his inception in P.A. Cadre has been rejected long back in the year 2006 and communicated to him vide letter no. 5458, dated 11.10.2006. Promotion of the petitioner in the cadre has also been rejected by the competent authority vide letter no. 7293, dated 07.11.2007. It has further been argued that appointment of the petitioner has been done at local level and that too not by Personnel and Administrative Reforms Department which is competent authority and hence, his inclusion in Joint P.A. Cadre has not been found admissible and consequential appointment associated with financial benefits of the petitioner has rightly been denied and hence, this writ petition is devoid of merit and fit to be dismissed. It has further been argued by learned counsel for the respondents that the benefits claimed by petitioner under Jharkhand Secretariat Services Rule, 2010 as well as provisions contained in Circular of 26.02.1991 is not RC6substantial as they are meant for the cadre personnel only, the category to which petitioner does not belongs. Since petitioner has not been granted higher post of Cadre, his claim of financial benefits has rightly been rejected and the same is justified also. Prayer of the petitioner has already been rejected in the year 2006 and promotion has also been refused so it cannot be said that no order has been passed on his representation rather the same has been properly considered and rejected. It has further been argued by learned counsel that any appointment dehors the Rules, cannot be entertained by the Department. In the instant case, petitioner was appointed by the Commissioner, Ranchi Division locally and without fulfilling the terms and conditions of appointment in violation of existing Rules of recruitment which provides for appointment through Public Service Commission, hence no consideration was given on the representation of the petitioner and accordingly rejected. Furthermore, no right has accrued to the petitioner for inclusion in the cadre as he does not fulfill the conditions as stipulated in his appointment letter till date as he has not passed the Stenographer's GradeI Examination. Learned counsel further argues that there is no illegality or any infirmity in rejection order and in not considering case of the petitioner for redesignation in the P.A. Cadre and as such, writ petition is fit to be dismissed. 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 GradeI 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 bonafide 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 RC7letter 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. 7. As a cumulative effect of aforesaid rules, guidelines and observations, this Court is of the view that petitioner is not under the direct administrative control of the Department of Personnel and Administrative Reforms, he cannot be treated to be included in the Joint Cadre of P.A.. No interference is warranted in the instant writ petition and as such, the same stands dismissed. All pending Interlocutory Applications stand disposed of. (Dr. S.N. Pathak, J.) High Court of Jharkhand at Ranchi Dated : December 18, 2017 RC RC