Phuleshwar Rabidas vs The State of Jharkhand and Others

D.G.R. Patnaik, J.—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.

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.

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).

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.

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 u/s 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.

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 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 judgment of the Supreme Court in the case of P. Venugopal Vs. Union of India (UOI), .

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 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.

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 (Annexure4), 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 u/s 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 u/s 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 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.

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.

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.