CIVIL WRIT JURISDICTION CASE No. 10876 OF 1996 SAYED NAQUI IMAM, SON OF LATE SYED MAJID HUSSAIN, RESIDENT OF SANGI MASJID, POLICE STATION – PHULWARI SARIFF, DISTRICT – PATNA -------------------------------- PETITIONER VERSUS 1. STATE OF BIHAR, THROUGH THE SECRETARY CABINET (VIGILANCE) DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2. THE SECRETARY CABINET (VIGILANCE), DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE VIGILANCE COMMISSIONER, CABINET (VIGILANCE) DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE INSPECTOR GENERAL, VIGILANCE, CABINET (VIGILANCE) DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 5. THE SECRETARY, PERSONNEL AND ADMINISTRATIVE REFROMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 6. SHRI ARUN BHUSHAN PRASAD, JOINT SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA ----------------------------RESPONDENTS ***** FOR THE PETITIONER : MR. SYED ARSHAD ALAM, ADV. MR. GAUTAM KUMAR YADAV, ADV. FOR THE RESPONDENTS: MR. ANIL KUMAR VERMA, AC TO AAG-13 P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA ***** Mridula Mishra, J. Heard learned counsel for the petitioner and the State. Petitioner’s prayer in this Writ Application is for a direction to absorb his services in the joint cadre of Assistant of the Secretariat and its attached Offices and to fix his seniority in that cadre as per rule 14 (2) (c) of the Assistant of the Secretariat and 2 Attached Offices Joint Cadre Rules, 1992. He has also prayed for a direction to make payment of arrear of salary after his absorption in the joint cadre of Assistant. The facts of this case is that an Enquiry Commission, named as Emergency Enquiry Commission, was constituted for making an enquiry regarding the excess made during the emergency period. A sitting Judge of the High Court was appointed as Chairman of the Commission. Petitioner was appointed vide Memo No. 01/78, dated 20.04.1978, on temporary basis as an Assistant on the usual scale of pay, sanctioned by the State Government. On the same date, petitioner joined on the post. Since, he was not getting his salary, as such the Secretary of the Commission made a note to the Additional Secretary of the Vigilance Department for making a requisition of appointments in the Enquiry Commission. This was done for the reason that at the relevant time a ban had been imposed on direct appointment of Assistants and Orderlies, unless names were called from the Employment Exchange and procedures were followed. In order to bye-pass this procedure 3 and formalities and to make appointments in the Enquiry Commission, necessary orders were to be obtained from the Chief Minister through the Chief Secretary, after relaxing the Rules. The Secretary of the Commission made a note to the Chief Secretary requesting to take approval of the Chief Minister for such appointment. The Chief Secretary made a proposal to the Chief Minister and the Chief Minister on 14.09.1978 approved the proposal made by the Chief Secretary. In pursuance to the approval of the State Government, the appointment of the petitioner had been made and his services were placed under the control of the Chairman of the Commission. This appointment was made against vacant post of Assistant on temporary basis. The Chairman of the Commission, however, resigned from the post and functioning of the Commission came to an end. The Secretary of the Commission thereafter issued an order of petitioner’s termination from service on 31.12.1978. Petitioner’s case is that Order of termination was not passed by a competent authority, as prior approval of the Chairman of the Commission had not been obtained. Petitioner, represented before the 4 Inspector General-cum-Special Secretary, Cabinet, Vigilance Department for continuity of his service and for recalling the order of termination dated 31.12.1978. The petitioner was reappointed in the Enquiry Commission, when new Chairman joined and functioning of the Commission revised. However, petitioner was not appointed on the post of Assistant, but on the post of Routine Clerk. It was a fresh appointment on temporary basis, vide Government Order No. 180, dated 09.02.1979. However, on completion of the work of the Enquiry Commission, it was dissolved and petitioner was again retrenched vide Memo No. 313, dated 02.04.1980. Petitioner again filed his representation for his absorption in the light of the State Government Resolution No. 106, dated 05.09.1979, published in the Bihar Gazette Extraordinary, dated 10.09.1979. Through this resolution, a policy decision had been taken by the State Government regarding its retrenched employees. The policy decision was that before effecting retrenchment of any employee, it should be ensured that in the Department, there are other posts available against which the employees can be absorbed. If such a post 5 is available, the employee going to be retrenched be adjusted against the vacant post available in the Department or under any other Project of Department. The retrenched employee should be given preference in the matters of appointment. The retrenched employee, as far as possible be absorbed on the same post on which he was working, only in case of non-availability of same post and non- fulfillment of requisite criteria for the post of Class – III, employee should be absorbed on a Class – IV post. Petitioner’s grievance is that since he was appointed in the Commission on the post of Assistant and worked from 20.04.1978 to 31.12.1978 at the pay-scale of Rs. 348-570/-, he should have been absorbed on the post of Assistant and not on the post of Routine Clerk. It is stated by the petitioner that his initial termination was made by an incompetent authority. There were vacancies on the post of Assistant, but arbitrarily, he was reappointed on the post of Routine Clerk. In this background, his absorption as per the Resolution No. 106, dated 05.09.1979 of the State Government should have been made on the post of Assistant. His 6 name legally required to be included in the Cadre of Assistant of the Secretariat and its attached Offices and seniority should be allowed to him as per Rule 14 (2) (c) of the Assistant of the Secretariat and Attached Offices Joint Cadre Rules, 1992. A detailed Counter Affidavit as well as Supplementary Counter Affidavit has been filed by the State. The Respondents in the Counter Affidavit have stated that the petitioner was appointed purely on temporary post of an Assistant, directly by the authorities without following the appointment rules. His appointment was made relaxing the Rules of appointment. He was retrenched from the post, as life of his appointment was attached to the continuity of the Enquiry Commission. Subsequently, when he joined, it was not on the post of Assistant, but he joined on the post of Routine Clerk. His appointment in the second round, also ended in his retrenchment. As such, when on the third occasion, he was absorbed in the light of Government Resolution No. 106, dated 05.09.1979, he was rightly absorbed on the post of Routine Clerk. The petitioners’ claim for absorption of his service in the joint cadre of Assistant of the Secretariat and its 7 attached Offices, is not sustainable for the reason that petitioner was not working on the post of Assistant at the time when the Joint Cadre Act, 1989 came into effect. As per section 10 of the Joint Cadre Act, 1989, if anyone was not working on the post on or before 30.08.1988 as “Assistant”, he can not be included in the seniority list as member of the joint cadre. On 30.08.1988, the petitioner was working on the post of a Routine Clerk and not as an Assistant, so the question of fixation of seniority in the joint cadre of Assistant as per Rule 14 (2) (c) do not arise. Petitioner has alleged discrimination, giving example of one Vijay Krishna Prasad, whose name was included in the joint cadre of Assistant. In the Supplementary Counter Affidavit, filed on behalf of the State, it has been stated that the petitioner’s case is completely different from the case of Vijay Krishna Prasad. On the date of creation of joint cadre of Assistant, Vijay Krishna Prasad was Assistant of Cabinet, Vigilance Department and on recommendation of the Cabinet Vigilance Department, his name has been included in the cadre. Considering the pleadings of the parties, it is 8 apparent that petitioner was never appointed as Assistant, following the procedure and Rules. His first appointment as an Assistant was on temporary basis, considering the exigencies in the Commission. After working for 09 months, he was retrenched. On the next occasion, he was reappointed on the post of Routine Clerk, but again re-retrenched on dissolution of Enquiry Commission. On the third occasion, he was absorbed in the light of Government’s policy decision regarding absorption of retrenched employees. In the light of this policy decision, petitioner was adjusted against the same post, from which he had been retrenched, i.e., on the post of Routine Clerk. Petitioner’s claim that his name should be included in the joint cadre of Assistant has got no merit. Accordingly, it is dismissed. Patna High Court, Patna Dated: 05.05.2011 NAFR/Shashi Kant Mishra (Mridula Mishra, J.)