Deepak Roshan, J
1. Heard learned counsel for the parties.
2. The instant writ application has been preferred by the petitioner for the following reliefs;
“i. For issuance of appropriate writ(s)/ order(s)/ direction(s), particularly a writ in the nature of mandamus, commanding upon the Respondents to accept and
include the services of the petitioner in Joint Service Secretariat Cadre, w.e.f. the year 1991,in pursuance to the circular of the State Government, dated
27.02.1991 (Annexure-2), whereby the office of Divisional Commissioner has been considered as to be attached office of Secretariat Services; and to that extent
for quashing of the order of the Department of Personnel, dated 11.10.2006 (Annexure- 6), whereby he has been considered to be not a member of Joint Services
cadre; and further to declare him as member of Joint Services Cadre, in pursuance to the final Judgment and Order passed by Hon'ble Division Bench in LPA No.
40/2018 dated 27.03.2019(Annexure-7).
ii. For issuance of appropriate writ(s)/ order(s)/ direction(s), particularly a writ in the nature of mandamus, commanding upon the Respondents to enhance the
benefits of circular dated 30.04.2015 (Annexure-11), issued from the office of Department of Finance, applicable in the cases of Joint Cadre Secretariat Services,
w.e.f. 01.01.2006, and in accordance with the said circular allow the benefit of non-functional Grade Pay of Rs. 5400/- on the post of Private Secretary to the
petitioner, on completion of 12 years of regular services on the post of Personnel Assistant & 1 year as Private Secretary, which is from 07.03.1989 to 03.05.2008
& thereafter from 03.05.2008 to 03.05.2009, respectively, benefit to be enhanced from the date of entitlement on 03.05.2009 (i.e. according to the circular dated
30.04.2015).
iii. For issuance of appropriate writ(s)/ order(s)/ direction(s), particularly a writ in the nature of mandamus, commanding upon the Respondents to improve and
upgrade grade pay of petitioner in the 2nd MACP to the tune of Rs. 6600/-, w.e.f. 03.05.2009, over and above the grade pay of Rs. 5400/- that has been granted to
the petitioner, in consequence to prayer at paragraph 1 (ii), along with arrears for the period thereafter, also along with interest as per section 3 of the Interest
Act, 1978.
iv. For issuance of appropriate writ(s)/ order(s)/ direction(s), particularly a writ in the nature of mandamus, commanding upon the Respondents to grant the
benefit of 3rd MACP on completion of 30 years of regular services which gets completed on 07.03.2019, in the Grade Pay of Rs. 7600, along with arrears of salary
and also along with interest as per section 3 of the Interest Act, 1978.â€
3. It has been contended by learned counsel for the petitioner that the writ petitioner suffers from the action of the respondent authorities; whereby,
they have taken a decision not to consider this petitioner as a member of the Joint Cadre of the Assistants of the Secretariat and its attached offices.
The respondents, therefore, have secluded the petitioner from giving him the benefits that are requisite to the Assistants of the Joint Cadre of the
Secretariat and attached office, for example in the present case, he is not being considered for grant of benefits of the circular dated 30.04.2015
(Annexure-11), wherein, the non-functional grade pay of Rs.5,400/- is payable to the Assistants in the Secretariat Services (Joint Cadre), on
completion of 12 years of services on the post of Personal Assistant and 1 year of additional service as Private Secretary.
It has further been contended that the petitioner has completed more than 12 years of service on the post of Personal Assistant, i.e. from 07.03.1989
to 03.05.2008. Further, as Private Secretary, his services should be counted from 03.05.2008 to 03.05.2009. On completion of this requisite period, as
per the provisions of circular dated 30.04.2015, he is entitled to get the benefits of non-functional grade pay of Rs.5,400/-, w.e.f. 03.05.2009. Further,
the revision of 2nd MACP and 3rd MACP, in the grade pay of Rs.6,600/- and Rs.7,600/-, respectively, should be granted on the hierarchy of the non-
functional grade pay of Rs.5,400/, as such.
4. On the other hand, it is the contention of the respondents that the petitioner is not entitled to get the benefits of the circular dated 30.04.2015, which
is applicable only to the Assistants of Joint Cadre of Secretariat and its attached offices. The petitioner has not been considered as such, and to that
extent, one order dated 11.10.2006 was issued under the signature of Joint Secretary to the Department of Personnel, Administrative Reforms, and
Rajbhasha (Annexure-6) earlier; whereby, it was held that the petitioner is not a member of Joint Service Cadre.
It has been contended that the petitioner was initially engaged on temporary basis in the year 1989. On the post of Personal Assistant through a
selection process undertaken by the then Divisional Commissioner, South Chhotanagpur, Ranchi, in terms of advertisement published at local level
calling names from the candidates registered through employment exchange. Later on, his appointment was confirmed vide order of the Divisional
Commissioner, South Chhotanagpur, Ranchi, dated 18.10.1996 and in due course of his service he was granted the benefits of 1st ACP on 07.03.2001
in pay scale Rs. 6,500-10,000 (revised) and thereafter the petitioner was promoted on the post of Senior P.A. vide order dated 03.05.2008 issued by
the office of the Divisional Commissioner, Soutth Chhotanagpur, Ranchi. Subsequently, vide order dated 07.03.2009, the 2nd MACP was granted to
the petitioner in PB - II grade pay of Rs. 5400/- by the same office. From the above mentioned facts it clearly transpires that since his appointment,
the petitioner has been under the direct control of the Divisional Commissioner, South Chhotanagpur, Ranchi, and he has never been treated as an
employee of the secretariat service cadre.
5. From records, it appears that the petitioner has moved before this Court earlier challenging the order dated 11.10.2006, and in the said writ
application further direction was sought to declare him as member of Joint Service Cadre, i.e. to say that he is to get the benefits similar to that of the
Assistants of the Cadre of Secretariat and attached offices.
6. Thus, the issue in point, therefore, seems to arise from the contention of the petitioner that he is to be considered as a member of joint cadre of
Assistants of Secretariat and attached offices.
Further, the prayer for release of benefit of Non-Functional Grade Pay of Rs.5,400/-, as per the circular dated 30.04.2015, is dependent on the
decision as to whether or not, the petitioner is a joint cadre employee of the Secretariat services. Hence, the central issue in the instant case is about
the status of the petitioner as an Assistant; whether he belongs to joint service cadre of the Secretariat and attached offices or not.
Once, if so, declaration, as such is awarded, all the benefits of an Assistant, belonging to the Joint Cadre of Secretariat and its attached offices shall
equally be granted to the petitioner.
7. It is in this light that the petitioner has stress upon his status as an Assistant of Joint Service Cadre, primarily on two grounds. The first ground is
that the petitioner has already been considered as such, in the previous round of litigation by the Division Bench of this Court in LPA No.40 of 2018;
whereas, the second ground is that the petitioner belongs to the office of Divisional Commissioner, South Chotanagpur, working in the Assistant Cadre,
w.e.f. 02.03.1989 and the then Govt. of Bihar had come up with one resolution dated 27.02.1991 (Annexure-2); whereby, it was declared that the
office of Divisional Commissioner South Chotanagpur, is to be considered as attached office of the Department of Revenue and Land Reforms
(which is part and parcel of Secretariat services). The above resolution dated 27.02.1991, clearly declares that the decision is being taken, on the
premises that all the attached offices of the Secretariat services, and the employees of Assistant Cadres therein, will be considered to be as Joint
Cadre employees of Secretarial and attached office; deriving such conclusion from the provisions of 'The Assistants of Secretariat and Attached
Offices Joint Cadre Act, 1989' (hereinafter to be referred as Act of 1989).
8. Section - 3 of the Act of 1989 stipulates creation of Joint Service Cadre for the Assistants of Secretariat and attached offices, w.e.f. 30.08.1988.
Now coming to the grounds of contest and dealing with them, it can be found that the first ground of the petitioner is, in respect with the earlier round
of litigation. Therefore, in order to deal with this contention of the petitioner, it is first necessary to go into the facts of the employment of the
petitioner, which was the bone of contention in the previous round of litigation, starting from W.P.(S) No.5375 of 2011, which was then interfered into
by the Division Bench of this Court in L.P.A No.40 of 2018, and the decision of Division Bench was confirmed by Hon'ble Supreme Court in S.L.P
(Diary) No.8266 of 2020.
The petitioner had approached this Court in the first round of litigation with a prayer to re-designate his post of Senior Personal Assistant to Private
Secretary, on the basis of the Govt. circular dated 02.01.2007 (Annexure-4), which stipulated that the post of Senior Personal Assistants of Secretariat
Joint Service Cadre will be re-designated and converted into Private Secretary, w.e.f. 01.01.1996. The petitioner claimed that he held the post of
Senior Personal Assistant, in the office of Divisional Commissioner, South Chotanagpur, but despite the declaration, of this office becoming an
attached office of Secretariat services (Department of Revenue and Land Reforms), the petitioner was not getting the benefit of the circular, which
was meant for that category of employees only, and as such, he was forced to continue as Senior Personal Assistant, despite of the fact that in all
other offices, the post was converted into that of Private Secretary. In the writ petition, the petitioner had also challenged the order dated 11.10.2006,
whereby, he was declared as not to be a member of Joint Service Cadre. The respondents in the counter affidavit registered opposition that the
petitioner cannot be considered as to be a member of Joint Service Cadre of Assistant of Secretariat services and its attached office, in pursuance to
the fact that Petitioner’s appointment in the year 1989 on the post of Personal Assistant, was done on local level, and the questions were raised to
the extent of calling his appointment to be irregular.
9. In the writ petition, the decision was given in favour of the respondent - State and the writ petition was dismissed. Thereafter, the petitioner went in
appeal before Division Bench in L.P.A No.40 of 2018. The Division Bench dealt with the matter in detail and declared that the appointment of the
petitioner was legal and absolutely correct in the eyes of law. All the disputes and questions being raised over the process of appointment of the
petitioner, as Personal Assistant, in the office of Div. Commissioner, in the year 1989, was clarified by the Division Bench. Having ruled his
appointment to be lawful, the Division Bench thereafter, went on to say that it was already declared, vide Govt. resolution, dated 27.02.1991 that the
office of Divisional Commissioner is an attached office of the Department of Revenue and Land Reforms, (Secretariat services) and hence, the
benefit stipulated in the circular dated 02.01.2007 of re-designation of the post of all Senior Personal Assistant to Private Secretary will also be
granted to the present petitioner, as he is employee (Assistant) of the attached office of the Department of Revenue and Land Reforms, the cadre of
which is governed by Secretariat services. The ruling of the Division Bench, as appears at Para-5 of the Judgement, is being quoted herein below:-
5. On behalf of the State, it is not disputed in the pleadings that there is no rule prescribing passing of such examination for being upgraded to the post of
Private Secretary. The State’s stand, however, is that in the case of the appellant, it was a term or condition of his appointment. We are unable to accept this
argument advanced on behalf of the State. The appellant was confirmed in the post in question without insisting upon clearance of such examination.
Subsequently, he was given promotion. At this stage also no argument has been advanced by the State that initial appointment or confirmation of the appellant in
the post in question was illegal. Thus, in our view, that condition by implication was waived by the State. Moreover, in absence of any rule or executive circular
requiring passing of Stenographer's Grade-I Examination for appointment to the subject-post, we cannot hold that such requirement was a fundamental condition
to the appellant’s appointment. Next comes the question as to whether the appellant’s appointment at the local level creates any hindrance for his post
being re-designated as that of a Private Secretary. On 27th February, 1991 the Divisional Commissioner’s office became attached office of Revenue and Land
Reforms Department under a resolution dated 27th February, 1991. Thus, there was integration of the Divisional Commissioner’s office with the mainstream
of the Secretariat. The decision to re-designate the post of Senior Personal Assistant to Private Secretary came in form of the resolution dated 2nd January, 2007,
the text of which we have reproduced in the earlier part of this judgment. This resolution does not make any distinction between an incumbent promoted to the
post of Senior Personal Assistant who was initially appointed in the post of Personal Assistant at the local level and those appointed through a selection process
conducted by the Public Service Commission. No other resolution or any similar instrument has been shown to us by the learned counsel for the State that even
after aforesaid integration of the department, for a Senior Personal Assistant to be re-designated as Private Secretary, the former had to be part of a common
cadre appointed by the Department of Personnel and Administrative Reforms. As no irregularity in the initial selection and subsequent confirmation of the
appellant has been demonstrated before us, in our view, on integration of the office and blanket re-designation of the said post, a distinction between the
appellant writ petitioner and the other Senior Personal Assistants if made, would be on artificial grounds only. The question of delay would have to be addressed
in relation to the reliefs prayed for by the appellant. He seeks re-designation of the post with attendant benefits. He is in a post which stands abolished. In such
circumstances delay cannot be said to be fatal in this appeal.
10. The above decision of the Division Bench rendered in L.P.A No.40 of 2018 is enough to satisfy that the service of the petitioner is to be governed
by the circular dated 27.02.1991; whereby, the Divisional Commissioner's office became attached office of the Department of Revenue and Land
Reforms (Secretariat services). Thus, there was integration of the Divisional Commissioner's office with the main stream of the Secretariat.
It was on this basis that the benefit that was available to the joint cadre of the Secretariat service, as per resolution dated 02.01.2007, was directed to
be enhanced to the present petitioner, in re-designation of his post of Senior Personal Assistant to the post of Private Secretary, in LPA/40/2018.
As aforesaid, the matter went up to the Hon'ble Supreme Court and the decision of the Division Bench was confirmed; where after, the Department
took a decision on 24.12.2021 to re-designate the post of the Petitioner from Senior Personal Assistant to that of Private Secretary, w.e.f. 03.04.2008,
as per the Govt. resolution dated 02.01.2007 (Annexure-4).
11. Hence, on the basis of above, it can be safely concluded that the petitioner has already been directed to get the benefit of the joint service cadre of
the Secretariat services, by the Division Bench. It has been categorically pointed out by the Court in L.P.A No.40 of 2018 at Para-5 that the office of
Divisional Commissioner was integrated into the main stream of Secretariat services in pursuance to the decision of the Govt. of declaring it as an
attached office of the Department of Revenue and Land Reforms, vide resolution dated 27.02.1991. The petitioner being an Assistant Cadre
Employee of the office of Divisional Commissioner, therefore, was considered as to be a member of main stream secretariat services by the Court.
12. The second ground is premised on the statutory provisions of the ‘Assistants of Secretariat and Attached Offices Joint Cadre Act, 1989’,
wherein, in Section-3, constitution of the joint cadre of the Assistants in the Secretariat and attached office has been declared, to take shape w.e.f.
30.08.1988. For ready reference, the provision of the Act is being produced herein below:-
Section 3: Constitution of Joint Cadre- Notwithstanding anything contained to the contrary in any judgment, decree or order of any court or any rule or circular
the posts of the Assistant of the Secretariat and its attached offices are constituted in one joint cadre with effect from 30th August, 1988. All the Assistants of the
Secretariat and its attached offices shall become members of the joint cadre of the Assistants and promotion of the Assistants to the higher posts shall hereinafter
be made on the basis of their place in the joint cadre and the gradation list so prepared irrespective of the department/ attached offices where such posts exists:
[Provided that irrespective of the date of initiation of the process of appointment/promotion if necessary notification or order was not issued on or before the 30th
August, 1988, the same shall be deemed to have been lapsed and the promotion shall be given in accordance with the provisions of the Act and Rules made
thereunder.]
13. From bare perusal of the aforesaid section, it is clear that the constitution of joint cadre was stipulated, w.e.f. 30.08.1988, in respect of Assistants
of the Secretariat and attached offices, which means that they are members of one joint cadre and all assistants of the Secretariat and its attached
office shall be considered as to be one cadre employee, for creation of gradation list and inter-departmental transfer, etc.
It was on the basis of this provision, that finally, the benefits that are enhanced to the Assistants of the Secretariat service, are applicable to the
Assistants of the entire joint cadre, who are considered as employees of Secretariat and attached offices. It is on this premise that the circular of
02.01.2007 was issued, the benefit of which was demanded and granted to the petitioner, by the interference of the Division Bench in L.P.A No.40 of
2018, in the matter of re-designation of his post of Senior Personal Assistant into that of Private Secretary.
14. As a matter of fact, relying on the provisions of the Act of 1989, the Govt. took decision to include more offices as attached office of Secretariat
services, vide resolution dated 27.02.1991, in which the office of Divisional Commissioner was also included. By perusing the subject of the resolution,
it will become clear that the decision was being taken to include the office of Divisional Commissioner as attached office, in pursuance to the
declaration made in the Act of 1989, and constitution of joint cadre for the Assistants of Secretariat and its attached offices.
This clearly establishes the fact that all Assistant cadre employees of the office of Divisional Commissioner are employees of the attached office of
Secretariat and therefore, under Section 3 of the Act of 1989, they are to be considered as Joint Cadre Assistant of the Secretariat and its attached
office.
15. Having regard to the aforesaid facts, it is thus clear that the petitioner, as an Assistant of the office of Divisional Commissioner, are joint cadre
members of the Secretariat and attached office. Further, this fact has been illustrated in detail by the Division Bench in L.P.A No.40 of 2018, which
has attained finality.
In view of the above facts and circumstances, it is also clear that the petitioner is member of the joint service cadre of Assistants of Secretariat and
attached office. Accordingly, the impugned order dated 11.10.2006, is hereby, be quashed and set aside.
Though the impugned order dated 11.10.2006 was already under challenge in the previous round of litigation but it seems that despite of the fact that
the Court had considered the petitioner to be getting the benefit of joint service cadre, inasmuch as, the provision of circular dated 02.01.2007, was
directed to be made applicable, in re-designating his posting as Private Secretary, only on this consideration; may be due to inadvertence, it skipped
from the mind of the Court to quash the order dated 11.10.2006 itself.
In essence, it is clear that the petitioner, was directed to be given the benefit of one of the circulars applicable to joint service cadre â€" 02.01.2007. In
such circumstances, it is apt that he is declared as such and the impugned order has been quashed, so that he may get the benefit of the Assistants of
joint cadre, as is being granted to other employees in the Secretariat and attached offices.
16. Consequently, the petitioner is hereby declared to be member of joint service cadre of Secretariat and attached office, and as such, be granted all
the benefits available to the joint service cadre employee, for example, in the instant case, the benefit of circular dated 30.04.2015, i.e. non-functional
grade pay of Rs.5,400/- be granted, and on that premises, further the benefit of second and third MACP be revised to grade pay of Rs.6,600/- and
Rs.7,600/-, respectively.
17. As a result, the instant writ application stands allowed.
