Gopinath Mohanty vs State of Orissa and Others

P.K. Mohanti, J.—The Petitioner challenges the order dated 4-1-1973 (Annexure 2) passed by the Additional District Magistrate, Cuttack whereby he was made tu retire from Government service with effect from 1-2-1973 under Rule 71(a) of the Orissa Service Code.

Shorn of unnecessary details the undisputed facts are these:

The Petitioner was born on 2-2-1918. He entered ministerial service in the ex-State of Hindol on 25-2-1944. On his application he was appointed as a Heard Clerk in the establishment of the Joint Administration of the ex-State of Athgarh and Tigiria with effect from 16-1-1946. Subsequently he became a permanent employee in the ministerial cadre of the ex-State of Tigiria. On the merger of the ex-State of Tigiria with the State of Orissa he was absorbed as a Stenographer in the establishment of the Collector, Cuttack and continued as such till the date of his retirement. The Bihar and Orissa Service Code was in force in the ex-State of Tigiria till the date of merger. After merger the conditions of service of the Petitioner were regulated by the Orissa Service Code.

The Petitioner''s contention is that his age of superannuation is governed by Rule 75(b) of the Bihar and Orissa Service Code and his date of birth being 2-2-1918 he should have been ordinarily retained in service up to the age of 60 years, that is till 2-2-1978 and that he was illegally retired at the age of 55 years by wrong application of Rule 71(a) of the Orissa Service Code.

The contention raised on behalf of the State is that rule,75(b) of the Bihar and Orissa Service Code is not applicable to the Petitioner as he was holding the post of Stenographer by the date of his retirement. It is urged that a stenographer is not a ministerial servant and as such Rule 75(b) of the Bihar and Orissa Service Code is not applicable.

The sole point for consideration is whether Rule 75(b) of the Bihar and Orissa Service Code applies to this case. The rule is in the following terms:

75(b). A ministerial servant may be required to retire at the age of 55 years, but should originally be retained in service, if he continues efficient, upto the age of 60 years. x x x

It is not disputed that by virtue of Rule 3 of the Orissa Service Code, Rule 75(b) of the Bihar and Orissa Service Code would govern the Petitioner''s age of retirement if it is held that he was a ministerial servant by the date of completion of his 55th year.

"Ministerial servant" has been defined in Rule 34 of the Bihar and Orissa Service Code as follows:

Ministerial servant means a Government servant of a subordinate service whose duties are entirely clerical and any other class of servant specially defined as such by general or special order of the Provincial Government.

(This rule corresponds to Rule 29 of the Orissa Service Code.)

There is no controversy that the post of stenographer held by the Petitioner by the date of his retirement was a post in a subordinate service. But the contention is that the duties performed by the Petitioner were not entirely clerical. Admittedly, the post of stenographer held by the Petitioner has not been specially defined as a ministerial servant by any general or special order of the State Government. As such the second part of Rule 34 of the Bihar and Orissa Service Code does not assist the Petitioner. Therefore, the crucial question is whether the duties performed by the Petitioner as a stenographer were entirely clerical.

The duties performed by the Petitioner as a stenographer have been enumerated in para 3 of the Petitioner''s affidavit dated 21-7-1975 as follows:

(1) To take and transcribe dictations from and to comply with the instructions of the Additional District Magistrate to whom he is attached.

(2) To receive the files marked to the officer and to despatch the same from the officer and to keep a note of the movements of the files.

(3) To maintain the confidential papers of the officer either received by him or despatched by him.

(4) To be the camp clerk during the tours of the officer.

(5) To attend to the residential office of the officer.

(6) To handle such of the correspondence of the officer as are not dealt with in the collectorate.

(7) To prepare tour programme and arrange its circulation to all concerned.

(8) To make arrangements for the journeys and other personal convenience of the officer on tour.

(9) To prepare tour particulars and send them to the Bill Section for preparation of the T.A. bills of the officer.

(10) To keep the office requirement of stationary etc. both at the residence and in the office and keep them in safe custody.

(11) To put up the arrangement list of the Officer in such manner as he may direct.

(12) To put up in time the files and papers required by the officer for the various meetings and Conferences.

(13) To arrange interviews with the officer.

(14) To collect papers and files from the various Sectional Officers and to submit them in time to the officer.

(15) To maintain stock of furniture etc. supplied to the officer.

(16) To maintain the Issue Register, Diary Register, Peon Book, Annual Inspection Register, Trunk Call Register, and Petrol Coupon Book for issue of petrol to the driver of the Government vehicle supplied to the officer.

(17) To keep accounts of service postage stamps as the Petitioner was required to despatch letters of urgent nature and others which are marked confidential, secret and top secret. Besides at the time of emergency thousands of letters used to be despatched by the Petitioner as the Steno to Addl. District Magistrate, Cuttack.

(18) To be in charge of safe preservation of the Annual, Confidential Character Roll files of the Gazetted officers working under the administrative control of the Additional District Magistrate and thereafter these were sent to the Collector by name by double covers (sealed).

(19) To deal with Confidential Character Rolls of ministerial officers of all Sub-Registry Offices including the C.C. Rolls of the District Sub-Registrar and the Sub-Registrars posted in the Cuttack District along with C.C. Rolls of the Excise Department including Excise Superintendent, Inspectors, Sub-Inspectors. Excise A.S. Is. as the Additional District Magistrate happens to be the District Registrar and in direct charge of the Excise Administration of the district.

(20) To keep all the departmental proceedings files along with allegation files against the Gazetted officers of the district which are marked to the Additional District Magistrate for enquiry by Collector. In purchases draft notices and other letters were being put up by the Petitioner before the Additional District Magistrate and despatch them to the delinquent officers and the concerned witnesses and after enquiry is completed, these were sent to the Collector for final orders where necessary.

(21) To keep the allegation files against the Sub-Registrars and District Sub-Registrar posted in the District.

(22) To deal with confidential, secret and top secret files of political law and order which have no concern and connection with the main Collectorate.

(23) To attend to the phone calls some of which are replied by the Petitioner and to transmit the urgent phone calls to the concerned Sectional Officers during the absence of the Additional District Magistrate.

(24) To list out all the urgent and important D.O. letters and reminders received from the Government Heads of the Department for which a register was maintained indicating the action taken in the matter and put up pending list of such D.O. letters which are pending with different sections for more than two months.

(25) To verify all the phone calls booked in the office as well as in the residence month wise with the monthly Trunk Call bills sent by the Posts and Telegraphs Department after which payment order is passed.

(26) To compile and consolidate all the information sheets received from the different sections at the Headquarters and the subordinate offices, such as Subdivision, Tahasil Block etc. relating to the inspection of the Additional District Magistrate and at times the concerned officers were asked to send the wanting information.

(27) To help the District Office in typing whenever required of him which is purely clerical job.

(28) To arrange all files sectional-wise for speedy disposal by the Additional District Magistrate.

(29) To receive from the District Library various kinds of law books (Civil and Criminal all sorts of Revenue and other Manuals, all provincial acts and Regulations. All Central Acts, Codes and other important publications and to maintain a list of such books.

(30) To be in charge of personal files of the officer.

(31) To pursue follow-up action in some important matters as directed by the Additional District Magistrate.

(32) To receive all the confidential darks and name covers sent by the Collector, Revenue Divisional Commissioner, Government, Heads of Departments and other subordinate officers.

(33) To maintain a Forward Diary.

The above assertions in the Petitioner''s affidavit dated 21-7-1975 have not been controverted. The Petitioner has also relied on the Report of the Orissa Provincial Pay Committee, 1949 which clearly shows that stenographers are treated as ministerial officers, In para 32 at page 20 of the Report. the posts of Stenographers have been shown under the heading "Class III. Ministerial." Schedule B to the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 shows that a stenographer comes under Class III services and posts.

Ministerial duty is one which merely involves the following of instructions and no discretion is left in the officer on whom the duty is imposed. The essential distinction between a judicial and ministerial officer 1 s that the former is to give judgment, which requires perfect freedom of opinion, but the latter is to execute, which supposes obedience to some mandate prescribing what is to be done and leaving nothing to opinion. The duties of a stenographer as a numerated in para 3 of the Petitioner''s affidavit dated 31-7-1975 clearly indicate that the nature of the work is entirely clerical and there is hardly any scope for exercise of independent discretion, judgment and violation in performance of those duties. Similar view has been taken in a Bench decision of this Court reported in Durga Charan Kanungo v. State of Orissa 1971(2) C.W.R. 213. We are satisfied that the duties of stenographers are entirely clerical in nature. We would accordingly hold that the Petitioner was holding the post of a Ministerial servant by the date of his retirement.

There is no dispute that Bihar and Orissa Service Code constituted law governing the conditions of service of ministerial servants who entered service in the ex-State of Tigiria prior to the merger. The Petitioner was a permanent employee in the ministerial service of the ex-State of Tigiria prior to the merger and his right to continue in service upto the 60th year of age was served by Rule 3 of the Orissa Service Code. The concerned authorities have not applied their mind to the Petitioner''s case of retirement under Rule 75(b) and the Petitioner has been illegally made to retire under Rule 71(a) of the Orissa Service Code. The order in Annexure 2 is therefore liable to be quashed.

It was contended on behalf of the State that the writ petition is liable to be dismissed on the ground of delay and laches. We regret our inability to accede to this contention. The Petitioner was made to retire on 1-2-1973 and he filed the writ petition on 19-3-1975. In view of our aforesaid findings, he should have been retained in service upto his 60th year of age, that is. till 2.2.1974, if he continued to be efficient. The order of retirement was made under a misconception of law. The Petitioner submitted a representation to the Chief Minister, Orissa on 21-6-1974 to allow him to continue in service till his completion of the age of 60 years - Vide Annexure 3. He submitted another representation to the Governor of Orissa on 10th September, 1974 - Vide Annexure 4. The representations have not yet been disposed of. It is stated in para 5 of the counter affidavit filed on behalf of the State that the representation of the Petitioner to continue till 60th year of age is still under scrutiny. In these circumstances, we are unable to hold that the Petitioner is guilty of delay and laches.

In the result, the writ petition is allowed and the order in Annexure 2 is quashed. The Petitioner shall be deemed to be continuing in service until the appropriate authority requires him to retire under Rule 75(b) of the Bihar and Orissa Service Code. He is also entitled to his arrears of pay and allowances. Writ of certiorari be issued accordingly. There would be no order as to costs.

G.K. Misra, C.J.

I agree.