Mahendra Prasad vs The State of Bihar and Others

Shivaji Pandey, J.—Heard learned counsel for the petitioner and the State. In this case, petitioner has challenged the panel prepared by Respondent no. 3 for the appointment by way of promotion to the post of Enforcement Sub-Inspector, vide Annexure-1 to the writ petition whereby and whereunder the respondents were appointed as Enforcement Sub-Inspector. Later on petitioner had challenged the resolution of Selection Committee dated 11th September 1997 (Annexure-20) to the writ petition) by which the case of the petitioner was refused to be considered on the ground that the petitioner is a Peshkar and, as such, he does not come under the zone of consideration for being appointed to the aforesaid post.

According to the petitioner, he was appointed as a Dispatcher cum-Office Clerk, vide letter No. 4161 dated 29th June 1974 (Annexure-1=Annexure-9) Later on vide letter no. 21st February 1978 (Annexure-11), petitioner was made as Peshkar to the Tribunal in place of Sri Sudhir Prasad Verma, who was relieved from the Office. The letter shows that he was asked to work as Peshkar till further order. This order was passed by the Chairman, Road Transport Appellate Tribunal, Patna (hereinafter, in short, referred to as the "Tribunal"). Again by letter dated 28th August 1982 (Annexure-12), the Tribunal appointed him as a Peshkar on permanent basis with effect from 27th August 1984 and the petitioner has been working on that post since then.

Two persons, namely, Dhananjayjee and Rajeshwar Prasad who were clerk of Mufassil were agitating the issue for appointment to the post of Enforcement Sub-Inspector in the Transport Department and for which they filed C.W.J.C. No. 12660 of 1992 and C.W.J.C. No. 10993 of 1992 respectively. This Court by the common judgment directed the authority to decide and fill up the vacancy within two months from the date of receipt of judgment/order. When the order was not complied, a contempt application was filed and thereafter a notification was published in the daily News-paper "Hindustan" dated 4th August 1995 (Annexure-18) inviting application for the aforesaid post. According to the advertisement, persons who are Investigator, typist and accountant posted at the Headquarter and the clerks from the sub-ordinate offices were made eligible for the aforesaid post. Accordingly, the petitioner and others applied for the said post. According to the advertisement, the appointment was to be made on the basis of character certificate having good physical and mental health supported by medical certificate of Civil Assistant Surgeon and the age was prescribed that the candidates should not be more than 55 years and the height could not be less than 5.3 feet. The selection was made. Petitioners and others were not selected and they had filed a writ petition vide C.W.J.C. No. 8804 of 1995 challenging the order of selection before this Court on the ground that selection was to be made on the basis of seniority-cum-merit but the selection has been made dehors to rule. It has also further been held that the reservation policy which was enforced was wrongly applied. The Court considered the selection which was found to be illegal and accordingly, selection was quashed vide its judgment and order dated 15th October 1996 providing guidelines and directed for starting a fresh process of selection. In Para-34, the Court held as follows:

Thus, it is evident that the vacancies of the Enforcement Sub-Inspector are promotional post and not even selection post, much less a post to be filled by direct appointment, as contended by the learned counsel for the respondents.

At Para-37, the Court held,

If a candidate applies for a post in response to advertisement, issued in accordance with the recruitment rules, he acquires the right to be considered for selection in accordance with the then existing rules and this right cannot be affected by amendment of any rule.

At Para-40, the Court held,

It is not the case of the official respondents that these petitioners did not fulfil the said eligibility criteria. If they fulfilled the said eligibility criteria, then I do not find any difficulty in considering their cases for appointment on the basis of seniority cum-merit.

It will be relevant to mention that the order passed in C.W.J.C. No. 8804 of 2004 (Annexure-5) also considered the selection process (Annexure-16) of the supplementary affidavit, where the petitioner was found to be eligible for consideration to the aforesaid post as the Office of Transport Commissioner was treated as a staff of sub-ordinate office and the petitioner holding the post of Dispatcher-cum-Officer Clerk which is apparent from Page-11 of Annexure-16.

After the decision of this Court, the matter was sent back for consideration by the Selection Committee and the Committee considered the case of petitioner along with others and the petitioner was not found to be ineligible as he was treated as Peshkar in Motor Transport Tribunal and according to Service Rules and the Advertisement, Peshkar does not come within the zone of consideration and in that circumstance, his case was not considered for promotion. Petitioner challenged the appointment by promotion of respondents and also challenged the resolution of Selection Committee dated 11.9.1997 (Annexure-20) by which his case was refused to be taken into consideration as being ineligible for consideration.

Learned counsel for the petitioner submits that the Selection Committee had fallen in error in not considering the case of the petitioner as the petitioner was appointed in the cadre of clerk and, as such, he ought to have been considered to the aforesaid post. In support of his contention, he has relied on Letter No. 4161 dated 29.6.74 (Annexure-2), Letter No. 237 dated 21.2.1978 (Annexure-11), letter no. 929 dated 28.8.1982 (Annexure 12), Proceeding of Selection Committee dated 31st May 1995 (Annexure-16), letter dated 10th September 2007 (Annexure-17), Letter No. 492 dated 10th October 2007 (Annexure-18). He has further relied on Wireless message Annexure-6 and Interview letter dated 23.1.1993 Annexure-14 relating to the appointment to the post of Enforcement Sub-Inspector. Before dealing further it is better to examine the aforesaid Annexures. Annexure-2 shows that he was appointed as dispatch cum-office Clerk which is cadre of clerk whereas Annexure-11 shows that the Tribunal had asked him to work on the post of Peshkar on account of relieving of one Sri Suresh Prasad Verma. Annexure-12 is the letter issued by the Presiding Office by which the petitioner was substantively appointed to the post of Peshkar.

The counsel for the petitioner has also relied on Annexure-16 which shows that the petitioner was treated as a clerk and the Office of Tribunal as a sub-ordinate office (Mufassil Office). Annexure-17 and 18 are indication of the facts that he has been shown as dispatcher cum-Office Clerk. Learned counsel for the petitioner in order to substantiate his argument relied on Annexure-6 and 14 which shows that the petitioner was called for interview to the post of Enforcement Sub-Inspector. It has further been stated that according to the Rules for Appointment (Annexure-13) has tried to substantiate his case that a person at the head office discharging the duty of Investigator, Typist, Accountant whereas the Clerk of the Sub-ordinate Office were to be considered for appointment and according to the petitioner the Office of Tribunal is Sub-ordinate Office and, as such, his case ought to have been considered.

Learned counsel for the petitioner has submitted that the minutes of proceeding Selection Committee (Annexure-20 shows that the petitioner was not considered for appointment on the ground that petitioner was a Peshkar. It has been contended that the petitioner was initially appointed as Dispatcher cum Office Clerk and he remained in the same cadre, though he was asked to discharge the duty of Peshkar as one Sri Suresh Prasad Verma, Peshkar was transferred to Regional Transport Authority. In order to support the contention that the petitioner was basically Dispatcher cum Office Clerk, the petitioner has filed supplementary affidavit stating the fact that he was appointed as a peon vide Memo No. 3317 dated 8th May 1972 (Annexure-21). He was promoted to the post of Dispatcher cum Office Clerk on 29th June 1974 by the State Transport Commissioner, vide Office order no. 4161 dated 29th June 1974. The petitioner has raised the contention that the Office of Bihar State Transport Appellate Tribunal is a Mufassil Office and in that context the petitioner has stated in his supplementary affidavit dated 21st January 2012 that one Sri Suresh Prasad Verma was posted in the Tribunal as a Peshkar who was transferred to Regional Transport Authority Ranchi on the post of Lower Division Clerk. The contention of the petitioner is that as admittedly the Regional Transport Authority, Ranchi is a Mufassil Office and the Transport Appellate Tribunal is also a Mufassil Office and, as such, Sri Suresh Prasad Verma was transferred from, one Mufassil Office to another Mufassil Office. It has further been submitted that the staff of the Tribunal are appointed by the Transport Commissioner and the Chairman of the Transport Appellate Tribunal has not been conferred with any power to make any appointment in the office of Tribunal either of peon, of clerk or any other staff of the Tribunal, which is apparent from Letter No. 161 dated 8th August 2008 (Annexure-23) which was written by the then Chairman of the Tribunal to the Principal Secretary, Transport Department for re-employment of copying clerk.

In order to establish that the Tribunal is a Mufassil Office, petitioner has annexed the copy of PRC Report in which details of different departments have been mentioned. It appears from the relevant portion of the report that the whole Transport Department has been divided in two parts Headquarter Establishment as well as Mufassil Establishment. It appears from the report that the Office of Chairman of the Tribunal has been shown as a Mufassil Office. Petitioner has basically raised the point that the Office of Chairman of the Tribunal is a Mufassil Office where the petitioner was working as a Dispatcher cum Office Clerk and, as such, the decision of the Selection Committee of not considering his case on the ground of being a Peshkar is completely illegal and petitioner ought to have been considered for the post of Enforcement Sub-Inspector as admittedly some of juniors were promoted to the aforesaid post.

In this case, private respondents have appeared but there is none to make submission of the case of private respondents. It appears that respondents might have retired and as such they are no longer interested to contest the case.

Learned counsel for the State has emphatically contended that the petitioner was not considered rightly as the petitioner was holding the post of Peshkar as would be apparent from the letter by which the petitioner was permanently appointed by the Tribunal and all through he worked on the said post. In support of his contention, he has relied on page-16, 18, 25 and 26 of Annexure-A which is the service book of the petitioner. He has pointed out the fact that from the entries made in the aforesaid pages of Service Book, it would be apparent that he had worked as Peshkar. His pay scale was fixed from time to time as Peshkar. His revised scale of pay was given of Peshkar and, as such, now he cannot turn round to say that he was a clerk. He has stated that the nature of work he has done was of Peshkar and not of a clerk. He has further submitted that the Tribunal is not sub-ordinate to the Headquarter, so petitioner cannot be treated to be an employee of the Mufassil office. According to the learned counsel for the State, in the Headquarter, petitioner was not holding the post of investigator, typist and accountant and only these classes of persons could have been considered for the aforesaid post and submitted that the action of the selection Committee was quite in consonance with the rules of appointment and the advertisement. He has further submitted that now there is an amendment in the rule and according to the new Rule, appointment by promotion to the post of Enforcement Sub-Inspector has been amended and now the person can be appointed as Enforcement Sub-Inspector through the Selection mode by the Commission on the basis of merit cum seniority. It has further been submitted that earlier Selection Committee Proceeding Annexure-16 came under the scrutiny of this Court in C.W.J.C. No. 8804 of 1995 and after due consideration, this Court had given direction to make fresh appointment and, as such, any narration of fact mentioned in Annexure-16 is of no value. It has been stated, the issue of eligibility of petitioner for the post of Enforcement Sub-Inspector was not under consideration in C.W.J.C. No. 8804 of 1995 and as this Court on the basis of aforesaid judgment cannot hold the petitioner to be eligible for the post.

The State Government has further filed a supplementary counter affidavit annexing some documents. He made a submission that the documents attached to the supplementary counter affidavit show that the petitioner had discharged the duty of Peshkar which will be apparent from the entry made in the pay bill where it has been shown that the designation of the petitioner is "Peshkar". He also submitted that the Drawing and Disbursing Officer, during the year 1995 was Joint Transport Commissioner and at present the Deputy Secretary, Transport Department, Govt. of Bihar is the Drawing and Disbursing Officer. It has been submitted that the Deputy Secretary is not only the D.D.O of the Transport Officer but also for the employees of the Commissionery. It is further submitted that it appears from the Pay Bill that the staff who have been shown in the list are Headquarter Office staff where the name of petitioner also finds place and, as such, petitioner was one of the staff of Headquarter. He further stated that the Office of the Tribunal is an extension of the Headquarter. So, for all purposes, the Tribunal is Headquarter and employees are the employees of the headquarters.

Learned counsel for the State submitted that admittedly the employee in the Tribunal are hardly 2/3 persons but in the Pay Bill 40 - 50 persons have been shown as staff and, as such, the claim of petitioner working as Dispatcher-cum-Clerk in the Mufassil Office is not sustainable in law or on facts.

Now two issues are relevant for deciding the case:-

(i) Whether the petitioner was holding the post of Peshkar or Clerk.

(ii) Whether the office of Transport Tribunal is a head office or Mufassil office (Subordinate-office).

Now the issue to be decided is as to whether the petitioner was a Dispatcher cum-Office Clerk or was a Peshkar. For deciding this issue, the parties have made statements in their petition as well as in the counter affidavit and also have brought large number of documents to prove their respective case.

To arrive at a right conclusion whether the petitioner was Dispatcher cum Office Clerk or a Peshkar the principle to be applied will be primarily dominant duty performed by the petitioner and the nature of duty which will be decisive for coming to the right conclusion, not the nomenclature of post attached to him.

It appears from the documents filed by the petitioner that initially he was appointed as a peon but later on he was promoted as Dispatcher cum Office Clerk vide Letter dated 29th June 1974, which the petitioner is still claiming to be holding the said post. It appears from the letter dated 21st February 1978 issued by the Chairman of the Tribunal that the petitioner was asked to discharge the duty of Peshkar on the transfer of Sri Suresh Prasad Verma. Thereafter the petitioner was substantively promoted as a Peshkar, vide letter dated 28th August 1982 (Annexure-12).

During the course of argument, learned counsel for the petitioner has drawn attention of this Court to the proceedings of the Selection Committee dated 31st August 1995 (Annexure-16) where the case of petitioner was considered. There the petitioner was shown as Peshkar but it has been held that that post is primarily a post of clerk and the appointing authority is the Bihar State Transport Commissioner, which is a Sub-ordinate Office of the Commissioner. From Annexure-18 which is letter dated 10th October 2007 it appears that there also the petitioner has been shown holding the post of Dispatcher cum-Office Clerk and at present "Peshkar". In another Office order dated 24th October 2007 (Annexure-19), petitioner has been shown as Peshkar and in bracket, "clerk" but this is not the end of the matter as the State has brought the Service Book of the petitioner (Annexure-A) where at Page-16 of the counter affidavit dated 17th January 2012 the petitioner was shown as a Peshkar and was paid the revised scaled of pay of Peshkar. Similarly, at Page-18 of the counter affidavit, petitioner has been shown as Peshkar. At page-25 & 26 also, petitioner has been shown as Peshkar. The State has also filed another affidavit in which it has been cont ended that the petitioner was not only discharging the duty of Peshkar, rather he was getting the salary of Peshkar too so much so that he himself is treating as Peshkar and putting signature on the pay bill (Annexure-C).

On consideration of the aforesaid documents, there are two types of documents which are available on the record filed by both the sides. At one place, petitioner has been shown as Peshkar but he has also been shown as Dispatcher cum Office Clerk at another place. In contra, the State documents show that petitioner was a Peshkar, out and out he was discharging the duty of Peshkar. It appears from the staffing pattern annexed by the petitioner Annexure-10 shows that there is a post of Peshkar. In that circumstance, the test will be what was the basic nature of duty the petitioner was discharging. The aforesaid documents mentioned hereinabove show that at the initial stage, petitioner was discharging the duty of Dispatcher cum Office Clerk but later on, on transfer of Sri Suresh Prasad Verma, he was asked to discharge the duty of Peshkar. Later on he was substantively brought to the post of Peshkar which is apparent from the letter of the Chairman of the Tribunal. It is a well established principle of law that a designation is not decisive rather always the decisive factor is the duty discharged by the person concerned and that too, primary duty not incidental. In that context, the judgment of the Hon''ble Supreme Court reported in Hussan Mithu Mhasvadkar Vs. Bombay Iron and Steel Labour Board and Another, will be relevant. The Hon''ble Supreme Court, while deciding the issue as to whether the person is a workman under the Industrial Disputes Act, held that in deciding about the status of an employee, his designation alone is not decisive, what really decisive should/would be the primary nature of duty performed by the employee and the power conferred him. In Para 10 of the aforesaid judgment, the Hon''ble Supreme Court held as follows:

Para-10 : No doubt, in deciding about the status of an employee, his designation alone cannot be said to be decisive and what really should go into consideration is the nature of his duties and the powers conferred upon as well as the functions assigned to him. Even if the whole undertaking be an industry, those who are not workmen by definition may not be benefited by the said status. It is the predominant nature of the services that will be the true and proper test.

From the record it appears that after the petitioner was brought as Peshkar, he continued to work as Peshkar, though he was shown as Dispatcher cum Office Clerk but his main duty is/was primarily of Peshkar which is also apparent from the proceeding dated 31st August 1995 (Annexure-16). The clinching document in that regard is the Service Book and the Pay Bill which show that the petitioner was a Peshkar and he was discharging the duty of Peshkar.

In view of the analysis of the aforesaid facts and the documents, this Court comes to a finding that at the relevant time, petitioner was discharging the duty of Peshkar though he was earlier Dispatcher cum Office Clerk. As this Court has held that the petitioner was a Peshkar and, as such, his non-consideration by the Selection Committee in the meeting dated 11th September 1997 (impugned Annexure-20) cannot be said to be an illegal decision and his non-consideration for the post in question cannot be faulted. Accordingly, this issue goes in favour of State and against the petitioner.

As regards the Second Issue as to whether the Office of the Tribunal is a Head Office or a Sub-ordinate Office of the Transport Department, the State has raised the point that the Office of the Tribunal is not a Mufassil Office, rather is a Headquarter or is an extension of Office of the Transport Commissioner. Learned counsel for the State has drawn my attention to the Service Rules (Annexure-13) which provides that the person employed in the Head Office working as Investigator, Typist and Accountant, whereas in the Mufassil Office, Clerks were entitled for consideration for the post of Enforcement Sub-Inspector.

Learned counsel for the petitioner has disputed this contention and stated that the Office of Appellate Tribunal is a Mufassil Office and has drawn my attention to different Annexures of the writ petition and the supplementary affidavit. First of all, the petitioner has relied on the proceeding of the Selection Committee dated 31st August 1995 (Annexure-16) where it has been held that the Office of Tribunal is a Mufassil Office. Another document is the letter dated 6th July 1974 (Annexure-22) by which petitioner has drawn my attention that the Tribunal is a Mufassil Office which has been mentioned in the said letter and has also cont ended that as the Office of the Tribunal is a Mufassil Office, as such, Sri Suresh Prasad Verma was transferred to the Regional Transport Authority. Petitioner has further relied on PRC Report (Annexure-24) wherein specific term the State Transport Tribunal has been shown as Mufassil establishment whereas the State has stated that it is a Headquarter and it has further been submitted that the Tribunal is an extension of the Headquarter. In support of his contention, he has submitted that during 1995, the Joint Transport Commissioner and the present Deputy Secretary of the Transport Department, Government of Bihar is the Drawing and Disbursing Officer.

Learned counsel for the State has further submitted that the Deputy Secretary is not only the Drawing and Disbursing Officer of the Transport Office, rather of the employees of the Transport Tribunal also and, as such, the consolidated pay bill was prepared in which the employees of the Transport Commissioner as well as the employees of the Transport Tribunal have been shown there.

These are conflicting documents but one of them which decides the whole issue is the PRC Report which undisputedly has been accepted by the Government. The report was prepared on the basis of figure provided by the State Government. The PRC Report shows that the establishment of Tribunal falls under the category of Mufassil Establishment and, as such, the contention of the State that it is a headquarter is not acceptable to this Court. It is also relevant to mention here that Staffing Pattern of Tribunal Annexure-10 which is letter dated 19th Aril 1976 shows that the Transport Tribunal is a separate establishment and the State counsel has not denied the fact that the Chairman of the Tribunal is neither appointing authority nor the Drawing and Disbursing Officer, whereas PRC Report specifically categorized the Office of the Transport Tribunal is a Mufassil Establishment. In this view of the matter, this issue goes in favour of petitioner and against the State.

In view of the finding on issue No. 1, this petition cannot survive on looking to the nature of duty which was/is being discharged by the petitioner, he cannot be treated to have been performing the duty of Dispatcher cum Office Clerk rather his dominant and primary duty was of Peshkar. Accordingly, this petition is dismissed, but without costs.