MURARI CHARAN MAHAKUR Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner whose date of birth is 1-7-1910 joined as a paid probationer in the office of the Deputy Commissioner. Sambalpur on 31-10-1930. was appointed as a Lower Division clerk in the said office on 5th May 1932 and confirmed as such on 5th Aug. 1933 in the defunct Province of Bihar and Orissa. He joined as Head Assistant in the office of the Commr. of Commercial Taxes on 3rd Sept. 1947 and was promoted as Senior Head Assistant on 18-10-1949. The post was re-designated as Superintendent from 27-11-1951 which was continued to be held by the petitioner till 30-10-1958. On 31-10-1958 he was promoted as Addl. Personal Assistant to the Commissioner of Commercial Taxes and completed his 58th year by 1-7-1968. According to the petitioner, the posts held by him all through belonged to the ministerial cadre and he being an ex-Bihar entrant is entitled to continue in service till attainment of 60th year. in view of the Protection Rules and the provisions contained in Rule 71 (b) of the Orissa Service Code. By a notification dated 4-7-1968. Govt, in pursuance of rule 17(ii) of the Orissa Service Code. Vol. I, declared the post of Addl. Personal Assistant to the Commissioner of Commercial Taxes as gazetted with effect from the date of its creation on 29-10-1958 and consequently relieved him by way of retirement on that date. In this writ application, he prays for Quashing the aforesaid notification declaring the post as gazetted with retrospective effect as well as his order of retirement on the ground that an administrative order cannot be given retrospective effect and thereby deprive him of his vested right to continue in service as a ministerial servant till attainment of his 60th year.

(2.) The State of Orissa (Opposite Party) does not dispute the facts relating to the date of entry of the petitioner in Govt, service and the different posts which he held from time to time. It is. however, stated that the petitioner continued in the ministerial cadre till the date of his promotion to the post of Addl. Personal Assistant to the Commissioner of Commercial Taxes on 31-10-58. The said post was created in the gazetted rank and the petitioner to his knowledge was exercising the powers and discharging the functions of a gazetted officer. Due to inadvertence, a mistake occurred in the Notification dated 29-10-1958 creating the post and the said mistake was rectified by the Notification dated 4-7-1968. Petitioner's appointment to the said post was made in consultation with the Public Service Commission, his leave account and service particulars were maintained by the Accountant General and he was entrusted with powers of drawing bills and disbursing amounts which clearly show that the post was created in the gazetted rank. Petitioner was fully aware of the same and functioned in that capacity. Further, in his previous representations also, he had admitted to be holding the post in the gazetted rank. Therefore the Notification dated 4-7-1968 is nothing but recognition of an existing fact by way of removal of a technical defect and his retirement is valid.

(3.) The short question that arises for decision in this case is whether as Addl. Personal Assistant to the Commissioner of Commercial Taxes petitioner was holding a gazetted post and ceased to be a ministerial officer.