Ram Hari Agarwal v. State of U. P. — 1974 DIGILAW 508 (ALL)

JUDGMENT Trivedi, J. - The appellant, Ram Hari Agarwal, was an Assistant Electrical Inspector in the employment of Uttar Pradesh Government till 19-11-1970 when his services were placed on deputation by the State Government with the Uttar Pradesh State Electricity Board (hereinafter referred to as the Board) for a period of one year. In July 1971, the State Government took a decision that all such officers and employees whose services were lent to the Board on deputation should be permanently absorbed in the service of the Board and issued a Government Order containing this policy decision. This is G.O. No. 3670E/71-XXIII-PB, dated July 1, 1971. It says: "The Governor is pleased to make the following decision in their cases: The Board shall absorb in service all those officers/employees of the State Electricity Department who are at present on deputation with the State Electricity Board irrespective of the fact whether they are permanent against any post in their original Government service or not and want to be absorbed in the service of the Board in the manner indicated in item (3) below and for this purpose the Board will indicate the number of permanent and temporary posts under them." Thereafter the procedure for absorption was laid down in item 3 of the G.O. which says:- "The procedure of the said absorption shall be that the concerned officer/employee shall be invited by the Board to accept service under them; in reply the concerned officer/employee within the prescribed time shall exercise the option to accept this offer and from that date to resign from the post under the Government and accordingly will give application. For this purpose the proformas of the forms are enclosed. On the applications received within due time the Government shall take this action that the resignations of the concerned officers/employees from the Government post shall be accepted and from that date they shall be allowed to be absorbed in the service of the Board. For this purpose the proformas of the forms are enclosed. On the applications received within due time the Government shall take this action that the resignations of the concerned officers/employees from the Government post shall be accepted and from that date they shall be allowed to be absorbed in the service of the Board. In the case of officers/employees from whom the option and application will not be received within the prescribed time, it will be deemed that the offers given by the Board are not acceptable to them and in their cases action as indicated in Item 9 shall be taken." Item 9 of the G.O. deals with the procedure when an officer or employee does not opt for absorption in the service of the Board and says: "Action indicated here shall be taken in respect of those officers/employees who do not opt for their absorption in the service of the Board in response to the notice of the Board in Item 3 above. The services of those officers/employees who are purely temporary or in temporary posts shall be terminated on one month's notice or one month's pay in lieu of notice and those who are holding any permanent post of Government shall be retired from service after giving three months notice as laid down in Para 436 of the Civil Service Regulations and abolishing the Government post held by them." It appears from the G.O. that some officers and employees of the State Electricity Department of Uttar Pradesh Government were serving the Board on deputation and some officers and employees of other departments of the State Government were also on deputation with the Board when this G.O. was issued. In respect of such officers and employees of departments other than the State Electricity Department para 2 of this G.O. laid down the following procedural instructions :- "In addition to the State Electricity Department some officers/employees of other departments of the State Government are also on deputation with the State Electricity Board. In respect of such officers and employees of departments other than the State Electricity Department para 2 of this G.O. laid down the following procedural instructions :- "In addition to the State Electricity Department some officers/employees of other departments of the State Government are also on deputation with the State Electricity Board. In their cases too the decisions taken under Items 1 to 9 above shall apply mutatis mutandis but with this proviso that out of those persons who do not opt for absorption in the service of the Board and are permanent in their original posts under Government their services shall not be terminated but they shall be reverted back to the original posts." A copy of this G.O. is Annexure 4' of the writ petition. On receipt of this G.O. the Board addressed a Circular Letter to State Government employees who were serving it on deputation and invited the option whether they agree to be absorbed permanently in the service of the Board on the terms and conditions contained in the Circular Letter. Copy of this circular Letter, which was addressed to the petitioner, is Annexure 8' of the writ petition. He was directed to signify his option for absorption in the service of the Board and to resign from the service of the State Government by making endorsements in the two forms contained in Annexure 9' of the writ petition. The petitioner claimed to have duly signified his option to be permanently absorbed in the service of the Board and also to have submitted his resignation from the State Government in accordance with the G.O. dated 1-7-1971. Thereafter, the petitioner expected an order of his final absorption in the service of the Board but on 19-11-1971 he received an order from the Deputy Chief Engineer of the Board directing him to revert to the service of State of Uttar Pradesh (Annexure 11' of the writ petition). The petitioner protested against this pointing out that he could not be reverted to his service under State of Uttar Pradesh as he had exercised his option in favour of absorption in the Board and had also resigned from Government service in accordance with the terms and conditions of the G.O., but to no effect. The petitioner protested against this pointing out that he could not be reverted to his service under State of Uttar Pradesh as he had exercised his option in favour of absorption in the Board and had also resigned from Government service in accordance with the terms and conditions of the G.O., but to no effect. Thereafter, the petitioner received an order dated 29-11-1971 from the Electrical Inspector to Uttar Pradesh Government (opposite party No. 4) directing him to join the service of the State of Uttar Pradesh in the Zonal Office of Inspectorate at Meerut on being relieved from the service of the Board and it was indicated that he was being recalled from deputation (Annexure 13'). This was followed by an order of the Deputy Chief Engineer dated 4-12-1971 (Annexure 15') informing him that the petitioner was being relieved from the service of the Board and he was directed to report for duty to the Regional Office at Meerut in accordance with the letter of the Electrical Inspector dated 29th November, 1971. The petitioner challenged in the writ petition these orders of his reversion from the service of the Board to the State Government and prayed for certiorari and also claimed mandamus commanding the authorities concerned to treat him as one permanently absorbed in the service of the Board. The contention raised in the writ petition on behalf of the State of Uttar Pradesh was that the terms of the G.O. of 1-7-1971 did not apply to the petitioner because he was on deputation with the Board for a limited period. The contention on behalf of the Uttar Pradesh State Electricity Board was that the petitioner's absorption in the Board's service could not be completed because his resignation had not been accepted by the State Government. The petitioner's contention that he became absorbed in the service of the Board immediately on submission of his option and resignation from Government Service was controverted and it was maintained that before any action could be taken by the State Government in the matter of acceptance of his resignation the Board decided not to absorb the petitioner in its service and to revert him to his parent department in the State Government and orders were issued accordingly. 2. We have heard arguments of learned Counsel for the parties. 2. We have heard arguments of learned Counsel for the parties. The submission of Sri R. Nath appearing for the appellant is that the learned Single Judge was in error in the view that the G.O. of 1-7-1971 did not create any legally enforceable right or duty and that on the terms of the G.O. the appellant did not become absorbed in the service of the Board. No doubt, the Board is a corporate body. It has been created under the Electricity (Supply) Act, 1948 (Act 54 of 1948). But the Board is not wholly autonomous and is bound to comply with any direction issued by the State Government on questions of policy. The G.O. of 1-7-1971 amounts to a direction on a question of policy regarding absorption of its officers/employees serving the Board on Deputation issued under Section 78-A(1) of the above Act. Section 78-A(1) of this Act says that in the discharge of its functions, the Board shall be guided by such direction on question of policy as may be given to it by the State Government. The G.O. was, therefore, binding on the Board. Indeed the Board at no stage disputed that this was not so. That being the position, the Board was left with no option to exercise discretion in the matter of absorption of Government servants who were working on deputation with it and was compulsively bound to comply with the terms of the G.O. of 1-7-1971 in its letter and spirit. The opening words of the G.O. said "the Board shall absorb in the service all those officers/employees of the State Electricity Department who are at present on deputation with the State Electricity Board ............." and thereafter laid down the procedure which the Board was bound to follow in this process of absorption and this procedure is given in Item 3 of the G.O. The procedure provided, firstly, that an option will be invited from the officers and employees by the Board either to accept the service of the Board or not to accept it. Secondly, in case of their opting to be absorbed in the service of the Board the officers and employees concerned shall, from the date of option, resign from the post under Government and will make an application accordingly on the prescribed form. Secondly, in case of their opting to be absorbed in the service of the Board the officers and employees concerned shall, from the date of option, resign from the post under Government and will make an application accordingly on the prescribed form. Thirdly, on receipt of that application along with resignation Government shall take the following action: The resignation of the concerned officers or employees from Government post shall be accepted and from that date they shall be allowed to be absorbed in the service of the Board. In the case of officers, from whom option was not received in time, action will be taken as indicated in Item 9 of the G.O. In the case of such officers/employees, who are purely temporary or working in temporary posts, their services shall be terminated on one month's notice or on one month's pay in lieu of notice and those who were holding any permanent post in Government shall be retired from service after being given three months notice. Para 9 provided the action to be taken in respect of officers and employees of the State Electricity Department of the Uttar Pradesh Government who were serving the Board on deputation but who did not exercise option in favour of being absorbed in the service of the Board. There were, however, officers and employees of other departments of the State Government also on deputation with the Board. In so far as they were concerned action to be taken in the event of their failing to exercise option in favour of absorption with the Board was indicated in para 2 of the G.O. It was provided that, their services will not be terminated and they will not be retired but they will be reverted back to their original post. The appellant, was confirmed as Assistant Electrical Inspector in the organisation of the Electrical Inspector in the State of Uttar Pradesh before going on deputation with the Board. It will appear, therefore, that the policy decision contained in the G.O. of 1-7-1971 was complete and all comprehensive and did not leave any room for exercise of discretion in the matter of absorption to the Board. It will appear, therefore, that the policy decision contained in the G.O. of 1-7-1971 was complete and all comprehensive and did not leave any room for exercise of discretion in the matter of absorption to the Board. It is clear from the G.O. that after the Board had invited option from officers and employees working with it on deputation and the officers and employees exercised within time the option to be absorbed with the Board and resigned from Government post and also submitted an application in the proper form there was nothing left with the Board further to do and on the Government side also there was nothing left to be done as the G.O. mandatorily directed that on receipt of the application by Government within time along with the resignation from the Government post the resignation shall be accepted from that date and from that date i.e., the date of receipt of the application along with resignation the officer/employee shall be allowed to be absorbed in the service of the Board. In other words, the terms of the G.O. were self-operating. As soon as an option was exercised within time and sent to Government along with the application of the officer/employee in terms of the G.O. the resignation was bound to be accepted and from that date they were deemed allowed to be absorbed in the service of the Board. The Board's contention that the appellant could not be absorbed in the service of the Board because his resignation was not accepted by Government in the circumstances is entirely misconceived; for in terms of the G.O. the Government was left with no option in the matter of acceptance or rejection of the resignation. It had to follow the course of action enjoined in the G.O. and that was to accept the resignation. Acceptance of the resignation and its communication to the Board were, therefore, merely ministerial acts and having regard to the terms of the G.O. we are inclined to take the view that the acceptance of the resignation, if the same was received by Government within time along with the application, was to be effected as a matter of course and almost automatically. It is significant that the State Government never took the plea that the appellant's resignation was not accepted by it, a contention which they may have well realised would have been entirely untenable in the terms of the G.O. The Board on its part has accepted the terms of the G.O. without reservations and expressed their unqualified decision to absorb the appellant in the service of the Board in the capacity in which he was working on the terms and conditions contained in the memo, of which Annexure 8' of the writ petition is a copy. So far as the Board is concerned it had on its part decided to accept the policy decision contained in the G.O. and to absorb the appellant if he exercised option and agreed to be absorbed in the service of the Board on the terms and conditions mentioned in this memo within stipulated time. The terms and conditions of the memo having been accepted by the appellant when he exercised option for absorption in the service of the Board the latter cannot wriggle out from the consequences. As the Board was legally bound by the policy decision of Government contained in the G.O. the matter cannot be viewed as if a contract had to be struck by the acceptance of an offer. On the view of the matter which we take it is clear that there was no option left with the Board but to absorb the appellant after he had exercised option in favour of being absorbed in the service of the Board on the terms and conditions contained in the G.O. and in their own memo (Annexure 8'). 3. For the State of Uttar Pradesh two submissions were made. First, it was urged that the G.O. did not apply to the appellant because he was on deputation for a fixed term and applied only to those who were not on deputation for a fixed term. 3. For the State of Uttar Pradesh two submissions were made. First, it was urged that the G.O. did not apply to the appellant because he was on deputation for a fixed term and applied only to those who were not on deputation for a fixed term. This argument does not stand a moment's scrutiny as the G.O. is so general in terms that it applies to all officers and employees of the State Electricity Department who were on deputation with the State Electricity Board irrespective of the fact whether they were temporary or permanent, or on deputation for a fixed or an indefinite period and accordingly we hold that the terms of the G.O. of 1-7-1971 were applicable to all officers and employees of the State Government who were working on deputation with the Board whether for a fixed term or otherwise. 4. The last submission on behalf of Government was that the G.O. did not possess the force of statute. It was only in the nature of an executive instruction and was not, therefore, enforceable in law. It was held by the Supreme Court in case of the Union of India v. M/s. Anglo Afghan Agencies, AIR 1968 SC 718 that it was open to a party who had acted on a representation made by Government to claim that Government shall be bound to carry out the promise made by it even though the promise was not recorded in the form of a formal contract as required by Article 299 of the Constitution. 5. In the same case the Supreme Court gave the dictum that where a scheme is formulated by Government and members of the public act upon the scheme, which may be executive in character, the Courts have yet power in appropriate cases to compel performance of the obligations imposed by the scheme upon the departmental authorities. It could not be said that the executive necessity releases the Government from honouring its solemn promises relying on which citizens have acted to their detriment. It could not be said that the executive necessity releases the Government from honouring its solemn promises relying on which citizens have acted to their detriment. In the case of Union of India v. K.P. Joseph, AIR 1973 SC 303 = (1973 Lab IC 191) their Lordships observed that generally speaking an administrative order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions and they referred with approval to observations made in the case of AIR 1968 SC 718 (supra) and added: "To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties." 6. On the principles laid down by the Supreme Court in these cases we are of the view that the G.O. of 1-7-1971 although it does not amount to a statutory rule and is an administrative order, yet we must compel enforcement of the obligations created under it by Government on itself and the Board inasmuch the appellant acting on the terms of the G.O. and the representations of the Board exercised option for absorption in the service of the Board and also tendered his resignation. The Board, was therefore, bound to consider passing of order of absorption of the appellant in its service in accordance with the terms of the G.O. under review. 7. We accordingly allow the appeal, set aside the order of the learned Single Judge dated 17-4-1974, allow the writ petition and direct the State of Uttar Pradesh, opposite party No. 1. to communicate its formal acceptance of resignation of Ram Hari Agarwal from Government service to the Uttar Pradesh State Electricity Board, Lucknow, within two months from today, if the same has not already been done and also command the Uttar Pradesh State Electricity Board, Lucknow, to consider passing a formal order of absorption of the appellant-petitioner in its service within three months from today. Let mandamus issue accordingly to opposite parties 1 and 2. We cancel the originals of Annexures 11, 13, 15 and 17, dated 19-11-1971, 29-11-1971, 4-12-1971 and 5-4-1972 of the writ petition respectively. Let certiorari issue accordingly. The appellant shall get costs of this appeal from the opposite parties.