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1984 DIGILAW 674 (ALL)

Sheo Ram Singh v. U. P. State Another

1984-08-31

K.N.MISRA, S.S.AHMAD

body1984
JUDGMENT S. Sahmad, J. - Petitioner was appointed as Panchayat Sewak by the Additional District Magistrate (Planning)/District Development Officer, Rae Bareli. He was dismissed from service by an order dated 25.11.1976 passed by the same officer i.e. Additional District Magistrate (planning)/District Development officer after disciplinary proceedings. This order was challenged by the petitioner before the U.P. Public Services Tribunal which allowed the claim petition by its order dated 5.12.1979, with the observation that it would be open to the punishing authorities to initiate fresh proceedings on the same chargesheet and to complete the proceedings according to rules. It appears that the petitioner was reinstated to the post of Panchayat Sewak by an order passed by the District Panchayat Raj Officer, who issued a fresh chargesheet to the petitioner on I9th March, 1983. The petitioner prayed for 45 days time to file a reply to the chargesheet, but he waa allowed only a month's time and subsequently his application for 15 days further time to file the reply was not allowed. It is stated that the notice was issued to the petitioner requiring him to show cause by 16th May, 1983 as to why he should not be removed from service. The petitioner was advised to obtain sufficient time for making reply to the show cause notice and consequently he sent a telegram to the District Panchayat Raj Officer on 25.5.1983 for time to reply to the show cause notice but in the meantime the petitioner was removed from service with effect from 25.5.1983 by the impugned order which is contained in Annexure No. 8 to the writ petition. It is this order which is being challenged in this writ petition. 2. Opposite parties have not filed any counter affidavit. 3. Learned counsel for the petitioner has, interalia, contended that the impugned order dated 25.5.1989 contained in Annexure No. 8 to the writ petition, is liable to be quashed as the District Panchayat Raj Officer was not hisappointing authority and he could not remove the petitioner from service. 2. Opposite parties have not filed any counter affidavit. 3. Learned counsel for the petitioner has, interalia, contended that the impugned order dated 25.5.1989 contained in Annexure No. 8 to the writ petition, is liable to be quashed as the District Panchayat Raj Officer was not hisappointing authority and he could not remove the petitioner from service. With reference to the Government Notification No. 36/1ka/331212/76, dated 17th January, 1977, by which District Panchayat Raj Officers have been designated as the appointing authority of Gram Sewak, it is contended by the learned counsel for the petitioner that since the Officer who had appointed the petitioner to the post of Gram Sewak, was higher in rank, the subsequent delegation of power of appointment to an officer inferior in rank, would not make the latter the appointing authority of the petitioner. In support of this contention he has placed reliance upon the Supreme Court decision in Krishna Kumar v. The Divisional Assistant Electrical Engineer, Central Railways and others ( AIR 1979 SC 1912 ; 1979 (2) SLR, 21), in which it has been laid down as under: Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the j date of appointment. It is at that point of time that the constitutional guarantee under Art. 311 (1) becomes available. The subsequent authorisation made in favour of the authority passing the order of removal in regard to making appointments to the post held by the appellant cannot confer upon him the power to remove him. Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. 4. We have, therefore, to see whether the District Panchayat Raj Officer is an officer of inferior rank to that of the Addl. District Magistrate (planning). It is not disputed by the opposite parties that Addl. District Magistrate (Planning) is a member of the Provincial Civil Service (Executive) and his appointing authority is the Governor. They are governed by the provisions of U. P. Civil Service (Executive Branch) Rules, 1941. District Magistrate (planning). It is not disputed by the opposite parties that Addl. District Magistrate (Planning) is a member of the Provincial Civil Service (Executive) and his appointing authority is the Governor. They are governed by the provisions of U. P. Civil Service (Executive Branch) Rules, 1941. District Panchayat Raj Officers are appointed by the Director of Panchayat Raj, U.P., as provided in the U.P. District Panchayat Raj Officers' Service Rules, 1979 which also provide that the District Panchayat Raj Officers' service is a gazetted service comprising 'Group B' posts. Both the posts carry different scales of pay. It is also not disputed by the Standing Counsel that the scale of pay of the District Panchayat Raj Officer is lower than that of the Additional District Magistrate (Planning). Since it is not disputed on behalf of the opposite parties that the District Panchayat Raj Officer is an officer of inferior status, the Supreme Court decision referred to above, fully applies to the facts of this case. Since the petitioner was appointed to the post of Gram Sewak in 1974 by the Additional District Magistrate (Planning)/District Development Officer, the subsequent designation of the inferior officer ie. the District Panchayat Raj Officer, as the appointing authority of the said post, will not make the District Panchayat Raj Officer the appointing authority of the petitioner. The District Panchayat Raj Officer, consequently, had no jurisdiction to remove the petitioner from service by the impugned order, which being illegal and without jurisdiction, deserves to be quashed. 5. The writ petition is, accordingly, allowed. The order dated 25.5.1983 contained in Annexure No. 8, to the writ petition, passed by opposite party No. 2, is hereby quashed.. It will, however, be open to the District Panchayat Raj Officer to refer the matter to the Additional District Magistrate (Planning)/District Development Officer for taking fresh disciplinary proceedings against the petitioner on the basis of chargesheet already issued to him. Costs on parties. (Petition allowed)