Parashu Ram S/O Darbarilal Tiwari v. State Of Madhya Pradesh
1990-04-17
FAIZAN UDDIN, P.C.PATHAK
body1990
DigiLaw.ai
ORDER P.C. Pathak, J. 1. This is a petition under Articles 226 and 227 of the Constitution of India challenging the impugned order dated 25-7-1989 (Annexure A-13). 2. The petitioner was a permanent Upper Division Clerk in Special Area Development Authority, Khajuraho (hereinafter called 'SADA'), district Chhatarpur. The Town Improvement Trust, Chhatarpur (hereinafter called 'the Trust1) intended to create and fill up one post of Head Clerk under it. On 3-6-1986, the petitioner applied for the said post vide application (Annexure A-1) through proper channel. The Special Area Development Authority forwarded the said application along with its own recommendation dated 12-6-1986 (Annexure A-2) and its copy to the State Government. 3. On receipt of the said application, the Trust addressed a letter dated 17-2-1987 (Annexure A-3) to the State Government to sanction creation of one post of Head Clerk. The Trust needed an experienced person and the petitioner fulfilled all that was required for recruitment to that post. The Trust decided to appoint the petitioner on receipt of permission from the State Government to create the said post. The Special Area Development Authority also conveyed its decision to relieve the petitioner in the event of his appointment as Head Clerk in the Trust. On 7-8-1987, the Trust reminded the State Government through letter (Annexure A-5) to accord approval early to the proposed appointment of the petitioner as Head Clerk for which both the authorities agreed and the Trust had also allocated funds in the Budget. The Trust was competent to appoint him subject to the approval of the State Government. In response to SADA's letter (Annexure A-2), the State Government transferred the petitioner as Head Clerk under the Trust. By letter dated 14-10-1987, the Trust informed the State Government that the petitioner assumed charge of Head Clerk on 9-10-1987. On the same day, the Trust also addressed a letter Annexure A-8 to SADA requesting it to send petitioner's all service records immediately. Meanwhile, the Trust also fixed the petitioner's pay on revised scale at Rs. 1290-2040 of the post of Head Clerk as per Annexures A-9, A-10 and A-11. On 15-3-1988, the State Government accorded sanction through communication Annexure A-12 for creation of one post of Head Clerk in the Trust. Later the Trust published a combined gradation list Annexure A-14 showing the petitioner as Head Clerk with effect from 9-10-1987. 4.
1290-2040 of the post of Head Clerk as per Annexures A-9, A-10 and A-11. On 15-3-1988, the State Government accorded sanction through communication Annexure A-12 for creation of one post of Head Clerk in the Trust. Later the Trust published a combined gradation list Annexure A-14 showing the petitioner as Head Clerk with effect from 9-10-1987. 4. On 25-7-1989, the State Government by its order Annexure A-13 repatriated the petitioner to SADA as Upper Division Clerk. The petitioner challenges this order of transfer on the ground that the order amounts to his reversion in violation of Article 311 of the Constitution. 5. Respondent No. 3 Trust filed return opposing the petition on the ground that the post of Head Clerk is a promotional post from the post of U. D. C. Since the officials working in the Trust were not eligible, the petitioner was transferred on 'deputation' to officiate as Head Clerk. By the impugned order, he was repatriated on administrative grounds to his substantive post of U. D. C. in SADA where his lien is continued. The order does not amount to reversion or a punishment. The Trust never appointed the petitioner as Head Clerk by promotion in accordance with rules. 6. The question for decision is whether the petitioner's transfer from SADA to the Trust as Head Clerk was on deputation. According to the respondent No. 3, the omission of word 'deputation' in the transfer order Annexure A-6 was a clerical mistake. The submission cannot be accepted. No record was produced by the respondents to substantiate that the transfer was on deputation. The defence is also belied by various documents filed by the petitioner. Admittedly, the petitioner was a permanent U. D. C. in SADA. For betterment of his service prospects, he applied for appointment to the post of Head Clerk in the Trust. Advance copies of the application were forwarded to the Trust and also to the Department of Housing and Environment of the State Government. His application was forwarded by SADA to the Trust along with its own recommendation and conveyed its willingness to relieve him from the post of U. D. C. in lieu of his appointment as Head Clerk through Annexure A-2. On receipt of the application, the Trust on its part moved the State Government for sanction of one post of Head Clerk so that the petitioner could be appointed to that post.
On receipt of the application, the Trust on its part moved the State Government for sanction of one post of Head Clerk so that the petitioner could be appointed to that post. Through letters dated 5-1-1987 and 17-2-1987 (Annexure A-3), the State Government was informed that both the authorities had mutually agreed for petitioner's absorption as Head Clerk and relief from the post of U. D. C. Again by letter Annexure A-5, the Trust requested the State Government to communicate approval of its decision early to appoint the petitioner as Head Clerk. 7. In response to SADA's letter Annexure A-2, the Deputy Secretary, State Government, by order Annexure A-6, transferred the petitioner as Head Clerk to the Trust. The Trust informed the State Government that the petitioner assumed charge of the said post on 9-10-1987. Simultaneously, the Trust also requested SADA to send immediately all service records of the petitioner. The Trust also issued orders - Annexures A-9, A-10 and A-11 fixing his pay on the revised scale and also included his name in the combined gradation list of Class III employees as per Annexure A-14. 8. From the foregoing facts and circumstances, we are of the opinion that the petitioner was not transferred on deputation; instead he was; absorbed on permanent basis as Head Clerk on his transfer which resulted in extinction of his status as U. D. C. in SADA. The conclusion is further reinforced by the fact that all the service records of the petitioner were requisitioned by the Trust and the petitioner was given seniority counting his past service from 24-7-1976 i.e. the date of his appointment as U. D. C. in SADA in Annexure A-14. When the transfer is made from one department to another permanently, fresh order of appointment in the transferred department is not necessary. See : S. K. Bhattacharya and Ors. v. Union of India and Ors., 1980 (1) SLR 795 . 9. Recruitment and conditions of service of officers and servants of SADA and the Trust are regulated by M. P. Special Area Development Authority Rules, 1976 (hereinafter called 'Rules') framed Under Section 13 of the M. P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (23 of 1973).
v. Union of India and Ors., 1980 (1) SLR 795 . 9. Recruitment and conditions of service of officers and servants of SADA and the Trust are regulated by M. P. Special Area Development Authority Rules, 1976 (hereinafter called 'Rules') framed Under Section 13 of the M. P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (23 of 1973). Rule 3(2) of the M. P. Special Area Development Authority Rules, 1976 provides that the officials are liable for transfer from one Authority Service to other Authority Service by the mutual agreement between the two authorities or by the State Government. Rule 4 provides methods of recruitment. Rule 6(2) empowers the Appointing Authority to consider the applications directly received in the office of the Authority for the vacant posts. Rule 8(ii) empowers the Chairman to make appointments of all Class III and Class IV employees of the Authority. 10. The appointment of an experienced person as Head Clerk was the dire necessity of the Trust. The petitioner applied to the Trust through proper channel. The SADA, while forwarding his application to the Trust, commended him as responsible, trustworthy, sincere and capable of discharging duties of Head Clerk and was willing to relieve him from the post of U. D. C. in case he was appointed as Head Clerk. The Trust approved of the petitioner's candidature and decided to appoint him as Head Clerk by making provision of adequate funds. After the petitioner assumed charge, his service records were also sent for. From all these facts the only rational conclusion is that his appointment as Head Clerk was a fresh appointment by mutual agreement of the two Authorities Under Rule 3(2) of the Rules and his past service was counted by assigning him seniority from his initial appointment as U. D. C. Therefore, the transfer order Annexure A-6 must be construed as an approval for creation of the post of Head Clerk and the petitioner's selection for the post. When the transfer was mutually agreed by the two Authorities, exercise of power Under Rule 3(2) by the State Government was not called for. There was also no such request by the Authorities. Chairman of the Trust was competent to appoint the petitioner to the post. 11.
When the transfer was mutually agreed by the two Authorities, exercise of power Under Rule 3(2) by the State Government was not called for. There was also no such request by the Authorities. Chairman of the Trust was competent to appoint the petitioner to the post. 11. It is well known that the deputation is a post of temporary duration outside home range or district and the person sent on deputation continues to look homeward for promotion or confirmation. The transfer is the antithesis and it must exhibit the opposite indications. See : Avtar Singh v. Delhi Administration and Ors., ILR (1977) 2 Delhi 224. The respondents did not place petitioner's service records or any other record to show that his lien was retained in SADA and that he was sent on deputation. The word 'deputation' is prominently missing in Annexure A-6. Therefore, the defence version must be rejected. 12. The petitioner held a higher post. The impugned order of transfer to SADA as U. D. C. amounts to reversion as a measure of punishment. Even if the power of transfer under the rule was to be exercised by the State Government, that could only be in the equivalent cadre. 13. In view of foregoing discussion, the petition is allowed. The impugned order of transfer Annexure A-13 is hereby quashed. There shall be no order as to costs.