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Madhya Pradesh High Court · body

1998 DIGILAW 364 (MP)

Rajkumar Mehta v. State of M. P.

1998-04-24

R.D.SHUKLA, SHAMBHOO SINGH

body1998
ORDER Shukla, T. -- 1. The petition by way of PIL has been filed by the petitioner challenging the appointment of respondent No.3 as Law Officer in the Indore Development Authority. 2. The IDA has been constituted under the provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973. The conditions of service of employees of IDA are governed by the Act and the rules made there under. The State Govt. has framed Rules M.P. Development Authority Service (Officer and Servant Recruitment) Rules, 1987 which has been published in extraordinary gazette of M.P. dated 1.4.88. 3. The contention of the petitioner is that respondent No.3 is an officer working in the Law College as Assistant Professor. The IDA has got post of Law Officer Grade I and Law Officer Grade II. The post of Law Officer Grade I is a post to be filled up 100% on promotion. 4. It is then submitted that the mode of recruitment given as per rule 4 is either by direct recruitment or by promotion or by deputation in cases of class III employees. 5. It is also submitted that firstly there is no post in the IDA for Vidhi Adhikari. Secondly, there is no consultation with the IDA thirdly, the appointment has been made against the post which is a promotional post. 6. Respondents have filed reply. The respondent No.1 had justified the appointment on deputation and pleaded that the appointment has been done in exercise of power u/s 47 of M.P. Nagar Tatha Gram Nivesh Adhiniyam and rule 110 of the Fundamental Rules, 1922. 7. The respondent No.2 on the other hand has pleaded that this is not public interest litigation and an employee of one Development Authority can be transferred to other Development Authority as per the provisions of section 76- B of the Adhiniyam (newly inserted). 8. The respondent No.3 has also filed reply and submitted that firstly the quo warranto in this matter cannot be issued. Secondly, appointment is u/s 47 and, therefore, the all other provisions could not be attracted. 9. We have heard rival contentions of the parties present. Now the scope of public interest litigation has been enlarged. It is not necessary that the person should be personally interested or should have direct interest in the matter. The' reference may be had to the case reported in AIR I 982 SC 149. 10. 9. We have heard rival contentions of the parties present. Now the scope of public interest litigation has been enlarged. It is not necessary that the person should be personally interested or should have direct interest in the matter. The' reference may be had to the case reported in AIR I 982 SC 149. 10. The petitioner herein is a practising Advocate and citizen of India residing within the limits of municipal corporation of Indore. The IDA is a public body constituted under the Act for carrying out the development plans. In our opinion the citizen of this corporation is definitely interested in the execution of development plans and, therefore, any order which is likely to affect the exchequor would ultimately be fall upon the consumers, employees and tax payers. In our opinion, therefore, the PIL is maintainable. 11. Rule 4 provides the methods of recruitment of officers and servants of the Authority which reads as follows :- "Methods of Recruitment -- Recruitment to the Development Authority service or a post of class of posts may be made by one or more of the following methods :- (a) by direct recruitment; (b) by promotion of a person employed in the Authority; (c) by transfer on deputation of a person serving in connection with the affairs of any local authority or of the State Government with the previous approval of the State Government, in case of Class III posts." 12. Admittedly, the respondent No.3 has been appointed on a class I post having pay scale of Rs. 3000 – 4500/- On a query the respondent No.3 has admitted that he is appointed on the same grade and directed to work in the Authority. 13. From the plain reading of rule 4 it would be clear that appointment of officers of class I and class II in the IDA or any other such authority should be made by methods prescribed as above i.e. by direct recruitment or by promotion. The appointment on deputation is not covered by rule 4. 14. Though it is true that the fundamental rule provides for appointment on deputation but deputation presupposes consultation with the department who is in need of service of officer working in other department it is that dept. which makes a request for lending the service. It is for the department to accept the request or to decline the same. 14. Though it is true that the fundamental rule provides for appointment on deputation but deputation presupposes consultation with the department who is in need of service of officer working in other department it is that dept. which makes a request for lending the service. It is for the department to accept the request or to decline the same. In case the request is accepted the name of officer shall be proposed to the lo-nee department who shall have the power to approve or disapprove such appointment on deputation, if there is agreement about the lending of service and taking of service on loan of a particular officer the appointment would follow. 15. The IDA along with reply has filed Annex. R-2/1 This is a letter written by the Chief Executive Officer, IDA to the Additional Secretary, Department of Housing and Environment. It has beei1 brought to the notice of the Govt. that there is no post of Vidhi Adhikari and there is only one post of Law Officer Grade I and two posts of Law Officer Grade II and presently the posts of Law Officers had been occupied by three persons as referred above. The import of the letter is that there is no vacancy in the law section of IDA. 16. Admittedly, class I post in IDA cannot be created without the approval of the State Govt. Respondents No. 1 (a) and (b) and respondent No.2 have no where shown that any special post of Vidhi Adhikari has been created. Thus what comes out is that there is no post vacant in the law section of IDA. 17. We have further perused the list of officers published by the State Govt. in Schedule I at No.7. The Law Officer Grade I has been shown as class I post on the pay scale of Rs. 3000 - 4500/- with category A. Regarding the mode of recruitment it is shown to be by promotion 100%. This goes to show that if any vacancy arises on the post of Law Officer Grade I that will have to be filled by promotion. The appointment on the basis of direct recruitment can be made only of Law Officer Grade II. 18. Thus even appointment on deputation of respondent No.3 against the post of Law Officer Grade I would otherwise become illegal. The appointment on the basis of direct recruitment can be made only of Law Officer Grade II. 18. Thus even appointment on deputation of respondent No.3 against the post of Law Officer Grade I would otherwise become illegal. Thus what comes out that the respondent No.3 was appointed without the consent of the IDA. No department has a right to impose the service of any officer on other department. It appears that service of respondent No.3 has been imposed on respondent No.2 without obtaining their consent and cognizance. Secondly, the post against which the respondent No.3 has been appointed on deputation is a post to be filled on promotion only. 19. IDA has been constituted under a statute. IDA is a body corporate, it can sue and be sued. Thus it is an autonomous body. It is not an extension of department of Housing and Environment. 20. We do not exclude the possibility where the IDA may ask for the service of the some officer with special experience and knowledge from the State Govt. and if that request is made the State Govt. can always appoint a person to look after the work as prayed by the IDA, and/or as directed by the State Govt. 21. We further do not exclude the possibility of appointment of any officer for enquiry and for general supervision if necessary under general power of supervision and control of State Govt. where State Govt. is satisfied that exercise of such power is necessary. It is also made clear that such appointments can be made on subjective satisfaction of State Govt., but there should be basis for the same. 22. But here in this case no prayer has been made by IDA. The person has been imposed by the department of Housing and Environment without there being request for the same. No consent or approval has been taken from IDA. It is also not an appointment for enquiry or general supervision and control. 23. It is also noteworthy that since post has not been created it must not be having budget there for. No payment of salary to the person appointed on deputation as such can be made without there being budget for the same and any payment made would be illegal and be recoverable from the persons holding general power of supervision and control in the Authority. No payment of salary to the person appointed on deputation as such can be made without there being budget for the same and any payment made would be illegal and be recoverable from the persons holding general power of supervision and control in the Authority. Thus looking to the facts and circumstances of the case, the appointment of respondent No.3 is wholly illegal and to be quashed. We, therefore, accept the petition and quash the appointment of respondent No.3. However, there shall be no order as to costs.