Research › Search › Judgment

Allahabad High Court · body

2000 DIGILAW 656 (ALL)

B. D. PANDEY v. STATE OF UTTAR PRADESH

2000-05-03

ASHISH N.TRIVEDI, P.C.VERMA

body2000
ASHISH N. TRIVEDI, P. C. VERMA, JJ. ( 1 ) WE have heard Sri Rajesh Tiwari, learned counsel for the petitioner and Ms. Madhumita Bose, learned counsel for the State. ( 2 ) LEARNED counsel for the parties agree that the writ petition may be disposed of finally at this stage and we have accordingly heard them at some length. ( 3 ) PETITIONER is aggrieved by the order dated 6. 4. 2000 (Annexure-1) passed by Director Treasury, government of U. P. in compliance of the G. O. dated 30. 3. 2000, issued by the Principal secretary, Finance, Government of U. P. , posting the petitioner on deputation for administrative reasons at Sri Kashi Vishwanath Mandir, Varanasl, from the office of District Inspector, School. Dehradoon. ( 4 ) THE main ground of challenge of the petitioner is that the order of posting for administrative reasons is contrary to Rule 110 of the U. P. Fundamental Rules (contained in Financial Hand book Vol. II Part II) which, inter alia, provides that the order of deputation can be passed only with the consent of the officer proposed to be posted on deputation and only for public reasons. ( 5 ) THE other ground to challenge the impugned order of deputation is that the order of posting is also in violation of Rule 111 of the Fundamental Rules. Rule 111 is being reproduced hereinunder : "a transfer to foreign service is not admissible unless : (a) The duties to be performed after transfer are such as should for public reasons be rendered by a Government servant, and (b) the Government servant transferred holds at the time of transfer, a post paid from the revenues of the State, or holds a lien on a permanent post, or would hold a lien on such a post had his lien not been suspended. " ( 6 ) IN any event, the reliance placed by the petitioner on Fundamental Rule 111 was misconceived inasmuch as we do not find any averment in the writ petition nor the same has been brought to our notice that the nature and duties, which are required to be performed by the petitioner are not the same or not in public interest. Thus, this grievance of the petitioner is also not legitimate. ( 7 ) LEARNED counsel for the petitioner has pressed no other ground. ( 8 ) CONTENTION of Ms. Thus, this grievance of the petitioner is also not legitimate. ( 7 ) LEARNED counsel for the petitioner has pressed no other ground. ( 8 ) CONTENTION of Ms. Madhumita Bose, learned counsel for the State is that the transfer of the petitioner and his posting on deputation to Sri Kashi Vishwanath Mandir, Varanasl, is not in any manner in violation of Fundamental Rules 110 and 111. She submits that the petitioner has been transferred to a body which is wholly controlled by the Government and, therefore, embargo of fundamental Rule 110 (a) is not applicable to the facts of the present case inasmuch as Sri Kashi vishwanath Mandir. Varanasi, is a body controlled by the Government. ( 9 ) BEFORE examining whether Sri Kashi Vishwanath Mandir, Varanasl, is a body controlled wholly or substantially by the Government, it is necessary to see the validity of the impugned order dated 6. 4. 2000 keeping in view the provisions of Fundamental Rules 110 and 111. ( 10 ) WE agree with the contention of learned State counsel that in view of the proviso (a) to Rule 110 the embargo that no Government servant against his will can be transferred to foreign service is not applicable where a Government servant is transferred to a body which is wholly or substantially owned by the Government. We shall later see that Sri Kashi Vishwanath Mandir. Varanasi, is governed by an Act of Legislature and control has been vested by the Act in the state Government. ( 11 ) IN our opinion, therefore, the first ground of challenge that the petitioners transfer on deputation to Sri Kashi Vishwanath Mandir, Varanasi is vlolattve of Rule 110 is misconceived and is rejected. ( 12 ) THE other ground of challenge that transfer to foreign service cannot be made unless the duties to be performed after the transfer are such as should for public reasons be rendered by a government servant, and the Government servant holds at the time of transfer, a post paid from the revenues of the State, or holds a lien on a permanent post, or would hold a lien on such a post had his lien not been suspended. ( 13 ) IN our opinion, Fundamental Rule 111 is in no manner attracted to the facts of the present case for the reasons (a) no where in the writ petition it has been stated that the duties to be performed after transfer are such, which cannot be performed by the petitioner as a Government servant for public reasons in view of the fact that the petitioner being Asstt. Accounts Officer in the employment of the Government is being posted in a body, which is wholly controlled by the government. (b) the other reason, which In our opinion. In view of proviso (a) to Rule 110 would not apply to transfer on deputation of the nature made in the present case. Proviso (a) to rule 110 is being reproducted hereunder : "no Government servant may be transferred to foreign service against his will : provided that the provisions of this sub-rule shall not apply to the transfer of a Government servant to the service of a body, incorporated or not, which is wholly or substantially owned or controlled by the Government. " In our opinion. Fundamental Rule 111, for the reason, is also inapplicable. In any event, none of these provisions have been violated. ( 14 ) THE State Legislature enacted U. P. Sri Kashi Vishwanath Temple. Act, 1983 (for short the "act") which came into force on January 28. 1983. Section 2 of the Act is a non-obstante clause and Section 3 of the Act provides that no person shall unless he is a Hindu by religion be eligible-for being a member of the Board or Executive Council or Chief Executive Officer or as an employee of the temple and provides for consequences, if the case is contrary. ( 15 ) SECTION 5 provides for vesting of temple and its endowments and further provides that the ownership of the temple and its endowments shall vest in the deity of Shri Kashi Vishwanath. ( 16 ) SECTION 6 provides for Constitution of Board of Trustees and Section 7 provides for term of office of the member of the Board. ( 17 ) SECTION 8 vest powers in the State Government to remove a member of the Board for the reasons mentioned thereunder. ( 16 ) SECTION 6 provides for Constitution of Board of Trustees and Section 7 provides for term of office of the member of the Board. ( 17 ) SECTION 8 vest powers in the State Government to remove a member of the Board for the reasons mentioned thereunder. ( 18 ) SECTION 16 of the Act empowers the State Government to appoint Chief Executive Officer, and to determine the salary and allowances payable to the Chief Executive Officer. Section 17 of the Act prescribes power and duties of the Chief Executive Officer. ( 19 ) COMPOSITION of the Executive Committee of Sri Kashi Vishwanath Mandir, Varanasl, is prescribed under Section 19 of the Act. Sub-section (2) of Section 19 says that the Executive committee shall consist of (a) Commissioner. Varanasi Division, as its Chairman ; (b) District magistrate, Varanasi, as its Member ; (c) Senior Superindendent of Police. Varanasi, as its member ; (d) Administrator/ Mukhya Nagar Adhikari. Varanasi, as its Member ; (e) Chief executive Officer as its Member-Secretary and the Members of the Board specified in clause (i)of sub-section (2) of Section 6 as its ex-officio member. ( 20 ) ORDERS passed by the Board under sub-section (5) of Section 24 are applicable to the State government. ( 21 ) SECTION 25 of the Act enjoins the Chief Executive Officer to submit for each financial year receipts and expenditure (hereinafter referred to as the Budget) to the Board which has to examine the Budget subject to the conditions mentioned in the said provisions. Under sub-section (3) of Section 25, after the approval of the Board the Budget is required to be sanctioned by the Government. Adequate powers have been vested by sub-sections (4) and (5} of Section 25 to the State Government to confer financial control of the temple. ( 22 ) SECTION 26 provides for keeping regular accounts on the prescribed forms approved by the state Government and Section 27 empowers the State Government to direct audit of the accounts annually. The auditors are to be appointed by the Board under the direction of the Government and the remuneration to the auditors are recoverable from the temple fund. ( 22 ) SECTION 26 provides for keeping regular accounts on the prescribed forms approved by the state Government and Section 27 empowers the State Government to direct audit of the accounts annually. The auditors are to be appointed by the Board under the direction of the Government and the remuneration to the auditors are recoverable from the temple fund. ( 23 ) SECTION 32 of the Act empowers the State Government to cause Inspection or enquiry to be made by such person, as it deems fit, and the result of the inspection/ enquiry with such direction which are required to be communicated to the Board, which is obliged to comply with the directions and submit to the State Government action taken in that behalf. ( 24 ) THE State Government has been vested with the powers to issue direction as it deems fit but not being inconsistent with the provisions of this Act and Rules made thereunder in respect of matters arising out of or connected with this Act and it shall be the duty of the Board to comply with such directions. ( 25 ) SECTION 30 of the Act provides that no money shall be borrowed on behalf of the temple with any person save with the previous sanction of the State Government. ( 26 ) TEMPLE functionaries are to be treated as public servant for the purposes of Section 21 of the indian Penal Code in view of Section 36 of the Act. ( 27 ) SECTION 37 directs that the Board shall annually submit a report on the administration of the affairs of the temple to the State Government at such time as the State Government may require. ( 28 ) SECTION 39 empowers the State Government to examine the records of any case relating to the affairs of the temple. ( 29 ) ANALYSIS of various provisions referred to above of U. P. Sri Kashi Vishwanath Temple Act, 1983, establishes and Sri Kashi Vishwanath Mandir is a statutory body. The control and management of which is substantially vested in the State Government and, therefore, the State government is empowered to transfer the petitioner on deputation. ( 30 ) ANNEXURE-1 (Circular dated 6. 4. 2000) is a communication of the order of the State government dated 30. 3. 2000. The control and management of which is substantially vested in the State Government and, therefore, the State government is empowered to transfer the petitioner on deputation. ( 30 ) ANNEXURE-1 (Circular dated 6. 4. 2000) is a communication of the order of the State government dated 30. 3. 2000. ( 31 ) IN these circumstances, the transfer/deputation of the petitioner as an Assistant Accounts officer from the office of the District Inspector of Schools. Dehradun to Sri Kashi Vishwanath temple. Varanasi, as an Assistant Accounts Officer suffers from no infirmity and does not warrant any interference by this Court. ( 32 ) IT is, however, left open for the petitioner to approach the authorities concerned within 3 weeks of the receipt of the certified copy of this order for redressal of his grievance against his transfer to Sri Kashi Vishwanath Temple. Varanasl. ( 33 ) IT is expected that till the decision is communicated to him on his representation, no disciplinary action shall be taken against the petitioner for non-compliance of the order of transfer but that does not mean that the petitioner shall flout the order of transfer henceforth. ( 34 ) WITH the above observations, the writ petition is dismissed. ( 35 ) NO order as to costs. .