Research › Search › Judgment

Allahabad High Court · body

2002 DIGILAW 914 (ALL)

SHIV SWAROOP SARSWAT v. STATE OF U. P

2002-07-26

JAGDISH BHALLA, P.K.CHATTERJI

body2002
JAGDISH BHALLA, J. ( 1 ) PETITIONER was appointed as Assistant Engineer in the Public Works department in the year 1965 after being duly selected by the U. P. Public service Commission and was promoted from time to time on the post of executive Engineer, Superintending Engineer, Chief Engineer level-II and ultimately on the post of Chief Engineer Level-I. ( 2 ) ACCORDING to the petitioner, the State Government on 20th June, 2002 issued an order transferring and posting the petitioner on the post of managing Director in the department of U. P. Rajkiya Nirman Nigam [hereinafter referred to as the "nigam"]. Subsequently, by the order dated 3rd July, 2002, the State Government cancelled its earlier order dated 20th June, 2002 and the petitioner has been transferred back to the post of Chief Engineer, World Bank. ( 3 ) NOW, the Petitioner, being aggrieved has approached this Court assailing the order dated 3rd July, 2002 primarily on the ground that the impugned order canceling his appointment as Managing Director has been issued without there being any decision of the Board of Directors of the Nigam although the Board of Directors of the Nigam in its meeting dated 29. 6. 2002 adopted a resolution accepting the appointment of the petitioner as Managing Director; generally the minimum tenure of a person on deputation is three years but without affording any opportunity the respondent has issued the impugned order which is totally illegal and arbitrary. Relying upon D. K. Yadav v. J. M. A. Industries ltd. (1993) 3 SCC 259 learned Counsel contended that there is a settled principle that an order involving civil consequences must be made consistently with the rules of natural justice but in the instant case no opportunity whatsoever was given by the respondent prior to issuance of order dated 3rd July, 2002. Thus the impugned order is not only arbitrary, stigmatic and unjust but is violative of the principles of natural justice. Learned Counsel in support of his case also relied upon the decisions given in Babul Lal v. The State of Haryana and ors. AIR 1991 SC 1310 , Depti Prakash Banerjee v. Satendra Nath AIR 1999 SC 983 , Gujrat Steel Tubes Ltd. V. Mazdoor Sabha (1980) 2 SCC 593 . ( 4 ) IN short, the case of the petitioner is that he was promoted as chief Engineer (Level-II) w. e. f. 26. 12. AIR 1991 SC 1310 , Depti Prakash Banerjee v. Satendra Nath AIR 1999 SC 983 , Gujrat Steel Tubes Ltd. V. Mazdoor Sabha (1980) 2 SCC 593 . ( 4 ) IN short, the case of the petitioner is that he was promoted as chief Engineer (Level-II) w. e. f. 26. 12. 1998 and was later on promoted as chief Engineer (Level-I) w. e. f. 24. 2. 2001. According to the petitioner, one sri Tribuhawan Ram, a reserved category officer was promoted as Chief engineer Level-II in the year 1995 and was given promotion on the post of Chief Engineer Level-I on 24. 12. 1998. Learned Counsel further stated that Sri Tribhuwan Ram was at Serial No. 403 while the petitioner was at serial No. 126 in the seniority list of Assistant Engineers. Further Sri tribhuwan Ram was promoted on the post of Executive Engineer and superintending Engineer much after the promotion of the petitioner. However, on account of being a candidate of Scheduled Caste Category he was promoted on the post of Chief Engineer Level-II and Level-I and ultimately on the post of Engineer-in-Chief. ( 5 ) LEARNED Counsel for the petitioner submitted that when Sri tribhuwan Ram, although being a junior officer, was appointed as engineer-in-Chief, petitioner felt aggrieved and made representations contained in Annexures-4 and 5 to the writ petition requesting therein that either he be appointed as Engineer-in-Chief of Public Works department or as Managing Director of the Nigam, a post said to be equivalent to the post of Engineer-in-Chief. Thereafter a representation was made by the petitioners wife to His Excellency the Governor of Uttar pradesh complaining therein that on account of working under an officer, who is junior to her husband, he is suffering mental agony and is adversely affecting her husbands health and, therefore, requested that in public interest he be posted as Managing Director of the Nigam. Similar representation dated 18. 5. 2002 was also made to the Minister for Public works by the petitioners wife. According to the Petitioner, it is in this back ground that he was given appointment on the post of Managing director of the Nigam. Similar representation dated 18. 5. 2002 was also made to the Minister for Public works by the petitioners wife. According to the Petitioner, it is in this back ground that he was given appointment on the post of Managing director of the Nigam. ( 6 ) LEARNED Counsel for the Petitioner placing reliance on Rule 12 of the U. P. Service of Engineers (Public Works Department) (Higher) Rules, 1990 argued that object and intention of incorporating this Rule in the rules of 1990 is that in the event a person, who is junior but on account of he being a candidate of reserve category is promoted on a higher post prior to promotion of person belonging to general category on a higher post, in that situation, he will not be treated as junior. ( 7 ) LEARNED Counsel for the petitioner in order to show that the impugned order has been passed on account of malafides of authorities concerned filed a Supplementary Affidavit detailing the reasons which resulted in passing of the impugned order of cancellation of his posting as Managing Director of the Nigam. In Paragraph 14 of the supplementary affidavit it has been stated that the impugned order has been passed on the dictates and orders of the Chief Minister dated 3. 7. 2002. Elaborating further, he added that the impugned order of cancellation dated 3rd July, 2002 is without jurisdiction as the State government was not competent to pass the impugned order on account of the fact that the appointing authority of the petitioner is Board as defined in Rule 3 (i) of the Rules, 1980. ( 8 ) ACCORDING to the learned Counsel for the petitioner, a perusal of his order of posting on the post of Managing Director would reveal that no time limit was specified in the said order dated 20th June, 2002 as such in view of the Uttar Pradesh Rajkiya Nirman Nigam Limited (Engineers and Architects) Service Rules, 1980 the petitioner has a legitimate expectation of being absorbed in the Nigam, and in the event of being absorbed, it cannot be challenged. In support of this contention, he relied upon a decision of the Supreme Court in National Building construction Corporation v. S. Raghunathan; (1998)7 SCC 66 and contended that an aggrieved person is entitled to judicial review if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawl and the opportunity to comment on such reasons. In a case of legitimate expectation if the authority proposes to defeat a persons legitimate expectation it should afford him an opportunity to make representations in the matter, which the respondents did not follow in the case at hand. ( 9 ) HE also invited out attention towards the Government Order dated 16. 3. 1999 by which the Government has prescribed that the normal period of deputation shall be 3 years and in maximum it can be of 5 years but with the approval of the Finance Department. This Government order further provides that in no circumstance period of deputation shall be extended beyond five years. ( 10 ) LEARNED Advocate General appearing on behalf of the State vehemently submitted that the post of Managing Director of the Nigam is a post equivalent to Chief Engineer Level-I and not with Engineer-in-Chief, Public Works Department as contended by the petitioner. Clarifying the facts, he submitted, that while the petitioner was posted as chief Engineer, World Bank the Government by the order dated 20. 6. 2002 also appointed him as Managing Director of the Nigam. By another order dated 25. 6. 2002 the Government in clear terms indicated that the petitioner will also look after the work of Chief Engineer, World bank along with the work of Managing Director and thus the petitioner was holding charge of two posts equivalent to Chief Engineer Level-I. By the order dated 5. 7. 2002, the petitioner has only been relieved from the post of Managing Director, Nirman Nigam and he has been allowed to continue to hold the charge of Chief Engineer, World Bank. 7. 2002, the petitioner has only been relieved from the post of Managing Director, Nirman Nigam and he has been allowed to continue to hold the charge of Chief Engineer, World Bank. All this exercise was done on account of the fact that one Shri Vijai Kumar who is also an Officer of the rank of Chief Engineer-Level-I was working on a post which was of the rank of Chief Engineer Level- II as such a decision was taken by the Government posting Shri Vijai Kumar, an Officer of the grade of Chief Engineer Level I, on the post of Managing Director of the nigam. ( 11 ) LEARNED Advocate General refuting the allegations of the petitioner submitted with vehemence that the plea of legitimate expectation taken by the petitioner is not applicable in the case of the petitioner as the date of retirement of the employees of the U. P. R. N. N. is 58 years as would be evident from the G. O. dated 25th July, 2002 and the petitioner on the date when he was posted as Managing Director had attained the age of 58 years as such, he continued on that post as a Government Servant on deputation and not as an employee of the Nigam. So far as expectation of the petitioner regarding his absorption in the Nigam is concerned, it is not solely within the domain of the Board of Nigam to get a person absorbed. There is certain procedure laid down in the U. P. Absorption of government Servants in Public Undertaking Rules, 1984 [in short referred to as the "rules of 1984"] that has to be followed. In Rule 5 of the Rules, 1984 it has been provided that a person can apply for his absorption to the Government before the expiry of 3 years from the date his deputation starts or prior to attaining the age of 53 years. Since the petitioner was more than 53 years at the time of his posting as Managing director of the Nigam as such he was not eligible for absorption in the nigam. Since the petitioner was more than 53 years at the time of his posting as Managing director of the Nigam as such he was not eligible for absorption in the nigam. ( 12 ) SRI S. C. Misra, learned Advocate General relying upon the reports rendered in State of Punjab v. Inder Singh, 1997 (8) SCC 372 , Kunal nanda v. Union of India 2000 (5) SCC 362 , K. Madhavan and another vs. Union of India and others 1987 (4) SCC 556 and N. K. Singh v. Union of India 1994 (6) SCC 38 argued that the deputation is like transfer of an employee from one Government department to another to meet the exigencies of public service and a person being a deputationist has no right to continue or claim absorption unless his permanent absorption is covered by statutory provisions. The State Government is fully empowered to call a person back from the deputation post at any time and there is no vested right in such a person to continue for long on deputation or get absorbed in borrowing department. ( 13 ) IN D. K. Yadavs [supra] case relied upon by the learned Counsel for the petitioner, the facts of the case are that the appellant willfully absented from duty continuously for more than 8 days without leave or prior information or intimation or previous permission from the management and, therefore, the management thought that the appellant have left the service and consequently, his services were terminated. The labour Court upheld the termination of the appellants service as legal and valid. Ultimately, the matter went to the Honble Supreme Court. The supreme Court observed that absence from duty amounts to misconduct and termination of service on such grounds without complying with minimum principles of natural justice would not be justified. It was further observed that an order involving civil consequences must be made consistenly with the principles of natural justice. ( 14 ) IN another case, namely, Babu Lal v. State of Haryana [supra]one of the questions before the Supreme Court was whether the impugned order of termination from his service can be made straightway without reinstating him in the service after he earned acquittal in the criminal case and thereafter without initiating any proceeding for termination of his service as the impugned order of termination was of penal nature having civil consequences. The Supreme Court while answering in negative observed as under:-"it is well settled by several decisions of this Court that though the order is innocuous on the face of it still then the Court if necessary, for the ends of fair play and justice can lift the veil and find out the real nature of the order if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment, the order will be set aside. " ( 15 ) IN the next case, namely, D. P. Banerjees case on which reliance has been placed by the learned Counsel for the petitioner, the controversy was that the appellants probation was terminated allegedly on the findings arrived at behind the back of the appellant and on certain communications by the Director to the appellant which contain material amounting to stigma. In paragraph 38 of the report, on which strong reliance has been placed, the Supreme Court has held that the words amounting to stigma need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in annexure thereto and would vitiate the order of termination. ( 16 ) IN the case at hand, a perusal of the impugned order shows that it is neither stigmatic in nature nor punitive. It is settled law that a deputationist can be called back at any time to serve the parent department and it is not mandatory upon the Appointing Authority to afford an opportunity before issuing an order calling him back. Moreover, the petitioner was holding two charges simultaneously, i. e. Chief engineer World Bank and Managing Director, U. P. Rajkiya Nirman nigam. By the impugned order dated 5. 7. 2002, the petitioner has only been relieved from the post of Managing Director, Nirman Nigam and he has been allowed to continue to hold the charge of Chief Engineer, World bank. It is not the case of the petitioner that on account of the impugned order, he is suffering pecuniary loss or there is a loss of status or any right has been affected and no opportunity of putting forward his case was given. It is not the case of the petitioner that on account of the impugned order, he is suffering pecuniary loss or there is a loss of status or any right has been affected and no opportunity of putting forward his case was given. Further, it is now a settled view that repatriation amounts to transfer and the Court should generally avoid to interfere in such matters unless there is violation of law or allegations of malafide have been made in the writ petition. We, therefore, are of the opinion that the cases relied upon by the learned Counsel for the petitioner are of no avail to him. ( 17 ) THIS Court in Writ Petition No. 997 (S/b) 2002 Dr. O. P. Singh v. State of U. P. and others have considered the rights of deputationist, the power of the lending department and the doctrine of the legitimate expectation and after following the principles and the law laid down in ratilal B. Soni and other v. State of Gujrat and others 1990 (Supp) SCC 243 Food Corporation of India v. Kamdhenu Cattle field Industries (1993)1 SCC 71 National Buildings Construction Corporation v. S. Raghunathan and others; AIR 1998 SC 2779 and Kunal Nanda v Union of India and another (2000) 5 SCC 362 held that that a deputationist can always at any time be repatriated to his parent department to serve in his substantive position therein either at the instance of borrowing or lending department and he has no vested right to continue for long on deputation or absorbed in the department to which he had gone on deputation. We are further of view that the period of deputation can be curtailed by the employer at any point of time on administrative ground or in public interest. In view of the above circumstances and the clear principles enunciated by the Supreme Court on the subject in question, the cases relied upon by the petitioner referred to above are not applicable in his case. ( 18 ) IN the instant case we further found that the plea of legitimate expectation and the cases relied in support thereof is of no help to the petitioner in view of the provisions of Rule 5 of the Rules of 19894. ( 18 ) IN the instant case we further found that the plea of legitimate expectation and the cases relied in support thereof is of no help to the petitioner in view of the provisions of Rule 5 of the Rules of 19894. Rule 5 of the U. P. Absorption of Government Servants in Public Undertaking rules, 1984 runs as under:-"a Government Servant may be permitted to be absorbed in the service of the undertaking in which he is on deputation, if :- (i) He applies to the Government for his absorption in the undertaking before the expiry of 3 years from the date of commencement of his deputation or before the date on which he attains the age of 53 years, which ever be earlier and the undertaking concerned also moves the government for his absoprition within such period. (ii) The Government agrees to such absorption in public interest". ( 19 ) ADMITTEDLY, the petitioner was more than 53 years in age while he was posted as Managing Director of the Nigam as such it was much within the knowledge of the petitioner that he is not eligible for absorption in the services of the Nigam in view of Rules of 1984. Moreover, absorption does not depend solely on the petitioners wish. Further the petitioner was fully aware of the fact that the age of retirement of the Nigam has not been enhanced from 58 to 60 years and he being a Government Servant has continued even after attaining the age of 58 years. The Government Order dated 5th feburary, 1986 provides that no employee shall be given extension after 58 years without sanction of the State Government. By another government Order dated 25th July, 2002 addressed to all the Head of public Undertakings and Corporation the State Government has informed that no decision has yet been taken regarding enhancement of age from 58 to 60 of the employees working in the Public undertakings and Corporations. Thus it is amply clear that the petitioner continued on the post of Managing Director being a government Servant even after attaining the age of 58 years because the age of retirement of Government employees has been enhanced from 58 years to 60 years. Thus it is amply clear that the petitioner continued on the post of Managing Director being a government Servant even after attaining the age of 58 years because the age of retirement of Government employees has been enhanced from 58 years to 60 years. ( 20 ) NOW coming to the question whether the impugned order dated 3rd july, 2002 passed by the State Government is without jurisdiction or not, it is necessary to reproduce the certain Rules of the Service rules, 1980. The word "managing Director" is defined in Rule 3 (i) in the Uttar Pradesh Rajkiya Nirman Nigam Limited (Engineers and architects) Services Rules, 1980 and runs as under" Managing Director means the Managing Director of the nigam so appointed by the Board pursuant to the Articles of association of the Nigam, and in relation to any power exercisable by him, includes any Director or Officer who is authorised by the Board or the Government to exercise the power and functions of the Managing Director during the temporary absence of the Managing Director. "rule 2 (1) of the Service Rules, 1980 lays down the exception category to which Service Rules, 1980 do not apply. It says:-2 (1) These rules shall apply to every employee of the Nigam except those:- (i) Who are working on deputation with the Nigam from central or State Government, Local Bodies or any other organisation. (ii) Who are working under contract with the Nigam. (iii) Who are working on muster rolls or are on work charge basis or through contractors. (iv) Who are serving as apprentices in the Nigam. Note:- Persons working on deputation shall be governed by the rules of their parent department as well as terms of deputation and those under contract shall be governed by the terms and conditions of the contract. From the perusal of the above rules, it is crystal clear that the petitioner being not an employee of the Nigam, will be governed by the rules of his parent department i. e. Rules framed by the State government, his appointing authority is the State Government and not the Board of the Nigam as alleged by the learned Counsel for the petitioner. Hence, we are of the opinion that the State Government being the appointing authority of the petitioner was fully competent to pass the impugned order dated 3rd July, 2002 and thus the contention of the learned Counsel for the petitioner that the appointing authority of the petitioner is the Board and not the State government is absolutely misconceived and has no force. ( 21 ) IN N. K. Singhs case [supra] the Honble Supreme Court has observed that the transfer of a public servant from a significant post can be prejudicial to public interest only if the transfer was avoidable and the successor is not suitable for the post. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of a public servant, it must be first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was avoidable. ( 22 ) THAT is not the case of the petitioner that the officer who has been posted as Managing Director in place of the petitioner is a pliable officer or that he is in any manner inferior to the petitioner. Like petitioner, his successor is also an officer of the rank of Chief engineer Level-I. Moreover, from the order dated 25. 6. 2002 contained in Annexure SCA-2 to the short counter affidavit, it is quite clear that the petitioner while holding the post of Chief Engineer, World Bank was also asked to look after the work of Managing Director of the nigam. Thus the petitioner was holding charge of two posts and by the order dated 5. 7. 2002, he has only been relieved from the post of managing Director of the Nigam and he continues to be Chief engineer, World Bank. ( 23 ) LASTLY, the learned Counsel for the petitioner argued that the post of Engineer-in-Chief became vacant for a particular year when the present incumbent holding the post of Engineer-in-Chief was not even eligible and if selection would have taken place in that year, the petitioner would have been selected. This is not the matter in dispute in the present writ petition, which the petitioner has filed being aggrieved by cancellation of his appointment on the post of Managing director of the Nigam. This is not the matter in dispute in the present writ petition, which the petitioner has filed being aggrieved by cancellation of his appointment on the post of Managing director of the Nigam. Moreover, the present incumbent is working on the post of Engineer-in-Chief in pursuance of the decision of a coordinate Bench of this Court. In case, the petitioner was eligible for being considered for the post of Engineer-in-chief or was aggrieved by the decision of the Co-ordinate Bench, the appropriate remedy was available to him to get his grievance redressed. . Therefore, the arguments advanced in this behalf are also not tenable in the eyes of law. ( 24 ) HAVING examined the materials on record and the submissions made by the rival parties, we are of the opinion that [a] that an incumbent can be repatriated to his parent department at any point of time [b] repatriation amounts to transfer [c]in the instant case pleas of legitimate expectation is not available to the petitioner [d] the order of repatriation/transfer is to be tested only on the ground of violation of law or malafide [e] petitioner was not eligible for absorption in the nigam and [f] promotion of Sri Tribhuwan Ram on the post of engineer-in-Chief is not the subject matter involved in this writ petition. Thus, the impugned order dated 5. 7. 2002 does not suffer from any infirmity and the State Government was fully competent to issue such an order. In view of what has been indicated above, the writ petition fails and is dismissed accordingly. Costs easy. .