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2012 DIGILAW 1438 (ALL)

Shiv Kumar Sagar v. State of U. P. and Others

2012-07-03

DEVENDRA KUMAR UPADHYAYA

body2012
Devendra Kumar Upadhyaya, J.— Under challenge in the instant writ petition is the validity of the order dated 01.07.2011 passed by the Director, Local Bodies, Uttar Pradesh, Lucknow directing the Chairman/Executive Officer, Nagar Palika Parishad, Pilibhit to cancel the order of promotion of the petitioner on the post of Tax Inspector. The consequential order dated 11.07.2011 passed by the Executive Officer, Nagar Palika Parishad, Pilibhit whereby the promotion order of the petitioner on the post of Tax Inspector has been cancelled and he has been reverted to his substantive post of Revenue Moharrir is also under challenge. Heard Sri Rajesh Kumar Singh, learned counsel for the petitioner and Sri A. K. Gupta, learned counsel appearing for Nagar Palika Parishad, Pilibhit. The facts which emerge from the material on record and are not in dispute are that the petitioner was initially appointed on temporary basis on the post of Revenue Moharrir by means of order dated 16.05.1985 passed by Executive Officer, Nagar Palika Parishad, Pilibhit and thereafter he was confirmed on the said post by means of order dated 30.07.1990 passed by the Executive Officer. The said order of confirmation on the post of Revenue Moharrir has been annexed as Annexure No.4 to the writ petition. Thus, the petitioner substantively holds the post of Revenue Moharrir in Nagar Palika Parishad, Pilibhit. It appears that certain posts of Tax Inspectors were created in Nagar Palika Parishad, Pilibhit and the Chairman, Nagar Palika Parishad, Pilibhit by means of order dated 16.08.2000, promoted the petitioner on the post of Tax Inspector. The said order of promotion of the petitioner has been annexed as Annexure No.5 to the writ petition. By means of the impugned order, the Director has required the Chairman/Executive Officer of Nagar Palika Parishad to cancel this order of promotion dated 16.08.2000, whereby the petitioner was promoted to the post of Tax Inspector. Learned counsel for the petitioner heavily relying on a judgment of the Apex Court reported in 2001 (9) Supreme Court Cases 261, M. A. Hameed vs. State of A. P. and Another has vehemently argued that even if the order of promotion of the petitioner was irregular, he could not be reverted for the reason that the petitioner had continued on the post of Tax Inspector for quite a long period of about eleven years. He further stated that since in similar circumstances another person is continuing on the strength of an interim order passed by this Court in the case of Afsar Hasan Khan vs. State of U.P. and others in Writ Petition No. 6076 (S/B) of 1992, as such the petitioner should also be allowed to continue to work on the post of Tax Inspector. On the other hand, Sri A. K. Gupta, learned counsel appearing for Nagar Palika Parishad, Pilibhit submitted that the order dated 16.08.2000, whereby the petitioner was promoted to the post of Tax Inspector being absolutely unlawful, without jurisdiction and contrary to the service rules governing the service conditions of the incumbents holding the post of Tax Inspectors, has rightly been ordered to be annulled by the Director, Local Bodies, Uttar Pradesh. He further stated that there is no illegality in the impugned order and hence the writ petition ought to be dismissed outrightly. I have considered the respective submissions made by learned counsels appearing for the parties and have also perused the record. In the Urban Local Bodies of the State of Uttar Pradesh, there exists two types of services whereunder the servants of these local bodies are employed. By framing U. P. Palika (Centralised) Services Rules 1966, various services comprising of various posts common to all Municipal Bodies in urban areas were created. These services are called Centralised Services and recruitment and other service conditions in relation to the posts belonging to these centralized services are governed by relevant provisions contained in U.P. Palika (Centralized) Services Rules, 1966 as amended from time to time. Rule 3 of 1966 Rules provides for certain Centralized Services in the Urban Local Bodies consisting of the posts mentioned against the respective services. Centralized Services Rules, 1966 were amended from time to time and by means of the U.P. Palika (Centralized) Services (11th Amendment) Rules, 1983 notified on 03.05.1983, certain more Centralized Services comprising of certain other posts were created by way of amending Rule 3 of the Principal Rules of 1966. By way of aforesaid 11th Amendment in the Principal Rules, in U.P. Palika Revenue (Subordinate) Service the post of Revenue/Tax Inspector of Class-I, II & III Municipal Boards were included. By way of aforesaid 11th Amendment in the Principal Rules, in U.P. Palika Revenue (Subordinate) Service the post of Revenue/Tax Inspector of Class-I, II & III Municipal Boards were included. Thus, the post in question i.e. post of Tax Inspector is part of U.P. Palika Revenue (Subordinate) Services which also is a centralized service under Centralized Services Rules, 1966 as amended by means of 11th Amendment Rules, 1983. A perusal of the scheme of the 1966 Centralized Service Rules reveals that the said rules contain three schedules, namely, Schedule-1, Schedule-II and Schedule-III. The provisions as regards appointment/recruitment on the posts included in the aforesaid three schedules can be found in Rule 6, according to which, the posts mentioned in Schedule-I are filled in by way of promotion, the posts mentioned in Schedule-II are filled in by direct recruitment and the posts mentioned in Schedule-III are filled in equally from both the sources i.e. by promotion and direct recruitment. Rule 15 provides the procedure for direct recruitment, according to which, direct recruitment to the posts of centralized services are made through selection to be made by U.P. Public Service Commission. As regards promotion, Rule 20 of Centralized Service Rules, 1966 provides that promotions are also to be made in consultation with the U.P. Public Service Commission. Thus, the recruitment/appointment against a post falling within a service belonging to U.P. Palika (Centralized) Services has to be necessarily made through U.P. Public Service Commission, be it a post to be filled in by way of direct recruitment or by promotion. Admittedly, the alleged promotions of the petitioner made by means of the order dated 16.08.2000 passed by the Chairman, Nagar Palika Parishad, Pilibhit was not based on any selection made by U. P. Public Service Commission. It is in this background that the Director, Local Bodies, U.P. by means of his letter dated 02.07.2001 correctly informed the Chairman, Nagar Palika Parishad, Pilibhit that the authority to appoint/promote any employee to the post of Tax Inspector lies with the Director/State Government and recruitment to the said post is made through Public Service Commission, as such the promotion order dated 16.08.2000 passed by the Chairman of Nagar Palika Parishad in respect of the petitioner is not as per rules and hence the said order of promotion be cancelled forthwith. The said letter dated 02.07.2001 is on record as Annexure No. 9 to the writ petition. The said letter dated 02.07.2001 is on record as Annexure No. 9 to the writ petition. Subsequently again, the Director, Local Bodies sent a reminder by means of the letter dated 07.11.2003 directing the Executive Officer, Nagar Palika Parishad, Pilibhit to act in accordance with law reminding him of the earlier letter of the Director dated 02.07.2001 whereby the promotion order of the petitioner was directed to be cancelled. However, it appears that for the reasons best known to the authorities of Nagar Palika Parishad, Pilibhit the petitioner was unlawfully allowed to continue to work on the post of Tax Inspector and thereafter the Director again taking note of entire circumstances instructed the Chairman/Executive Officer, Nagar Palika Parishad by means of the impugned order dated 01.07.2011 to cancel the promotion order of the petitioner and inform the Directorate accordingly. Admittedly, promotion of the petitioner made under the order dated 16.08.2000 passed by the Chairman, Nagar Palika Parishad is in absolute derogation of the provisions of the Centralized Service Rules, 1966. As a matter of fact, the rules governing the recruitment to the post of Tax Inspectors do not confer any authority or power in the Chairman of Nagar Palika Parishad to make promotion on the post in question. Thus the order dated 16.08.2000 promoting the petitioner on the post of Tax Inspector is not only in contravention of the procedure given in the statutory rules framed under Section 112-A of U.P. Nagar Palika Adhiniyam and under Section 169-B read with Section 296 (2)(a) of U.P. Municipalitaies Act, 1916 known as U.P. Maha Palika (Centralized) Services Rules, 1966, but is also completely without any authority or jurisdiction. Reliance placed by learned counsel for the petitioner on the judgment of the Apex Court in case of M. A. Hameed (supra), is of no consequence to the petitioner for the reason that in the aforesaid case of M. A. Hameed (supra), the incumbent concerned was promoted to the post of District Inspector of Local Funds (Accounts) on temporary basis. The ground of reversion of the said incumbent in the case of M. A. Hameed (supra) was that several persons senior to him were left out and thus the same was irregular. It is in these circumstances that the Hon'ble Apex Court has held that the petitioner of the said case could not have been reverted after a long gap of about eleven years. It is in these circumstances that the Hon'ble Apex Court has held that the petitioner of the said case could not have been reverted after a long gap of about eleven years. However, this Court is of the considered view that the said judgment has been rendered by Hon'ble Apex Court in the particular facts and circumstances of the case and does not have any application to the facts of the present case for the reason that in the instant case the order of promotion dated 16.08.2000 was passed in complete contravention of the statutory rules and also by an authority who is not competent to make the order of promotion. Since the manner in which the promotion of the incumbent concerned in the case of M. A. Hameed (supra) was made is not borne out from the said judgment as such it is difficult to hold that in every case where reversion order is passed after a gap, the same would be bad in law. Moreover, it is also noticeable that Director, Local Bodies, U.P. has consistently been instructing and directing the Chairman/Executive Officer of Nagar Palika Parishad, Pilibhit to cancel the promotion order of the petitioner. The first direction was issued within a year of passing of the order of promotion of the petitioner i.e. on 02.07.2001. Various other reminders were also issued by the Directorate. However, promotion order of the petitioner was not cancelled. In these circumstances and for these reasons, the judgement of the Apex Court in the case of M. A. Hameed (supra) is of no avail to the petitioner. As regards the contention of learned counsel for the petitioner that in similar circumstance one Sri Afsar Hasan Khan is continuing to work on the post of Tax Inspector on the strength of an interim order dated 31.08.1992 passed by this Court in Writ Petition No.6076 (S/B) of 1992, it is noted that in some earlier petition Centralized Rules were challenged in which an interim order was passed whereby it was provided that the post in question in the said matter will not be the post of centralized cadre. The writ petition in which the aforesaid interim order was operating has been dismissed by this Court by means of the order dated 28.08.1995 contained in Annexure CA-1 annexed with the counter affidavit filed by the Nagar Palika Parishad, Pilibhit. The writ petition in which the aforesaid interim order was operating has been dismissed by this Court by means of the order dated 28.08.1995 contained in Annexure CA-1 annexed with the counter affidavit filed by the Nagar Palika Parishad, Pilibhit. This fact has not been controverted by the learned counsel for the petitioner. For the reasons discussed above, it is held that the impugned orders dated 09.07.2011 and 11.07.2011 passed by the Director, Local Bodies, Uttar Pradesh, Lucknow and the Executive Officer of Nagar Palika Parishad, Pilibhit respectively do not suffer from any illegality so as to call for any interference by this Court. The writ petition is, thus, devoid of merits and is hereby dismissed. However, before parting with the case, the Court observes that despite repeated directions issued by the Director, Local Bodies, U.P., order of promotion of the petitioner dated 16.08.2000, which was not only illegal but was passed by an authority who did not have any such jurisdiction, was not set at naught. Under what circumstances the directions issued by the Directorate of Local Bodies was not followed is a matter of concern. In these circumstances, the Court directs the Director of Local Bodies, U.P. to hold an enquiry and fix responsibility on the person/persons, who allowed the order dated 16.08.2000 to continue to be in operation despite directions issued by the Director, Local Bodies, Uttar Pradesh to annul the same. The said enquiry shall be completed by the Director personally within a period of three months from the date a certified copy of this order is produced before the Director. The State Government/Director shall thereafter proceed further to take action against the erring person/persons, if any. Let a certified copy of this judgment be sent to the Director, Local Bodies, Uttar Pradesh for follow up action by the Registry of this Court. There will be no order as to cost. _