Allahabad High Court

Agya Ram vs State Of U.P. And Ors. on 12 October, 2012

Bench: Rajes Kumar




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 

 

 
Civil Misc. Writ Petition N0. 44957 of 1999
 
Agya Ram.......................................................................Petitioner.
 
Vs.
 
State of U.P. and others..................................................Respondents.
 

 

 
Hon'ble Rajes Kumar, J.

Heard Sri Tarun Verma, learned counsel for the petitioner and Ms. Suman Sirohi, learned Standing Counsel for the respondents.

By means of the present writ petition, the petitioner is challenging the order of the Director, Pichrawarg Kalyan Indira Bhawan, U.P., Lucknow dated 6.10.1999 by which his appointment on the post of Senior Clerk in the office of Zila Backward Class Welfare Officer, Basti has been cancelled.

The brief facts of the case are that the petitioner was engaged as a Recovery Officer in the U.P. Scheduled Castes Financial and Development Corporation, Basti (hereinafter referred to as the ("Corporation"). By the order dated 18.11.1996 passed by the Chief Development Officer, Basti, the petitioner has been asked to lookafter the work of U.P. District Backward Class Welfare Officer along with the work of the Corporation. In the said order, it was made clear that the petitioner could not be entitled for any allowance. Subsequently, vide order dated 11.6.1997 the District Magistrate, Basti has asked the petitioner to take charge of the Senior Clerk in the office of the Zila Backward Class Welfare Officer, Basti on the basis of deputation. The said order of the District Magistrate has been cancelled by the Director, Pichrawarg Kalyan Indira Bhawan, U.P., Lucknow vide order dated 6.10.1999 on the ground that it was contrary to the Government Order dated 24.3.1998.

Learned counsel for the petitioner submitted that the petitioner was the employee of the Corporation, which was controlled and financed by the State Government and, therefore, the petitioner was the Government employee and the petitioner had been appointed on the post of Senior Clerk in the office of the Corporation in view of the Government Order No. 476/P.V.K./1997 dated 11.6.1997. He submitted that the appointment of the petitioner has been cancelled on the basis of the Government Order No. 274/64-1-98-85/95 dated 24.3.1998 on the ground that such Government Order provides that the employee of Nigam or non-Government Organization cannot be appointed by way of transfer or by deputation on the post of Senior Clerk or Senior Assistant while the Government Order dated 24.3.1998 does not say so.

In support of the contention that the petitioner's Corporation being controlled by the State Government falls within the purview of the State under Article 12 of the Constitution of India, learned counsel for the petitioner relied upon the decision of the Apex Court in the case of State of Uttar Pradesh and another vs. Radhey Shyam, reported in (2009) 5 SCC 577.

Learned Standing Counsel submitted that the Government Order dated 31.5.1997 is annexed as Annexure-C.A.I to the counter affidavit. The letter dated 31.5.1997 has been written by the Director, Pichrawarg Kalyan Indira Bhawan, U.P., Lucknow to all the District Magistrates and Sub-Director, Backward Class Welfare in pursuance of the Government Order N0. 1826/26-2-1995, dated 20.9.1995 which provides for the transfer on the post of newly created post of the Senior Clerk in the district level office of the Backward Class Welfare Officer by transfer from different department on the receipt of no objection from the concerned department. By this letter, it has been requested to appoint any of the willing employee of any of the State Government Department on the receipt of no objection from the said department on the post of Senior Clerk. The petitioner was the employee of the Corporation and not of any Government Department and, therefore, in accordance to the Government Order dated 20.9.1995 and the letter of the Director, Pichrawarg Kalyan Indira Bhawan, U.P., Lucknow dated 31.5.1997 the petitioner could not be appointed on the post of Senior Clerk in the office of the District Backward Class Officer. In support of the contention that the petitioner is not the State Government employee, she relied upon the decision in the case of D.R. Gurushantappa vs. Abdul Khuddus Anwar and others, reported in 1969 (1) SCC 466 and in the case of State of Gujarat and another vs. Raman Lal Keshav Lal Soni and others, reported in (1983) 2 SCC 33. She further submitted that the Government servant is defined by Section (h)of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 which provides "Government Servant" means a person appointed to public services and posts in connection with the affairs of the State of Uttar Pradesh.

Learned counsel for the petitioner submitted that due to the appointment of the petitioner in the office of the U.P. Backward Class Officer and since the petitioner is working in the office of U.P. Backward Class Officer in view of the interim order granted by this Court on 26.10.1999 by which the order cancelling the appointment of the petitioner has been stayed, the petitioner could not serve in the Corporation and, therefore, the lien of the petitioner has been cancelled by the Managing Director of the Corporation vide order dated 22.2.2001. The petitioner has challenged the said order by means of the amendment application and also requested for the impleadment of Managing Director, U.P. Anusuchit Jati Vitta Awam Vikas Nigam Limited, B-9 12, Sector-D Mahanagar Lucknow as respondent no. 6.

I have considered the rival submissions and perused the documents.

Admittedly, the petitioner was appointed as Recovery Assistant in the U.P. Anusuchit Jati Vitta Vikas Nigam. The said Corporation may be controlled by the Officer of the State Government and may have been financed by the State Government but it cannot be said to be the State Government department. Being financed by the State Government and controlled by the officer of State Government, it may fall within the purview of the 'State' within the meaning of Article 12 of the Constitution of India but it cannot be said to be a Government Department. Article 12 of the Constitution of India provides that in this part, unless the context otherwise requires, 'the State' includes the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The definition of the State under Article 12 is wider. It also includes all the local or other authority within the territory of India or under the control of Government of India. Therefore, various Corporations which are controlled by the Government of India may fall within the purview of State defined under Article 12 of the Constitution of India but the same cannot be said to be the Government Department itself. In the case of State of Uttar Pradesh and another vs. Radhey Shyam (supra) cited by the learned counsel for the petitioner the Uttar Pradesh Ganna Kishan Sansthan has been held to fall within the purview of State under Article 12 of the Constitution of India on the ground that the State exercises a deep and pervasive control over the affairs of the Sansthan. The Accounts Officers is the officer of the State Government and is also sent on deputation. The majority of the members of the Governing Council are holders of different offices of the State Government. They play a vital role in carrying out the affairs of the Sansthan. They alone have power to appoint anybody of their choice on the post. It is required to obey all the directions issued by the State Government from time to time.

The letter dated 11.6.1997 written by the Director, Pichrawarg Kalyan, U.P. on which the petitioner has been appointed clearly states appointment of the employee of the Government department by way of transfer of the employee. It does not contemplate appointment of any employee of any Corporation or the Government owned company etc. Therefore, the appointment of the petitioner on the post of Senior Clerk in the office of the District Backward Class Officer, Basti by way of transfer/deputation was abinitio illegal inasmuch as the petitioner was not employee of any Government Department and cannot be appointed under the Government Order.

However, the Court is of the view that by order dated 22.2.2001 an independent cause of action has arisen. It will be open to the petitioner to challenge the said order afresh under the remedy available to the petitioner. Since the order dated 22.2.2001 has been passed by the Corporation which is wholly unconnected with the issue involved in the writ petition, the Court declines to allow the amendment application with liberty to the petitioner to challenge the same before the appropriate Forum.

In the result, the writ petition is dismissed with the aforesaid observation.

Dated: 12th October, 2012