Jitendra Kumar Goel vs State Of U.P. And 2 Others
2013 Latest Caselaw 3728 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 21.6.2013
 
Delivered on 05.7.2013
 
In Chamber
 

 
Case :- WRIT - C No. - 33419 of 2013
 
Petitioner :- Jitendra Kumar Goel
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- D.P.Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Mrs. Sunita Agarwal,J.

1. Heard Sri D.P.Shukla, learned counsel for the petitioner and Sri Sanjay Goswami, learned Standing Counsel for the respondents. As requested and agreed by learned counsel for the parties, we have heard this matter finally under the Rules of the Court at this stage.

2. Pursuant to this Court's earlier order Sri Devesh Chaturvedi, Secretary, Secondary Education and Sri Sunil Kumar, Principal Secretary are present and for clearing certain factual aspects, have also placed relevant Secretariats record dealing with posting and transfer of Additional Directors and Directors in Education Department on the respective posts, for our perusal.

3. This writ petition has been filed by a public spirited person, bringing to the notice of this Court, a strange but typical practice, frequently observed by State Government and particularly Education Department, where a single person is given charge of more than one post and sometimes of two different Departments, which result, not only in eroding and reducing efficiency of these persons in performance of such posts but also cause serious prejudice to general public and loss to public exchequer, inasmuch as, due to deficient performance on all such posts, various public works of general and special interest suffer. It is also complained that, in fact, this practice is followed to give undue advantage, encourage corruption and to favour a few blue eyed person though other eligible, competent officers are not being given due postings for the reasons, lacking bona fide on the part of authorities of the Government.

4. The petitioner has confined factual details in respect of the Department of Education. It has asserted that Primary Education is now recognized as fundamental right of children from 6 to 14 years, or up to Class VIII. Besides constitutional amendment, Parliament has also enacted Right of Children to Free and Compulsory Education, Act, 2009 (hereinafter referred to as "Act, 2009" ), whereunder such a fundamental right of children has not only been recognized but provisions have been made to give effect thereto and implement, in words and spirit. In the last more than 60 years of independence, population has increased multi-fold but despite heavy budgetary allocation, literacy rate has not increased proportionately and still a very large number of population is not only illiterate but at the national level, only 15 per cent of students reach High School and this is much less at State Level.

5. Education, in the State of Uttar Pradesh, is controlled, managed and supervised at three level i.e. Department of Primary Education, Department of Secondary Education and Department of Higher Education. Of late, judicial cognizance can be taken of the fact that Technical Education is now being looked after by a separate Department of Technical Education.

6. In the Secondary Education Department, Group 'A' and 'B' posts are governed by U.P. Educational (General Education Cadre) Service Rules, 1992 (hereinafter referred to as "Rules, 1992"). As per Rule 5 thereof, sanctioned posts in various grades of hierarchy are as under:

Sl.No.

Name of Post

Number of Post

Pay Scale as per Vth Pay Commission

Director

18400 - 22400

Addl. Director

14300 - 18300

Joint Director

12000 - 16500

Dy. Director/ Principal District Institution of Education and Training

10000 - 15200

District Inspector of Schools

10000 - 15200

7. Presently, there are following four persons in the rank of Director :

(i) Vasudeo Yadav

(ii) Awadh Naresh Sharma;

(iii) Sarvendra Vikram Bahadur Singh; and

(iv) Amar Nath Verma

8. It is pointed out that though Sri Amar Nath Verma is in the rank, grade and cadre of Director but not given charge of any specified sanctioned post under Rules 1992 while Sri Vasudeo Yadav, respondent no.3, has been given charge of two posts of Director i.e. Director, Secondary Education and Director, Basic Education, which is continuing since long.

9. This practice is not confined to the top post of Director of Department but even for lower cadres. Sri Mahendra Singh Yadav, District Inspector of Schools (hereinafter referred to as "DIOS"), posted at Allahabad has four charges i.e. DIOS-I, DIOS-II at Allahabad, Regional Assistant Director of Basic Education, Allahabad and Principal, District Institute of Education and Training (hereinafter referred to as "DIET"), Allahabad. Sri Komal Yadav is having charge of three offices i.e. DIOS-I, DIOS-II, Kanpur Nagar and District Basic Education Officer, Kanpur Nagar. Sri Chandrajeet Yadav is having charge of two posts i.e. DIOS-I and II, Varanasi. Smt. Shanti Yadav is substantively appointed Lecturer in Government Girls Inter College, which is a rank much inferior to District Basic Education Officer but has also been assigned the charge of two much higher posts of Principal, DIET, Auraiya and DIOS, Auraiya. Sri Ram Lakhan Yadav, whose substantive post is Block Education Officer, but has also been given charge of District Basic Education Officer, Faizabad, which is a post in higher rank, cadre and grade. Sri Santosh Kumar Singh is having charge of two offices of different hierarchy i.e. District Basic Education Officer and DIOS, Sonbhadra. Sri Buddhipriya Singh is also having charge of two offices i.e. District Basic Education Officer and DIOS, Bahraich against of two different hierarchy. Sri Sunil Dutt is also similarly having charge of two offices i.e. District Basic Education Officer and DIOS, Mau.

10. It is alleged that assignment of charge of more than one posts to one person though eligible, suitable officers are available in the same cadre or equivalent, is wholly arbitrary, and, prompted by consideration of favouritism and nepotism, to encourage corruption.

11. Taking cognizance of this unusual kind of practice on the part of respondents, this Court on 11th June, 2013 passed following order:

"The Principal Secretary, Secondary Education, Government of U.P., Lucknow as well as the Respondent No. 2 shall file their personal affidavits categorically stating as to why one and the same officer is holding charge of the post of Director of Secondary Education and Director of Basic Education. Why is it not possible for the State to appoint two separate officers for the two posts specifically when substantively appointed officers are available in the same cadre. It shall also be indicated as to why the officers who are available in the cadre are not being appointed against the available post so that they may discharge their duties and certain officers in the cadre of District Inspector of Schools are holding dual charge.

Put up on Friday."

12. On 14th June, 2013, respondents prayed for further time, which was allowed and matter was posted for 19th June, 2013.

13. Two affidavits were filed by respondents 1 and 2 on 19th June, 2013. One is sworn by Sri Sunil Kumar, Principal Secretary (Basic Education), Government of U.P., Lucknow. He pleaded that Cadre Controlling Authority of category "A" posts in education is Secondary Education Department though for proposals relating to Basic Education Department, sometimes opinion of Basic Education Department is obtained. He therefore simply pleaded that appropriate reply can be given by Secondary Education Department and shifted his burden, responsibilty and answerability.

14. Another affidavit has been filed by Sri Devesh Chaturvedi, Secretary, Secondary Education, U.P., Lucknow. He has stated that there are four sanctioned posts of Director, under Rules, 1992 and 1 non cadre post of Special Secretary created vide Government Order No.1090/15-13-99-4(60)/97 dated 28th April, 1999. It is further said that Sri Amar Nath Verma, Director, Education, now has been posted as Special Secretary in the Basic Education Department vide transfer/posting order dated 13th June, 2013. It is also said that in the cadre of Joint Director, there are 21 sanctioned posts. On 31st October, 2012 and 7th November, 2012, 15 officers were promoted as Joint Director pursuant to Selection Committee's meeting dated 8th October, 2012 and 5 were already working, making total 20 in that cadre. For promotion to the post of Director and Additional Director, suitable and eligible officers were not available, therefore, an amendment was made in Rules, 1992 by U.P. Education (General Education Cadre), Service (Third Amendment) Rules, 2013, published on 31st January, 2013 giving authority to the Government to relax requirement of length of service. After the aforesaid amendment, 12 promotions were made as Additional Directors and 4 as Directors. At present, as a result of aforesaid promotion, only 8 officers are available in the cadre of Joint Director against 21 sanctioned post.

15. Now coming to the cadre of DIOS and equivalent i.e. Vice Principal, DIET, Assistant Director, Basic Education, etc., it says that there are 193 sanctioned posts but only 89 officers are working in the cadre leaving 104 posts vacant. It is also said that posting of Additional Directors, Joint Directors and Deputy Directors is in the process and would be completed soon.

16. The above reply not only was incomplete and vague but also evasive and therefore this court called upon both the Secretaries to appear in person to explain certain queries, which could not be replied or cleared by learned Standing Counsel.

17. Today, Sri Devesh Chaturvedi, Secretary, Secondary Education and Sri Sunil Kumar, Principal Secretary (Basic Education) both are present.

18. We have heard learned counsel for the petitioner, learned Standing Counsel and have also taken note of the facts brought before this Court by the two Secretaries, who have also placed before us Secretariat file No.766/13 [1(4)/13-1] for our perusal.

19. What transpires is that presently there are four posts of Directors and 12 posts of Additional Directors under Rules, 1992. Sri Vasudeo Yadav, who was substantively appointed as Additional Director, was given charge of the post of Director, Secondary Education vide order dated 28th March, 2012 and thereafter that of Director, Basic Education was also given to him on 3rd May, 2012. Why a person was given charge of three posts at that time, we do not find any justification therefor. Admittedly, in the rank of Additional Directors, other suitable officers were available yet Government decided to give charge of three offices to a single officer i.e. Sri Vasudeo Yadav.

20. It appears that similar grievance in this regard came to the notice of Lucknow Bench in Writ Petition No. 6390 (S/S) No.2008 wherein the Court observed in its order dated 20th February, 2013 that giving charge of more than one post, may be on officiating basis, to only one person, ignoring next officers to him in seniority, is bad. The Court observed:

"A person can hold the charge on officiating basis of one post, which is contemplated under the service jurisprudence. The next person, who is in seniority is to be considered and allowed to officiate on the other post of Director, which is otherwise available for him."

21. This order forced respondents to reconsider extra-ordinary reliance placed upon respondent no.3 in giving him charge of three offices. A note was prepared by Sri Yaad Ali, Joint Secretary, Secondary Education on 25th February, 2013 wherein he highlighted that there are four posts of Directors, i.e. Director (Secondary), Director (Basic), Director (SCERT) and Director, (Saksharta Avam Vaikalpic Shiksha Urdu Evam Prachya Bhashain) and that 4 Additional Directors, substantively appointed, are available, in order of seniority, as follows:

(i) Vasudeo Yadav;

(ii) Sarvendra Vikram Bahadur Singh;

(iii) Amar Nath Verma

(iv) Awadh Naresh Sharma

22. The next important fact stated in the note is that Sri Sarvendra Vikram Bahadur Singh, was given charge of Director, SCERT and Sri Ram Vishal Mishra a Special Secretary, Basic Education was given charge of Director, (Saksharta Avam Vaikalpic Shiksha Urdu Evam Prachya Bhashain). On an enquiry made, the two Secretaries could not dispute that Sri Ram Vishal Mishra was not a member of service under Rules, 1992 but he was an officer in the Secretariat Cadre, who was given additional charge of the post of Director of Education which is governed by Rules, 1992. The note proposed that due to ensuing Board Examination of High School and Intermediate, any alteration in respect to charge of office of Director, Secondary Education by withdrawing the same from Sri Vasudeo Yadav would not be appropriate. He further said that only the post of Director, (Secondary) is governed by Secondary Education Department while rest of 3 Directors are under the control of Basic Education and therefore, matter may be examined by Principal Secretary, Basic Education.

23. Thereupon, on page 4 of the file, there is a note signed by Sri Parth Sarthi Sen Sharma, Secretary, Secondary Education that Sri Vasudeo Yadav be allowed to continue with the charge of Director, Secondary Education but in respect of other charges, the Principal Secretary, Basic Education may consider expediency of appointing three other Additional Directors. He also proposed that matter being serious, it should also be brought to the notice of Chief Minister that Sri Vasudeo Yadav be allowed charge of one of the Director only and for another, some Additional Director be posted. Thereupon there is a noting dated 1.3.2013, by Sri Alok Kumar, Secretary to Chief Minister, that the Chief Minister has desired to place this matter through Basic Education Minister along with his proposal.

24. Then, on the same date i.e. 1.4.2013, another note was placed by Sri Parth Sarthi Sen Sharma, Secretary, Secondary Education, referring to Chief Minister's desire that the matter should be placed through Basic Education Minister with appropriate proposal, but disclosing subsequent event that in the meantime, on 30th March, 2013, 4 officers have been promoted as Director. In fact, the aforesaid 4 Additional Directors were promoted as Director and their posting orders were to be issued separately.

25. Thereupon, Sri Ram Govind Chaudhary, Minister, Basic Shiksha Bal Vikas Evam Pushtahar Vibhag has signed a proposal in discussion with the Principal Secretary, Basic Education to the following effect:

^^1- Jh oklqnso ;kno dks funs'kd] ek/;fed f'k{kk ds in ij rSukr djrs gq, funs'kd] csfld f'k{kk dk vfrfjDr nkf;Ro ns fn;k tk;sA

2- Jh losZUnz fodze flag dks funs'kd] jkT; 'kSf{kd vuqlU/kku ,oa izf'k{k.k ifj"kn ¼,l-lh-bZ-vkj-Vh-½ ds in ij rSukr dj fn;k tk;sA

3- MkW vo/k ujs'k 'kekZ dks funs'kd] lk{kjrk] oSdfYid f'k{kk] mnwZ ,oa izkP; Hkk"kk;sa in ij rSukr dj fn;k tk;sA

4- Jh vej ukFk oekZ dks 'kklu esa fo'ks"k lfpo] csfld f'k{kk in ij rSukr dj fn;k tk;sA**

"1. Shri Vasudev Yadav, besides being posting as Director, Secondary Education, be given the additional charge of Director, Basic Education.

2. Shri Sarvendra Vikram Singh be posted on the post of Director, State Council for Educational Research and Training (S.C.E.R.T.).

3. Dr. Avadh Naresh Sharma be posted on the post of Director, Literacy, Alternative Education, Urdu and Oriental Languages.

4. Shri Amar Nath Verma be posted on the post of Special Secretary, Basic Education with the government."

(English Translation by the Court)

26. The above proposal was concurred by Chief Minister on 2nd May, 2013.

27. There is another note by Joint Secretary pointing out another interesting fact that grade of Director is Rs.10,000/- while that of Special Secretary is Rs.8,900/-, therefore, for posting an officer of higher pay scale and grade, to the post of Special Secretary, would require an upgradation of later. He suggested that there is a proposal of creation of post of Officer on Special Duty in Education Department in the grade of Rs.10,000/-, which is pending for consideration before Finance Department; and, if the post of Special Secretary with the designation of "Officer on Special Duty" in the grade of Rs.10,000/- is allowed, Sri Amar Nath Verma can be posted thereat. This note of Joint Secretary dated 3rd May, 2013 was concurred by Principal Secretary, Basic on the same date.

28. Since the matter required upgradation and re-designation, though posting orders of all other three officers were issued and Sri Vasudeo Yadav was given charge of two offices i.e. Director (Secondary) and Director (Basic), posting order of fourth officer could not be issued, and, it is only when this Court enquired as to how and in what circumstances one officer has been given charge of two offices, now on 13th June, 2013, Sri Amar Nath Verma has been posted as Special Secretary, Basic Education.

29. We enquired from learned Standing Counsel as to how post of Special Secretary is a part of Cadre of Education Department and in what manner it has been referred to as an ex cadre post. He was directed to place before us copy of alleged Government Order dated 28.4.1999, referred to in para 6 of the affidavit of Sri Devesh Chaturvedi, Secretary, Secondary Education. The aforesaid Government Order has been placed before us and a perusal thereof shows that vide Government Order no.1090/15-13-99-4(60)/97 dated 28th April, 1999, in the Secretariat, Education Department, post of Joint Secretary level was temporarily upgraded with designation of Special Secretary and vide Government Order dated 29th September, 1998 it was re-designated as "Officer on Special Duty (Special Secretary level)". It is thus incorrect to suggest that it is an ex cadre post, inasmuch as, it is a post in the Secretariat Cadre and if a person from Education Department is sent for, it is a foreign service, will make his appointment / posting on deputation. Obviously, posting in foreign service is not a regular posting of an officer and therefore, the facts, as pleaded in the affidavits, we do not find represent correct facts by respondents 1 and 2.

30. Be that as it may, still nothing has been brought to our notice as to what prompted the Government to favour respondent no.3 by giving him several charges simultaneously. In fact, noting at the Secretariat level and the stand taken by authorities make it clear that even the Secretary finds it difficult to change status and authority of respondent no.3 on his own. This itself was treated a serious matter so as to be brought to the notice of Chief Minister. The note of Secretary, Secondary Education dated 28th February, 2013, which gives clear indication, as aforesaid, reads as under:

^^izdj.k dh xEHkhjrk dks ns[krs gq, ek0 eq[; ea=h th ds laKku esa ykuk vko';d izrhr gksrk gS fd Jh oklqnso ;kno dks ,d in ij funs'kd cuk;s j[kk tk;s vkSj nwljs in ij fdlh vU; ekSfyd :i ls fu;qDr vij funs'kd dks rSukr fd;k tk;A^^

"Keeping in view the seriousness of the matter, it appears necessary to bring it to the knowledge of Hon'ble Chief Minister that Shri Vasudev Yadav be maintained on one post as Director; while any other substantively appointed Additional Director be posted on another post."

(English Translation by the Court)

31. Moreover, it is also clear to us that at the highest level of Government, there is an insistence to continue both the charges with Sri Vasudeo Yadav and therefore there has been no hesitation in sending a regularly appointed Director on deputation i.e. to foreign service and, that too, without obtaining his consent. The haste with which order on 13th June, 2013 has been passed posting Sri Amar Nath Verma as Special Secretary speaks a volume.

32. Against sanctioned post of Directors, once Selection Committee found suitability of Officers, working in the Feeder Cadre, and on their recommendation, promotions have been made, we do not find any justification that posting against cadre posts should not be given to these promotees and instead, in order to favour an individual, an artificial situation should be created by sending a promoted officer on deputation though we do not find from record that there was any necessity or justification or demand in the Secretariat that an officer from Education Department is needed otherwise there may be some problem.

33. The post of Special Secretary in the Cadre of Secretariat was already occupied by an officer from that cadre and nothing has been placed on record to justify, why it was necessary to send a regular cadre officer promoted as 'Director', on such post outside his cadre.

34. We have no hesitation in the above facts and circumstances to draw an inference that there is a clear attempt on the part of State Government to ensure that important offices like Director, Secondary Education and Director, Basic Education should stay with one officer namely respondent no.3. This is nothing but a sheer act of nepotism and favouritism. Moreso, lurking apprehension on the part of Secretary, Secondary Education is also evident from record, which demonstrate that he himself found it a serious matter if the respondent no.3 is absolved of his one charge out of two and by way of precaution, he ensured that this should not be done without bringing it to the notice of Chief Minister, which reveals a protective umbrella, respondent 3 has been enjoying. The matter then was placed before Minister concerned, who also reiterated the same giving no justification for such action.

35. The kind of dual charge, as are up for consideration in the present case, create some legal hurdles also. Director (Basic Education), District Basic Education Officer, DIOS etc. are such officers who are enshrined with some statutory duties which they have to perform under various statutes. A Director, Secondary Education and a DIOS has to perform several duties and powers, detailed in U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921") and certain other similar statutes relating to Secondary Education Institutions. Similarly, a Director (Basic Education) and District Basic Education Officer has to discharge duties under U.P. Basic Education Act, 1972 (hereinafter referred to as "Act, 1972") and other statutes dealing with Basic Education.

36. The term "Director" and "District Basic Education Officer", in the context of Basic Education has been defined under Section 2(d) of Act, 1972 as under:

""Director" and "District Basic Education Officers" means officers appointed by the State Government as the Director of Education, Uttar Pradesh and District Basic Education Officers respectively."

37. It is clearly evident that in order to be a Director or District Basic Education Officer under Act, 1972, one must have been appointed as such by State Government.

38. Similarly, the term "Inspector" and "Director" in the context of Secondary Education has been defined in Section 2(bb) and 2(aaa) of Act, 1921 which read:

"Inspector" means the District Inspector of Schools, and in relation to an institution for girls, the Regional Inspectress of Girl's Schools, as the case may be, and in each case includes an officer authorised by the State Government to perform all or any of the functions of the Inspector under this Act."

"Director" means the Director of Education, Uttar Pradesh and except for purposes of Section 3, includes an Additional Director of Education."

39. Now, distinction between definition of two terms under Act, 1921 is that in the former, any person authorized to perform duties of 'Inspector' is included while in the context of Director, an Additional Director of Education is also included except for purposes of Section 3. The word 'appointed' does not find mention therein but under Section 2(d) of Act, 1972, word "appointed" has specifically been mentioned. Without appointment, giving charge to an officer holding substantive or officiating appointment of another post is not contemplated and it is not something like 'appointed'. Chapter VI of Fundamental Rules, Financial Hand Book Vol. II-IV, para 49 deals with the combination of appointment and provides that Government may appoint a Government servant, already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the State Government. The manner of regulation of his pay is also provided therein.

40. In the present case, Sri Vasudeo Yadav has not been appointed even on ad hoc or officiating basis as 'Director' of Basic Education but has been given additional charge to discharge duties of office of Director, Basic Education. "Appointment" to a post and holding charge of a post are two different things. The difference between "appointment on a post" and "discharge of duties on the post on officiating basis without making appointment on the said post" has been considered by a Division Bench of this Court in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region- I, Meerut & others 2007 (2) ESC 987, wherein this Court has held as under :

"Taking charge of a higher office and discharge its function; and to discharge function of a higher office after promotion pursuant to an order of promotion, whether on regular or ad-hoc or officiating basis, are two different things. In the former, the incumbent continue to possess the status and position of the office in which he/she is appointed substantively but look after the duties of the higher office of which charge has been handed over in addition to her substantive duties, but it does not result in a vacancy of any kind to the post/office, the incumbent is substantively holding, but, in the later case, the incumbent vacates his substantive office and discharge function of higher office by occupying the higher post. If the promotion is officiating or ad hoc such occupancy may be temporary, but the fact remain that it result in a vacancy in the lower post, may be short term and temporary. ........In State of Haryana Vs. S.M. Sharma AIR 1993 SC 2273, the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer.

A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, 1991 Supple (2) SCC 733 and the Apex Court observed as under:-

"The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion."

It was further held that such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it sometimes. However the person continues to hold substantive lower post and only discharges duties of the higher post essentially as a spot-gap arrangement. A further contention was raised that if such an arrangement continued for a very long period it would give some kind of right to continue on the post but negativing such contention, it was held that an in-charge arrangement is neither recognition nor is necessarily based on seniority and therefore, no rights, equities and expectations can be built upon it."

41. Though in the above judgment, observations are in reference to the charge of a higher post but in principles, even if two posts are in the same hierarchy, status or rank, the ratio laid down in the aforesaid judgment would equally apply to such a case also. In our view, what has been said in Smt. Vijay Rani (supra) with reference to an appointment on higher post and discharge of duties on higher post without making appointment thereon, would equally apply when the two posts are of same status, but have different and independent identity.

42. If a person is not appointed as Director or District Basic Education Officer, he would not be governed by Section 2(d) of Act, 1972, and, in that case, would not be entitled to discharge statutory functions under the said statute. Without applying mind to this aspect, in an arbitrary manner, charge of more than one post has been given to certain selected persons and in this regard also, there is no guidelines or principles identified following whereto such charge(s) are to be given to a person appointed on another post. This attitude and practice on the part of respondents is highly objectionable, derogatory and contrary to the general principles of service jurisprudence as also statute.

43. Appointment and posting in cadre post has to be a usual feature and keeping a cadre post vacant and sending an officer on deputation must be an exception for which there should be some reason or justification. In the present case, we find none. It is a fit case where we may remind State Authorities as to what was observed by Apex Court, long back, in P.K. Chinnasami Vs. Government of Tamil Nadu and Others, AIR 1988 SC 78, as under:

"...every public officer has to be given some posting commensurate to his status and circumstances should be so created that he would be functioning so as to render commensurate service in lieu of the benefits received by him from the State. ....... it would ordinarily not be appropriate to continue an officer against a post and provide no work to him and yet pay him out of the Consolidated Fund.

44. In the present case, not only above observations have clearly been ignored and flouted but we find that in the process of sending one of the Directors to deputation so as not to disturb respondent no.3 from his double charge, the post which was in lower grade, has been upgraded, and thereafter, an order has been passed to post Amar Nath Verma as Special Secretary. It is also not pleaded anywhere that this has been done with his consent though it amounts to a posting in foreign service i.e. on deputation, which ordinarily is not permissible without consent of the concerned officer unless such power is conferred in the statute.

45. With respect to the other officers also, we find that charge of higher post has been given to the officers of lower posts and no justification has been given therefor though the officers in equivalent cadre are available. For this favour, nothing has been said. We are constrained to observe that acting in such manner, the State Government has clearly acted with favouritism and nepotism and action of respondents 1 & 2 is patently arbitrary, discriminatory and violative of Article 14 of the Constitution. It amounts to creating a situation of subordination to the higher officers when the charge of higher post is given to an officer in the lower rank. Irrespective of consideration of seniority etc. all such postings made, are wholly illegal and arbitrary.

46. In these facts and circumstances, we allow this petition and direct respondents 1 and 2 as under:

i.No officer shall be given charge of more than one post at the same station unless officers in the same cadre are not available or for some temporary period are not available at the same station. However, this arrangement shall be temporary and would cease as soon as non availability goes.

ii.If there is deficiency of officers in the cadre, State Government, if find necessary to give charge of more than one office to one or more officers, it shall follow existing seniority, whatever it is, for the said purpose and officer(s) working on lower cadre/posts shall not be given charge of higher cadre(s) post, if an officer in equivalent post or cadre is available.

iii.Respondent no.1 shall forthwith review all such matters and pass appropriate orders consistent with the above directions within one month from the date of communication of this order to him and submit compliance report to this Court within next a fortnight.

iv.The petitioner is also entitled to cost which we quantify to Rs.5,000/- against respondents 1 and 2.

47. A copy of this order shall be furnished to respondents no.1 and 2 forthwith and Registrar General shall take appropriate steps therefor.

Order Date:05.7.2013

KA