Zila Panchyati Adhiyantran Sangh ... vs The State Of U.P.Through Prin Secy ...
2013 Latest Caselaw 5391 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Reserved
 

 
Writ Petition No. 1237 (SB) of 2005
 

 
Zila Panchayat Abhiyantran Sangh 
 
and another						...	Petitioners 
 

 
Versus
 

 
The State of U.P. and others 			...	Opposite parties 
 

 
Connected with
 

 
Writ Petition No.115 (SB) of 2008
 

 
Pradeep Kumar 					...	Petitioner 
 

 
Versus
 

 
State of U.P. and others 			...	Opposite parties 
 

 
-------------- 
 

 
Hon'ble Rajiv Sharma, J.

Hon'ble Dr. Satish Chandra, J.

Heard Mr.Umesh Kumar Srivastava, learned Counsel for the Zila Panchayat Abhiyantran Sangh, Mr.N.A. Siddiqui, learned Counsel for Zila Panchayat and Mr.Aarohi Bhalla, learned Counsel for private respondent in writ petition no. 1237(SB) of 2005 and petitioner in the second writ petition.

The Zila Panchayat Abhiyantran Sangh [in short referred to as 'Association'] and a private individual has filed a writ petition No.1237 (SB) of 2005 challenging the merger order dated 28.4.2005 passed by the State Government, whereby services of opposite party No.4/Pradeep Kumar, a Junior Engineer of Rural Engineering Services, were merged on the post of Abhiyanta in Zila Panchayat Services, whereas Pradeep Kumar has filed a writ petition No.115 (SB) of 2008 aggrieved by the order of repatriation dated 16.1.2008 to his parent department on the ground that his lien in the parent department has already come to an end, vide order dated 30.6.2005, contained in Annexure No.5 to the writ petition and it will amount to ouster from service.

It has been submitted by the Counsel for the petitioners appearing in writ petition no. 1237 of 2005 (SB) that the Association comprises of Junior Engineers and Engineers working in various Zila Panchayats of the State of U.P. alongwith one Ameer Chand Dubey, the petitioner no.2, who is a senior-most Junior Engineer aspiring for promotion on the post of Engineer in Zila Panchayat. The Association is a recognized Association and it is claimed that the association has statutory status to espouse the cause of its members, who are Junior Engineers and Engineers working in the Zila Panchayat of the State.

The main thrust of the learned Counsel for the petitioner is that Pradeep Kumar, who was working on the post of Junior Engineer (Non-Gazetted) in Rural Engineering Services, U.P., was initially brought on deputation in Zila Panchayat, Gautam Budh Nagar, vide Government Order dated 2.1.2002 for a period of two years, which was to expire on 2.1.2004 but just after one year on 7.2.2003, the private respondent moved an application for merger of his services in Zila Panchayat, on which the impugned order has been passed. The impugned order is purported to have been passed under Section 43(4)(b) of the Act, which has no application to the facts of the present case. According to petitioners, there is no provision in the Statutory Service Rules or in the Act for appointment of a Government Servant on any post of Centralized Cadre in the Zila Panchayat on deputation beyond a period of five years as well as for absorption of such Government Servant on such post.

Elaborating the arguments, it has been submitted that the service conditions of Engineer in Zila Panchayat are governed by the provisions of U.P. Zila Panchayat (Central Transferable Cadre) Rules, 1966 [for short it has been referred to as Rules]. Various posts covered by the aforesaid Rules have been included in the Centralized Cadre of which the Appointing Authority is the State Government. Recruitment to the post of Engineer in a Zila Panchayat is made from (i) 50% by means of direct recruitment and (ii) 50% by means of promotion from lower cadre of Junior Engineers. Rule 14 of the Rules provides about the procedure for direct recruitment on the post of Engineer through Public Service Commission, while Rule 27 of the Rules provides about the procedure for making promotion.

The State Government in exercise of the powers conferred upon him under Sections 40, 44 and 46 (2) read with Section 237 of the Act framed U.P. Zila Panchayat (Central Transferable Cadre) (Seventh Amendment) Rules, 2001 [hereinafter referred to as '2001 Rules'], which were enforced through notification of the State Government dated 15.9.2001, whereby Rule 14-A was added. According to petitioners, perusal of the Rules, makes it abundantly clear that till the amendment of Rules, there was no provision either in the Act or in the Rules for appointment of a Government Servant in the Zila Panchayat on deputation and therefore, Rule 14-A was added in the Rules to enable the State Government to exercise the aforesaid power for the first time. The impugned order is not tenable for the reason that the Government Orders cannot supersede the provisions of statutory Rules.

Lastly, it has been submitted that merger of private respondent has marred the promotion of petitioner no.2, who is a senior most Junior Engineer in the department. Thus, the action of the official respondents is not only arbitrary and unjust by is violative of Article 14 of the Constitution.

On behalf of Zila Panchayat, it has been submitted that in the year 1999, the Chairman of Zila Panchayat required an Engineer to execute the projects which were given by the District Rural Development Agency to Zila Panchayat, Gautambudh Nagar, which were earlier being carried out by Rural Engineering Services Department and in this regard the Chief Development Officer, Gautambudh Nagar was requested in view of the provisions of Section 41(1)(b) of the Act. The Chief Development Officer, Gautambudh Nagar recommended the name of Pradeep Kumar [opposite party no.4], who was a degree holder attached as Engineer in Zila Panchayat from 1999 under the provisions of the Act with the project, which was previously being carried out by the Rural Engineering Services Department. The private respondent was sent on deputation as an Engineer to Zila Panchayat Department to carry out the project, which were entrusted with the Zila Panchayat under the same provisions of the Act under which the private respondent was attached in the year 1999. At the time of deputation, the private respondent was Junior Engineer(Gazetted) in the pay scale of Rs. 8000-13500, which was equal to the pay scale of Engineer working in Zila Panchayat Department. In these circumstances, the private respondent was allowed to work on deputation as an Engineer to the Zila Panchayat taking into consideration the equivalence of eligibility.

Learned Counsel for the Zila Panchayat next submitted that vide letter dated 4.9.2004 addressed to the State Government, the Chief Development Officer recommended the merger of opposite party no.4 and the State Government vide order dated 28.4.2005, merged the services of private respondent in the department of Zila Panchayat. The said merger of private respondent was under clause 4(b) of Section 43 of U.P.Kshertra Panchayat and Zila Panchayat Adhiniyam. It has also been pointed out that after the merger, the parent department has terminated his lien w.e.f. 28.4.2005 and will be deemed superannuated in his parent department.

It has vehemently been contended that while filing the writ petition, the petitioners have deliberately suppressed the aforesaid material fact of termination of lien which resulted in passing of the interim order dated 21.7.2005 and now, if the order of merger is quashed, it would amount ousting of Pradeep Kumar [opposite party no.4] from services as his lien in the parent department had already come to an end.

In the last, it has been submitted by the learned Counsel that the order dated 16.1.2008 passed by the State Government has been assailed in Writ Petition No. 115(SB) of 2008 filed by the private respondent in which an ad interim order dated 25.1.2008 was passed and in compliance thereof, the private respondent is continuing in service in the Panchayat Department and is being paid regular salary and other benefits as admissible to the employees of Panchayat Department.

Mr.Aarohi Bhalla, learned Counsel for Pradeep Kumar has raised a preliminary objection that the writ petition is not maintainable on behalf of the Association in view of the law laid down by the Apex Court as well as Full Bench of this Court. The Full Bench of this Court in Civil Misc. Writ Petition No.13367 of 1981, Umesh Chand Vinod Kumar versus Krishi Utpadan Mandi Samiti and others has clearly held that the writ petition filed by an Association of persons registered or unregistered will be maintainable only if (i) its members are individually unable to approach Court by reason of paucity or disability, etc. (ii) the writ petition involves question of public injury leading to Public Interest Litigation and the Association has a special interest in the subject matter. (iii) where the Rules or Regulations of the Association especially authorize it to take legal proceedings on behalf of its Members; so that any order passed by the Court in such proceedings will be binding on the members. It has been further observed that a registered or unregistered Association cannot maintain a writ petition under Article 226 of the Constitution of India for the enforcement or protection of the rights of its members, as distinguished from the enforcement of its own rights.

Of late, the Apex Court, in the case of Bhola Nath Mukherjee and others versus R. K. Mission Centenary College and others [(2011) 5 SCC 464], held that when a particular person is the object and target of the petition styled as Public Interest Litigation, the Court has to be careful to see whether the attack in guise of public interest is really intended to achieve a private vendetta, personal grouse or some other mala fide object since in service matters, the Public Interest Litigations cannot be filed.

It has been further observed that the Hon'ble Supreme Court has repeatedly disapproved the tendency of disgruntled employees disguising pure and simple service dispute as Public Interest Litigation. Here, in the present case also, Pradeep Kumar has been targeted on account of malice of opposite party No.2, who was Secretary of the Association at the time of filing of the petition. Apart from this, from the perusal of the writ petition, it will be clear that the grievance of the petitioners in that writ petition, as mentioned in paras 19 and 25, the same is only for promotion of the Junior Engineers on the post of Engineers under 50% quota and it will be found that throughout the grievance has been non-promotion of Junior Engineers to the post of Engineers under 50% quota, whereas the post on which the private respondent has been absorbed is under 'direct quota' against which the petitioners cannot be considered for promotion and therefore, the writ petition is not maintainable and the petitioners cannot be said to be aggrieved persons as has been held by the Apex Court in Ram Singh versus Director of Consolidation [1968 AWR 844] and, therefore, the petitioners have no locus to prefer the writ petition.

Since a preliminary objection has been raised that the writ petition filed by the Association is not tenable at law, because the Association has no locus standi and no fundamental right or any other right of the petitioner-Association is violated by the respondents, we have to deal this question first.

Having heard learned counsel for both the sides on this preliminary issue and looking to the facts and circumstances of the case and also looking to the main relief, made in writ petition no. 1237(SB) of 2005, it appear that the petitioner-Union is seeking repatriation of private respondent.

It appears that the petitioner-Union, who has filed the instant writ petition, has not annexed any resolution of its Members to file the instant writ petition and in absence of such authority, this type of writ petition cannot be preferred by the petitioner-Union, irrespective of the fact, whether it is registered or not, because if the authority is given to the petitioner-Association by its Members, then it will create estoppel on their part to file another writ petition for the very same relief, if this writ petition, preferred by the present petitioner-Association, is dismissed. No such authority has been given by the members of the Association and there is no document to this effect having been annexed alongwith memo of the writ petition.

Likewise, learned Counsel for the petitioners is unable to point out before this court that there are Rules or regulations of the Association/Union specifically authorizing it to initiate the legal proceedings on behalf of its Members, so that any order passed by the Court in such proceedings, will be binding on its Members, and therefore, also the petitioner-Association has no locus standi to file this writ petition.

Placing reliance on Bhola Nath Mukherjee's case [supra], Counsel for the private respondent has contended that in service matters PIL is not maintainable and the court should be cautious where a particular person is the object and traget of the petition styled as PIL. Looking to the nature of the writ petition, it appears that no Public Interest Litigation at large is involved in this writ petition. The petition is confined for the Members of the petitioner-Association only and that too, for only ousting the private respondent. Thus, the public at large is not interested in the outcome of this writ petition. On the contrary, it is a private interest litigation for some of the members of the petitioner-Association.

It further apepars that the Members of the petitioner-Association are working as Junior Engineers or Engineers working in various Zila Panchayats of the State of U.P. and it is not a case of the petitioner-Association that its members are unable to approach the Court by reason of (a) poverty; (b) Disability; and (c) Socially or Economically disadvantaged position.

On the contrary, looking to the facts of the present case, it appears that the Members of the petitioner-Association, who are employees of Zila Panchayats are fully capable to approach the Court to ventilate their grievances.

In view of the aforesaid facts and the proposition of law laid down in Umesh Chandra Vinod Kumar's case [supra] it can safely be held that the writ petition at the instance of an association is not maintianable where the association itself is not affected by any order. In other words, the members of such association may be affected by an order and may have common grievance, but for the purpose of enforcing the rights of the members, writ petition at the instance of such association is not maintainable. Therefore, the petitioner-Association has no locus standi to file this writ petition.

Even otherwise, we have examined the record minutely and it comes out that the Project of the District Rural Development Agency was being carried out by the Rural Engineering Services Department, was handed over to the Zila Panchayat, Gautam Budh Nagar, in the year 1999 and the private respondent, who was performing the same, was attached as Engineer in the Zila Panchayat Department to perform the duties in the year 1999. As per provisions of Section 41(1)(b) of the U.P.Kshetra Panchayat & Zila Panchayat Adhiniyam, 1961, whenever the work of any Government Office is transferred to a Zila Panchayat by order in writing, require the Zila Panchayat to employ on such posts and on such terms as may be specified in the order either the entire staff of the office of Government connected with that work or such of the servants in that office as may be designated or nominated by the State Government and the services of such staff or servants shall thereupon be deemed to have been placed at the disposal of the Zila Panchayat for the time being.

In the backdrop of the aforesaid facts, the private respondent, who fulfills all the conditions and fully eligible as provided in the U.P. Kshetra Panchayat & Zila Panchayat Adhiniyam, 1961 was sent to Zila Panchayat Department, to perform the duties. It may be noted that private respondent was having Bachelor of Engineering Degree (Civil) and was holding the post of Junior Engineer (Gazetted) carrying the pay-scale of Rs. 8000-13500, which is the pay-scale of Engineer in Zila Panchayat Department. Moreover, the pay scale of Rs. 8000-13500 was not available on the post of Junior Engineer at the relevant time. Since the private respondent was sent under the provisions of Section 41(1)(b) of the U.P. Kshetra Panchayat & Zila Panchayat Adhiniyam, 1961 he was absorbed under the provisions of Section 43(4)(b) of the U.P.Kshetra Panchayat & Zila Panchayat Adhiniyam, 1961, which is also the stand of official respondents. It may be noted that Section 43(4)(b) provides that the State Government at any time require a Zila Panchayat to take its own service any such government servant, whose services have been placed at the disposal of the Zila Panchayat under clause(b) of sub-section(1) of Section 41 and who has given his consent in that behalf and upon being so taken in the services of the Zila Panchayat, such servant shall cease to be government servant and shall become a servant of the Zila Panchayat. It is also to be noted that the deputation order in favour of private respondent was issued on 2.1.2003 but no one raised any voice but only when the order of absorption in Zila Panchayat was issued, the Association has come forward questioning the validity of the same.

It is significant to point out that after absorption, the parent department of the private respondent i.e. Rural Engineering Services terminated his lien vide order dated 30.6.2005. In the writ petition filed by the Association, later on, it was not disclosed, which resulted in passing of an ad-interim order in favour of the petitioners and in compliance thereof the State Government passed the order dated 16th January, 2008, which is impugned in writ petition no. 115(SB) of 2008. Counsel for Zila Panchayat has informed us that consequent to the interim order dated 25.1.2008 passed in the writ petition filed by the private respondent, he is continuing in service in the Panchayat Department and is being paid regular salary. Since the appointment and absorption of private respondent in the Zila Panchayat Department is an exceptional appointment in the exceptional circumstances as provided in the Act and as such the same is protected. Our view is strengthened by a decision of the Apex Court rendered in Arun Kumar and others vs. Union of India and others; (2007)5 SCC 580.

Even assuming that the assertion of the petitioners has little force and we proceed to quash the order of repatriation, then it will have an effect of ousting the private respondent from service as neither he will be the employee of the Zila Panchayat Department nor he would be accepted by his parent department in view of termination of his lien. Thus equity is in favour of private respondent. We also find force in the submission of Counsel appearing for private respondent that the decision rendered in Gajendra Pal Singh is not applicable in the instant case as in that case the employee was being repatriated to his parent department, against which he filed a writ petition and the writ petition was dismissed holding that he had no case, but in the present case, the 'absorption order' has been passed and his lien in parent department also stood terminated. In these circumstances the ratio of the case is not applicable. It may be noted in the case of Surendra Singh Gaur Verus State of Madhya Pradesh and others; (2006) 10 SCC 214, on which reliance has been placed by the Counsel for the private respondent, the Apex Court has held that once a person has been absorbed in another department and he has lost his 'lien' in the parent department, the parent department cannot be given a direction to take back the employee, whose 'lien' has been terminated.

We would also like to observe that in the writ petition, the petitioners have taken a ground that the post of Abhiyanta, is a promotional post for the Junior Engineers working in Zila Panchayat and merger of private respondent on the post of Engineer amounts to defeating the claim of the petitioner no.2 and other Junior Engineers, who are eligible and entitled for promotion on the basis of seniority-cum-merit. There is no dispute to the fact that the post of Engineer in Zila Panchayat is filled in by direct recruitment and through promotion in the ratio of 50:50. The Zila Panchayat in its counter affidavit has stated in paragraph 5 that the deputation/merger of the private respondent has been made under the quota of direct recruitment for which 50% of the total seats have been reserved and the remaining 50% are to be filled in by way of promotion from amongst the existing employees of Zila Panchayat. Therefore, it is absolutely incorrect to say that merger of private respondent has defeated the claim of petitioner no.2 and other Junior Engineers. Non-considering the claim of petitioner no.2 of similarly situated other Junior Engineers for promotion in their quota by the department is altogether a different cause of action, which is not the subject matter of dispute in the instant writ petition. However, we would like to add that for filing up the vacant post of 'Engineers' in Zila Panchayat, Junior Engineers as well as petitioner no.2 of writ petition no. 1237(SB) of 2005 initiated legal proceedings and matter went upto Hon'ble Supreme Court. Special Leave Petition (Civil) No. 24206 of 2003 filed by Amir Chandra Dubey (petitioner no.2) was disposed of as having become infructuous vide order dated 2.3.2009 as he was given appointment as Officiating Incharge Engineer.

For the reasons aforesaid, writ petition no. 1237 (SB) of 2005 is dismissed and writ petition no. 115(SB) of 2008 is allowed. The order dated 16.8.2005 passed by the State Government is hereby quashed and private respondent/petitioner shall be entitled for all consequential benefits attached to the post in question.

Parties shall bear their own costs.

 

 
Dated 4th Sep. 2013
 
HM/lakshman        [Justice Dr Satish Chandra]        [Justice Rajiv Sharma]