Rajendra Prasad Mishra vs State Of U.P. And 4 Others
2017 Latest Caselaw 4682 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 38
 

 
Case :- WRIT - A No. - 29254 of 2017
 

 
Petitioner :- Rajendra Prasad Mishra
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Anuj Kumar Mishra,Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ran Vijai Singh,J.

Hon'ble Ifaqat Ali Khan,J.

We have heard Sri R.K. Ojha, learned senior counsel assisted by Sri Anuj Kumar Mishra, learned counsel for the petitioner and learned standing counsel for the State-Respondents.

Through this writ petition, prayer has been made to issue a writ or certiorari quashing the impugned orders dated 28.6.2017 of the same date passed by the Additional Chief Secretary, Panchayati Raj, Government of U.P., Lucknow. By the previous order, the petitioner has been transferred and attached to the Office of Deputy Director of Panchayati Raj, Allahabad and by the subsequent order, Sri Durga Prasad Tiwari, Assistant Development Officer (Panchayat), Mirzapur has been transferred to Allahabad with an authorization to look after the work of the District Panchayat Raj Officer (DPRO), Allahabad till the regular appointment of DPRO.

Considering the petitioner's prayer, on 18.7.2017 following order was passed by this Court.

"Heard Sri R.K. Ojha, learned senior counsel assisted by Sri Anuj Kumar Mishra, counsel for the petitioner and learned standing counsel for the State-Respondents.

By means of this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the impugned order dated 28.6.2017 passed by the Addl. Chief Secretary, Panchayat Raj, Anubha-1, UP Govt, Lucknow transferring the petitioner and attaching him with the office of Deputy Director (Panchayat), Allahabad. The petitioner has also challenged the transfer order dated 28.6.2017 passed by the same Officer transferring Sri Durga Prasad, Assistant Development Officer, and giving him charge of the post of District Panchayat Raj Officer, Allahabad.

While assailing this order, learned senior counsel for the petitioner contended that Sri Durga Prasad was transferred from Allahabad to Mirzapur only six months back and now by the impugned order he has again been transferred to Allahabad and given charge of District Panchayat Raj Officer. Submission is that the order impugned has been passed arbitrarily without there being any application of mind.

Learned standing counsel on the earlier occasion was directed to seek instructions. Pursuant thereto, learned standing counsel has sought instructions and submitted that in view of the fact that the petitioner is suffering from cancer and was unable to perform his duties diligently and efficiently, therefore, he has been transferred and light duty has been assigned to him. It has also been submitted that under the Swaccha Bharat Mission, the targeted 'Shauchalaya' have not been constructed and that too is the reason to transfer the petitioner.

Sri Ojha, learned senior counsel has passed on a districtwise report of the constructed 'Shauchalayas' in the entire UP wherein district Allahabad has been mentioned at serial no. 2, which find mention that the petitioner has achieved 75.03 % target which is for more superior than other districts. Sri Ojha has also shown fitness certificate of the petitioner issued by Dr. Sultan A. Pradhan, MS. FRCS, FACS, FCPS, Surgical Oncologist, Mumbai.

Considering the aforesaid facts, learned standing counsel is directed to file short counter affidavit including the details in respect of following two quarries.

(i) Whether on the date of the petitioner's transfer no other Assistant Development Officer (Panchayat) was available at Allahabad for handing over the charge of District Panchayat Raj Officer (DPRO) ?

(ii) What was the special reason for transferring Sri Durga Prasad, ADO (P) from Mirzapur to Allahabad who was transferred only six months back from Allahabad to Mirzapur?

Since aforesaid facts have not been stated in the writ petition for which learned counsel for the petitioner is granted three days time to file supplementary affidavit.

Put up this case as fresh on 24.7.2017. In the meantime, the petitioner is directed to join at the transferred place."

Thereafter, the case was taken up on 23.8.2017 and this Court has passed the following order.

"Learned Standing Counsel has filed supplementary counter affidavit, which is taken on record.

From the perusal of which, it transpires that the query made by the Court, whether on the date of the petitioner's transfer no other Assistant Development Officer (Panchayat) was available at Allahabad for handing over the charge of District Panchayat Raj Officer (DPRO), is not satisfied. Although learned Standing Counsel has tried to submit before the Court that Sri Durga Prasad Tiwari was the senior most amongst the category of Assistant Panchayat Officer, therefore he has been transferred from Mirzapur to Allahabad.

Sri R.K. Ojha, learned senior counsel has invited our attention towards paragraph no. 6 of rejoinder affidavit which reads as under:-

"That in reply to the contents of paragraph nos. 19, 20 and 21 of the Short Counter Affidavit, it is stated that in the State of U.P. a new method has been adopted that working District Panchayat Raj Officers are being attached and with ulterior motive or otherwise method, the Assistant Development Officer (Panchayat) are being given charge to the post of DPRO, as per information of the petitioner total District Panchayat Raj Officers who are really working either of promotion or by the recruitment are about 41 in number and on the remaining it was senior ADO (Panchayat) or ADO (Technical) are working as DPRO, therefore, out of 76 posts with are sanctioned for DPRO only 41 DPRO are working and out of aforesaid 41 District Panchayat Raj Officer, in garb of giving charge to the ADO (Technical) or ADO (Panchayat) that is other means several DPRO have been attached on some other posts. For appreciation of the submission of the petitioner, one Mr. Abhay Kumar Yadav who is DPRO Shahjanpur, he has been attached in the office of Deputy Director (Panchayat) Lucknow and his place one Mr. Dharmendra Kumar, Assistant Development Officer (Technical) has been given charge. Similarly one Mr. Shiv Shankar Singh who is DPRO, Basti, he has attached in the office of Deputy Director (Panchayat) Basti and in his place gopal Ji Ojha, Assistant Development Officer (Panchayat) has been given charge and similarly one another person namely Sanjay Kumar Yadav who is DPRO, Rae Bareli, he has been attached in the office of Deputy Director (Panchayat), Lucknow and in his place one Chandra Kishore Verma, ADO (Technical) has been given charge as DPRO Rae Bareli. For proper appreciation of the fact, the petitioner is annexing orders dated 28.6.2017 and 4.7.2017 by which aforesaid arrangement has been made. For kind perusal of this Hon'ble Court, True/Photostat copy of the orders dated 28.6.2017 and 4.7.2017 are being filed herewith and marked as Annexure-RA-3 to this rejoinder affidavit.

By perusal of the aforesaid fact, it clearly reveals that there are shortage of DPRO, who are competent to hold the office, but they have been attached some other places and against those ADO (Panchayat) or ADO (Technical) has been given charge.

In paragraph 10 of the rejoinder affidavit, it has further been stated that number of ADO Panchayat who are junior to many others have been handed over the charge of DPRO.

From the perusal of the aforesaid paragraph, it transpires that out of 76 sanctioned post of District Panchayat Raj Officer (DPRO) only 41 DPRO are available in the State and on the remaining post on ADO Panchayat or ADO Technical have been given charge of District Panchayat Raj Officer (DPRO). It also transpires that in number of districts DPRO have been attached to the office of Deputy Director (Panchayat) and in their place ADO (Technical) has been given charge of DPRO.

Learned Standing Counsel is directed to bring on record the policy framed by the State Government for handing over the charge of District Panchayat Raj Officer (DPRO) to ADO Panchayat/ADO Technical.

Put up this matter on 31.8.2017 in the addl. cause list".

In response thereto, learned standing counsel has not been able to bring on record any policy framed by the State Government for handing over the charge of DPRO to Assistant Development Officer (Panchayat) or Assistant Development Officer (Technical) or from amongst the Panchayat Inspectors (Industries). However, learned standing counsel has shown the Government Order dated 24.6.1989 as well as the decisions rendered on 19.12.2013 in Writ Petition No. 69671 of 2013, Shri Balesh Dhar Dwivedi and others Vs. State of UP and others as well as Division Bench judgment of this Court dated 10.9.2015 rendered in Service Bench No. 1386 of 2015, Sarvesh Kumar Pandey Vs. State of UP through Principal Secretary (Panchayat Raj) Lucknow and others. In Writ Petition No. 69671 of 2013, the challenge was to the appointment on the post of DPRO on the ground that the persons have been appointed on pick and choose basis and this Court, taking notice of the decision rendered in Writ A No. 38566 of 2013, Anil Kumar Srivastava Vs. State of UP and others, directed to make regular appointment for the concerned district and in case officiating arrangement is necessary to be made, that has to be made strictly looking into the seniority of the officers working in the immediate lower cadre. Relevant para of the aforesaid judgment is reproduced here in under:-

"The writ petition is, accordingly, disposed of with direction to respondents and, in particular, respondents 1, 2 and 3 that they shall ensure that throughout the State of U.P. and in all Districts, henceforth no officiating, ad hoc or stop gap arrangements to discharge duties of District Panchayat Raj Officer shall be made by adopting pick and choose method by the local level officers, i.e., District Magistrate and Director (Panchayat Raj) or otherwise, and, instead, if it has become inevitable, the same shall be made strictly looking to the seniority of the Officers working in immediate lower cadre. However, if there are substantive vacancies on the post of District Panchayat Raj Officer, respondents shall henceforth take steps for substantive appointment/ promotion on the said post and the process of selection shall be completed within three months from the date of production of a certified copy of this order".

Whereas, in the judgment rendered on 10.9.2015 in Service Bench No. 1386 of 2015, Sarvesh Kumar Pandey Vs. State of UP through Principal Secretary (Panchayat Raj) Lucknow, this Court has again expressed its desire to provide officiating charge on the basis of seniority subject to good conduct of the officers. From the perusal of short counter affidavit, we find that total sanctioned strength of DPRO's in the State is 75, out of which, 50% have to be filled up by way of direct recruitment through competitive examination; 43% by way of promotion from amongst the substantively appointed ADPRO's, who have completed 5 years service on the first date of the year of recruitment; 5% from amongst the substantively appointed ADPRO's (technical), who have completed 5 years and 2% by promotion through Commission from amongst substantively appointed Inspectors Panchayat (Udyog). From the break up, detailed in supplementary counter affidavit, it transpires that as against 37 posts of DPRO's belonging to direct recruitment, 24 persons are working and 13 posts are vacant; whereas, against 38 posts, which have to be filled up by way of promotion, 19 persons are working. In this way, in the entire State, 43 DPRO's are working and on remaining posts, ADO (Panchayat) have been appointed and are working on officiating basis. This Court, in both the writ petitions referred herein above, has directed the State Government to provide officiating charge strictly on the basis of seniority subject to good work and what we have gathered from the perusal of counter and short counter affidavits filed by the State Government and the instruction shown to us, that at State level, no such guidelines have been framed by the State Government for providing officiating charge from amongst ADO (Panchayat), ADO (Technical) or Inspector (Udyog) against vacant posts of DPRO's. However, learned standing counsel unsuccessfully tried to show that all the appointments made on the officiating basis have been made on the basis of the aforementioned judgments of this Court.

Sri Ojha has shown a chart, brought on record of the rejoinder affidavit, for the purpose of showing discrimination in handing over charge of DPRO to ADPRO. The aforesaid chart and another chart, showing that in spite of number of posts of DPRO are vacant at present, even then, the DPRO, working on regular basis, have been attached somewhere and charge has been handed over to the ADO (Panchayat) / ADO (Technical). For appreciation, both the charts are reproduced herein below:

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From the perusal of the aforesaid chart, it transpires that the judgment rendered by this Court in Sri Balesh Dhar Dwivedi and Others Vs. State of U.P. and Others (Supra) and Sarvesh Kumar Pandey Vs. State of U.P. (supra), as mentioned herein above, for handing over the officiating charge of DPRO to ADO (Panchayat), etc., has not been followed and State level seniority has been violated. However, it has been tried to be justified by stating that some appointments from amongst ADO (Panchayat), ADO (Technical) have been made on the basis of local level seniority.

This discriminatory practice, particularly, looking into the facts that as against 75 sanctioned posts of DPRO, only 43 DPRO's are working and from amongst them, too number of persons have been attached and charge of DPRO has been handed over to ADO (Panchayat), ADO (Technical) and Panchayat Raj Inspector (Industry), cannot be said to be fair and just. In this way, at present, the State is functioning only with the help of ADO (Panchayat) working on officiating basis as DPRO.

This Court, in Anil Kumar Srivastava Vs. State of UP and others (Writ A No. 38566 of 2013), directed the State Government to make regular appointments, but neither the State is filling up the posts of DPRO, which fall under the direct recruitment category, nor it is filling up the promotional post from amongst ADO (Panchayat), ADO (Technical) and Panchayat Raj Inspector (Industry). This action of the State Government is not only discriminatory, but it is spreading frustration amongst those who are looking forward for their promotion under the promotional quota and those who are waiting for their appointments as against the substantive vacancies by direct recruitment. This frustration will naturally affect the smooth working of the Department, which is neither desirable nor is in the interest of the public at large.

From the perusal of the aforesaid chart, it transpires that the judgments rendered in the aforementioned cases have not been followed in its letters and spirit.

Considering the facts as mentioned herein above, we direct the Principal Secretary (Panchayat) / Additional Chief Secretary to frame definite guidelines for providing officiating charge to the eligible persons strictly on the basis of seniority subject to good work. We further direct the State Government to make sincere efforts to fill up the posts of DPRO'd, which are vacant and meant for direct appointment, and also fill up the quota of promotion at the earliest possible time. We also observe that where the DPRO's have been replaced by the persons on officiating basis, the Principal Secretary shall look into the matter personally and in case, before attaching the DPRO to any other Office and handing over charge of DPRP and ADO (Panchayat) or Panchayat Inspector (Industry), no D.O. or adverse comment has been made or communicated to them, their case be considered for restoring the charge of DPRO's. This exercise is to be completed within a period of two months, if possible, from the date of receipt of certified copy of the order of this Court and in case attachment is necessary, reasons for the same be recorded.

So far as the present case is concerned, suffice it to note that the present petitioner has been transferred and attached vide order No. 1253/33-1-2017-909/2017 dated 28.6.2017 with the office of Deputy Director (Panchayati Raj), Allahabad; whereas, vide order No. 1254/33-1-2016-909/2017 dated 28.6.2017, Sri Durga Prasad Tiwari (respondent no. 5), who happens to be ADO (Panchayat), has been transferred from Mirzapur to Allahabad, mentioning that till the joining of regular DPRO in the district, he will look after the work of DPRO in the district of Allahabad. It has not been disputed that respondent no. 5 was working in the district Allahabad and he had been transferred only on 30.6.2017 at Mirzapur and before expiry of one year, he has again been transferred to Allahabad.

While entertaining this writ petition, this Court, on 18.7.2017, has made two queries to the learned standing counsel as has been mentioned, herein, above to inform the Court as to whether there was no any other ADO (Panchyayat) available in Allahabad for handing over the charge of DPRO and for what reason, Sri Durga Prasad has been transferred from Mirzapur to Allahabad. These two quarries are still unsatisfied; whereas, the respondents have filed two short counter affidavits. Although, an abortive effort has been made to justify the transfer of Sri Durga Prasad at Allahabad, mentioning that he, being the senior most in his cadre, has been transferred to Allahabad for looking after the charge of DPRO, we are of the view that unless the State comes forward with the clear policy, as to when officiating charge be given on the basis of State wise seniority list and as to when local arrangement be made for handing over charge of DPRO to ADO (Panchayat), etc. amongst the persons working in the Districts, no such order could be passed. From the narration of the facts, as has been mentioned, herein, above what we find is that number of posts of DPRO's are vacant which have to be filled up either by direct recruitment or by promotion. There is no whisper in the counter affidavit about the filling up the vacancies either by direct recruitment or through promotion from amongst the eligible persons and continuing functioning on officiating basis, particularly, at the places where the DPRO's are posted and the working DPRO's are being attached to the other offices.

Sri Ojha has contended that the transfer of the petitioner is pre-meditated and he has been attached in the office of Dy. Director (Panchayat) only with a view to give undue advantage to Sri Durga Prasad, requiring him to look after the work of DPRO till the regular appointment is made.

Learned standing counsel appearing for the State could not justify the transfer of Sri Durga Prasad Tiwari at Allahabad with the direction to look after the work of DPRO till joining of regular DPRO. We fail to understand as to why the DPRO has been attached to other offices, particularly, in the circumstances when no charge was levelled against him, except that his performance was not up to the expectation; that too, without issuing any warning to the petitioner to improve his work. Sri Ojha, learned Senior Counsel appearing for the petitioner submitted that earlier the petitioner was suffering from cancer but later on fitness certificate was given to the petitioner by Dr. Sultan A. Pradhan, MS, FRCS, FACS, FCPS, Surgical Oncologist, Mumbai stating that he is fully cured.

In view of above, we find that the attachment of the petitioner with the office of Dy. Director (Panchayat) is pre-meditated and this will fall under the colourable exercise of power, which is impermissible in the eyes of law.

In the result, the writ petition succeeds and it is allowed. The impugned order dated 28.6.2017 passed by Additional Chief Secretary, Panchayati Raj transferring and attaching the petitioner to the Office of Deputy Director of Panchayati Raj, Allahabad is hereby quashed. Consequences to allow the writ petition will follow.

Here, we may also observe that we have not quashed the transfer order of Sri Durga Prasad, who has been transferred from Mirzapur to Allahabad, except neutralizing the directions of the State to look after the charge of DPRO till regular appointment is made at Allahabad.

Order Date :- 20.9.2017

SKS/Amit Mishra