Allahabad High Court
Rajendra Prasad Thapliyal vs State Of U.P. And 3 Others on 8 July, 2019
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 38
Case :- WRIT - A No. - 9962 of 2019
Petitioner :- Rajendra Prasad Thapliyal
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Anurag Pathak,Harshit Pathak
Counsel for Respondent :- C.S.C.,Vijay Kumar Dixit
Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an order passed by the Commissioner, Saharanpur dated 31.5.2019, whereby the order passed by the Chairman, Zila Panchayat dated 4.7.2018 has been stayed.
Petitioner claims to have been appointed as Tax Collector in the office of Zila Panchayat, Saharanpur on 22.8.1996. He continued in the same capacity for nearly 20 years whereafter he has been transferred on 6.9.2017 to Tehsil Deoband and was also entrusted the task of caretaker of plants and trees. An order dated 15.6.2018 thereafter was passed whereby the Upper Mukhya Adhikari, Zila Panchayat, Saharanpur transferred the petitioner to Block Nanauta from Tehsil Deoband. This order was assailed by the petitioner before the Chairman who vide his order dated 4.7.2018, stayed the same. The petitioner was directed to continue as per the previous order dated 6.9.2017. It appears that this order of the Chairman has been assailed before the Commissioner who happens to be the prescribed authority of the Zila Panchayat and the Commissioner has set aside the order of the Chairman vide his order dated 31.5.2019 which is impugned in this petition. The order records that under Section 50 of the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 read with Government Order dated 17.4.1996 the Upper Mukhya Adhikari has been made the Chief Executive Officer and the jurisdiction to transfer an employee from one section to another has been entrusted to him. The order further records that on account of order impugned the recovery to be made for the benefit of Zila Panchayat is being adversely affected.
Learned counsel for the petitioner submits that the order of Chairman was in accordance with the applicable Government Order and the Commissioner ought not to have interfered with it, particularly when the nature of order itself was interim in nature.
Learned counsel for the respondents, on the other hand, places reliance upon a Government Order dated 5.1.1987 which records that the subordinate staff of Zila Panchayat functions under the administrative control of Upper Mukhya Adhikari and that the said officer is the competent authority to exercise administrative control over their subordinate staff. Subsequent Government Order dated 17.4.1996 is also placed before the Court which clearly records that jurisdiction to shift an employee from one Tehsil to another rests exclusively in the Upper Mukhya Adhikari of Zila Panchayat.
I have heard learned counsel for the petitioner and Sri V. K. Dixit, learned counsel appearing for the respondents and have perused the materials brought on record.
Section 78 of the Adhiniyam, 1961 specifies the power of Chief Executive Officer and also specifies his responsibility. The Upper Mukhya Adhikari of Zila Panchayat is the Chief Executive Officer in the absence of Mukhya Adhikari and under the relevant government orders has the authority to pass order of transfer. The proviso to Section 78 confers power upon the Chairman to entertain a representation against such order if the employee concerned is aggrieved by the order itself. Section 228 of the Adhiniyam, 1961 prescribes power of the Prescribed Authority. Section 228 of the Adhiniyam, 1961 is reproduced hereinafter:-
"228. Powers of prescribed authority to suspended action under the Act. - (1) The prescribed authority may, within the limits of its jurisdiction by order in writing, prohibits the execution or further execution of a resolution or order passed or made under this or any other enactment by a Zila Panchayat, or Committee of a Zila Panchayat, or a joint committee, or servant of a Zila Panchayat or a Committee, if in its opinion such resolution or order is patently illegal or ultra vires or inconsistent with any order or direction given by the State Government under this Act or is of a nature to cause or tend to cause obstruction, annoyance or injury to the public or to any class or body or persons lawfully employed, or danger to human life, health or safety, or a riot or affray and may prohibit the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order.
(2) Where an order is made under sub-section (1) a copy thereof, with a statement of the reasons for making it, shall forthwith be forwarded by the prescribed authority to the State Government which may, after calling for an explanation from the Zila Panchayat and considering the explanation, if any, made by it, rescind, modify or confirm the order.
(3) Where the execution or further execution of a resolution or order is prohibited by an order made under sub-section (1) and continuing in force, it shall be the duty of the Zila Panchayat or the Committee of the Zila Panchayat or the joint committee or any officer or Servant of the Zila Panchayat or of the Committee of the Zila Panchayat or of the joint committee, if so required by the authority making the order under the said subsection, to take any action which it would have been entitled to take, if the resolution or order had never been made or passed, and which is necessary for preventing any person from doing or continuing to do anything under cover of the resolution or order of which the further execution is prohibited."
Perusal of the record would go to show that power to allot work to a member of subordinate staff vests in the Upper Mukhya Adhikari of Zila Panchayat. Though a representation can be entertained by the Chairman against such order but unless it is shown that the order itself is prejudicial to the interest of the employee or is otherwise not in accordance with law, the Chairman would not be expected to interfere with the allocation of work by the Upper Mukhya Adhikari. No such exigency is shown to exist in the facts of the present case.
It is not in issue that petitioner holds a transferable post and the order of transfer was passed by the competent authority. The Divisional Commissioner who happens to be the Prescribed Authority has, therefore, rightly interfered with the interim order of the Chairman inasmuch as no specific power of passing interim order is otherwise vested in the Chairman concerned. The Commissioner has clearly recorded a finding that the decision of Upper Mukhya Adhikari was in accordance with the government orders, issued by the State. By virtue of Section 228, the Commissioner would have the jurisdiction to interfere with an order passed by any authority, including the Chairman if it is otherwise not in accordance with Act of 1961 or the relevant government orders issued in that regard. The order of the Prescribed Authority, therefore, does not require any interference.
Writ petition, accordingly, fails and is dismissed.
Order Date :- 8.7.2019
Ashok Kr.
