Nilansh vs Secretary In-Charge And 2 Others
2021 Latest Caselaw 3643 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 581 of 2021
 

 
Petitioner :- Nilansh
 
Respondent :- Secretary In-Charge And 2 Others
 
Counsel for Petitioner :- Mayank Kumar Agrawal
 
Counsel for Respondent :- Archit Mandhyan,Adarsh Bhushan
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. Petitioner has been offered appointment on a Class-IV post on compassionate ground on 1st March, 2019. Petitioner's appointing authority is the Secretary of Mandi Samiti. It transpires that the initial appointment of petitioner was on probation for a period of one year. Before expiry of one year probation term, the Officiating Secretary by his order has extended the petitioner's period of probation by a further period of one year. This order of extension appears to have been challenged before the Regional Deputy Director, who has treated the challenge as an appeal and has set aside the order extending the probation period vide order dated 23.6.2020. According to petitioner the Officiating Secretary aggrieved by the order of higher authority and with an intent to disobey such direction has passed an order on 21st October, 2020 holding the order of his superior to be legally invalid and has thereafter proceeded to place the petitioner under suspension. The order of suspension dated 5.11.2020 is accordingly challenged in this petition. By way of an amendment petitioner has also questioned the chargesheet issued to him on the ground that it has not been issued by the competent authority. The petitioner also alleges that disciplinary proceedings have been initiated for mala fide considerations and as such the orders impugned are bad in law. It is also urged that the authorities have proceeded on a mistaken premise that the compassionate appointment offered is on temporary basis, whereas such appointment was substantive in nature. Learned counsel for the petitioner places reliance upon a judgment of this Court in the case of Lallan Prasad Vs. State of U.P. and others, passed in Writ Petition No.43483 of 2000, decided on 17.1.2001, wherein following observations have been made in paragraph 9:-

"9. Sri Sudhakar Pandey further placed reliance on the decision in the case of State of U. P. and others v. Ram Singh and another, 1997 UPLBEC 1160, as well as Division Bench decision of this Court in Amanat Hussain v. Assistant Conservator of Forests, 1989 (1) UPLBEC 484. The law which flows from these two decisions is that an authority subordinate to the appointing authority if not invested with the power of suspension either under the rule or by specific authorization or delegation, is not entitled to pass an order of suspension and if an order of suspension has been passed by such an authority, it would be bad in law. These authorities have no bearing on the question that the order of suspension passed by an authority superior to the appointing authority is not sustainable. The reliance on these two decisions is, therefore, misplaced."

2. It is urged that since all the orders prejudicial to petitioner are passed by an incompetent authority, who is not the appointing authority of the petitioner, and in whose favour there is no valid delegation as such these orders are wholly without jurisdiction and are bad in law.

3. On behalf of respondent Mandi Parishad it is pointed out that orders have been passed by the competent authority and the mere fact that occupant of the office of Secretary is holding the charge on officiating basis would not make him any less Secretary than a regular Secretary for the purposes of discharge of jurisdiction assigned to the office of the Secretary. It is also urged that the charges levelled against the petitioner are serious and till date petitioner has not submitted any reply to the chargesheet. It is submitted that this Court under Article 226 of the Constitution of India, in such circumstances, may not interfere in the present writ petition.

4. In reply, learned counsel for the petitioner submits that the petitioner has responded to the chargesheet but materials in support of such a plea is not available on record.

5. I have heard Sri Mayank Kumar Agrawal for the petitioner and Sri Adarsh Bhushan for the respondent Mandi Parishad. Dr. A.N. Singh, learned Standing Counsel has been heard for the State and its authorities.

6. From the facts that emerge on record it is undisputed that petitioner has been offered compassionate appointment. Such appointment in law would be treated to be a substantive appointment. The service conditions of the employees engaged in Mandi Parishad are governed by the statutory regulations of 1984, known as U.P. Krishi Utpadan Mandi Kendriya Seva Niyamawali, 1984. Rule 20 and 21 of the Rules of 1984 relates to appointment and probation. Sub-rule (1) of Rule 21 provides that any member of centralized service, upon appointment, shall be placed on probation for a period of one year. Sub-rule (2) of Rule 21 permits the appointing authority to extend the period of probation for the reasons to be recorded, but such period would not extend beyond a period of two years. The petitioner's appointment though substantive in nature would clearly be thus on probation for a period of one year by virtue of Rule 21 of the Rules of 1984. There is no stipulation in the rule for an automatic confirmation in service upon expiry of one year term. Instead, the rules do stipulate power with the appointing authority to extend the period of probation by a further period of one year. Such an order has in fact been passed by the Officiating Secretary of the Mandi Parishad.

7. The first and foremost ground of challenge in the present writ petition is that the order extending the period of probation as also the orders of suspension and issuance of chargesheet are by the Officiating Secretary, who is not the competent authority, and therefore, the orders impugned are without jurisdiction. This argument of the petitioner proceeds on the assumption that a person, who holds the post of officiating capacity, is not the occupant of the post, and therefore, cannot discharge the functions which are to be performed by the Secretary. This argument of the petitioner cannot be accepted, inasmuch as anyone who is validly authorized to officiate on the substantive post of Secretary would have the jurisdiction to perform all functions that are attached to the post of Secretary. The Officiating Secretary, therefore, cannot be denuded of jurisdiction to pass the orders extending the period of initial probation; initiating disciplinary enquiry or placing the petitioner under suspension.

8. In the facts of the present case, the orders are also assailed on the ground that the Officiating Secretary felt annoyed by the order of the higher authority setting aside his order dated 29.4.2020, extending the period of probation. In order to appreciate the argument in that regard, learned counsel for the petitioner has been asked to indicate the provision under which an appeal could be entertained against the order of appointing authority extending the period of probation. Learned counsel for the petitioner has not been able to place any provision in the statutory service rules, wherein the order extending the period of probation could be challenged by way of appeal. The law is settled that appeal is a creature of statute and unless a specific provision exists for filing of appeal, the authorities cannot treat any representation to be an appeal, so as to interfere with the order passed by the appointing authority extending the period of probation. The Officiating Secretary, therefore, has not erred in observing that the order of his higher authority was not an order in accordance with the rules, and therefore, would not be applicable. The higher authority has been informed of this fact by the Officiating Secretary himself. This order cannot be treated to be an invalid order, inasmuch as this Court finds that in absence of any provision of appeal, the higher authority had no jurisdiction to interfere in the order of the Officiating Secretary. The satisfaction of the appointing authority for the purposes of confirming the services of an employee placed on probation is well recognized in service jurisprudence, which cannot be lightly interfered with. In respect of the overall functioning of the employee concerned, the appointing authority has to form an opinion for the purposes of his confirmation. In case the authority has extended period of probation no exception, therefore, can be taken to it. The argument that the Officiating Secretary felt annoyed by such action, therefore, must fail.

9. So far as the order of suspension is concerned, this Court though has found substance in the argument of learned counsel for the petitioner that absolutely no reasons have been disclosed therein. However, the matter does not rest at this stage. The respondents have indicated that the decision to place the petitioner under suspension has been approved by the Chairman of the Mandi Samiti, and that a chargesheet has also been issued to the petitioner. The chargesheet is on record, according to which ten charges have been levelled against the petitioner. There is nothing on record to show that petitioner has submitted reply to the chargesheet. Some of the charges levelled against the petitioner cannot be said to be trivial in nature and that even in the event it is found to be proved, may warrant major punishment. This Court, at this stage, is however not required to comment on merits of the charges, inasmuch as the allegations are yet to be determined in the disciplinary proceedings and the observation aforesaid has to be construed in that light.

10. Petitioner, in the facts of the case, would be well advised to submit reply to the chargesheet unless he has already submitted it. The petitioner shall annex copy of his reply alongwith a representation before the Secretary of the Mandi Parishad and the appointing authority shall ensure that disciplinary enquiry initiated against the petitioner gets concluded, within a period of four months from today. So far as the allegations of mala fide are concerned, this Court is not inclined to examine the issue any further, particularly as the allegations of mala fide are essentially based on the aspect of jurisdiction, which has already been dealt with and rejected in the previous part of the order. The Officiating Secretary, however, shall ensure that allegations against the petitioner are fairly examined and an appropriate decision based upon the outcome of the enquiry proceedings are taken, within a further period of two weeks, thereafter.

11. Subject to the above observations made, this writ petition is consigned to records.

Order Date :- 16.3.2021

Anil