Mudit Singh vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 2492 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on: 13.1.2023
 
Delivered on: 24.1.2023
 
Court No. - 17
 
Case :- WRIT - A No. - 213 of 2023
 
Petitioner :- Mudit Singh
 
Respondent :- State Of U.P. Thru. Prin. Secy. Dept. Urban Development U.P. Civil Secrett. Lko. And 4 Others
 
Counsel for Petitioner :- Lalta Prasad Misra,Prafulla Tiwari
 
Counsel for Respondent :- C.S.C.,Sampurna Nand Shukla
 

 
Hon'ble Pankaj Bhatia,J.

1. The facts, in brief, giving rise to filing of the present writ petition are that the petitioner was initially appointed as a Health Education Officer in the Department of medical Health and Family Welfare in the year 2008. Subsequently, the State Government vide order dated 26.2.2019 sent the petitioner on deputation as an Executive Officer to Nagar Palika Parishad, Belha, Pratapgarh (Annexure - 4); a copy of the said order itself reveals that the petitioner has been sent on deputation on the post of Executive Officer till the completion of appointment (पूर्णकालिक व्यवस्था). In pursuance to the said order, the petitioner joined on 6.3.2019 as an Executive Officer. While the petitioner was posted on the post of Executive Officer, he was served with a show-cause notice dated 25.11.2022 (Annexure - 9) and the petitioner was called to give a reply to the same. The petitioner claims to have replied to the said show-cause notice on 27.11.2022. Thereafter, an order came to be passed on 28.11.2022 whereby the petitioner was repatriated to his parent department. The said order was challenged by the petitioner by filing Writ - A No.8322 of 2022 (Mudit Singh v. State of U.P. & Ors.). In the said petition, an order came to be passed on 14.2.2022 in the following effect:

"This Court had passed the following order on 12.12.2022:-

"Dr. L.P.Mishra, learned counsel for the petitioner submits that the petitioner was appointed on deputation on the post of Executive Officer Grade-II in the Nagar Palika Parishad, Belha, District-Pratapgarh by means of order dated 22.02.2019 till appointment of a regularly selected candidate. In regard to certain allegations of non completion of the Sewage Treatment Plant (STP) a show cause notice was issued to the petitioner on 25th of November 2022. In which the explanation was called up to 26.11.2022. However the said notice was served on the petitioner through Whats App on 27.11.2022 and on the same date the petitioner had sent the detailed reply on the E-mail as well as on Whats App from which the notice was served, but without considering the same, the impugned order of repatriation to the parent department has been passed on 28th of November 2022 without considering the reply submitted by the petitioner.

He further submits that even otherwise the STP is being constructed by the U.P.Jal Nigam and the petitioner is not liable for non completion of the same.A direction was issued on 19.04.2018 by the Executive Engineer, U.P.Jal Nigam to the Superintending Engineer for expeditious completion of the STP. Thereafter a report dated 11.03.2020 was submitted by the Executive Engineer explaining the reasons as to why the STP could not be completed. One of the reasons for non completion of the STP was for diversion of funds to other schemes. The submission is that the project for construction of STP was sanctioned in the year 2006 and the petitioner has been posted in the year 2019, therefore the petitioner cannot be attributed the liability for non completion of the STP, which is to be carried out by the Jal Nigam.

He further submits that the factual status report of Joint Committee constituted under the order dated 29.03.2022 of National Green Tribunal has been submitted on 12.08.2022, in which also Jal Nigam has informed that the STP is still not completed on account of shortage of funds etc.

He also submits that an affidavit has also been submitted by the Additional Chief Secretary, Nagar Vikas, Government of U.P. before the National Green Tribunal, in which he has undertaken to expedite the process of construction of STP fully operational within two months and he had ensured to the Tribunal in the affidavit for the action in pursuance of the FIR lodged at Pratapgarh against the erring Jal Nigam officers and Contractor firm-M/s Thermax Ltd. Chinchwad.

On the basis of above, learned counsel for the petitioner submits that the delay in construction of STP has been committed by the Jal Nigam and the petitioner is not liable for the same. He also submits that the tenure appointment of the petitioner, on deputation, cannot be cancelled by a stigmatic order without affording opportunity to the petitioner and considering the explanation submitted by the petitioner.

Shri Prashant Singh Atal, learned Chief Standing Counsel submits that though he has written letter to the Government but he could not get the instructions. He prays for time for instructions.

As prayed list on 14th of December 2022 in top ten cases. "

Sri Prashant Singh Atal, learned Chief Standing Counsel submits that though he has again written a letter but no instructions have been provided. He prays for three days further time to seek instructions.

Despite passing the aforesaid detailed order, no instructions have been provided to the learned Chief Standing Counsel. It is very strange that even after writing repeated letters by the learned Chief Standing Counsel, the instructions are not being provided therefore this Court has no other option except to pass order on the basis of records.

In view of the contentions recorded in the order dated 12.12.2022, the liability for completion of construction of STP is on the Jal Nigam and action has also been taken against the officials of the Jal Nigam for delay in completion of STP.

The matter requires consideration.

As prayed, list on 20.12.2022 in terms of earlier order.

Till the next date of listing or completion of term of appointment of the petitioner on deputation, whichever is earlier, the impugned order dated 28.11.2022 shall remain stayed."

2. In terms of the said order, till the next date of listing or completion of term of appointment of the petitioner on deputation, whichever was earlier, the impugned order dated 28.11.2022 was directed to be remain stayed.

3. During the pendency of the said writ petition, a fresh order was passed on 30.12.2022 (Annexure - 1) whereby one Shri Ram Achal Kuril who was acting as an Executive Officer, Nagar Palika Parishad, Chitrakoot was transferred as an Executive Officer, Nagar Palika Parishad, Belha, Pratapgarh where the petitioner was working. The said order is under challenge in the present writ petition.

4. The order impugned also records and takes notices of an order passed by this Court on 14.12.2022 and further goes to record that in terms of the order of the Director dated 3.10.2022, 11 Officers were promoted to the post of Executive Officer, Class II and in view of the said appointments, it was recorded that the petitioner should be reverted back to his parent cadre.

5. By means of a separate order, the writ petition preferred by the petitioner being Writ - A No.8322 of 2022 was disposed off in view of the statement of the Standing Counsel that a fresh order has been passed and the earlier order shall not be given effect to and the fresh order passed against the petitioner is the only order in respect of the petitioner.

6. Challenging the fresh order passed against the petitioner, Dr. L.P. Mishra, learned counsel assisted by Shri Prafulla Tiwari, learned counsel for the petitioner strongly argues that fresh order dated 30.12.2022 was passed only to frustrate the interim order dated 14.12.2022 passed by this Court in Writ - A No.8322 of 2022. He further argues that the impugned order has prematurely repatriated the petitioner to his parent department only with a view to circumvent the order dated 14.12.2022. He draws my attention to the initial order of appointment whereby the petitioner was sent on deputation till the selections are made. It is further argued that the entire action is malafide and should be struck down.

7. Learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India & Anr. v. S.N. Maity & Anr.; (2015) 4 SCC 164 and lays particular emphasis on Paras - 15 to 17, which are quoted herein under:

"15. The controversy that has emerged in the instant case is to be decided on the touchstone of the aforesaid principles of law. We have already opined that it is not a case of simple transfer. It is not a situation where one can say that it is a transfer on deputation as against an equivalent post from one cadre to another or one department to another. It is not a deputation from a government department to a government corporation or one Government to the other. There is no cavil over the fact that the post falls in a different category and the first respondent had gone through the whole gamut of selection. On a studied scrutiny, the notification of appointment makes it absolutely clear that it is a tenure posting and the fixed tenure is five years unless it is curtailed. But, a pregnant one, this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words "until further orders" are used, it would not confer allowance on the employer to act with caprice.

16. Presently, we shall scrutinise under what circumstances the order of repatriation has been issued. The impugned communication dated 17-1-2005 by the Under-Secretary to the Government of India, reads as follows:

"Immediate/Confidential

No. 10/7/2004-EO(SM.II)

Government of India

Secretariat of the Appointments Committee of the Cabinet

Ministry of Personnel, Public Grievances and Pensions

Department of Personnel and Training

New Delhi, dated 17-1-2005

Reference correspondence resting with Department of Industrial Policy and Promotion DO No. 8/52/2001-PP&C dated 9-12-2004.

2. The Appointments Committee of the Cabinet has approved the following proposals:

(i) Premature repatriation of Dr S.N. Maity, Controller General of Patents, Designs and Trade Marks (Cgpdtm) to his parent department w.e.f. 31-8-2004 (AN); and

(ii) Entrusting current charge of the post of Controller General of Patents, Designs and Trade Marks (Cgpdtm) to Shri S. Chandrasekaran, Joint Controller of Patents and Designs w.e.f. 1-9-2004 for a period of 1 year, within which, the Department may be directed to finalise selection of a regular incumbent of the post.

sd/-

(Ravindra Kumar)

Under-Secretary to the Government of India"

17. The Order dated 17-1-2005 is absolutely silent on any aspect. An argument has been advanced by Mr Gonsalves, learned Senior Counsel for the first respondent that this letter was issued because of some frivolous complaints made against the first respondent and also regard being had to his stern and strict dealings pertaining to certain aspects. Be that as it may, the letter is absolutely silent and it has curtailed the tenure of posting without any justifiable reason. Regard being had to the nature of appointment, that is, tenure appointment, it really cannot withstand close scrutiny. Therefore, the judgment passed by the High Court lancinating the said order cannot really be found fault with."

8. Shri Ran Vijay Singh, learned Standing Counsel for the respondents argues that by means of an order dated 3.10.2022 (Annexure - 12 to the writ petition), as many as 11 persons were appointed through promotion to the post of Executive Officer, Class II and on the appointment of the said officers, the claim of the petitioner to continue in the repatriated department would fall as the same was only till the regular selections are made.

9. He argues that although the appointments through promotion made to the post of Executive Officer, Class II vide order dated 3.10.2022 was not in respect of the Nagar Palika Parishad, Pratapgarh, it is always open for the State Government to post any officer at any place in view of the fact that the appointment to the post of Executive Officer is governed by Uttar Pradesh Palika (Centralised) Services Rules, 1966 (hereinafter referred to ''the 1966 Rules').

10. Both the counsel(s) have taken me extensively through the manner in which the appointment to Nagar Palika Parishad is to take place after the enforcement of the 1966 Rules.

11. The 1966 Rules governs the appointment to all Municipal Corporations, Municipal Councils, Nagar Panchayats and the Class of Officers who can be appointed in terms of the said Rules; Rule 3 and Rule 3(1)(vi) provides for Executive Officer of Class - II Municipal Councils. Rule 6 provides for source of recruitment, absorption and determination of service of the existing officers and servants and Rule 6(1) provides that the posts mentioned in Schedule - I shall be filled in by promotion in the manner laid down in Rule 20.

12. Schedule - I to the said Rules provides for appointment to the post of Executive Officers of Class - II in the Municipal Corporations. Thus, in terms of Rules it is clear that the appointments are to be made through promotion in the manner as detailed in Rule 20.

13. In response to the averments made by learned counsel for the respondents and on the basis of the 1966 Rules, learned counsel for the petitioner argues that the appointment to the post of Executive Officer would be complete only when all the posts falling vacant through out the entire State are filled in terms of the provisions as contained in Rule 6 of the 1966 Rules. He argues that no recruitment to the post of Executive Officer for Pratapgarh has been made although he does not deny that 11 persons were made the Executive Officer through promotion vide order dated 3.10.2022. He argues that the transfer of one Ram Achal Kuril who was posted at Nagar Palika Parishad, Chitrkoot to Pratapgrah was only with a view to circumvent the interim order dated 14.12.2022 passed by this Court.

14. Considering the submissions made at the Bar, the first thing to be considered is the right of the petitioner to continue in the repatriated department.

15. A perusal of the order of appointment of the petitioner, which is contained in Annexure - 4, makes it clear that the appointment of the petitioner was itself till the appointments are made by the Government, thus, prima-facie, the petitioner has no right to continue in the repatriated department after regular appointments are made there.

16. The second submission of learned counsel for the petitioner that appointments to the repatriated department would stand complete only when all the appointments are made in the entire State, merits rejection as in terms of the 1966 Rules, the appointments are to be made through promotion and the said appointments are not for particular Municipal Councils and the officers so promoted and appointed can be transferred from one Palika to another in terms of the provisions of Rule 25 of the 1966 Rules. Thus, the said submission of learned counsel for the petitioner that the process of recruitment should be concluded in the entire State, merits rejection as it is for the State to determine the number of appointments to be made; the appointment of an Executive Officer in terms of the 1966 Rules can be for any of the Palika.

17. As regards the malafide being argued by learned counsel for the petitioner on the basis of allegations levelled in the show-cause notice, there is no material on record by the petitioner to establish any personal or institutional malafide against the petitioner by the State.

18. Ultimately it cannot be lost sight of that the petitioner himself does not have any right to continue in the repatriated department as the appointment order of the petitioner itself makes it clear that the appointment is till the regular selections are made. Once the petitioner does not have any vested right to continue in the repatriated department either in terms of the appointment order or in terms of any statutory provision, the petitioner is not entitled for issuance of any writ by this Court as is being prayed.

19. The judgment cited by learned counsel for the petitioner specifically Paras - 15 to 17 consider the principle of law with regard to transfer of deputation, I do not see any reason as to how the observations made in Paras - 15 to 17 can help the petitioner, more so, in view of the nature of the appointment of the petitioner.

20. In view of the discussions herein above, the writ petition lacks merit and is accordingly dismissed.

Order Date :- 24.01.2023				[Pankaj Bhatia, J.]
 
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