Mahesh
Kumar Mudgil Vs. State of Uttar Pradesh & Ors [1997] INSC 904 (8 December
1997)
SUJATA
V. MANOHAR, D.P. WADHWA
ACT:
HEADNOTE:
D.P.
WADHWA, J.
The
appellant is aggrieved by the order dated April 27, 1989 of the High Court of Judicature at Allahabad (Lucknow Bench) dismissing his writ
petition wherein his challenge to the post of Officer on Special Duty (Special
Component Plan) which he was holding, failed.
The
appellant joined Secretariat service of the respondent as Lower Division
Assistant in the temporary capacity in the year 1975. Whereafter he was
promoted as Upper Division Assistant. While the appellant was holding the post
of Upper Division Assistant in officiating capacity, he was selected and
appointed on ex-cadre post of Officer on Special Duty (Special Component Plan)
by order dated October
16, 1980. By Office
Memorandum dated May 8, 1984, this post of Officer on Special Duty (Special
Component Plan) was sought to be abolished and by notification dated May 14,
1984 Shri Shiva Shankar Singh, respondent No.4, was appointed as Officer on
Special Duty (Special Component Plan) in newly created post. Both the aforesaid
office memorandum and the notification were challenged by the appellant in the
writ petition in the High Court.
In
support of his case in the High Court, the appellant had contended that a
Government servant holding a temporary post for more than three years acquired
right to be considered for confirmation against that post and if necessary by
converting the temporary post into a permanent one. He said that since he had
completed more than three years as Officer on Special Duty (Special Component
Plan), he was entitled to hold that post which was being abolished by Officer
Memorandum dated May 8, 1984. His further case was that this post was borne on
the cadre of Directorate of Harijan and Social Welfare and could not be
abolished by the Secretariat Administration (Establishment) of the State
Government. The case set up by the appellant did not find favour with the High
Court and it dismissed his writ petition.
The
only contention raised before us in this appeal is that the post of Officer on
Special Duty (Special Component Plan) was in the cadre of the Directorate of Harijan
and Social Welfare Department of the State Government and the State Government
in the Secretariat Administration (Establishment) could not have abolished the
same. We may note that on account of the interim orders issued by the High
Court and latter by this Court, the post of Office on Special Duty (Special
Component Plan) has been continued with the appellant, it appears, still
holding the same. To understand how this post which the appellant was holding
was created and how it was abolished, we may refer to sequence of certain
events.
On
October 16, 1980 a communication [No.5158/26-3-80- 11(17)80] was addressed by
the Secretary to the Government of U.P. to the Director, Harijan and Social
Welfare Department according sanction to create on temporary post at
Secretariat level in the pay scale of Rs.500/1000/-. It was stated in the
letter that for the purpose of implementation of special component plan for
Scheduled Castes in an accelerated and effective manner, the Governor was
pleased to accord sanction to create that above post from the date of filling
up the post which date shall not be earlier than the date of this order upto
February 28, 1981. It was mentioned that the said post shall be a gazetted post
and the designation whereof shall be Officer on Special Duty (Special Component
Plan). The holder of the said post was to be paid in addition to pay, dearness
allowance and other allowances as applicable and approved by the Government
from time to time. This letter also described the qualifications for holding
this post and the functions which were to be performed. Then the letter gave
the following directions:
"The
above said expenditure shall be made in the income and expenditure account for
the current financial year 1980-81 and charged against the head
"288-Social Security and Welfare - Ka - Schedule Caste, Schedule Tribe and
other backward classes welfare - 2 - uplift of schedule caste under organisation
puronidhanit schemes by centre-special central relief/subsidiary relief/
component relief/state relief under the special component plant for the all
around development of scheduled castes.
This
order is issued with the Sanction of the finance department received by its
non-official letter No.%-2968-10-80 dated 15th October, 1980." At the same time, by Office
Memorandum dated October 16, 1980, the appellant was appointed to the post of
Officer on Special Duty (Special Component Plan) in the pay- scale of
Rs.500-1000/- created under the aforesaid Government Order
No.5158/26-3-80-11(17)80 dated October 16, 1980. By officer order dated January
22, 1982 a new pay- scale for the post of officer on Special Duty (Special
Component Plan) was sanctioned and now this post was in the pay-scale of
Rs.770-1600/-. This was by letter of the Special Secretary to the Government of
Uttar Pradesh to the Director, Harijan and Social Welfare Department. The post
was being extended from time to time by various Government orders. Then comes
the Office Memorandum dated May 8, 1984
issued by the Secretariat Administration (Establishment), Section I abolishing
this post and, at the same time, creating a new post of the Officer on Special
Duty (Special Component Cell). This Officer Memorandum we may reproduce as under
:
"Secretariat
Administration (Establishment) Section-I No.2667A/Twenty-E-1-544(2)/80 Lucknow dated 8th May, 1984.
In
reference to The Government Resolution No. Pay R.1590/Ten/42(M)/1980 dated 29th
September, 1981 passed on the recommendations made in the report of Uttar
Pradesh Pay Commission, the undersigned is directed to say that the Governor is
pleased to accord sanction for creation of one temporary post of Officer on
Special Duty (Special Component Plan) in the Uttar Pradesh Secretariat from the
date of issuance of this order or from the date when the said post is utilised
till 28th February 1985 whichever is later in the new pay scale of
Rs.770-40-1050-E.B.-50.1300-60- 1420-E.B.60-1600 in the cadre of Uttar Pradesh
Secretariat Service with the condition that the said post may be abolished at
any time before the specified date without any prior notice. As a result of
creation of this post, one temporary post of Officer on Special Duty (Special
Component Plan) in the old pay scale of Rs.500-25-700-E.B.-40-900-E.B.-50- 1000
created by the Harijan and Social Welfare Section-3 by Government Order
No.5158/26.3.80- 11(17)/80 dated 16th October, 1980 which was revised to the
new pay scale of Rs.7000-40-1050-EB-50- 1300-60-1320-EB-60-1600 by Government
Order No.4346/26.3.82- 11(84)/81 dated 22nd January, 1982 of the Harijan and
Social Welfare Section-3 and the period of which has been extended for the last
time upto 28th February 1985 by the Government Order No.633/26.3.1985 dated
30th March 1984 of the same department, that post shall be deemed to be
abolished from the date when the newly created post with the same name and
equivalent to former post is brought into use.
2. The
said post shall be deemed to be included temporarily in the posts of Section
Officers in the Cadre of Uttar Pradesh Secretariat Service.
3. The
holder of the said post shall also be paid in addition to pay in the above
mentioned pay scale, dearness allowances and other allowances as applicable
under orders issued from time to time by the Government.
4. The
expenditure incurred in this regard, shall be made in the income and
expenditure account for the financial year 1984-85 and charged against the Head
"228 - Social Security and Welfare (Ka) Scheduled Castes, Scheduled Tribes
and other backward classes welfare (2) - Scheduled Castes Welfare (Ng-
PURONIDHANIT) Schemes- by the Centre- under Organisation (2) Social Uplift Programme
(No. 7733).(Kha)-All round development of Scheduled Castes under special
component plan special Central Relief (Cent per cent central relief)/Aubaid
Subsidiary grant/component/Government relief (grant No.81).
5.
These orders are issued with the assent of the Finance Department received by
its non- official Letter No.E-129/71 4 (A) dated 4th May, 1984.
No.E-129/71
4 (A) dated 4th May,
1984.
Vinod
Chandra Pandey Deputy Secretary.
As
noted above, in pursuance to this memorandum, the State Government by
notification dated My 14, 1984 appointed Respondent No.4, Shiva Shankar Singh
on this newly created post. This notification in relevant part reads as under:
"Government
of Uttar Pradesh, Secretariat Administration (Establishment) Section-1.
No.2792/20-E-1-691/84
dated 14th May, 1984 Notification/Appointment The
following permanent Upper Division Assistants of utter Pradesh Secretariat are
appointed as Section Officers on ad hoc and temporary basis from the date of
taking charge thereof and are posted to the newly created post\vacancy shown in
column 3 against their names respectively. S.No. Name & Present Description
of post/ Place of Posting Vacancy
1. Shri
Shiv Shankar Singh Officer on Special Industry Department Duty (Special
Component Plant) in Harijan & Social Welfare Department, which is the post
of Section Officer in the Secretariat Service Cadre.
2. ...
------------------------------------------------------------
The above posts have been notified by office Memo No.2667-2667-A/Twenty E 544
(2)/810 dated 9th May,
1984.
sd/- Kamal
Pandey, Secretary." As we have seen above letter dated October 16, 1980 creates the post of Officer on
Special Duty at Secretariat level. To that effect latter was addressed by the
Secretary, Government of Uttar Pradesh to the Director, Harijan and Social
Welfare. Similarly, Office Memorandum dated May 8, 1984 reproduced above abolishes that
post and creates a new temporary post of Officer on Special Duty. There is
hardly any scope fir controversy as raised by the appellant that the post of
Officer on Special Duty which was a temporary post and to which he was
appointed on ad hoc basis was created in the Directorate and no in the
Secretariat which means in the ministry. His contention, therefore, that
Secretariat administration had no power or jurisdiction to abolish the post he
was holding does not appear to have any basis. Admittedly, the post of Officer
on Special Duty (Special Component Plan) which was temporary was being extended
from time to time by various Government orders.
There
is no Government order further extending this post or any sanction order from
the Finance Department as required under the Uttar Pradesh Rules Of Business,
1975. Even otherwise the post in the absence of any order of extension or any
financial sanction lapses of its own. The Office Memorandum dated May 8, 1984 is specific and leaves no room for doubt that the
temporary post of Officer on Special Duty (Special Component Cell) which the
appellant was holding was abolished. Under the Uttar Pradesh Rules of Business
creation of post carrying pay scale the maximum of which is either Rs.2,000/-
or less than Rs. 2,000/- requires the sanction of Minister In-charge which he
can do only after Department of Finance has concurred. If there is difference
of opinion between the Minister In-charge of a particular department where the
post is sought to be created and the Finance Department the matter is referred
under the aforesaid Rules to the Chief Minister. The letter dated October 16, 1980 creating the post and that Office
Memorandum dated May 8,
1984 abolishing the
post referred to above record the sanction issued by the Finance Department.
We may
refer to para 4(2) of the Uttar Pradesh Rules of Business, 1975 which is as
under:
"4(2)
Unless the case is fully covered by powers to sanction expenditure or to
appropriate or re-appropriate funds, conferred by any general or special orders
made by the Finance Department, no department shall, without the previous
concurrence of the Finance Department, issue any orders which may - (a) involve
any abandonment of revenue or involve any expenditure for which no provision
has been made in the Appropriation Act;
(b)
involve any grant of land or assignment of revenue or concession, grant, lease
or licence of mineral or forest right or a right to water power or any easement
or privilege in respect of such concession;
(c)
relate to the number or grade of posts, or to the strength or a service, or to
the payor allowances or government servants or to any other conditions of their
service having financial implications; or (d) otherwise have a financial
bearing whether involving expenditure or not:
Provided
that no orders of the nature specified in clause (c) shall be issued in respect
of the Finance Department without the previous concurrence of the DEPARTMENT OF
Personnel." The Rule is specific and carries with it the mandate of the
Constitution under Article 166 thereof.
We
have not been shown any order of the State Government extending the duration of
the post of Officer on Special Duty (Special Component Cell) which the
appellant is holding or sanction of the Finance Department agreeing to the
continuation of that post. We do not find any bar that a post though created in
the Secretariat establishment in the Ministry cannot be used in any attached or
subordinate office but that does not give right to that office to hold on that
post.
High
Court has taken correct view of the matter. We find no reason to differ from
the same. The appeal lacks merit, it is dismissed with costs.
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