YOGESH CHANDRA JOSHI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Appellant filed a writ petition in the High Court of Allahabad challenging the order of reversion to the post of Accounts Officer from the post of Finance Officer in Jal Sansthan by order dated 18-9-1992. The Division Bench of the Allahabad High Court by the impugned order dated 21-1-1993 dismissed the said writ petition inter alia on the ground that the post of Finance Officer not having been created in consonance with the provisions of Section 27 of the U.P. Water Supply and Sewerage Act, 1975 (hereinafter to as 'the Act') inasmuch as prior approval of the Government had not been taken before the creation of the such post, the promotion of the appellant to such post does not confer any right and consequently the order of reversion does not suffer from any infirmity. The appellant challenges the aforesaid judgment of the Allahabad High Court in this appeal.

(2.) From the averments made by the appellant in the writ petition filed before the High Court as well as the documents appended thereto, it appears that Allahabad Jal Sansthan Samiti created the post of Finance Officer by Resolution No. 7 dated 16-1-1978. Shri Mool Chandra Kamla was appointed against the said post by order dated 17-1-1978 issued by the Chairman of Jal Sansthan. Said Shri Kamla went on leave and in his place the appellant was allowed to remain in-charge of the post of Finance Officer. By Office Order dated 21-1-1989 passed by the Chairman, Jal Sansthan, the appellant was confirmed against the post of Finance Officer and it was stated therein that for the purposes of seniority the date of his promotion to the post of Finance Officer on 7-6-1986 will be the relevant date. In accordance with the aforesaid order the pay of the appellant as Finance Officer was fixed in the pay scale of Rs. 1100-2050 w.e.f. 7-6-1986 by the General Manager of Jal Sansthan by his order dated 17th of August, 1989. Thereafter there has been several correspondence between the Government and the Jal Sansthan, the Government entertaining a doubt with regard to the legality of the appointment of appellant to the post of Finance Officer and Jal Sansthan reiterating its stand that the appellant has been duly promoted to the post of Finance Officer. Finally, the State Government issued the Office Order dated 18-9-1992 reverting the appellant to the post of Accounts Officer with immediate effect and communicated the same to the Chairman, Jal Sansthan, Allahabad. The Chairman in his turn passed an order on 28-9-1992 cancelling the promotion and confirmation of the appellant on the post of Finance Officer in compliance of Resolution No. 353 dated 14-9-1992 passed by Jal Sansthan. Appellant, therefore, approached the High Court challenging the legality of the aforesaid order. It may not be out of place to notice that while the appellant was continuing as Finance Officer the State Government itself nominated the appellant to undergo training at Bombay under the U.P. Urban Development Project. The respondents took the stand before the High Court that the post of Finance Officer had been created by Jal Sansthan in contravention of Section 27 of the Act inasmuch as previous approval of the State Government had not been obtained before the creation of the post and as such post itself has not been created in accordance with law, promotion of the appellant to the said post will not confer any right on the appellant. On examining the provisions of Section 27 of the Act the High Court was persuaded to accept this stand of the State Government and accordingly it held that the post of Finance Officer not having been created with the previous approval of the State Government, promotion of the appellant to the said post was bad in law, and therefore, reversion is fully justified.

(3.) Mr. V.A. Mohta, learned senior counsel appearing for the appellant urged that the High Court committed error in considering the provisions of Section 27 of the Act as amended in the year 1983, though the post of Finance Officer had been created as early as on 16-1-1978 under the unamended provisions which did not require the previous approval of the State Government as a condition precedent for creation of post under the Jal Sansthan. According to learned senior counsel, Mr. Mohta, only stand of the State Government being the legality of the creation of the post itself and the said stand being based on amended provision of 1983 though the post was created in January 1978 under the unamended provisions, the entire premise on which the Government laboured and the High Court was persuaded to accept the same is unsustainable, and therefore, the impugned order of reversion is liable to be set aside. Mr. Mohta also contended that the order of reversion is actuated by mala fides of the General Manager but we are not persuaded to examine the said question on the existing materials on record.