M D AWASTHY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE petitioner, M. D. Awasthi was initially appointed as an Engineer in Jabalpur Town Improvement Trust, a local authority constituted under the Madhya Pradesh Town Improvement Trust Act, 1960. On constitution of the Jabalpur Development Authority with effect from 11-1-1980 under the provisions of the Madhya Pradesh Nagar Tatha Gram Niwesh adhiniyam, 1973, the employees of the Jabalpur Town Improvement Trust became the employees of the Jabalpur Development Authority (J. D. A.) by force of Section 87 (1) (c) (iv) of the latter enactment. The terms and conditions of the employees so being transferred to the Jabalpur Development Authority remained the same. With the new employer, the petitioner came to be designated as Development Engineer. It is the petitioner's allegations that as he could not cater to the taste of local politicians, they got annoyed and set out to harm the petitioner. Their earlier attempts proved futile but finally they could manage the petitioner's transfer to Katni Town Improvement Trust by an order dated 23-6-1982 (Annexure-B) passed by the Chief Executive Officer of the j. D. A. The order also shows that it has approval of the Chairman of the J. D. A. The petitioner resisted that order and questioned the authority of the Chief executive Officer to make such transfer. This led to the passing of yet another order dated 18-8-1982 whereby the petitioner's services have been terminated. This order (Annexure-L), like the earlier order (Annexure-B), has also been passed in the similar manner by the Chief Executive Officer and approved by the chairman. The petitioner challenges both these orders in this petition and alleges that he could not have been transferred or even sent on deputation to the town Improvement Trust, Katni under the employment of altogether a different master constituted under entirely a different enactment. It is also urged that the chief Executive Officer has no authority to make those two orders which are, therefore, void and non est. The claim, therefore, is for the petitioner's continuance as Development Engineer in the services of the J. D. A. The record also shows that the State Government has also intervened in the matter and has prompted the Chief Executive Officer of the J. D. A. to pass the impugned orders. The petitioner, therefore, has contended that the Government has no such power or authority.

(2.) LEARNED Government Advocate, appearing for the State, contended that it is the State Government who has passed those orders or has caused those orders to be passed and does have such an authority under Sections 72 and 73 of the M. P. Nagar Tatha Gram Niwesh Adhiniyam, 1973. Shri Sapre, counsel for the Town and Development Authority, Jabalpur (respondent No. 2) supports the validity of the orders. It is further contended by Shri Sapre that if the order of termination is held to be erroneous on any count whatever, the petitioner's remedy is only to claim damages for wrongful termination from service and that too not in these proceedings but by filing a civil suit where alone different aspects of assessment of damages can be gone into. It is added by the learned counsel that if for any reason the Court were to allow continuance of service, back wages should not be allowed for that will need separate enquiry.

(3.) WE shall first consider whether the Executive Officer of the Jabalpur development Authority has jurisdiction to direct petitioner's transfer to Katni improvement Trust even with the approval of the Director and whether he has similar jurisdiction to terminate the petitioner's services. A few provisions of the m. P. Nagar Tatha Gram Niwesh Adhiniyam, 1973 may be noticed for this purpose. Section 3 of the Adhiniyam requires the State Government to appoint an officer to be the Director of the Town and Country Planning. Section 38 provides for establishment of a Town and Country Development Authority and permits the State Government to establish by notification a Town and development Authority by such name and for such area as may be specified in the notification. Acting under this provision, the Jabalpur Development authority has been constituted. According to Section 39, every Town and country Development Authority shall be a body corporate by the name specified in the notification under Section 38. By force of Section 40, every such authority shall consist of a Chairman and other members not exceeding six. The chairman and all those members shall be appointed by the State Government. Section 45 provides for meeting of the Town and Country Development authority and permits the authority to make regulations to provide for the conduct of its business. Every such authority shall have a Chief Executive Officer to be appointed by the State Government. He shall also be the Secretary of the authority. Every Town and Country Development Authority shall have power to appoint such officers and servants as may be necessary and proper for sufficient discharge of its duties. For creation of such posts prior sanction of the state Government is necessary. The State Government is also empowered to impose such restrictions as it may from time to time like to impose on the power of appointment of officers and servants by the Town and Country Development authority. Such is the provision contained in Section 47 of the Adhiniyam. Another provision worth mentioning is Section 76-B which provides for constitution of the Development Authorities Service for the purpose of providing officers and servants to all Development Authorities in the State. Counsel stated at the Bar that no such Service has yet been constituted. From the aforesaid provisions, it is clear that it is the Town and Country Development authority which, with the prior approval of the State Government has the power to appoint officers and servants. The petitioner who should be deemed to be the employee of the Town and Country Development Authority established under section 30-A (in the present case the Jabalpur Development Authority) by force of Section 87 (1) (c) (iv) is the officer of the Jabalpur Development Authority within the meaning of Section 47 of the Adhiniyam. His service conditions could be changed and he could be removed from service only by the order of the jabalpur Development Authority which for all intent and purpose is the appointing authority of the petitioner. We have earlier shown that the Town and country Development Authority consists of a Chairman and members appointed by the State Government. Obviously, the order dated 23-6-1982 directing petitioner's transfer to Katni Town Improvement Trust is not passed by the Jabalpur Development Authority. As shown above, it has been passed by the chief Executive Officer. True it is that it is preceded by Annexure-C dated 27-8-1982 passed by the State Government purporting to take back the petitioner's services and to post him as Engineer in Katni Town Improvement Trust. It also shows that his services have been so placed with the Town Improvement Trust, katni on deputation. We have earlier indicated that the Chief Executive Officer, jabalpur Development Authority has no jurisdiction to pass any such order, vide annexure B. We further do not agree with the learned Government Advocate that the Government has any authority to pass the order like Annexure C taking back the petitioner's service and then placing him on deputation with another authority. Reference to sections 72 and 73 on which reliance was placed by the government Advocate in support of this contention is misconceived. Section 72 only authorises the State Government to have power of superintendence and control over the acts and proceedings of the officers appointed under Section 3 and the authorities constituted under the Act. Certainly this will not include a power to call back the services of any officer or servants of the Development authority and to place those services under the disposal of altogether a different authority. Reference to Section 73 is also misplaced as it only provides that the authorities constituted under the Act shall be bound by such directions in the matter of policy as may be given to them by the State Government. The order annexure C passed by the State Government putting the petitioner's service at the disposal of the Katni Improvement Trust cannot be said to be a direction on matters of policy. In our opinion, neither Section 72 nor Section 73 empowers the State Government to pass any order like Annexure C. For the aforesaid reasons, we are of the opinion that the order Annexure B and Annexure C directing petitioner's transfer to Katni Town Improvement Trust are without jurisdiction. They are liable to be quashed.