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1998 Supreme(SC) 929
1998(7) Supreme 173
Supreme Court of India
(From Allahabad High Court)
Sujata V. Manohar & G.B. Pattanaik, JJ.
Yogesh Chandra Joshi -Appellant
versus
State of U.P. & Ors. -Respondents
Civil Appeal No. 3817 of 1993
Decided on 2-9-1998
Counsel for the Parties :
For the Appellant : V.A. Mohta, Sr. Advocate, Manoj Prasad, Advocate.
For the Respondents : Prashant Kumar, Joseph Pookkatt and S. Dave, Advocates.
Important Point
High Court was wrong in holding that for creation of post of Finance Officer in Jan. 1978 in U.P. Jal Sansthan prior approval of Govt. was necessary under unamended Section 27 of U.P. Water Supply and Sewerage Act, 1975.
Headnote:(i) U.P. Water Supply and Sewerage Act, 1975-Section 27-Appointment of employees-Creation of post of Finance Officer in January 1978-Whether prior approval of State Govt. was necessary under the unamended provisions of Section 27 on that date? (No)-High Court and State Govt. erroneously relied on amended Section 27 wherein prior permission of Govt. was required - Whether proper? (No)-Effect-There was no infirmity with the creation of post of Finance Officer by Jal Sansthan. (Para 7)
(ii) U.P. Water Supply and Sewerage Act, 1975-Section 27-Appointment of employees-Creation of post of Finance Officer under unamended Section 27 in Jan. 1978-Appellant promoted to that post in 1986-Whether there was any infirmity in his promotion justifying later reversion to original post? (No)-Reversion set aside-Appeal allowed.
Held : On examining the amended provisions we do not find anything contained therein which require prior approval of the Government for appointment to the post created in Jal Sansthan. Under the amended provisions post under Jal Sansthan could be created only with previous approval of the State Government as contemplated under sub-section (1) of Section 27. But the appointment to those posts has to be made under sub-section (2) of Section 27 and in such appointments the power of Jal Sansthan is unfettered and does not require any prior approval of the State Government. The proviso to sub-section (2) of Section 27 confers power on the State Government either to frame rules or to specify by general or special order indicating the terms and conditions of appointment and the terms and conditions of appointment has to be with the approval of the Government but no such rule or order either general or special has been passed by the Government under the proviso to sub-section (2) of Section 27. In that view of the matter, the post in question having been duly created by the Jal Sansthan under the unamended provisions of Section 27 of the Act and the Jal Sansthan having duly promoted the appellant to the said post in the year 1986 under sub-section (2) of Section 27 of the amended provisions, there is no infirmity with such promotion to the appellant. Consequentially, we do not find any force in the second submission of the learned counsel appearing for the State of U.P. In the aforesaid premises the impugned order of reversion is wholly unsustainable and we accordingly set aside the order of the State Government dated 18.9.1992 and that of the Jal Sansthan dated 28.9.1992, we also set aside the impugned order of the High Court and the writ petition filed by the appellant is allowed. The civil appeal is allowed but in the circumstances there will be no order as to costs. (Para 8)
Judgment
Pattanaik, J.-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 referred 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 consequentially 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 7 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 am
