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2001 Supreme(All) 1189
IN THE HIGH COURT OF ALLAHABAD
R. R. Yadav, J.
PRADEEP KUMAR DIXIT - Appellant
Versus
URBAN CO-OPERATIVE BANK LTD. - Respondents
Writ Petition 7048 (SS) Of 2001
Decided On : 12/21/2001
RAGHVENDRA SINGH, S.C.Misra, SUDEEP SETH
The implied term of an appointment in an officiating capacity is that it is terminable at any time by the appointing authority.
Headnote:
APPOINTMENT - OFFICIATING CAPACITY - The court held that the terms and conditions stipulated in the appointment letter of the petitioner are binding upon him, and as he was appointed in an officiating capacity, he had no lien on the post and the implied term of such an appointment is that it is terminable at any time by the appointing authority. The court also clarified that the appointment of another person as Secretary in officiating capacity, who is a near relation of a member of the Committee of Management, can be challenged through a writ of quo warranto.
Fact of the Case:
The petitioner was appointed as an officiating Secretary and his employment was terminated. He challenged the appointment of another person as Secretary in officiating capacity, who was a near relation of a member of the Committee of Management.
Finding of the Court:
The court found that the petitioner's appointment was in an officiating capacity and was terminable at any time by the appointing authority. It also held that the appointment of the other person as Secretary in officiating capacity could be challenged through a writ of quo warranto.
Issues: The issues involved the termination of the petitioner's employment and the challenge to the appointment of another person as Secretary in officiating capacity.
Ratio Decidendi: The implied term of an appointment in an officiating capacity is that it is terminable at any time by the appointing authority. The appointment of another person as Secretary in officiating capacity, who is a near relation of a member of the Committee of Management, can be challenged through a writ of quo warranto.
Final Decision: The writ petition lacked merit and was dismissed in limine.
( 1 ) HEARD the learned counsel for the parties.
( 2 ) WITH the assistance of the learned counsel for the petitioner I have gone through the order impugned dated 4. 12. 2001, Annexure-2 to the writ petition.
( 3 ) DURING the course of argument, Sri S. C. Misra, learned counsel appearing on behalf of respondent No. 4 brought to my notice the appointment letter of the petitioner appointing him on the post of Secretary from perusal of which it is evident that he was appointed as officiating secretary due to sudden demise of Sobran Lal Chaturvedi in a stop gap arrangement till further order of the appointing authority. The aforesaid officiating appointment of the petitioner on the post of Secretary has been approved by the Committee of Management vide Annexure-9 to the writ petition dated 5. 6. 2001. It is held that terms and conditions stipulated in the appointment letter of the petitioner are binding upon him. The petitioner cannot be allowed to claim benefits beyond the terms and conditions stipulated in his appointment letter which he has accepted with his open eyes.
( 4 ) FROM the averments made in the writ petition and also from the argument raised by the learned counsel for the parties, it is apparent on the face of record that petitioner was appointed as secretary in officiating capacity and he has no lien on the post.
( 5 ) IT is to be imbibed that appointment to a post on an officiating basis is from the nature of employment itself of a transitory character and in the absence of any contract or specific rule regulating the conditions of service to the contrary, the implied term of such an appointment is that it is terminable at any time by appointing authority.
( 6 ) IT is further to be imbibed that if the order entails or provides for forfeiture of his pay or allowance or the loss of his seniority in the substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that though, in form, the appointing authority had purported to exercise its undoubted right to terminate the employment of the petitioner in officiating capacity in pith and substance, the termination may be held to be by way of punishment. In such a situation veil is to be lifted to ascertain as to whether the order has been passed by way of punishment or the order of termination from the officiating employment is simpliciter. After lifting the veil in the facts and circumstances of the present case, I am of the view that the order terminating the employment of the petitioner from the post of officiating Secretary is simpliciter and it cannot be said to have been passed by way of punishment.
( 7 ) IT is next contended by the learned counsel for the petitioner that respondent No. 4 who is now appointed in place of the petitioner as Secretary in officiating capacity is the son of one of the members of Committee of Management, therefore, his appointment on the officiating post of secretary is per se illegal within the meaning of Rule 124 of the U. P. Co-operative Societies rules. 1968, which provides that no cooperative society shall appoint any person as its Secretary who does not possess qualifications laid down under Section 120, or who fails to furnish the security as may, if any. be required under that section or who is a near relation of a member of the Committee of Management of Society. Every such appointment shall be subject to the regulations, if any. framed under Section 121 or 122 of U. P. Co-operative Societies Act.
( 8 ) SUFFICE it to say in this regard that if the petitioner or any body else is aggrieved with the appointment of respondent No. 4 on the post of Secretary in officiating capacity on the basis of aforesaid Rule, then it would be open either to petitioner or any body else to file a writ of quo warranto questioning the appointment of respondent No. 4 after laying down foundation in the writ petition about all the ingredients of writ of quo warranto. It is held t
