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PETITIONER: YOGESH CHANDRA JOSHI

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       02/09/1998

BENCH: SUJATA V. MANOHAR, G.B. PATTANAIK,

ACT:

HEADNOTE:

JUDGMENT: JUDGMENT PATTANAIK J. Appellant filed a writ petition in the High Court of Allahabad challenging the orderr of reversion to the post of Accounts  Officer  from  the  post of Finance Officer in Jal Sansthan by order dated 18.9.92.  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  challeng  the aforesaid  judgement  of  the  Allahabad  High Court in this appeal. From the averments made by the appellant in the writ petition  filed  before  the  High  Court  as  well  as  the documents appended theret, 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

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reiterating its stand  that  the  appellant  has  been  duly promoted to the post of Finance Officer.  Finally, the State Government   issued   the   Officer  Order  dated  18.9.1992 reverting the appellant to the post of Account 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 provious 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. 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 learnd 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 provisin 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  in  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 malafides of the General Manager but we are not persuaded to  examine  the  said question on the existing materials on record. The  learned counsel appearing for the State of U.P. on the other hand reiterated the stand that for creation for the  post  Finance  Officer  prior  approval  of  the  State Government  was necessary and the said approval had not been obtained.  The learned counsel also urged that assuming that the post could be created  in  the  year  1978  without  the approval of the Government but by the time the appellant was promoted   to  the  post  of  Finance  Officer  the  amended provisions  have  come  into  force,  and   therefore,   his appointment  has  to  bee governed by the amended provisions and since prior approval of  the  Government  had  not  been taken  the  promotion  has  rightly  been  set aside and the appellant has been  reverted  to  the  substantive  post  of Account Officer. In  view  of rival submissions at the Bar, the first question that arises for consideration is whether under  the

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unamended  provisions  of Section 27 of the Act which was in force on the date the  Jal  Sansthan  created  the  post  of Finance  Officer, prior approval of the State Government was necessary before creating the same? Section 27  of  the  Act prior  to  its amendement by U.P. Act No. 5 of 1984 reads as under:         "27. Appointment of Employees:-         The Jal Sansthan may appoint such  employees  as  it         considers   necessary,   and   on   such  terms  and         conditions as  it  thinks  fit,  for  the  efficient         performance of its functions.               Provided   that   the   appointment   of  such         employees as tha State Government may by general  or         special  order,  specify  shall  be  made, and their         terms and conditions shall be determined,  with  the         approval of the State Government.         (2)  Subject to general control and direction of the         Chairman,  the  supervision  and  control  over  all         employees of the Jal Sansthan shall be vested in the         General Manager." A reading of the aforesaid provisions would indicate that the Jal Sansthan had full  authority  for  creation  of post  and  for  appointment  of persons to such post on such terms and conditions as it  thinks  fit.    Proviso  to  the aforesaid  Section  confers power on the State Government to issue general or special  order  specifying  the  terms  and conditions  of any such appointment which could be made with the approval of the State Government.   No  such  order  has been  produced  by  the  State  Government  which  the State government could have passed either general  or  special  in the purported  exercise  of  power under the proviso.  Under the amended provisions,  howeverr,  the  crreation  of  post under  Jal  Sansthan required previous approval of the State Government.  The amended provisions of  Section  27  may  be extracted hereinbelow in extenso.         Creation of posts and appointment of employees - (1)         The  Jal Sansthan may, with the previous approval of         the State Government, create such posts of  officers         and other employees and with such designations as it         considers necessary for the efficient performance of         its functions.         (2) The appointments to the posts,  referred  to  in         sub-section  (1),  shall be made by the Jal Sansthan         on such terms and conditions, as it thinks fit:              Provided that the appointment on such posts  as         the  State  Government  may,  by  rules framed under         Section 27-A or by general or special order, specify         shall be  made  and  the  terms  and  conditions  of         appointment  on  such posts shall be determined with         the approval of the Government.         (3) Subject to general control and directions of the         Chairman,  the  supervision  and  control  over  all         employees of the Jal Sansthan shall be vested in the         General Manager. The High Court in the impugned order has noticed the amended  provisions of Section 27 and came to the conclusion that the creation of post made by Jal Sansthan  was  bad  in law.  The High Court committed serious error in relying upon the   amended   provisions  which  came  into  force  w.e.f. 26.12.1983 whereas the post  of  Finance  Officer  had  been created by  Jal Sansthan on 16.1.1978.  The State Government also acted on an erroneous impression relying upon the  said amended  provisions as it appears from the stand taken by it in support of the order of reversion that was issued.  Since the post of Finance Officer had  been  created  by  the  Jal

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Sansthan  on  16.1.1978 and under the relevant provisions of Section 27 as it stood then, prior  approval  of  the  State Government  was  not  necessary for creation of the post, we have no hesitation to come to the conclusion that there  was no  infirmity  with  the  creation  of  the  post of Finance Officer by Jal Santhan and the Government  as  well  as  the High Court committed gross error by relying upon the amended provisions of Section 27 which obvisously had no application during  the year 1978. In this view of the matter, the order of  the   State   Government   dated   18.9.1992   and   the consequential  order  of  the  Jal  Sansthan dated 28.9.1992 passed by the Chairmen of the Jal Sansthan pursuance to  the Resolution  of the Committee of Jal Sansthan dated 14.9.1992 cannot be susttained and we accordingly set aside  the  said orders. The next question which arises for consideration  is whether  by  the time when the appellant was promoted to the post of Finance Officer, the amended provisions  of  Section 27  having  come  into  force,  is  there any embargo on his promotion or is there any  provision  which  requires  prior approval  of the Government for promoting an employee to the post of Finance Officer?  It is no doubttrue that Rule which is in force at the time when the promotion  was  made  would govern   the   case  of  promotion  and  since  the  amended provisions have come into force w.e.f.  26.12.1983  and  the appellant  was  promoted  to  the post of Finance Officer on 7.6.1986 the amended provisions will govern his appointment. But 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 require  prior  aproval  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 condittions  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 of 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.