PETITIONER: MAHESH KUMAR MUDGIL Vs. RESPONDENT: STATE OF UTTAR PRADESH & ORS. DATE OF JUDGMENT: 08/12/1997 BENCH: SUJATA V. MANOHAR, D.P. WADHWA ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
D.P. WADHWA, J.
The appellant is aggrieved by the order dated April
27, 1989 of the High Court of Judicature at Allahabad
(Lucknow Bench) dismissing his writ petition wherein his
challenge to the post of Officer on Special Duty (Special
Component Plan) which he was holding, failed.
The appellant joined Secretariat service of the
respondent as Lower Division Assistant in the temporary
capacity in the year 1975. Whereafter he was promoted as
Upper Division Assistant. While the appellant was holding
the post of Upper Division Assistant in officiating
capacity, he was selected and appointed on ex-cadre post of
Officer on Special Duty (Special Component Plan) by order
dated October 16, 1980. By Office Memorandum dated May 8,
1984, this post of Officer on Special Duty (Special
Component Plan) was sought to be abolished and by
notification dated May 14, 1984 Shri Shiva Shankar Singh,
respondent No.4, was appointed as Officer on Special Duty
(Special Component Plan) in newly created post. Both the
aforesaid office memorandum and the notification were
challenged by the appellant in the writ petition in the High
Court.
In support of his case in the High Court, the appellant
had contended that a Government servant holding a temporary
post for more than three years acquired right to be
considered for confirmation against that post and if
necessary by converting the temporary post into a permanent
one. He said that since he had completed more than three
years as Officer on Special Duty (Special Component Plan),
he was entitled to hold that post which was being abolished
by Officer Memorandum dated May 8, 1984. His further case
was that this post was borne on the cadre of Directorate of
Harijan and Social Welfare and could not be abolished by the
Secretariat Administration (Establishment) of the State
Government. The case set up by the appellant did not find
favour with the High Court and it dismissed his writ
petition.
The only contention raised before us in this appeal is
that the post of Officer on Special Duty (Special Component
Plan) was in the cadre of the Directorate of Harijan and
Social Welfare Department of the State Government and the
State Government in the Secretariat Administration
(Establishment) could not have abolished the same. We may
note that on account of the interim orders issued by the
High Court and latter by this Court, the post of Office on
Special Duty (Special Component Plan) has been continued
with the appellant, it appears, still holding the same. To
understand how this post which the appellant was holding was
created and how it was abolished, we may refer to sequence
of certain events.
On October 16, 1980 a communication [No.5158/26-3-80-
11(17)80] was addressed by the Secretary to the Government
of U.P. to the Director, Harijan and Social Welfare
Department according sanction to create on temporary post at
Secretariat level in the pay scale of Rs.500/1000/-. It was
stated in the letter that for the purpose of implementation
of special component plan for Scheduled Castes in an
accelerated and effective manner, the Governor was pleased
to accord sanction to create that above post from the date
of filling up the post which date shall not be earlier than
the date of this order upto February 28, 1981. It was
mentioned that the said post shall be a gazetted post and
the designation whereof shall be Officer on Special Duty
(Special Component Plan). The holder of the said post was to
be paid in addition to pay, dearness allowance and other
allowances as applicable and approved by the Government from
time to time. This letter also described the qualifications
for holding this post and the functions which were to be
performed. Then the letter gave the following directions:
“The above said expenditure shall
be made in the income and
expenditure account for the current
financial year 1980-81 and charged
against the head “288-Social
Security and Welfare – Ka –
Schedule Caste, Schedule Tribe and
other backward classes welfare – 2
– uplift of schedule caste under
organisation puronidhanit schemes
by centre-special central
relief/subsidiary relief/ component
relief/state relief under the
special component plant for the all
around development of scheduled
castes.
This order is issued with the
Sanction of the finance department
received by its non-official letter
No.%-2968-10-80 dated 15th October,
1980.”
At the same time, by Office Memorandum dated October
16, 1980, the appellant was appointed to the post of
Officer on Special Duty (Special Component Plan) in the pay-
scale of Rs.500-1000/- created under the aforesaid
Government Order No.5158/26-3-80-11(17)80 dated October 16,
1980. By officer order dated January 22, 1982 a new pay-
scale for the post of officer on Special Duty (Special
Component Plan) was sanctioned and now this post was in the
pay-scale of Rs.770-1600/-. This was by letter of the
Special Secretary to the Government of Uttar Pradesh to the
Director, Harijan and Social Welfare Department. The post
was being extended from time to time by various Government
orders. Then comes the Office Memorandum dated May 8, 1984
issued by the Secretariat Administration (Establishment),
Section I abolishing this post and, at the same time,
creating a new post of the Officer on Special Duty (Special
Component Cell). This Officer Memorandum we may reproduce as
under :
"Secretariat Administration
(Establishment) Section-I
No.2667A/Twenty-E-1-544(2)/80 Lucknow
dated 8th May, 1984.
In reference to The Government
Resolution No. Pay
R.1590/Ten/42(M)/1980 dated 29th
September, 1981 passed on the
recommendations made in the report
of Uttar Pradesh Pay Commission,
the undersigned is directed to say
that the Governor is pleased to
accord sanction for creation of one
temporary post of Officer on
Special Duty (Special Component
Plan) in the Uttar Pradesh
Secretariat from the date of
issuance of this order or from the
date when the said post is utilised
till 28th February 1985 whichever
is later in the new pay scale of
Rs.770-40-1050-E.B.-50.1300-60-
1420-E.B.60-1600 in the cadre of
Uttar Pradesh Secretariat Service
with the condition that the said
post may be abolished at any time
before the specified date without
any prior notice. As a result of
creation of this post, one
temporary post of Officer on
Special Duty (Special Component
Plan) in the old pay scale of
Rs.500-25-700-E.B.-40-900-E.B.-50-
1000 created by the Harijan and
Social Welfare Section-3 by
Government Order No.5158/26.3.80-
11(17)/80 dated 16th October, 1980
which was revised to the new pay
scale of Rs.7000-40-1050-EB-50-
1300-60-1320-EB-60-1600 by
Government Order No.4346/26.3.82-
11(84)/81 dated 22nd January, 1982
of the Harijan and Social Welfare
Section-3 and the period of which
has been extended for the last time
upto 28th February 1985 by the
Government Order No.633/26.3.1985
dated 30th March 1984 of the same
department, that post shall be
deemed to be abolished from the
date when the newly created post
with the same name and equivalent
to former post is brought into use.
2. The said post shall be deemed
to be included temporarily in the
posts of Section Officers in the
Cadre of Uttar Pradesh Secretariat
Service.
3. The holder of the said post
shall also be paid in addition to
pay in the above mentioned pay
scale, dearness allowances and
other allowances as applicable
under orders issued from time to
time by the Government.
4. The expenditure incurred in
this regard, shall be made in the
income and expenditure account for
the financial year 1984-85 and
charged against the Head “228 –
Social Security and Welfare (Ka)
Scheduled Castes, Scheduled Tribes
and other backward classes welfare
(2) – Scheduled Castes Welfare (Ng-
PURONIDHANIT) Schemes- by the
Centre- under Organisation (2)
Social Uplift Programme (No.
7733).(Kha)-All round development
of Scheduled Castes under special
component plan special Central
Relief (Cent per cent central
relief)/Aubaid Subsidiary
grant/component/Government relief
(grant No.81).
5. These orders are issued with
the assent of the Finance
Department received by its non-
official Letter No.E-129/71 4 (A)
dated 4th May, 1984.
No.E-129/71 4 (A) dated 4th May, 1984.
Vinod Chandra Pandey
Deputy Secretary.
As noted above, in pursuance to this memorandum, the
State Government by notification dated My 14, 1984 appointed
Respondent No.4, Shiva Shankar Singh on this newly created
post. This notification in relevant part reads as under:
“Government of Uttar Pradesh,
Secretariat Administration
(Establishment) Section-1.
No.2792/20-E-1-691/84 dated 14th May, 1984
Notification/Appointment
The following permanent Upper Division Assistants of
utter Pradesh Secretariat are appointed as Section
Officers on ad hoc and temporary basis from the date of
taking charge thereof and are posted to the newly
created post\vacancy shown in column 3 against their
names respectively.
S.No. Name & Present Description of post/
Place of Posting Vacancy
1. Shri Shiv Shankar Singh Officer on Special
Industry Department Duty (Special
Component Plant) in
Harijan & Social
Welfare Department,
which is the post of
Section Officer in the
Secretariat Service
Cadre.
2. …
————————————————————
The above posts have been notified by office Memo
No.2667-2667-A/Twenty E 544 (2)/810 dated 9th May,
1984.
sd/-
Kamal Pandey,
Secretary.”
As we have seen above letter dated October 16, 1980
creates the post of Officer on Special Duty at Secretariat
level. To that effect latter was addressed by the Secretary,
Government of Uttar Pradesh to the Director, Harijan and
Social Welfare. Similarly, Office Memorandum dated May 8,
1984 reproduced above abolishes that post and creates a new
temporary post of Officer on Special Duty. There is hardly
any scope fir controversy as raised by the appellant that
the post of Officer on Special Duty which was a temporary
post and to which he was appointed on ad hoc basis was
created in the Directorate and no in the Secretariat which
means in the ministry. His contention, therefore, that
Secretariat administration had no power or jurisdiction to
abolish the post he was holding does not appear to have any
basis. Admittedly, the post of Officer on Special Duty
(Special Component Plan) which was temporary was being
extended from time to time by various Government orders.
There is no Government order further extending this post or
any sanction order from the Finance Department as required
under the Uttar Pradesh Rules Of Business, 1975. Even
otherwise the post in the absence of any order of extension
or any financial sanction lapses of its own. The Office
Memorandum dated May 8, 1984 is specific and leaves no room
for doubt that the temporary post of Officer on Special Duty
(Special Component Cell) which the appellant was holding was
abolished. Under the Uttar Pradesh Rules of Business
creation of post carrying pay scale the maximum of which is
either Rs.2,000/- or less than Rs. 2,000/- requires the
sanction of Minister Incharge which he can do only after
Department of Finance has concurred. If there is difference
of opinion between the Minister In-charge of a particular
department where the post is sought to be created and the
Finance Department the matter is referred under the
aforesaid Rules to the Chief Minister. The letter dated
October 16, 1980 creating the post and that Office
Memorandum dated May 8, 1984 abolishing the post referred to
above record the sanction issued by the Finance Department.
We may refer to para 4(2) of the Uttar Pradesh Rules of
Business, 1975 which is as under:
“4(2) Unless the case is fully
covered by powers to sanction
expenditure or to appropriate or
re-appropriate funds, conferred by
any general or special orders made
by the Finance Department, no
department shall, without the
previous concurrence of the Finance
Department, issue any orders which
may –
(a) involve any abandonment of
revenue or involve any expenditure
for which no provision has been
made in the Appropriation Act;
(b) involve any grant of land or
assignment of revenue or
concession, grant, lease or licence
of mineral or forest right or a
right to water power or any
easement or privilege in respect of
such concession;
(c) relate to the number or grade
of posts, or to the strength or a
service, or to the payor allowances
or government servants or to any
other conditions of their service
having financial implications; or
(d) otherwise have a financial
bearing whether involving
expenditure or not:
Provided that no orders of the
nature specified in clause (c)
shall be issued in respect of the
Finance Department without the
previous concurrence of the
DEPARTMENT OF Personnel.”
The Rule is specific and carries with it the mandate of
the Constitution under Article 166 thereof.
We have not been shown any order of the State
Government extending the duration of the post of Officer on
Special Duty (Special Component Cell) which the appellant is
holding or sanction of the Finance Department agreeing to
the continuation of that post. We do not find any bar that a
post though created in the Secretariat establishment in the
Ministry cannot be used in any attached or subordinate
office but that does not give right to that office to hold
on that post.
High Court has taken correct view of the matter. We
find no reason to differ from the same. The appeal lacks
merit, it is dismissed with costs.