Allahabad High Court
Suresh Chandra vs State Of Up Dept.Of Appointment& ... on 24 August, 2016
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 26 A.F.R. Case :- SERVICE SINGLE No. - 17146 of 2016 Petitioner :- Suresh Chandra Respondent :- State Of Up Dept.Of Appointment& Personal Thr Prin.Secy.&Ors Counsel for Petitioner :- Vivek Raj Singh,Sarvesh Kumar Dubey Counsel for Respondent :- C.S.C.,Ajay Kumar Hon'ble Devendra Kumar Upadhyaya,J.
Heard Shri Vivek Raj Singh, learned counsel for the petitioner, Shri Devendra Upadhyaya, learned Additional Chief Standing Counsel appearing for the State-respondents and Shri Ajay Kumar, learned counsel appearing for Specialist/District Basic Education Officer, Gaziabad.
These proceedings under Article 226 of the Constitution of India have been instituted by the petitioner challenging the order dated 12.05.2016, passed by the Internal Accounts and Audit Directorate, U.P. Lucknow, whereby his deputation as Assistant Finance and Accounts Officer in the office of Specialist/District Basic Education Officer, Sarva Shiksha Abhiyan, District Project Office, district-Gaziabad has been withdrawn and he has been repatriated and ordered to submit his joining in the Directorate of Internal Accounts and Audit, U.P. The petitioner has also assailed the consequential order dated 20.06.2016 passed by the Additional Project Director, Sarva Shiksha Abhiyan, whereby he has been repatriated to his alleged parent department of Internal Accounts and Audit Directorate, U.P. Lucknow.
The petitioner was initially appointed on the post of Assistant Accountant under the order dated 10.11.1999 passed by the Additional Director of Agriculture, U.P. which is contained in annexure no.SA-1 appended to the supplementary affidavit filed by the petitioner dated 26.07.2016. The said initial appointment of the petitioner in the agriculture department was made in terms of the provisions contained in the Service Rules known as Uttar Pradesh Agriculture Department Accounts Non-Gazetted Service Rules, 1982 read with the provisions contained in another set of statutory rules framed under Article 309 of the Constitution of India known as Uttar Pradesh Procedure for Appointment against Group C Posts Outside the Purview of Public Service Commission Rules, 1998. The initial appointment of the petitioner was, thus, made by the State Government in the department of agriculture.
On inception of Sarva Shiksha Abhiyan, a project being run by the State Government, certain posts on temporary basis were created including the post of Assistant Finance and Accounts Officer. On several posts including the post of Assistant Finance and Accounts Officer available in Sarva Shiksha Abhiyan, provisions were made for making appointment on the basis of selection on deputation. The petitioner appears to have applied for his appointment on deputation on the post of Assistant Finance and Accounts Officer in Sarva Shiksha Abhiyan and accordingly on his selection, he was appointed on the said post and was posted at district Bagpat. The said appointment of the petitioner by way of deputation in Sarva Shiksha Abhiyan was made on the permission accorded to the said deputation by the order dated 02.09.2011 passed by the Additional Director of Agriculture (Administration) U.P. The initial order of appointment of the petitioner on the post of Assistant Finance and Accounts Officer in Sarva Shiksha Abhiyan district Bagpat has been annexed as annexure no.3 to the writ petition, which clearly indicates that during the petitioner's appointment on deputation in the borrowing department, namely, Sarva Shiksha Abhiyan, his lien to his parent department i.e. agriculture department shall be maintained. Though the appointment of the petitioner on deputation initially was made for a period of one year, however, his appointment in Sarva Shiksha Abhiyan has continued till the impugned order dated 12.05.2016 and the consequential order dated 20.06.2016 were passed.
The basic premise of attack to the impugned action on the part of the respondents as canvassed by the learned counsel for the petitioner, Shri Vivek Raj Singh, is that since the petitioner, who was initially appointed in the agriculture department and his lien was intact in the agriculture department, as such he could not be repatriated on completion or termination of his deputation to any department other than the department of agriculture. He has, thus, submitted that the impugned order dated 12.05.2016, passed by the Director, Internal Accounts and Audit Directorate, U.P., Lucknow, whereby his deputation has not only been recalled but he has also been directed to report for submitting his joining in the Directorate of Internal Accounts and Audit, is unlawful. His submission, in sum and substance, is that the petitioner's parent department, thus, cannot be changed or altered without his willingness or consent having been obtained by the respondents and in the instant case, in fact, by the impugned order dated 12.05.2016, his employer is being changed from the agriculture department of the State of U.P. to the department of Internal Accounts and Audit which is impermissible. He has further stated that since the consequential order repatriating the petitioner from Sarva Shiksha Abhiyan has been passed by the Additional Project Director, Sarva Shiksha Abhiyan consequent upon the order dated 12.05.216, as such it is not only that the order dated 12.05.2016 is illegal but the same in fact makes the order dated 20.06.2016 repatriating the petitioner from Sarva Shiksha Abhiyan also illegal.
Strongly refuting the submissions made by the learned counsel for the petitioner, Shri Devendra Upadhyaya, learned Additional Chief Standing Counsel has submitted that, as a matter of fact, a deputationist does not have any right to remain posted in the borrowing department, rather as and when services of deputationist are required by the parent department, he can be recalled to the parent department. He has also stated that the order dated 12.05.2016 has been passed by the Director, Internal Accounts and Audit Directorate, U.P. recalling the petitioner from deputation from Sarva Shiksha Abhiyan and directing him to submit his joining in the Directorate of Internal Accounts and Audit as a consequence of restructuring of different cadres of Assistant Accountants and Accountants in almost 37 departments of the State Government which have been unified to form a single cadre and for the said purpose rules have also been framed by the State Government under Article 309 of the Constitution of India known as U.P. Government Department Subordinate Accounts Cadre (Non-Gazetted) Service Rules, 2014 which have been notified on 07.11.2014. His submission, thus, is that on forming a unified cadre comprising of all the Assistant Accountants and Accountants working in different department of U.P., including the Assistant Accountants and Accountants working in agriculture department, the State Government has exercised its administrative discretion and prerogative to restructure different cadres by unifying them into one and hence, there is nothing unlawful or illegal which can be complained of by the petitioner.
Drawing attention of the Court to the entire exercise undertaken by the State Government preceding notification of 2014 Rules on 07.11.2014, it has been submitted by the learned Additional Chief Standing Counsel that formation of unified cadre comprising of the incumbents holding the post of Assistant Accountants and Accountants in various departments of the State Government has a purpose to achieve which is based on the recommendations made by the Pay Committee in the year 2008 formed for the purposes of making recommendations in the context of the recommendations made by the Sixth Central Pay Commission. He has taken the Court to the 10th representation (Part 6) made by the Pay Committee and has submitted that to achieve the said purpose as mentioned in the aforesaid representation made by the Pay Committee, unification of the cadres has been done and hence, the submission of learned counsel for the petitioner is not tenable.
Having considered the submissions made by the learned counsel appearing for the respective parties and having perused various pronouncements relied upon by the learned counsel in support and in opposition of the case of the petitioner, the Court is unable to agree with the contentions and submissions made by the learned counsel appearing for the petitioner for the reasons which are to follow.
The crux of the arguments of the learned counsel for the petitioners is two folds. Firstly, he has submitted that, in fact, it is a case where by passing the order dated 12.05.2016 on the ground of formation of a unified cadre, respondents have changed the employer of the petitioner which is not only unreasonable and arbitrary but is also impermissible legally for the reason that before change of employer no willingness or consent from the petitioner was ever sought. His submission is that the petitioner was initially appointed in agriculture department and even after having been sent on deputation to Sarva Shiksha Abhiyan, his lien is maintained in agriculture department and as such notwithstanding there being no illegality in repatriating the petitioner, the impugned order dated 12.05.2016, whereby the petitioner has been directed to submit his joining not in his parent department of agriculture, but in the department of Internal Accounts and Audit, is completely unlawful.
Shri Vivek Raj Singh, learned counsel for the petitioner, has secondly, submitted that the alleged exercise which has resulted in formation of a unified cadre comprising of the posts of Assistant Accountants and Accountants in various government departments cannot be termed to be reconstructing, as a matter of fact, a new department has been created by the said exercise. Elaborating his aforesaid argument, it has been contended by Shri Singh that reconstructing of a cadre is permissible within a department and unification of cadres comprising of posts earlier belonging to different government departments cannot be termed to be restructuring for the reason that the State Government cannot be permitted to withdraw all the Assistant Accountants and Accountants working in different departments and appoint and place them in a newly created department.
Considering the first argument raised by the learned counsel for the petitioner, it can only be observed that by forming a unified cadre, namely, Subordinate Accounts Cadre of Non-Gazetted Employees, neither any new department is being created nor the employer of the petitioner and other such Assistant Accountants or Accountants is being changed. Employer of the petitioner is the State Government and even after unification of the cadre it remains the State Government. The distinction being drawn by the learned counsel for the petitioner between the agriculture department and the department of Internal Accounts and Audit to submit the impugned action has resulted in change of employer is highly misplaced and misconceived for the reason that under our Constitutional framework the State is only one entity which functions and discharges its executive duties and powers through various departments created for convenient transaction of its business. The formation of a department for convenient functioning and discharge of duties by the State Government (though in the instant case, even the same has not been done) cannot be said to have resulted in change of employer.
As already observed above, in the instant case, the petitioner was appointed initially as a government employee and he will remain employed by the State Government itself for the reason that his status as a government employee will not be changed on unification of the cadres. The petitioner will be governed by the provisions of the Constitution more specifically the provisions contained under Articles 309, 310 and 311 of the Constitution of India. He will keep on enjoying the protection available to him under Article 311 of the Constitution of India which is available to the employees who hold a civil post under State. Similarly, the pleasure doctrine expressed in Article 310 will be applicable to the petitioner even after formation of the unified cadre. This discussion makes it clear that the submission advanced by the learned counsel for the petitioner that by forming a unified cadre, since the petitioner will now be governed by the department of Internal Accounts and Audit, his employer will get changed is misconceived which merits rejection.
As far as the submission made by learned counsel for the petitioner that since the petitioner's employer is getting changed by promulgation of 2014 Rules whereby a unified cadre has been formed, it was incumbent upon the State authorities to have asked for his willingness or his consent is concerned, the same is liable to be rejected being highly misconceived for the reason that such willingness or consent under law is required to be sought from an employee in a situation or in a case where either the terms of employment are going to adversely affect the employee or his employer is being changed. In the instant case, as has already observed above, by formation of unified cadre comprising of various posts of Assistant Accountants and Accountants in almost 37 departments of the State Government, employer of such employees, who were earlier holding the said posts in the different departments, is not going to be changed. The petitioner has also completely failed to establish that service conditions of the petitioner are going to affect him adversely by formation of unified cadre. Thus, the said argument of learned counsel for the petitioner is also not tenable.
The judgments cited by the learned counsel for the petitioner in the cases of Jawaharlal Nehru University vs. Dr. K.S. Jawatkar and others, reported in [1989 Supp (1) SCC 679], Orissa Electrical Engineers' Service Association vs. State of Orissa and others, reported in [(1998) 2 SCC 563] and Balco Captive Power Plant Mazdoor Sangh and another vs. National Thermal Power Corporation and others, reported in [(2007) 14 SCC 234] are not applicable here and in fact the same do not come to the rescue of the petitioner for the reason that in all the aforesaid cases Hon'ble Supreme Court has held that willingness or consent is required for absorption of an employee in the services of a subsequent employer and in the aforesaid cases the original employers of the employees were changed, wherein as in the present case there is no change of employer.
In the instant case, since employer of the petitioner remains the State Government, the aforesaid judgments cited by the learned counsel for the petitioner are of no avail to him.
It has further been argued by the learned counsel for the petitioner that in fact unification of cadre in the manner in which the same has been done by the State Government in the instant case, cannot be termed to be restructuring of cadre. According to him, restructuring of cadre would mean any restructuring within the department and the same would not encompass in its folds borrowing employees working on the post of Assistant Accountants and Accountants in other departments and withdrawing them to form a unified cadre comprising of the post of Assistant Accountants and Accountants. In support of his submission, learned counsel for the petitioner has relied upon a judgment of Hon'ble Supreme Court in the case of Dhole Govind Saheb Rao and others vs. Union of India and others, reported in [(2015) 6 SCC 727]. Learned counsel for the petitioner has relied on para 9 of the said judgment wherein certain facts have been noted by Hon'ble Supreme Court, however, para 9 of the said judgment does not anywhere lay down a law that in case two cadres belonging to different departments of the same government are merged to form of a single unified solitary cadre, the same would not amount to restructuring. The petitioner has also placed reliance on yet another judgment of Hon'ble Supreme Court in the case of Union of India and another vs. Lieutenant Colonel P.K. Choudhary and others, reported in [(2016) 4 SCC 236]. Referring to para 4 of the said judgment wherein certain observations have been made by Hon'ble Supreme Court relating to recommendations made by Kargil Review Committee constituted by the Government of India, Post Kargil War, for exploring the ways and means for enhancing the operational preparedness of the Indian Army in its fighting capabilities, it has further been noticed in the said paragraph of aforesaid judgment that the said Committee had conducted deliberations and submitted a report making certain suggestions to take certain measures that were in its opinion necessary for restructuring of officers cadre of the Army. The aforesaid judgment being relied upon by the learned counsel for the petitioner also does not anywhere state that the manner in which in the present case unification of cadres has been done, is impermissible in law.
Thus, the aforesaid judgment relied upon by the learned counsel for the petitioner does not have any relevance so far as the issue involved in the present case is concerned.
A great emphasis has been led by Shri Vivek Raj Singh, learned counsel for the petitioner to submit that the exercise in question conducted by the State of U.P. in the present case which has resulted in unification of cadre cannot be said to be restructuring of cadre needs to be considered in the light of the meaning of the word 'restructuring'. 'Restructure' as defined in Oxford Concise English Dictionary means to give a new structure, to rebuild or to rearrange. What has been done in the instant case is that the posts of Assistant Accountants and Accountants which were earlier created in different departments of the State Government have been rearranged to build a single cadre, as such unification of the cadre in this case is nothing but restructuring.
So far as the word 'cadre' is concerned, the same has been defined in fundamental rule 9(4) of the Financial Handbook Vol.II (Part-II) which means strength of a service or a part of a service sanctioned as a separate unit. The word 'cadre' as defined in Financial Handbook is as under;
"Cadre means the strength of a service or a part of a service sanctioned as a separate unit."
The facts of the instant case establish that post of Assistant Accountants and Accountants in different departments of the State Government have been unified to form a single solitary cadre sanctioned as a separate unit by notifying 2014 Rules framed under Article 309 of the Constitution of India on 07.11.2014.
On the 10th representation (Part-6) made by the Pay Committee, the matter appears to have been considered by the State Government which passed a Government Order on 10.10.2011 taking into account the recommendations made by the Pay Committee and has, thus, decided to form a unified cadre comprising of the posts of Assistant Accountants and Accountants in different departments of the State Government. The Court need not go into the objects of creation of the unified cadre as the same lies in the exclusive domain of the administrative authorities of the State to adopt a particular policy of having different cadres or a unified cadre comprising of particular posts. The State Government thereafter issued another Government Order dated 28.11.2011 for giving effect to to the recommendations made by the Pay Committee in its 10th representation (Part-6). The said Government Order embodies certain decisions of the State Government. The decision taken which are embodied in the Government Order dated 28.11.2011 are; (i) Assistant Accountants and Accountants working in different subordinate cadres of different departments will be selected, appointed and transferred by the Internal Accounts and Audit department and accordingly the selected candidate should be allocated to the different departments. Yet another decision was taken by the State Government that for the purposes of streamlining and strengthening the aforesaid procedure, the Directorate of Internal Accounts and Audit be also strengthened and the name of the said Directorate be changed from the Directorate of Internal Audit to the Directorate of Internal Accounts and Audit. As a matter of fact, it is in pursuance of the aforesaid decision taken by the State Government that the Directorate of Internal Audit which was known by the said name earlier is now known as the Directorate of Internal Accounts and Audit. The said rechristening of the Directorate will firstly not amount to creation of another department and even if some other department can be said to have been created, since the same lies in the exclusive domain of the administration authorities of the State, no fault in the same can be found to give effect to the decision taken by the State Government on the recommendations made by the Pay Committee Rules under Article 309 have been framed which have been notified on 07.11.2014 and the said rules apply to the posts of Combined Subordinate Accounts Cadre in the Government Departments. Of course, the administrative department in the instant case is the finance department, however, only because of change of administrative department from Agriculture to Finance, it cannot be said that the employer of the petitioner has been changed and thus, the submission made by learned counsel for the petitioner in reference to the willingness and consent cannot be accepted to which is liable to be rejected.
As to the authority and power of the Government to restructure a cadre, reference can be had to a judgment of Hon'ble Supreme Court in the case of Union of India vs. Pushpa Rani and others, reported in [(2008) 9 SCC 242] wherein the Apex Court in very clear terms has held that matters relating to creation, abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria for selection etc. fall within the exclusive domain of the employer. The said observations occur in para 37 of the said judgment in the case of Union of India vs. Pushpa Rani and others, which is extracted hereunder:
"37.Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration."
Similar observations have been made by Hon'ble Supreme Court yet in another case of P. U. Joshi and others vs. Accountant General, Ahmedabad and others, reported in [(2003) 2 SCC 632], wherein it has clearly been held that the issue relating to constitution, pattern, nomenclature of posts and cadres, categories, and their creation/abolition, prescription for qualification and other conditions of service is a policy within the exclusive discretion and jurisdiction of the State, subject, of course, the limitations of restrictions envisaged in the Constitution of India but it is not for the courts to direct the Government to have a method of recruitment or eligibility criteria by substituting its views for that of the State. Para 10 of the aforesaid judgment of Hon'ble Supreme Court in the case of P. U. Joshi and others (supra) runs as under:
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service. "
In the instant case as well, as observed above, the petitioner has not been able to establish that the unification of the cadre comprising of various posts of Assistant Accountants and Accountants which were earlier available in different departments of the State Government in any manner has infringed any of the constitutional or statutory provisions. Thus, the illegality as is being submitted by the learned counsel for the petitioner in the impugned action on the part of the respondents is not in sight here.
For the aforesaid discussions made herein above, the writ petition deserves to be dismissed, which, resultantly, is hereby dismissed.
It is, however, provided that if the petitioner submits his joining pursuant to the impugned orders dated 12.05.2016 and the consequential order dated 20.06.2016 which have been annexed as annexure nos.1 and 2 respectively to the writ petition, the same shall be accepted by the respondents without treating the period from the date of passing of the impugned orders till he submits his joining as break in service. The petitioner is permitted to submit his joining pursuant to the orders which are under challenge in this writ petition within three weeks from today.
There will be no order as to costs.
Order Date :- 24.8.2016 akhilesh/-