YOGESH CHANDRA JOSHIversusSTATE OF U.P. AND ORS.

                       YOGESH CHANDRA JOSHI                                       A
                                 v.
                       STATE OF U.P. AND ORS.

                           SEPTEMBER 2, 1998

        [SUJATA V. MANOHAR AND G.B. PATTANAIK, JJ.]                               B

      Se1vice Law :

      U.P. Water Supply and Sewerage Act, 1975: Section 27.

      . Post:-Creation of-Plior to amendment of S. 27 in1983-Jal Sansthan
                                                                                  c
created post of Finance Officer in 1978 without plior approval of State
Govemment-Employee was promoted as Finance Officer in 1986-But sub-
sequently he was reve1ted on the ground that creation of the post and his
promotion were i11"egular since p1ior approval of State Govemment was not
obtained-Validity of-Held, unamended S. 27 does not require plior ap-             D
proval of State Govemment for creation of post-P1ior approval required only
after amendment of S.27-HC1ice, creation of post in 1978 was not ir-
regulm~wther p1ior approval of State Govemment is required only in
respect of posts covered by proviso to S. 27 and not in other case~~T!zerefore,
the said reversion is invalid.
                                                                                  E
      The Allahabad Jal Sansthan Samiti created the post of Finance
Officer by Resolution dated 16.1.1978. The appellant was promoted to this
post of Finance Ollicer on 7.6.1986 and was confirmed against this post.
However, in September 1992 the appellant was reverted to the post of
Accounts Officer on the ground that creation of the post and consec1uent          F
promotion were irregular as the Jal Sansthan did not take prior approval
of the State Government under Section 27 of the U.P. Water Supply and
Sewerage Act, 1975. The High Court dismissed the writ petition filed by
the appellant. Hence this appeal.

      On behalf of the appellant it was contended that the post of Finance G
Officer was created on 16.1.1978 under the unamended provisions of the
Act which did not rec1uire the previous approval of the State Government
as a condition precedent for creation of the post under the Jal Sansthan
and, therefore, the High Court erred in considering the provision of
Section 27 of the Act which was amended in the year 1983.                  H
                                     371
    372                    SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R.

A           Allowing the appeal, this Court

           HELD : 1.1. 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. The State Government has not produced any order pur-
    ported to have been issued under proviso to unamended Section 27 of the
B   U.P. Water Supply and Sewerage Act, 1975 which rec1uired that the post of
    Finance Officer could be created only with prior approval of the State
    Government. The post of Finance Officer was created on 16.1.1978 on
    which date the unamended provision was in force. Therefore, the Jal
    Sansthan was competent to create this post without obtaining prior ap-
C   proval of the State Government. The State Government as well as the High
    Court committed gross error in relying upon the amended provisions of
    Section 27, which had no applicati.on during the year 1978.
                                                 [375-G-H; 376-A-B; F; 377-A]
            1.2. It is true that when the appellant was promoted as Finance
D Officer on 7.6.1986 the amended provision of Section 27 of the Act was in
    force and, therefore, the appellant's promotion was to be governed by the
    amended provision. However, there is nothing in the amended provision,
    which requires prior approval of the State Government for appointment
    to the post created in Jal Sansthan. Under amended Section 27, the power
E   of Jal Sansthan for appointment is unfettered and does not rec1uire any
    prior approval of the State Government except when the State Government
    frames Rules or order in this behalf, but no such Rules or order have been
    produced in this case. Therefore, the post in question having been duly
    created by the Jal Sansthan under the unamended provisions of Section
F   27 of the Act and the Jal Sansthan having duly promoted the appellant to
    the said post in the year 1986 under unamended Section 27 (2) of the Act,
    there is no infirmity with the promotion of the appellant. The impugned
    order of reversion being unsustainable is set aside. [377-C-H]

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3817 of
G
    1993.

         From the Judgment and Order dated 21.1.93 of the Allahabad High
    Court in C.M.W.P. No. 36624 of 1992.

H           V.A. Mohta and Manoj Prasad for the Appellant.
                  Y.C.JOSHiv. STATE fPATTANAIK,J.J                      373

      Prashant Kumar, Joseph Pookkatt and S. Dave for the Respondents.         A

      The Judgment of the Court was delivered by

      PATTANAIK, J. Appellant filed a writ petition in the High Court of
 Allahabad challenging the order of reversion to the post of Accounts
                                                                               B
  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 con-
 sonance 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     c
  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 Al-
  lahabad High Court in this appeal.                                           D

      From the avcrments 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 Moo! Chandra Karola E
was appointed against the said post by order dated 17.1.1978 issued by the
Chairman of Jal Sansth~n. Said Shri Karola 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 F
promotion to the post of Finance Officer on 7.6.1?86 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 G
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 appel- H
    374                  SUPREME COURT REPORTS (1998] SUPP. 1 S.C.R.

A !ant to the post of Accounts Officer with immediate effect and communi-
  cated 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,
B 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
C 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
D 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 Govern-
   ment, promotion of the appellant to the said post was bad in law, and
  therefore, reversion is fully justified.
E
        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
p 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 learned 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 provision of 1983 though the
  post was created in January 1978 under the unamended provisions, the
G entire premise on which the Government laboured and the High Court was
  persuaded to accept the same is unsustainable, and therefore, the im-
  pugned 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
H on the existing materials on record.
                    Y.C.JOSHiv. STATE [PATIANAIK, J.]                       375

        The learned counsel appearing for the State of U .P. on the other          A
  hand reiterated the stand that for creation for the post Finance Officer
  prior approval of the State Government was necessary and the said ap-
  proval had not been obtained. The learned counsel al~o urged that assum-
  ing 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
                                                                                   B
' therefore, his appointment has to be 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 Accou~ts Officer.
                                                                                   c
        In view of rival submissions at the Bar, the first question that arises
  for consideration is whether under the 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 thy Act prior to its           D
  amendment by U.P. Act No. 5 of 1984 reads as under:

           "27. Appointment of Employees:-

           The Jal Sansthan may appoint such em,ployees as it considers
           necessary, and on such terms and conditions as it thinks fit, for the   E
           efficient performance of its functions.

              Provided that the appointment of such employees as the 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.                                   F

           (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 G
  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 Govern- H
    376                  SUPREME COURT REPORTS [1998) SUPP. 1 S.C.R.

A ment. 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, however, the creation of post under Jal Sansthan required
    previous approval of the State Government. The amended provisions of
B   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.
c           (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
D           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
E           supervision and control over all employees of the .T al Sansthan shall
            be vested in the General Man ager."

         The High Court in the impugned order has noticed the amended
  provisions of Section 27 and came to the conclusion that the creation of
F 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 er-
  roneous impression relying upon the said amended provisions as it appears
G 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
  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 conclusi~n
  that there was no infirmity with the creation of the post of Finance Officer
H by Jal Sansthan and the Government as well as the High Court committed
                 Y.C.JOSHiv. STATE [PATTANAIK, J.]                     377

gross error by relying upon the amended provisions of Section 27 which        A
obviously 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 conse-
quential order of the Jal Sans than dated 28.9 .1992 passed by the Chairman
of the J ~I Sansthan pursuant to the Resolution of the Committee of Jal
Sansthan dated 14.9.1992 cannot be sustained and we accordingly set aside
the said orders.
                                                                              B

      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 C
 approval of the Government for promoting an employee to the post of
Finance Officer? It is no doubt true 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 D
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 Govern-
ment as contemplated under sub-section (1) of Section 27. But the appoint- E
ment to those posts has to be made under sub-section (2) of Section 27
and in such appointments the power of Jal Sansthan is.J!nfettered and does
not require any prior approval of the State Governmeitl:'l'he proviso to
sub-section (2) of Section 27 confers power on the State Gove;nment either
to frame rules or to specify by general or special order indicating the terms F
and conditions of appointment and the terms and conditions of appoint-
ment 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 ofthe Act and the Jal Sansthan having G
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 H
    378                   SUPREME COURT REPORTS [1998) SUPP. 1 S.C.R.
A reversion is wholly unsustainable and we accordingly stj 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.

B   v.s.s.                                                      Appeal allowed.




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