Court No. - 55
Case :- SPECIAL APPEAL No. - 901 of 2019 Appellant :- Rajendra Prasad Thapliyal Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Rajeev Kumar, Anwar Hussain Counsel for Respondent :- C.S.C., Vijay Kumar Dixit
Hon'ble Vikram Nath,J. Hon'ble Pankaj Bhatia,J.
Heard Sri Anwar Hussain, learned counsel, assisted by Sri Rajeev Kumar, learned counsel for the appellant, Sri Shashi Nandan, Senior Advocate, assisted by Sri Vijay Kumar Dixit, learned counsel for Zila Panchayat, Saharanpur and learned Standing Counsel for the State-respondent.
The present appeal has been filed challenging the judgement and order dated 8.7.2019 whereby the writ petition filed by the appellant, challenging the order dated 31.5.2019, was dismissed.
Brief facts, as culled out from the order impugned, are that the appellant was appointed as Tax Collector in the Office of Zila Panchayat, Saharanpur on 22.8.1996 and, on 6.9.2017, was assigned to work at Block Nanaoota. The appellant challenged the said order of posting, the appellant at Block Nanoota by filing an appeal before the Chairman under the proviso to Section 78 (1) of the U.P. Kshettra Panchayat & Zila Panchayats Adhiniyam, 1961 (hereinafter referred to as Adhiniyam 1961), in the said appeal, a stay order was passed by the Chairman vide his order dated 4.7.2018. An appeal was filed challenging the order dated 4.7.2018 before the Commissioner by the Zila Panchayat and the Commissioner set aside the order of Chairman vide his order dated 31.5.2019.
The learned Single Judge placing reliance upon the provisions of Section 228 of the Adhiniyam 1961 held that the order was justified and proceeded to dismiss the writ petition.
Sri Anwar Husain, counsel for the appellant has argued that orders passed under the proviso to Section 78(1) of the Adhiniyam, 1961 are final and no appeal lies against the said order and as such the Commissioner was having no jurisdiction to entertain the appeal against the order of the Adhyaksha and thus the order passed by the Commissioner was without jurisdiction. It was further argued by learned counsel for the appellant that the order dated 15.6.2018 posting the appellant at Block Nanoota was an order passed in exercise of powers under Section 78(1)(f) of the Adhiniyam, 1961.
On the other hand, Sri Shashi Nandan, Senior Advocate, appearing on behalf of respondent, has argued that the initial order of posting the appellant at Block Nanoota was an order passed in exercise of powers under Section 51(2) of the Adhiniyam, 1961 against which no appeal is provided under the Adhiniyam and as such the submission of counsel for the appellant deserves to be rejected.
Sections 51 and 78(1) of the Adhiniyam, 1961 are quoted herein below:
51. Control over the officers and servants of Zila Panchayat – (1) (a) The Zila Panchayat shall exercise such control over the Mukhya Adhikari and other Heads of Departments as may be prescribed and the Adhyaksha shall have a right to send every year his assessment of the work and conduct of the Mukhya Adhikari to the authority which is required to record periodical entries about the work and conduct of the Mukhya Adhikari as a Government servant.
(b) The authority aforesaid shall in addition to recording any other entry about the work and conduct of the said Government officer record also the assessment sent by the Adhyaksha under clause (a).
(2) The Mukhya Adhikari shall have administrative control over all Officers and servants employed with the Zila Panchayat [x x x]1 and in particular, he shall have the right to send every year to such authority, if any, which is required to record periodical entries about the work and conduct of each such officer or servant as a Government servant his assessment of the work and conduct of the officer or servant. Such authority shall, in addition to recording an entry about the work and conduct of the said Government servant, also record the assessment sent by the Mukhya Adhikari.
(3) [x x x]2
(4) Heads of departments of the Zila Panchayat shall have immediate control over officers and servants working in their respective departments.
78. Powers and responsibilities of the Mukhya Adhikari – (1) The Mukhya Adhikari shall be the Chief Executive Officer of the Zila Panchayat and shall be responsible to the Zila Panchayat and shall exercise the following powers, namely –
(a) the power to receive, recover and credit to the Zila Nidhi any sum due or tendered to the Parishad;
(b) the powers conferred by the section or sub- section of this Act and the power to do all things necessary for the exercise of these powers;
(c) the powers under the sections and sub-section specified in the first column of Schedule V to be exercised for and on behalf of the Zila Panchayat and power to do all things necessary for the exercise of these powers;
(d) the power, subject to the control of the Adhyaksha, to grant, refuse, suspend or withdraw any licence the power to grant which is conferred by this Act or by rules or regulations made thereunder;
(e) any other power that has been delegated by the Zila Panchayat to the Mukhya Adhikari; and
(f) the power to determine with any regulations in this behalf, questions arising in respect of the services, leave, pay, allowance and other privileges of all servants of the Zila Panchayat other than those for whom the appointing authority under Section 43 is the Zila Panchayat.
Provided that a servant aggrieved by a decision given by the Mukhya Adhikari under this clause may within thirty days of the date of communication of that decision make a representation to the Adhyaksha and in that case the decision of the Adhyaksha shall be final.
A perusal of the provisions of Section 51(2) makes it clear that all the administrative control are to be exercised by the Executive Officer and, thus, from a plain reading of Section 51(2), it is clear that the order dated 15.6.2018 posting the appellant at Block Nanoota was in exercise of powers under Section 51(2). Section 78 (1)(f) deals with the powers of the Zila Panchayats and is confined to questions arising in respect of service, leave, pay, allowance and other privileges of all servants of Zila Panchayats, clearly the order dated 15.6.2018 does not relate to the powers prescribed under Section 78(1)(f) and thus even the appeal as filed by the appellant, was not maintainable.
On plain reading of section 51(2) & section 78(1)(f), we hold that the order placing the appellant at Block Nanoota was in exercise of powers under Section 51(2) of the Adhiniyam 1961, no other prejudice could be pointed out on account of the said order as the Block Nanoota also falls within the area of the same Zila Panchayat.
The counsel for the appellant, at this instance, argued that the transfer of the appellant is contrary to the Government Order which restrict the transfer before expiry of three years.
We are not impressed with the said submission only because the order dated 15.6.2018 is not a transfer order and merely an administrative order placing the appellant from one department to other as such the said Government Order is of no avail to the appellant.
For all the above reasons, the appeal lacks merit and is liable to be dismissed.
The appeal is, accordingly, dismissed. No order as to costs.
Order Date :- 26.8.2019 Puspendra (Pankaj Bhatia,J.) (Vikram Nath,J.)