Brij Bhushan Jindal vs U.P.State Electricity Board and another

S. N. Sahay. J.

This is a writ petition for issuing a writ of mandamus to the opposite parties directing them to allow the petitioner to discharge the functions of the post of Chief Controller of Audit and Accounts in U. P. State Electricity Board with effect from April 1,1992.

On April 30, 1984 the State Government issued an order under Section 5(2)(c) of the Electricity (Supply) Act, 1948 read with rule 16 of the U. P. State Electricity Board (Powers of Chairman and Terms and Conditions of Service of the Chairman and Members) Rules, 1967 and Sec�tion 21 General Clauses Act, 1897 appointing the petitioner as Member (Accounts) of the State Electricity Board from May 1, 1984 unit further orders. The petitioner held the post of Chief Controller of Audit and Accounts in the Electricity Board before the said appointment. By means of a subsequent G. O. dated January 17, 1990 the State Government termi�nated the appointment of the petitioner as Member (Accounts) with imme�diate effect. The petitioner challenged the order dated January 17, 1990 in writ petition no. 1786 of 1990 which was allowed on October 4, 1991 and the said order was quashed. The special leave petition filed against the judg�ment of this Court in the said writ petition was also dismissed on December 5, 1991. Pursuant to the said judgment the State Government issued a G. O. dated December 9, 1991 under the aforesaid provisions, appointing the petitioner as Member (Finance and Accounts) of the Electricity Board till March 31, 1992. On the expiry of the period of the said appointment the petitioner submitted a joining report on April 1, 1992 claiming that he is entitled to function as Chief Controller of Audit and Accounts.

It is urged on behalf of the petitioner that he has a lien on the post of Chief Controller of Audit and Accounts under the State Electricity Board and has a right to hold that post and discharge the functions of that post on ceasing to be Member (Finance and Accounts) of the Board. Certain facts are necessary to be stated for a proper appreciation of the contention of the petitioner. The petitioner was initially appointed as Controller of Banking Operations by the order of the State Electricity Board dated August 22, 1975 which reads as follows :

"Sanction is hereby accorded to the creation of a temporary post of Controller of Banking Operations in the scale of Rs. 1900501950752250. The incumbent of the post will also be entitled to dearness allowance and other allowances as per rule of the U. P. State Electricity Board in force from time to time.

Sri Brij Bhushan Jindal Son of Dr. Vishambhar Sahai is hereby temporarily appointed as Controller of Banking Operations with a starting salary of Rs. 2025/ in the scale of Rs . 1900501950752250/ sanctioned in para 1 above. Sri Jindal will get dearness allowance and other allowances as admissible to him under the U. P. State Electricity Board. Besides this a staff car with a driver will be provided to Sri Jindal for per�forming his official duties.

Sri Jindal will have to enter into a contract for serving the U. P. State Electricity Board for which action will be taken after his joining the above appointment."

Petitioner was designated as Controller of Audit and Account, U. P. State Electricity Board by its order dated August 1, 1979. The desig�nation was changed again by order dated August 3, 1979 which provided that Shri B. B. Jindal is hereby designated as Chief Controller of Audit and Accounts, U. P. State Electricity Board. While the petitioner was serving on that post he was appointed as Member of the Board in place of Sri Nilambhar Srivastava from the afternoon of November 16, 1979. This appointment was made by the State Government by Government Order dated November 16, 1979 in partial modification of the notification dated September 12, 1979 by which Sri Nilambhar Srivastava had been appoin�ted Member. The Government Order dated November 16, 1979 provided that the appointment of the petitioner will be valid for the period specified in the notification dated September 12, 1979. The Board was reconstituted by Government Order dated January 17, 1980 and the petitioner was appointed as a Member of the reconstituted Board thereby. In the mean�time, the State Electricity Board issued an order dated January 11, 1980 with regard to the creation of a temporary post of Chief Controller of Audit and Accounts. The order dated January 11, 1980 reads as follows :

"Sanction of the Board is accorded to the creation with effect from the date of entertainment till the relinquishment of the charge of incumbent only of a temporary post of Chief Controller of Audit and Accounts in the scale of pay of Rs. 22501002750 at the head quarters office of the U. P. State Electricity Board.

Sanction is also accorded to the appointment thereto of Sri B. B. Jindal, Controller of Audit and Accounts, U. P. State Electri�city Board with effect from said date till his relinquishment of the charge."

On March 22, 1980 Sri Nilambhar Srivastava resumed his duties as Member (Accounts) of the Board and there upon it was provided by an order of the Board dated March 22,1980 that the petitioner will assume charge of the post of Chief Controller of Audit and Accounts from the after noon of the said date. The petitioner continued to hold the said post in pursuance of the order dated March 22, 1980, until the State Government issued notification dated April 30, 1984 appointing the petitioner as Mem�ber (Accounts) of the Board from the forenoon of May 1, 1994 until further orders. The petitioner held the post of Member (Accounts) for nearly six years when he was removed by G. O. dated January 17. 1990. The events subsequent to the removal of the petitioner from the office of Member (Accounts) have already been narrated.

Before proceeding further we would like to observe that we are not impressed by the contention of the opposite parties that the petitioner was appointed on the pobt of the Controller of Banking Operations, on contract basis. The terms and conditions of the appointment of the petitioner on that post as specified in the order of appointment dated August 22, 1975 which has been quoted above in extenso clearly indicate that the petitioner was appointed as an Officer of the Board on temporary basis and was to be governed by the rules of the State Electricity Board in matters of payment of dearness allowance and other allowances. It is no doubt stipulated in the said appointment order that the petitioner will have to enter into a contract for serving the State Electricity Board. But that is not conclusive of the fact that the appointment of the petitioner was made on contract basis. The terms and conditions of the appointment of the petitioner were revised on September 1 , 1976 and April 19, 1977 and it was clearly provided that the petitioner will be governed by the Rules and Regulations appli�cable to Temporary Officers of the Board of similar and (sic) will be entitled (sic).

We have also come to the conclusion that there is no substance in the contention of the opposite parties that the post of Chief Controller of Audit and Accounts ceased to exist when the petitioner took over as Member (Accounts) of the Board in 1984. The opposite parties have strongly relied on the fact that it was clearly provided in the Board''s order dated January 11, 1980 (Annexure 6) that the post of Chief Controller of Audit and Accounts was created from the date of entertain�ment till the relinquishment of charge. It is asserted in the counteraffidavit that the petitioner relinquished the said post on two occasions, once November 16. 1979 when he was appointed Member of the Board and again on April 30, 1984 when he was appointed as Member (Accounts) for the second time. In this connection it is stated that the appointment of the petitioner under office memorandum dated March 22, 1980 on the paid post after Sri Nilambhar Srivastava resumed duty as Member (Accounts) came to an end on the relinquishment by the petitioner when he was appointed as Member (Accounts) vide Government notification dated April 30, 1994, which is Annexure2 to the writ petition.

The opposite parties cannot derive any advantage from the stipulation made in the Board''s order dated January 11, 1980 that the post of Chief Controller of Audit and Accounts was to continue till the relinquishment of charge by the incumbment. It has to be borne in mind that the order dated January 11, 1980 was issued after the petitioner had joined as Member (Accounts) of the Board in place of Sri Nilambhar Srivastava. The petitioner was designated as Chief Controller of Audit and Accounts on August 3, 1979 and joined as Member (Accounts) on November 16, 1979 and continued as such till March 22, 1980. After the return of Sri Nilambhar Srivastava the petitioner again joined as Chief Controller of Audit and Accounts till April 30, 1984. There is no evidence to sho that the post of Chief Controller of Audit and Accounts was again created in 1980. If the contention of the opposite parties were correct the order dated January 11, 1980 had exhausted itself on August 3, 1979 itself (as the post was created with retrospective effect) and could not be utilized again in March 1980 to accommodate the petitioner on the post of Chief Controller of Audit and Accounts. Apart from it, there are enough materials on record to show that the post of Chief Controller of Audit and Accounts was extended from time to time till 199091 without any break in continuity. As a matter of fact under Board''s order dated June 27, 1984, Annexnre24, one Sri J.P. Elhanee was appointed as Chief Controller of Audit and Accounts. We have no doubt that the post of Chief Controller of Audit and Accounts continued to exist evertafter the petitioner had taken over as Member (Accounts) of the Board in 1984. The opposite parties have also impliedly conceded it vide para20 of the counteraffidavit in which it is stated that :

"The existence of the post of Chief Controller of Audit and Accounts is not disputed but the petitioner cannot claim to join on the post of Chief Controller of Audit and Accounts after he ceased to be a Member (Accounts) of the Board w. e. f. 3131992 for the reasons already stated above."

The real and substantial question that arises for determinations is whether the petitioner has a lien on the post of Chief Controller of Audit and Accounts and has a right to hold that post after ceasing to be Member (Accounts) of the Board. The petitioner has in support of his contention referred to the definition of lien contained in rule 9( 13) and to the provisions of rule 14A of the Fundamental Rules (contained in Financial Hand Book VolumeII Parts 2 to 4 as in force in Uttar Pradesh) relating to the termination of line. The provisions ot F. R. 9(13) as well as F. R. 14A came up for consideration in Triveni Shankar Saksena v, State of U.P. 1992 Supp. (1) SCC 524. The Supreme Court approved the view taken in M. P. Tewari v. Union of India 1974 ALJ 427 that a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that pott and not earlier. "With regard to F. R. 14A the Supreme Court observed as follows :

"Even on the appellants own showing he was appointed as a Lekhpal on April 6, 1953 and held the same till November 15, 1954, that is for a period of nearly one year and seven months. Hisappointment order unambiguously shows that it was only on a temporary basis. The appellant has not shown that he had been confirmed in a permanent post and that he was holding that appointment substantively immedia�tely on the termination of a period so as to make a claim of lien to the post of Lekhpal by availing the benefit of rules 14A and 14B of the U. P. Fundamental Rules."

In the case of Delhi Transport Corporation also (cited above) it has been observed in para 274 that a permanent employee of a statutory authority, Corporation or instrumentality under Article 12 has a lien on the post till he attains superannuation or is computeorily retired or service is duly terminated in accordance with the procedure established by law

It has been noticed in the instant case that the petitioner was initially appointed on temporary basis on the post of Controller of Banking Operations. The designation of this post was changed as Controller of Audit and Accounts in the first instance and to Chief Controller of Audit and Accounts thereafter. But for the change in the designation, no alteration was made in the nature and conditions of service of the petitioner It has not been shown that the petitioner was ever confirmed and made permanent on the post of Controller of Banking Operations or Controller of Audit and Accounts or Chief Controller of Audit and Accounts. There is also nothing on record to show that the post of Chief Controller of Audit and Accounts was converted into a permanent post or will be deemed to have been made a permanent post on account of its continued existence for more than three years. But even if it is assumed that the post will be deemed to have been made permanent, it cannot be held that the petitioner has become confirmed automatically on that post and has become a permanent incumbent of that post by operation of supervening facts and law. The petitioner has failed to show that he has become permanent and has acquired a lien on that post and has a right to hold that post. In the absence of proof of the fact that the petitioner stands confirmed and made permanent on that post, which is a condition precedent for acquiring a lien, the petitioner cannot derive any benefit from the provisions of F. R. 9(13) and F. R. 14A.

The petitioner has submitted that when he was appointed as Member (Accounts) of the Board he was neither sent on deputation or on, foreign service as defined in F. R. 9(7), but was given another assignment � He has also submitted that he was transferred to the post of Member (Accounts) without his consent and if this fact had not taken place he would have continued to hold the post of Chief Controller of Audit and Accounts till superannuation as the post was created without limit of time is permanent in nature and continues even today. We are of opinion that this contention cannot be accepted as sound. We have already dealt with the nature and conditions of the post of Chief Controller of Audit and Accounts. It may be that the petitioner was not on foreign service when he joined as Member ( Accounts). But certainly the petitioner was not transferred or sent on deputation nor it was a case of assignment of duties of another kind. The petitioner was in the capacity of Chief Controller of Audit and Accounts, appointed by and functioning under the Board. But as Member (Accounts) of the Board he was appointed by a different authority, namely, the State Government and functioned as a component of the Board. He voluntarily joined as Member (Accounts) of the Board and it is irrelevant what would have been the fate of the petitioner if he had not accepted the appointment to the office of Member (Accounts). The right claimed by the petitioner to revert to the post of Chief Controller of Audit and Accounts after ceasing to hold the office of Member (Account) of the Board on March 31,1992 has not been established.

We have given our best consideration to the matter and find that the petitioner is not entitled to any relief and the writ petition is to be dismissed.

For the above reasons the writ petition is dismissed. There shall be no order as to costs.

(Petition dismissed.")