HUDA Technocrats Association vs State of Haryana and Others

Hemant Gupta, J.—The present petition for issuance of a writ in the nature of quo warranto is against the appointment of Rakesh Kumar, respondent No. 4, as Chief Vigilance Officer-cum-Enforcement Officer of Haryana Urban Development Authority (hereinafter to be referred as "HUDA") constituted under the Haryana Urban Development Authority Act, 1977 (hereinafter to be referred as "the Act").

HUDA was established by the Act of the State Legislature to undertake urban development in the State of Haryana. The said Authority, a body corporate as well as a local authority. It has a Chairman, Vice- Chairman, a Chief Administrator and such other members, not more than twelve and not less than six, as the State Government may, from time to time, by notification appoint. The meetings of the Authority are required to be convened and held in terms of Section 7 of the Act. Section 15 of the Act empowers the Authority to dispose of any land acquired by it or transferred to it by the State Government without undertaking or carrying out any development thereon; or any such land after undertaking or carrying out such development as it thinks fit, to such persons, in such manner and subject to such terms and conditions, as it considers expedient for securing development. u/s 16 of the Act, when any person makes default in the payment of any amount due to the Authority, the same is recoverable as arrears of land revenue. Even damages in respect of unauthorised occupation of any property of the Authority is also recoverable as arrears of land revenue. The budget of the Authority is forwarded to the State Government and accounts are subject to audit by the Accountant General of the State Government. Annual report in respect of activities of the Authority are required to be submitted to the State Government. Section 30 of the Act contemplates that the Authority shall carry out such directions as may be issued to it, from time to time, by the State Government for the efficient administration of the Estate.

HUDA considered a proposal for the creation of a post of Chief Vigilance Officer-cum-Enforcement Officer for itself. Such post was sought keeping in view significant increase in the work of development of Urban Estates. It was projected that there are six major Urban Estates in which independent Estate Officers from the cadre of Haryana Civil Services (hereinafter to be referred as "HCS") are being posted by the State Government and a number of Urban Estates on small scale have been set up in various district Headquarters/important cities. The Authority has also acquired large tract of land which at the moment are not developed or partly developed and some land is lying unplanned in the shape of land bank with HUDA. The land owned by HUDA is encroached upon by the migrants and local persons but there is no enforcement machinery. Therefore, in order to monitor the unauthorised encroachments, creation of the post of Chief Vigilance Officer-cum-Enforcement Office in the rank of Under Secretary at Headquarters is required urgently. The description of the post in the Agenda reads as under:

By selection from amongst the Administrative Officer, Assistant Estate Officer, Supdt., and Private Secretary having 5 years experience including ADO and ABO, on the post. Only those persons will be eligible who have minimum graduation degree passed from a recognised University. The promotion will be made on seniority cum merit basis.

Such proposal was considered by the members of the Authority in its meeting held on 30.09.1999. It was resolved to the following effect:

Creation of post of Chief Vigilance Officer-cum-Enforcement Officer in HUDA:

The proposal in this agenda was approved and it was desired that the post of Chief Vigilance Officer-cum- Enforcement Officer should be filled up by HCS Officer.

While discussing the scope of encroachments of HUDA land, the suggestion of Chief Administrator, HUDA, for engaging private security agencies for watch and ward of vacant HUDA land was approved in principle.

The Chief Administrator, HUDA on 20.10.1999 forwarded a communication to the Commissioner and Secretary to Government Haryana, Town and Country Planning Department, for approval of such proposal. The Commissioner and Secretary to Government Haryana, Town and Country Planning Department, granted the administrative approval on 30.11.1999. The communication reads as under:

Sub: Creation of post of Chief Vigilance Officer-cum-Enforcement Officer in HUDA.

Reference your memo No. EA-2-99/31931 dated 20.10.1999 on the subject noted above.

The Administrative approval is hereby accorded to the creation of post of Chief Vigilance Officer-cum-Enforcement Officer in HUDA as per the proposal contained in the agenda item.

The communication in respect of sanction of the post of Chief Vigilance Officer-cum-Enforcement Officer, after its approval from the Finance Department, was sent on 18.01.2000. The relevant extract from the said communication reads as under:

Memo No. 1/12/90-ITCP

Dated, Chandigarh the 18-1-2000

Sub: Creation of post of Chief Vigilance Officer-cum-Enforcement Officer with supporting staff.

Kindly refer to the subject noted above.

Sanction of the Governor of Haryana is hereby accorded to create the following posts for the office of Chief Vigilance Officer-cum-Enforcement Officer in HUDA:

Sr. Name of Post No. of Post. Pay scale Remarks No. 1. Chief Vigilance 1 - To be filled up on Officer-cum- deputation by taking Enforcement Officer. HCS Officers. In case, HCS Officer is not available, suitable departmental officer may be appointed to the post. 2 to 5 xx xx xx xx 6. Peon 1 2550-3200 The expenditure involved on this account shall be met by HUDA from its own funds.

This issues with the concurrence of Finance Department conveyed vide their UO No. 27/30/98.PO-II/HBPE(FD) dated 13.1.2000.

After the post got financial and administrative approval, the Commissioner and Secretary to Government Haryana, Town and Country Planning Department, sent a communication on 20.01.2000 for posting an HCS Officer on the said post. It was also communicated that if it is not possible to spare an HCS Officer, intimation to that effect may be given so that the post is filled by a departmental officer. In pursuance of such communication, the Government approved the proposal of the Commissioner and Secretary to post a departmental officer as Chief Vigilance Officer-cum-Enforcement Officer.

It was thereafter one Rakesh Kumar, respondent No. 4, working as Private Secretary to Chief Administrator, HUDA, was posted as Chief Vigilance Officer-cum-Enforcement Officer. It may be noticed that earlier Rakesh Kumar filed a Civil Writ Petition No. 3008 of 2007 before this Court challenging order dated 27.02.2001, posting one Ishwar Singh Dahiya, HCS, as Chief Vigilance Officer-cum-Enforcement Officer. The said writ petition was dismissed on 15.05.2003 having rendered infructuous when it was pointed out to the Court that the order of posting HCS Officer has been withdrawn on 5.3.2001.

The present writ petition challenging the appointment of respondent No. 4 was filed on 24.10.2001 i.e., when earlier writ petition filed by respondent No. 4 was pending before this Court. Since the writ petition filed by respondent No. 4 has been dismissed as infructuous, the present writ petition seeking a writ of quo warranto against the appointment of said respondent is being disposed of by the present order.

Learned Counsel for the petitioner has vehemently argued that the Chief Vigilance Officer-cum-Enforcement Officer had been assigned not only the duties of monitoring and checking of encroachments but also checking of attendance of the staff in the office of HUDA and pending references. Such duties have been assigned vide orders dated 26.06.2000. The assignment of duties is as under:

Monitoring and checking of removal of encroachments on HUDA lands undertaken by Estate Offices in the State.

Checking of attendance of the staff in the office of HUDA and pending reference.

Checking of Development/maintenance works in association with Executive Engineer (Vigilance).

Any other works to be assigned by Chief Administrator, HUDA, pertaining to complaints/enquiry etc.

The representation was submitted by the petitioner Association pointing out that the present incumbent i.e., respondent No. 4, was a promottee in Class-II Cadre i.e., to the post of Private Secretary in the year 1995. He has worked in the capacity of Stenographer, Private Secretary with the Executive Engineer, Superintending Engineer and Chief Engineer, whereas the duties assigned to him empowers him to check these officers as well who have been his superiors. It was also pointed out that the development and maintenance work can be checked only by a technical qualified person and such duties are not possible to be carried out by respondent No. 4. In addition thereto, it was argued that the post of Chief Vigilance Officer-cum-Enforcement Officer was, in fact, resolved to be filled up by posting an HCS Officer. It was only in the event of non- availability of an HCS Officer, a departmental officer could be considered for promotion. Since HCS Officers are available and, in fact, one was posted at point of time as well, therefore, promotion of respondent No. 4 is, in fact, usurpation of the post which is required to be manned by an HCS Officer.

Shri Hawa Singh Hooda, learned Advocate General appearing for respondents No. 1 and 2, was asked to file an affidavit in respect of non-availability of HCS Officer for being posted as Chief Vigilance Officer-cum-Enforcement Officer with HUDA, but Shri Hooda stated that HCS Officers are available and were always available for posting as Chief Vigilance Officer. However, it was sought to be argued that promotion of respondent No. 4 is legal and valid more so when the writ petition filed by said respondent has been dismissed as infructuous. Therefore, the petitioner is estopped to challenge the promotion of the said respondent by way of separate writ petition.

The stand of the learned Advocate General is not tenable in law. The writ petition filed by respondent No. 4 was rendered infructuous on account of the fact that the posting of an HCS Officer as Chief Vigilance Officer-cum-Enforcement Officer with HUDA was withdrawn. There was no adjudication on the issues raised. Still further, the present writ petition filed by the petitioner was pending consideration on the said date and the same was no adjudicated upon along with the writ petition filed by respondent No. 4. Therefore, it cannot be said that the petitioner is precluded from challenging the promotion of respondent No. 4 for the reason of dismissal of the writ petition filed by the said respondent. Apart from the said argument, Shri Hooda, learned Advocate General, has raised no other argument.

However, it was learned Counsel for respondent No. 4 who has sought to argue that communication Annexure P-4 is, in fact, approval to the creation of the post of Chief Vigilance Officer-cum-Enforcement Officer in HUDA "as per the proposal contained in the agenda item". It is, thus, sought to be argued that since in the agenda the post was required to be filled up by selection from amongst HCS Officers, Assistant Estate Officers, Superintendents, Private Secretary etc, therefore, respondent No. 4 was rightly considered and promoted. The argument raised is wholly untenable. The resolution of the Authority dated 30.9.1999 is for creation of the post of Chief Vigilance Officer-cum-Enforcement Officer to be filled up by HCS Officer. There was no resolution whatsoever of filling up such post by a departmental officer. The proposal in the agenda is not the resolution and decision of the HUDA authorities. It is the decision of the Authority which is relevant and not the proposal in the agent item. As a matter of fact, communication of the Chief Administrative dated 30.11.1999 to seek administrative approval was also to the effect that such post should be filled up by an HCS Officer. The administrative approval was in response to the communication dated 20.10.1999. Therefore, merely because the words "as per the proposal contained in the agenda item" has been used in the communication dated 30.11.1999, Annexure P-4, will not negate the decision of the Authority in its meeting held on 30.9.1999 and amount to approval by the government of the issue proposed in the agenda. The agenda was for the consideration of the members of the Authority to take a decision thereon. Once in a meeting a decision has been taken that the post is to be filled up by an HCS Officer, reliance on the proposal in the agenda is nothing but wholly perverse and untenable stand. Once the proposal is for appointment of an HCS Officer and the same having been accepted, it may not be possible for the State Government to add a clause for appointment of a suitable departmental officer in case an HCS Officer is not available. Since none of the parties have raised such a question, we are not commenting on the said clause any further.

The fact remains that creation of post of Chief Vigilance Officer-cum-Enforcement Officer by the State Government with the approval of the Finance Department was required to be filled up on deputation by an HCS Officer. It is only in case an HCS Officer is not available, a suitable departmental officer could be appointed. As mentioned above, it is not the stand of the State Government that an HCS Officer is not available for posting as Chief Vigilance Officer-cum-Enforcement Officer with HUDA. Therefore, the departmental officer could not have been promoted when an HCS Officer could be made available by the State Government.

The communication of the Commissioner and Secretary to Govt. Haryana, Town and Country Planning Department, dated 20.01.2000 was to request the Chief Secretary to post an HCS Officer. It was also communicated that "in case it is not possible to spare an HCS Officer", intimation to that effect may be given to that the post is filled by a departmental officer. In the said communication nor in the approval of the State Government, Annexure P-8, there is any reference to the non- availability of an HCS Officer. It is apparent from the stand of Shri Hooda that, in fact, HCS Officers are available for posting, therefore, the methodology devised to appoint a Private Secretary to the Chief Administrator as Chief Vigilance Officer-cum-Enforcement Officer is nothing but clearly in contravention of the resolution of the Authority as approved by the State Government.

Therefore, we find that respondent No. 4 is occupying the post of Chief Vigilance Officer-cum-Enforcement Officer illegally and without any authority of law. Consequently, by issuance of a writ of quo-warranto, the order of appointment of respondent No. 4 on the post of Chief Vigilance Officer-cum-Enforcement Officer is quashed and the said post be deemed to be vacated forthwith.