# Mohammad v. State of U.P. and others)

- **Citation:** (2009) 1 ILRA 118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-12-31
- **Case number:** Special Appeal No. 1587 of 2008
- **Bench:** V.M. Sahai, Ran Vijay Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-v-state-of-u-p-and-others-41296
- **Pages:** 6

## Headnote

Constitution
of
India-
Art.226Cancellation of appointment as Sankul
Prabhari-certain lapses on the part of
appellant in distribution of Scholarshipwithout following principle of Natural
Justice-held-appointment
of
Head
Master as Sankul Prabhari governed by
Government
Orders
unless
such
provision contrary to constitution-can
not be interfered-even-appointment on
deputation-no right accure nor can be
termed as reversion.

Held: Para 17 & 22

In view of the aforesaid decisions we are
of
the
view
that
even
if
in
the
appointment letter of the petitioner the
period of deputation is not mentioned it
will
make
no
difference
as
the
petitioner's
appointment
as
Sankul
Prabhari has been made pursuant to the
Government Order dated 29.06.2002
where
the
maximum
period
of
deputation is provided for two years.
Leaned
Single
Judge
has
rightly
observed that the period of deputation
cannot be extended beyond the period of
two years and has rightly dismissed the
writ petition.

We are of the view that the State
Government is competent to make policy
with regard to the appointment of
coordinators and the policy under which
the
appointments
have
been
made
cannot said to be hit any of the
provisions of the Constitution or any
other statute governing the field.
Case law discussed:
2004
ESC
1911,
JT
2000(6)SC
574,
2000(5)SCC 362, JT 1999(7)SC44, 2003(5)ALR
44, 1999(3)UPLBEC 2412, 2005(8)SCC 394,
2007(2)SCC 138,1992(4)SCC 23, 1978 SC 28,
2000(2)AWC1747, 1984 SC1543, 2006 AIR
SCW 3601, 1989 SC 1899, 1990 SC 1277,
1965 SC 491, (1890)3 SCC 418

## Text

118 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
provisional
assessment
notice
dated
31.12.2008 issued by the respondents
Annexure-6 to the writ petition is
quashed.
We
further
direct
the
respondents to send the meter of the
petitioner for testing by an independent
agency in accordance with clause 5.6
(c)(iii) and thereafter make provisional
assessment
provided
the
petitioner
deposits an amount of Rs.2,50,000/- with
the respondents within a period of fifteen
days from today. The respondents are
further directed to restore the power
supply of the petitioner within 48 hours
from the date petitioner deposits the
aforesaid amount. The petitioner shall go
on paying her regular electricity bills.

13. Parties shall bear their own
costs.

Petition allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE RAN VIJAY SINGH, J.

Special Appeal No. 1587 of 2008

Israr Mohammad

...Appellant

Versus
State of U.P and another ...Respondents

Counsel for the Appellant:
Sri Pankaj Kumar Srivastava

Counsel for the Respondents:
S.C.

Constitution
of
India-
Art.226Cancellation of appointment as Sankul
Prabhari-certain lapses on the part of
appellant in distribution of Scholarshipwithout following principle of Natural
Justice-held-appointment
of
Head
Master as Sankul Prabhari governed by
Government
Orders
unless
such
provision contrary to constitution-can
not be interfered-even-appointment on
deputation-no right accure nor can be
termed as reversion.

Held: Para 17 & 22

In view of the aforesaid decisions we are
of
the
view
that
even
if
in
the
appointment letter of the petitioner the
period of deputation is not mentioned it
will
make
no
difference
as
the
petitioner's
appointment
as
Sankul
Prabhari has been made pursuant to the
Government Order dated 29.06.2002
where
the
maximum
period
of
deputation is provided for two years.
Leaned
Single
Judge
has
rightly
observed that the period of deputation
cannot be extended beyond the period of
two years and has rightly dismissed the
writ petition.

We are of the view that the State
Government is competent to make policy
with regard to the appointment of
coordinators and the policy under which
the
appointments
have
been
made
cannot said to be hit any of the
provisions of the Constitution or any
other statute governing the field.
Case law discussed:
2004
ESC
1911,
JT
2000(6)SC
574,
2000(5)SCC 362, JT 1999(7)SC44, 2003(5)ALR
44, 1999(3)UPLBEC 2412, 2005(8)SCC 394,
2007(2)SCC 138,1992(4)SCC 23, 1978 SC 28,
2000(2)AWC1747, 1984 SC1543, 2006 AIR
SCW 3601, 1989 SC 1899, 1990 SC 1277,
1965 SC 491, (1890)3 SCC 418

(Delivered by Hon'ble V.M. Sahai, J.)

1. This special appeal has been filed
by the appellant -petitioner against the
judgment & order dated 20.01.2008
passed by learned Single Judge in writ
petition no. 54217 of 2008 (Israr
Mohammad vs. State of U.P. and others)
by which the petition filed by the
petitioner has been dismissed.
1 All] Israr Mohammad V. State of U.P. and another
119

2. The facts giving rise to this appeal
are that the petitioner was initially
appointed on 19.09.1985 as Assistant
Teacher in the Junior Basic School. In the
year 1996, he was appointed as Sankul
Prabhari while he was working as
Assistant Teacher. In the year 2005, the
petitioner was promoted on the post of
Headmaster. After promotion on the post
of Headmaster, he was again appointed as
Sankul Prabhari, Karwa Buzurg on
31.08.2005
by
the
District
Basic
Education
Officer,
Etawah.
The
petitioner's appointment on the post of
Sankul Prabhari was cancelled by the
District Basic Education Officer, Etawah
vide order dated 27.09.2008 on the
ground of certain lapses on the part of the
appellant with regard to the distribution of
scholarship in the Junior Basic School and
senior
basic
school
Karwa
Buzurg
whereas the direction was issued to
distribute the scholarship well within
time. Another ground for cancellation of
the appointment was that in spite of
specific instructions for white washing of
the school building from cement it was
whitewashed by lime.

3. Shri Pankaj Kumar Srivastava,
learned counsel for the petitioner has
challenged the impugned order dated
20.10.2008 on the following grounds:

(a) Because the impugned order in the
writ petition dated 27.09.2008 was
passed in breach of principle of
natural justice as no opportunity
whatsover was given by the District
Basic Education Officer, Etawah to
the petitioner before cancelling his
appointment as Sankul Prabhari,
therefore, learned Single Judge has
erred in dismissing the writ petition.
(b) Because
the
tenure
of
the
appointment was not mentioned in
the appointment
letter,
therefore,
learned Single Judge has wrongly
noticed that the terms of appointment
of two years has expired and on this
ground refused to interfere with the
impugned order dated 27.09.2008.
(c) Because the impugned order in the
writ
petition
dated
27.09.2008
amounts to reversion as the salary of
Sankul Prabhari is higher than the
post of Head Master/Teacher.

4. Learned Standing Counsel
appearing for the State Respondent has
submitted that at present the selection on
the post of Coordinates (Sankul Prabhari)
Block Resource Centres Coordinator and
Nyaya
Panchayat
Resource
Centres
Coordinator (B.R.C.C. And N.P.R.C.C.)
are made on deputation for the maximum
period of two years pursuant to the
Government Order dated 29.06.2002.
This
Government
Order
also
put
restriction that after completion of two
years there will be fresh selection on the
post and the persons once appointed as a
coordinator will not be considered in the
fresh selection.

5. Learned Standing Counsel also
points out that the Government Order
dated 29.06.2002 was challenged before
this Court through various petitions and
this Court had dismissed the writ petitions
on 09.09.2004. The number of leading
writ petition happens to be 27778 of 2003
(Shailendra Kumar Misra and others vs.
State of U.P. and others).

6. This order was challenged
through Special Appeal No. 535 of 2004
which too was dismissed on 11.05.2004.
120 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

7. He has also submitted that the
petitioner's substantive post is of a
teacher/Head master and he was only sent
on deputation on the post of Sankul
Prabhari, therefore, there is no illegality in
repatriating
the
petitioner
on
the
substantive post of Head Master/Teacher.
He has further submitted that since this
was a time bound appointment under a
scheme, therefore, it will come to an end
after the expiry of fixed period of two
years. In his submission even if impugned
order in the writ petition has been passed
without affording an opportunity of
hearing, it will make no difference as in
any condition petitioner cannot work
beyond the period of two years pursuant
to
the
Government
Order
dated
29.06.2002 as he is bound by the terms
and
conditions
of
the
aforesaid
Government Order.

8. We have heard learned counsel
for the petitioner Sri Pankaj Kumar
Srivastava and learned Standing Counsel
for the respondents.

Following question would arise to
decide the present controversy.

(a) Whether the impugned order in the
writ petition dated 27.09.2008 can be
quashed on the ground of breach of
principle of natural justice.
(b) Whether the impugned order passed
in the writ petition dated 27.09.2008
amounts
to
reversion
of
the
petitioner.
(c) Whether the terms of the deputation
can be extended by the court.
(d) Whether the petitioner can travel
beyond the terms of the Government
Order dated 29.06.2002 pursuant
there
of
the
coordinators
are
appointed and are working in the
State of U.P.

Point No. (a):-

9. From the perusal of the impugned
order dated 27.09.2008 it transpires that
the said order has been passed without
affording an opportunity of hearing to the
petitioner. Now the question would arise
whether that order can be interfered with
under the facts and circumstances of the
present case where the petitioner is
holding substantive post of teacher/Head
Master and was sent on deputation on the
post of coordinator under a scheme run
by the State of U.P.

10. For applying the principle of
natural justice there can be no straight
jacket
formula
but
it's
observance
depends upon the facts and circumstances
of each case. It is settled law that
observance of principle of natural justice
is not a ritual which should be given in
each and every case. If in a particular case
even after giving an opportunity of
hearing same result is likely to come and
order has been passed without giving an
opportunity then in that circumstances
that kind of order should not be interfered
with under Article 226 of the Constitution
of India.

11. Learned counsel for the
petitioner has not been able to dispute this
fact that the appointment of coordinators
(Sankul Prabhari) is governed under the
Government Order dated 29.06.2002
where the maximum period of deputation
is provided for two years, therefore, even
if opportunity is given to the petitioner
even then he will not be able to improve
his case.
1 All] Israr Mohammad V. State of U.P. and another
121

12. We are of the view that non
observance of principle of natural justice
before passing the impugned order dated
27.09.2008 will not vitiate the order and
it is not worthwhile to interfere with
under Article 226 of the Constitution of
India, as even if opportunity if given to
the petitioner he will not be able to
improve his case in view of the
Government Order dated 29.06.2002
which talks about the duration of
deputation for the maximum period of
two years.

13. Learned counsel for the
appellant submits that impugned order
dated 27.09.2008 amounts to reversion as
now his salary will be reduced. It is
noticeable that the Government Order
dated
29.06.2002
under
which
the
appointment or coordinator is made talks
about the deputation. According to which
a teacher eligible for appointment on the
post of coordinator is sent on deputation
only for a period of two years, therefore,
even if the petitioner was getting higher
salary on the post of coordinator even
then the impugned order passed in the
writ petition will not amount reversion as
his original post if of a teacher/head
master and he has been repatriated on the
said post without any stigma. Reversion
means reduction in rank than the original
post which cannot be the case of the
petitioner as his original post is of a
teacher/head master. Therefore, we are of
the view that the impugned order do not
amount Reversion.

14. It is not in dispute that the
petitioner has been sent on deputation and
now he has been repatriated on his
substantive post of headmaster/teacher. It
is settled law deputationist has no right
and he can be repatriated in the parent
department even before the expiry of the
period of deputation. This question in the
case of coordinators has been considered
by a Division Bench of this Court in the
case of Net Ram Gangwar & Ors vs
State of U.P. and others reported in
2004 ESC 1911 where it was observed:

"The appointment letters issued by
the District Basic Shiksha Adhikari
specifically provided that they were
appointed on deputation on a purely
temporary arrangements which can come
to an end at any time without any prior
information. The appointment order made
it clear that the deputation is upto the
period of the scheme or upto 31.03.2003
whichever is earlier and the post shall be
treated to be sanctioned only till that
time.
...........................................................

The petitioner were not held out any
assurance that they would be engaged as
Coordinator/Assistant Coordinator for an
indefinite period. The Scheme was treated
to be sanctioned upto the year 2000 by the
G.O.
dated
18.08.1994
which
was
extended
upto
31.03.2003.
The
appointment order specifically provided
that he was appointed on deputation on a
purely temporary arrangement which
could come to an end at any time without
prior intimation. The appointment order
made
it
absolutely
clear
that
the
deputation is upto the period of the
scheme or upto 31.03.2003 whichever is
earlier, and the post shall be treated to be
sanctioned only till that time.
..........................................................

The appellants were on deputation
and they have been repatriated to their
substantive post. As rightly held by the
learned Single Judge, the petitioner have
no right to continue under the new
scheme. They were on deputation, and it
122 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
is well settled that a person on deputation
has no right to continue on deputation,
and he can be repatriated to his parent
department at any time vide Kunal
Nanda v. Union of India, JT 2000(6) SC
574; Kunal Nanda v. Union of India,
2000(5) SCC 362; Rameshwar Prasad v.
Managing
Director,
U.P.
Rajkiya
Nirman Nigam Ltd. And others, JT
1999(7) SC 44; Dr. O.P.Singh vs State
of
U.P.
&
Others,
2003(5)ALR44:Rameshwar Prasad vs
Managing
Director,
U.P.
Rajkiya
Nirman
Nigam
Ltd.
And
others
1999(3)UPLBEC 2412."

15. This view has been reaffirmed
by the Apex Court in Union of India and
another
vs.
B.Ramakrishnan
and
others 2005(8) SCC 394, U.P.Gram
Panchayat Adhikari Singh and others
vs. Daya Ram Saroj & others 2007 (2)
SCC 138 etc.

16. Otherwise also the maximum
period of appointment on the post of
coordinator is two years, therefore, it will
automatically lapse after that period in
view of the decision on the Apex Court
reported in 1992(4)SCC 23 Director
Natural
Manufacture
Development
U.P. v. Pushpa Srivastava.

17. In view of the aforesaid
decisions we are of the view that even if
in the appointment letter of the petitioner
the period of deputation is not mentioned
it will make no difference as the
petitioner's
appointment
as
Sankul
Prabhari has been made pursuant to the
Government Order dated 29.06.2002
where the maximum period of deputation
is provided for two years. Leaned Single
Judge has rightly observed that the period
of deputation cannot be extended beyond
the period of two years and has rightly
dismissed the writ petition.

18. It is settled law that one cannot
travel beyond the terms of the scheme
under which he has been appointed. The
Apex
Court
in
the
case
of
I.L.
Honnegouda
vs.
The
State
of
Karnataka and others, AIR 1978 SC 28
as under:

"In view of our judgment in Appeals
Nos. 883 and 898 to 905 of 1975:
(Reported in AIR 1977 SC 876) which has
just been delivered and the fact that the
appellant acquiesced to the 1970 Rules by
applying for the post of the Village
Accountant,
appearing
before
the
Recruitment Committee for interview in
1972 and 1974 and taking a chance of
being selected, the present appeal which
question the constitutionality of Rules 4
and 5 of the 1970 Rules cannot be
allowed. It is accordingly dismissed but
without any order as to costs".

19. A Division Bench of this Court
in the case of Chandra Gupta v. State of
U.P. and others 2000 (2) AWC 1747
while dealing with the appointment petty
diesel dealer who are appointed pursuant
to the Government Orders has observed:

"They have no independent right to
get supply of diesel for the purpose of
sale. Therefore, they are bound by the
terms and conditions of the aforesaid
Government Orders. On the facts of the
case, the petitioners cannot complain that
any right guaranteed to them under
Article 19(1)(g) of the Constitution has
been violated."

20. Otherwise also the appointment
of coordinators is based on policy
1 All] Akhtar Husain V. S.D.M., Saidpur, Ghazipur and others
123
decision
of
the
State
Government
pursuant to the Government Order dated
29.06.2002. Therefore, also it should not
be interfered with unless the policy
decision taken by the Government is
against any statutory provision or is
violative of fundamental right of the
citizens.

21. The Apex Court in the case of
Maharashra State board of Secondary
and Higher Education & Anr, vs
Paritosh Bhupesh Kurmarsheth, etc.,
AIR 1984 SC 1543 Ekta Shakti
Foundation v. Govt of NCT of Delhi,
2006 AIR SCW 3601, Ashif Hamid v.
State of J&K (AIR 1989 SC 1899), Shri
Sitaram Sugar Co. v. Union of India
(AIR 1990 SC 1277), University of
Mysore v. Govinda Rao reported in AIR
1965
SC
491,
J.P.Kulshrestha
v.
Chancellor,
Allahabad
University
reported in (1980) 3 SCC 418 has taken
the same view and elaborated the scope of
Judicial interference in the policy matter
of State Government.

22. We are of the view that the State
Government is competent to make policy
with regard to the appointment of
coordinators and the policy under which
the appointments have been made cannot
said to be hit any of the provisions of the
Constitution
or
any
other
statute
governing the field.

23. In the result special appeal fails
and is hereby dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2008

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 4228 of 2003

Akhtar Husain

...Petitioner

Versus
S.D.M., Saidpur, district Ghazipur and
others

 ...Respondents

Counsel for the Petitioner:
Sri R.P. Singh
Sri Brij Raj Singh

Counsel for the Respondents:
Sri Q.H. Siddiqui
S.C.

Constitution of India, Art. 226-Recovery
of excess amount given towards salarythe initial appointment being temporary
nature
can
not
be
taken
into
consideration for grant of promotional
pay scale-held-initial appointment being
compassionate
appointment
to
be
treated regular appointment-such period
can not be excluded-No question of
excess payment-order of recovery of
alleged excess amount quashed.

Held: Para 10

The Division Bench decision of this Court
is binding. Learned Standing Counsel has
not referred any decision to the contrary.
Therefore,
the
appointment
of
the
petitioner
made
on
22.12.1978
on
compassionate ground considered to be
temporary appointment though there is
recital
in
the
order.
It
should
be
considered as permanent appointment
and, therefore, recovery of the amount
of Rs.18,485/- on the ground that the
services
of
the
petitioner
were
regularized as Lekhpal on 26.10.1981
and not on 22.01.1979 is illegal.