Court No.2 v. State of Uttaranchal through Principal

and perused the affidavits exchanged between the parties as well as written arguments submitted by them. We first see the appointment letter, No.128/1 (2) Va. Gra. Vi./2003-13 (5)-2000 T.C. II, Dehradun, dated 4

24.01.2003 issued by the Uttaranchal Government, Forest and Environment Section – 2, English version of which is as under:- “NOTICE Appointment 13 2000 prescribed procedure/conditions / (5) Superintending office memorandum-VIP-19(2) Va Gra Sri In exercise of powers conferred under Section 4 (2) (f) of Chapter II of Central Water (Prevention (as amended and Control of Pollution) Act, 1974 down vide Forest & Environment Section II State of Uttaranchal Vi/2002 C.V.S.Negi, Corporate O.N.G.C. Tel Bhawan, Dehradun 511 Vijay Park Extension, hereby Secretary (pay scale of Rs. 16,400-450-20,000/-) on of deputation basis, / mentioned conditions:- Environment Management, address- of Member Pollution Control Board the basis defined lane No.3 Ballupur, Dehradun) said Act, under Chemist of Uttaranchal (Environment) the date of following joining, on discharging

16.08.2002 appointed functions (Residential Safety

2. a initially appointment/posting five years, but terminate This period of three years, which can be extended prior to that. In addition said post holder other admissible allowances etc. payable by the State Government form time to time.” the State Government the aforesaid pay scale shall also be entitled appointment

4. The endorsement made letter appointment issued the petitioner, wherein it has been mentioned the State Government can dispense with services of the Member Secretary (petitioner) before the expiry of term, relatable sub-section (3) of Section 5 and sub section (2) of Section 6 of the Water Act. 5

5. Section 5 of the Water Act deals with the terms and conditions of service of members of the Board. Sub section (3) of Section 5, which relevant this case, reads as under:- the State Government may, the case “(3) The Central Government or, as fit, the expiry of term of office, after giving him a reasonable may be, remove any member of a Board before opportunity of showing cause against the same.” thinks

6. Section 6 of the Water Act deals with disqualifications of a member of the Board. Sub section (2) of Section 6, which is also relevant in this case, reads as under:- “(2) No order of removal shall be made by the case may Central Government or as member opportunity of showing cause against the same.” the State Government, as unless reasonable section a concerned be,

7. Sub section (1) of Section 12 of the Water Act provides conditions of services of Member Secretary shall be such as may be prescribed.

8. Section 2 of the Water Act gives the definition various terms. Clause (f) of Section 2 describes “prescribed” the context of the Act of 1974 means prescribed by Rules made under this Act by the State Government. Clause (f) is reproduced as under:- “(f) “prescribed” means prescribed by rules made under this Act by the Central Government or, as the case may be, the State Government;”

9. Learned counsel petitioner contended that the Water Act was not meeting the requirements to 6 prevent Air Pollution, hence the Air (Prevention & Control of Pollution) Act, 1981 (in short Air Act) was enacted and Clause (o) of Section 2 defines a State Board to mean a Board constituted under the Water Act and Section 4 of the Air Act provides that where in any State a Board constituted under the Water (prevention & Control of Pollution) Act 1974 it would be deemed also to the Board the Air Act Section 54 empowers the State make Rules which were to govern the conditions of services of the Board which was deemed constituted b o t h u n d e r t h e W a t e r A c t a s a l s o t h e A i r A c t . Chapter 6 of the Uttar Pradesh Air (Prevention & Control of Pollution) Rules, 1983 set out the terms and conditions of the services of the Member Secretary of State Board. Chapter 6 of the aforesaid Air Act reads as under:- “17. (1) The Member Secretary shall be paid a monthly pay as prescribed by the Government. (2) The other terms and conditions of service of allowances payable including the Member Secretary to him, shall as far as possible, be the same as are applicable status of the State Government. to an officer of the correspondent servant (3) Where a Government is appointed terms and conditions of as Member Secretary the rules or orders his service shall be regulated by issued relating Foreign appointments Service. the State Government generally (4) The Member Secretary shall be entitled travel by air or air-conditioned class of the railway.

18. (1) The Member Secretary shall be Chief Executive of the Board and shall subject the over all control of the Chairman, exercises his p o w e r s a n d p e r f o r m s h i s d u t i e s . 7 (2) Subject the provision of sub-rule (1) Member Secretary shall, inter alia:- (i) incharge of all the Board and shall be responsible for the confidential papers prescribing them, (ii) Produce papers whenever the Chairman or by the Board, so directed by (iii) Make available any member of Board, for his perusal, any record of Board, (iv) Be entitled to call services of any officer or employee of papers and documents checking, vouchers, bills pertaining under it, including stores the Board and study and checking of accounts, and other records the Board or regional office (v) Make meetings of the committees constituted by the Board, holding arrangements the Board and meetings of instruction, (vi) Issue orders issued by the Board, (vii) Write the State Board and shall, confidential repots of Group I officers get b y t h e C h a i r m a n . be written the offices and staff in case of them countersigned, (viii) Make suitable arrangement appropriate confidential thereof, maintenance reports custody annual (ix) Sanction officers increment of officer belonging approval of the Chairman, staff. be withheld without increments so however to Group I (x) Have full powers sanction to all estimates, for according technical 8 (xi) Have all powers implement the Act effectively, (xii) Exercise such powers and carry out such assigned administrative financial Government, Board or the Rules, from time to time. the Central Board, the Chairman, under State functions the State the Act or

19. (1) The Member Secretary may withhold to be rules or such action financial if he considers any payment in accordance with necessary in the interest of the Board: Provided that, as soon as may be after such with holding of payment, the matter shall be placed before the Board for its approval or such orders as the Board may consider proper. (2) Subject the provisions of sub-rule (1) of rule 18 of the Member Secretary may delegate any of his powers, which are not delegated to him, to any of his subordinate officers in the interest of work. (3) The Member powers, ancillary the Act, provisions of the Board or issued by necessary for proper and effective provisions of orders.” such Act Secretary inconsistent the orders the Chairman, as may be rules and implementation of and Rules or

10. A perusal of the aforesaid rules shows terms and conditions of service of the Member Secretary as prescribed in the Act have to be construed as that only period appointment either contract deputation the State Government, however removal would be subject to sub-section (3) of Section 5 and sub-section (2) of Section 6 of the Water Act. The State Government making appointment of the petitioner invoked the powers vested in it vide Clause (f) of sub-section (2) of Section 4 of the 9 Water Act and, therefore, the other provisions of that are applicable petitioner State Government with vigorous force. English version notice Principal Secretary & Commissioner, Uttaranchal Government, Forest & Environment Section-2 No.2202/x (2)/2005-13 (5)-2000 T.C. II, dated 08.07.2005 removing the petitioner the post of Member Secretary of the Board is reproduced as under:- “NOTICE Safely Tel Bhawan, Superintending Chemist “Shri C.V.S.Negi, Environment Corporate (Environment) Dehradun, Management, O.N.G.C., the post of who was appointed on deputation on Control Member Environment Board Protection notification of Forest & Environment Section II, No. (5)/2000 T./C. II, parent department O.N.G.C. with immediate effect. Uttaranchal name-Uttaranchal Secretary, (present & (1) Va Gra Vi/2003-13

24.01.2003 repatriated Pollution Pollution Control Board), (2)/1 Shri Negi charge is directed immediately hand over to Secretary, Department of Forest & Environment, State of Uttaranchal.”

11. In view of the provision of sub-section (3) of Section 5 of the Water Act the petitioner could not have removed without issuing a show cause notice. A bare perusal of impugned order clearly the respondents did not issue any show cause notice.

12. The learned counsel respondents contended the petitioner cannot claim absorption borrowing department. He repatriated /reverted to his original posting in the parent department time. In support of his contention he placed reliance of the following case laws:- 10 A.I.R 1990 S.C. 1132, versus State of Gujarat and others. Ratilal B.Soni and others (2000) 5 S.C.C. 362, Kunal Nanda versus Union of India, (2001) 10 S.C.C. 655, Mahesh Chandra Bhargava versus Union of India, (2002) 9 S.C.C. 485, Mahesh Kumar K.Parmar and others versus S.I.G. of Police and others, (2003) 9 S.C.C. 32, Ram Ganga Command Area Kumar Development Vaish, Authority Sheetal versus

13. The cases cited by learned counsel for respondents are not applicable the present case as controversy involved the said cases was of absorption Government department another Government department period appointment distinguished the Apex Court case Bahadursingh Lakhubhai Gohil versus Jagdishbhai M. Kamalia, [(2004) 2 S.C.C., 65] which has been relied by he learned counsel petitioner. The said case law has been discussed by Apex Court in Union of India through Government of Pondicherry another versus V.Ramakrishnan others, reported (2005) 8 Supreme Court Cases, 394. Paragraph Nos. 32 & 33 of the said judgment are quoted below:- deputationist deputationist “32 Ordinarily, a continue indisputable post. A absorbed deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in deputed, significance takes places as he is continued to be a recruitment officer import service to which 11 to hold specified, despite the parent service. When indefeasible except term of deputation member of deputation having an Ordinarily curtailed example, performance. But, specified, an order of is mala fide. An action the same post-haste manner also indicates malice. tenure of a deputationist not the said post. should not be unsatisfactory is not tenure reversion can be questioned in a unsuitability even where grounds as,

33. Kunal Nandu versus Union relied upon by [(2000) 5 SCC, 362] Solicitor General, was a case where therein asserted absorption in the department.” a India learned the petitioner permanent

14. In the present case, the petitioner could be removed terminating appointment accordance with provisions sub-section (3) Section 5 of the Water Act as it is not a case of simple deputation and is a case of appointment by deputation. Action post-haste manner which indicates malice.

15. The impugned order is also illegal as the same passed without following procedure prescribed under sub-section (3) of Section 5 and sub- section (2) of Section 6 of the Water Act i.e. without i s s u i n g h i m n o t i c e f o r t e r mi n a t i o n .

16. By impugned order the petitioner has been repatriated without without considering petitioner stood appointed under the Act & Rules and without terminating services repatriated. Therefore, impugned suffers non-application of mind.

17. The order of repatriation is couched as order of simpliciter but the veil lifted and reason is seen as stated in paragragh-2 of the counter affidavit filed by 12 respondent No.1, becomes stigmatic punitive in nature.

18. It has been stated the petitioner after his appointment as Member Secretary the Board, indulged himself into various malpractices, for which he also been warned against him, several complaints have been received for which inquiry was going on and accordingly respondent No.1 had take decision the public interest impugned order was passed for his repatriation. This foundation repatriate petitioner makes punitive. Therefore, opportunity before passing the impugned order.

19. For reasons recorded above impugned

08.07.2005 having passed without following the procedure prescribed under the Rules illegal and suffers from voice of malice and the same liable to be quashed.

20. Since we are allowing the writ petition only on one ground, therefore we are not making any comment allegations of malafide made by the petitioner though much emphasis was learned counsel for the petitioner.

21. The petition allowed. The impugned dated 08.07.2005 is quashed. It is open for the petitioner to join on the post of Member Secretary of the Board.

22. Let a copy of judgment be issued t h e p a r t i e s o n p a y m e n t o f n e c e s s a r y c h a r g e s . (B.C. Kandpal, J.) (P.C. Verma, J) March 28, 2006. P.Singh