Case :- WRIT - A No. - 30990 of 2014
Petitioner :- Durg Vijay Yadav
Respondent :- State Of U.P. And 6 Others Order Date :- 25.7.2014
Hon'ble Manoj Kumar Gupta,J.
1. The petitioner and respondent no.6 who are senior assistants in the office of Executive Engineer, Provincial Division, Public Works Department, Mau, are at loggerheads with regard to distribution of work made by the higher authorities. Both of them want to work as cashier. This has given rise to successive bouts of litigation between them. Indisputably, respondent no. 6 was working as cashier. By order dated 15/10/2013, he was transferred. By another order of the even date, respondent no. 6 was directed to handover the charge of Divisional Cashier to the petitioner. Subsequently, by order dated 25/10/2013, transfer of respondent no. 6 was cancelled. However, he was not given the charge of Divisional Cashier. This led to filing of writ petition no. 9432 of 2014 by respondent no.6, which was disposed of with direction to the Engineer in Chief (MU-2), U.P., PWD, Lucknow to consider the claim of respondent no.6 and pass appropriate orders within three months. In pursuance thereof, the respondent no. 3 passed order dated 7/3/2014 holding that the respondent no.6 is much senior to the petitioner and as per Office Memorandum No. 1066 O;x/818 O;x/98 dated 22/2/2013, the work of cashier is required to be taken from person who is senior-most. Respondent no.5 was directed to pass orders accordingly. The aforesaid order dated 7/3/2014 was challenged by the petitioner by filing writ petition.22599 of 2014 on the ground that in earlier writ petition filed by respondent no.6, a direction, to decide the controversy, was given to the Engineer-in-Chief (Mu-2), U.P., Public Works Department, Lucknow. However, respondent no.3 had decided the controversy and had directed the Executive Engineer to pass consequential orders, which is wholly illegal and amounts to violation of the direction given by this Court in writ petition no.9432 of 2014.
2. It seems that there is no post of Engineer-in-Chief (Mu-2), U.P., Public Works Department, Lucknow and the confusion arose because respondent no.6 in the array of parties had shown Engineer-in-Chief (Mu-2), U.P., Public Works Department, Lucknow as respondent no.2, in writ petition filed by him. The said writ petition was disposed of at the very initial stage, directing respondent no.2 to take decision in the matter. In such circumstances, the judgement of this Court dated 21/4/2014 was interpreted by respondent no. 3 as direction by this Court, to decide the dispute itself instead of directing respondent no. 5 to take decision in the matter, as was done in the past, by order dated 7.3.2014. Accordingly, respondent no.3 passed order dated 19/5/2014, in which it was held that according to the Office Memorandum no. 1066 O;x/818 O;x/98 dated 22/2/2013, which requires that the senior person should normally be allotted the work of cashier, such responsibility should be cast upon respondent no. 6. Aggrieved by the said order, petitioner has filed the present writ petition, inter alia, on the ground that respondent no.3 had committed gross contempt of the judgment dated 21/4/2014, which required the Engineer-in-Chief (Mu-2), U.P., Public Works Department, Lucknow to decide the controversy. It is contended that the earlier order passed by respondent no.3 dated 7/3/2014 was set aside on the ground that such decision should have been taken by respondent no.2 and thus, respondent no.3 is repeatedly violating the directions of this Court.
3. On writ petition being presented, the State-respondents took time to obtain instructions in the matter. It seems that thereafter respondent no.2, Engineer-in-Chief, U.P. Public Works Department, Lucknow was advised to take decision in the matter in purported compliance of the direction given by this Court in its judgement dated 13/2/2014 passed in writ petition no. 9432 of 2014 and writ petition no. 22599 of 2014. Accordingly, respondent no.2 passed order dated 3/7/2014, in which he concurred with the view taken by respondent no.3 and had held that respondent no.6, being senior to the petitioner is entitled to work as cashier. The said order has also been subjected to challenge by filing amendment application, which was allowed.
4. I have heard Sri Krishna Ji Khare, learned counsel for the petitioner, learned Standing Counsel appearing on behalf of respondent no.1 to 5 and Sri Ashok Khare, senior advocate, assisted by Sri V.S. Singh on behalf of respondent no.6.
5. After passing of the order dated 3/7/2014, by respondent no.2, the petitioner has given up challenge to the order dated 19/5/2014 passed by respondent no.3. The order of respondent no.2 dated 3/7/2014 has been subjected to challenge firstly, on the ground that the order passed by respondent no.2 is a result of non-application of mind. He has mechanically endorsed the view taken by respondent no.3, without applying its own mind. It is thus, submitted that the impugned order is liable to be quashed.
6. I have considered the submissions made by learned counsel for the parties and perused the record.
7. The distribution of work to the subordinates is purely administrative exercise of power by a superior authority. The employee has no right to claim which particular work should be allotted to him, till such work is referable to the post held by the employee. In case, there are any guide-lines in this regard, it should be normally followed but it does not have any binding force so that it could be enforced through a court of law. A superior authority, who is over all In-charge of an organisation, has to be given sufficient elbow room to take decision relating to allotment of work, keeping in consideration various factors, which are relevant for optimizing the efficiency. In the present case, it is not in dispute that respondent no.6 is much senior to the petitioner. Earlier, before his transfer, he was performing the duties of Divisional Cashier. After his transfer was revoked, the respondents have once again decided to take work of cashier from him. The aforesaid decision is in consonance with the office memorandum dated 22/2/2013, issued by office of respondent no.2, laying down guide-lines in relation to allotment of work. The aforesaid guide-line provides that normally the work of cashier should be taken in order of seniority amongst the senior assistants. The same view has been taken by respondent no.3 and now by respondent no.2 in his order dated 3/7/2014. Merely because, respondent no.2 had endorsed the view taken by respondent no.3 does not mean that the order has been passed without application of mind.
8. A perusal of the impugned order passed by respondent no.2 further reveals that after reproducing the observations made by respondent no.3 in his own order, respondent no.2 had taken into consideration the letter dated 2/7/2014 written by respondent no.5, Executive Engineer, who is immediate Head of the Provincial Division, Public Works Department, Mau, in which it is mentioned that respondent no.6 is already performing the duties of cashier. It was further mentioned in the said letter that the petitioner had handed over charge of cashier to respondent no.6 on 31/5/2014 and the allotment of work in this regard is in consonance with the office memorandum dated 22/2/2013, as respondent no.6 is senior to the petitioner. He has also made his recommendation for continuing with the said arrangement. Under the office memorandum dated 22/2/2013, powers have been delegated by the Chief Engineer, Public Works Department, Lucknow to the Executive Engineer, to make allotment of work, at his own level. The recommendation of respondent no.5 carried sufficient weight in taking the impugned decision. Thus, I am of the opinion that it cannot be said that the impugned decision has been taken by respondent no.2 mechanically, without application of mind.
9. The second submission of learned counsel for the petitioner is that the impugned decision is in contravention of the office memorandum dated 22/2/2013, which provides that a senior assistant shall be allotted work of cashier for three years and since the respondent no.6 has been performing such work from the year 2010 and thus, he could not have been allotted the work of cashier again. A perusal of the office memorandum dated 22/2/2013 would show that it only states that normally Assistant working in the department should be given exposure of at least 2 years in typing, 2 years in diary, 2 years in dispatch, 2 years in camp, 3 years in management, 2 years in court case, 10 years in audit and 3 years as cashier. There is nothing in the circular which indicates that a person cannot be allotted work of cashier for more than three years. Further, as stated above, the office memorandum dated 22/2/2013 lays down the guide-lines for allotment of work. It is only directory in nature and not mandatory and any departure therefrom, will not confer right in favour of an employee to get it enforced through court of law. For the said reason, contention in this regard, made by learned counsel for the petitioner cannot be accepted.
10. It is next contended by learned counsel for the petitioner that respondent no.6 is getting grade pay of Rs. 4600 which is grade pay of Administrative Officer as per the government order dated 4/5/2012. It is contended that the respondent no.6 is thus deemed to be Administrative Officer and for whom different duties are assigned and he cannot be permitted to work as cashier. However, such argument is wholly misplaced. The petitioner in paragraph 4 of the writ petition has clearly admitted that the contesting respondent is presently working as Senior Assistant. It has been pointed out by learned standing counsel and Sri Ashok Khare, senior advocate appearing on behalf of the respondent no.6 that the grade pay of Rs. 4600 is being drawn by the respondent no.6 under the Assured Career Progression Scheme and merely because initial grade pay for the post of Administrative Officer is also 4600, will not be sufficient to treat the respondent no.6 as holding the post of Administrative Officer. There is no material on record which may indicate that the respondent no.6 was promoted from the post of Senior Assistant to the post of Administrative Officer. Merely because he is drawing grade pay of 4600, will not make him Administrative Officer.
11. It was lastly contended by learned counsel for the petitioner that as per the office memorandum dated 22/2/2013, it is the Executive Engineer, who was authorised to make allotment of work and respondent no.2 ought not to have taken such decision. Such argument does not lie in the mouth of the petitioner who had challenged the order of respondent no. 3 dated 19/5/2014 on the ground that such order should have been passed by the respondent no.2. Now that respondent no.2 had taken such decision, the petitioner cannot be permitted to take about turn and contend that respondent no.5 ought to have passed such order. It is further relevant to mention here that the impugned decision has been taken by the respondent no.2 in view of the directions given by this Court in writ petition no. 9432 of 2014 and writ petition no.22599 of 2014. It may further be noted that the office memorandum dated 22/2/2013 was issued by the Chief Engineer and it indicates that the ultimate authority for division of work lies with the respondent no.2. However, after laying down the guide-lines, actual allotment of work was left in the hands of respondent no. 5 who is immediate Head of the Regional Office. It does not mean that the respondent no.2 was denuded of his power to make allotment of work itself. The higher authority with had delegated its power, is not divested of the same, in case any eventuality arises for taking decision itself. Further, in the present case, respondent no.2 before taking impugned decision has duly taken into consideration the recommendations of respondent no.5 contained in his letter dated 2/7/2014, wherein it is mentioned that the work of cashier which is being taken from Tarkeshwar Singh, respondent no.6 may be permitted to continue.
12. In view of the aforesaid facts, the challenge made to the impugned order, cannot be sustained.
13. Writ petition is devoid of merits and is dismissed.
(Manoj Kumar Gupta, J.)
Order Date :- 25.7.2014
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