Holding

A temporary post created and abolished with the Finance Department's concurrence under the Uttar Pradesh Rules of Business, 1975 is valid, and such a post lapses automatically when its term expires without an extension or financial sanction, giving the holder no right to confirmation.

Summary

The appellant, Mahesh Kumar Mudgil, was appointed to a temporary Officer on Special Duty (Special Component Plan) post created in 1980 under the Harijan & Social Welfare Department with the Finance Department's concurrence. The post was extended several times but was abolished in May 1984 by an office memorandum of the Secretariat Administration (Establishment), which also created a new equivalent post in the Uttar Pradesh Secretariat Service, again with finance concurrence. Mudgil contended that after serving more than three years he acquired a right to confirmation and that the Secretariat Administration lacked authority to abolish a post created in another department's cadre. The Supreme Court held that both creation and abolition were valid as they complied with the Uttar Pradesh Rules of Business, 1975, requiring Finance Department concurrence, and that a temporary post automatically lapses when its tenure ends without a further extension or financial sanction. Consequently, Mudgil had no vested right to confirmation, and the High Court's dismissal of his petition was affirmed.

Issues considered

Whether a temporary post created in the cadre of one department can be abolished by another department of the State with Finance Department concurrence.
Whether a government servant holding a temporary post for more than three years acquires a right to confirmation or conversion into a permanent post.
Whether a temporary post automatically lapses in the absence of an order extending its tenure or providing financial sanction.

Legislation cited

Uttar Pradesh Rules of Business, 1975s. Rule 4(2)

Subjects

temporary postservice lawpost abolitionfinance department concurrenceUttar Pradesh Rules of Businesspost lapseconfirmation rightArticle 166

Judgment

MAHESH KUMAR MUDGIL A
v.
STATE OF UTTAR PRADESH AND ORS.

DECEMBER 8, 1997

(SUJATA V. MANOHAR AND D.P. WADHWA, JJ.]
B

Se1vice Law-Abolition of temporary post-No order of extension nor
any financial sanction for continuing the post-Post automatically lapses.

Uttar Pradesh Rules of Business 1975: Rule 4(2)-Having Mandate of C
Article 166 of the Constitution of India-Concurrence of finance department
mandatory-Office memorandum creating new and equivalent post and
abolishing earlier post issued with the assent of the finance depart-
ment-Valid-Post created in Secretariat Establishment can be used in at-
tached or subordinate office-Such office does not acquire a right to hold 011 D
to the post.

l '
The issue arising for consideration is whether a temporary post
created in the cadre of one Government department can be abolished by
another department of the State. Government.
E
The sanction for creation of one temporary post of Officer on Special
Duty (Special Component Plan), at Secretarial level, was communicated
by Secretary to Government of Uttar Pradesh to the Director, Harijan and
Social Welfare Department vide order dated 16.10.1980. This order was
issued with the concurrence of the Finance Department. The post was
created for an initial period upto 28.2.1981 but was extended by various F
Government orders from time to time, and lastly upto 28.2.1985.

By an office memorandum dated 8.S.1984, the Secretariat Ad-
ministration (Establishment) created a new, equivalent post in the cadre
of the U.P. Secretariat Service and abolished the earlier post, which was G
being held by the appellant since 16.10.1980. This order was also iss!led
with the assent of the Finance department.

The appellant challenged the memorandum of 8.S.1984 on the
ground that having worked on the post for more than three years, he had
acquired the right to be confirmed against the said post, by converting the H
237
238 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

A same into a permanent one if necessary. He had also contended that since
the post was borne on the cadre of the Directorate of Harijan & Social. -
Welfare Department, it could not be abolished by the Secretariat Ad-,
ministration (Establishment). The High Court rejected both the conten-
tions and dismissed the writ petition by its order dated 27.4.1989, which is
B impug~ed in the present appeal.

Dismissing the appeal, this Court

HELD : 1. The orders creating and abolishing the temporary post
had both been issued with the concurrence of the Finance Department, in
C accordance with the U.P. !Rules of Business 1975, and were thus issued with
proper authority and were valid. (243-E-H; 244-A]

1.1. The temporary post was created at the Secretariat level though
in the cadre of the Harijan & Social Welfare Department and could be
validly abolished by the Secretariat Administration (Establishment) and
D a new temporary and equivalent post in the cadre of the State Secretariat
Service created, with the assent of the finance department. (243-E-H]

1.2. The utilization of a post created in the Secretariat Establishment
of the Ministry, in any attached or subordinate office, does not confer any
right on such office to hold on to that post. [245-B]
E
2. A temporary post automatically lapses on completion of its tenure,
when there is no order granting any extension nor any order granting
financial sanction for continuance of the same. [243-G-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2863 of
F 1989. ,.

From the Judgment and Order dated 27.4.89 of the Allahabad High
Court in W.P. No. 2464 of 1984.

Anil Kumar Gupta for the Appellant.
G
Dr. KS. Chauhan and R.B. Misra for the Respondents.

The Judgment of the Court was delivered by

D.P. WADHWA, J. That appellant is aggrieved by the order dated
H April 27, 1989 of the High Court of Judicature at Allahabad (Lucknow
M.KMUDGILv. STATE[D.P. WADHWA,.T.] 239
Bench) dismissing his writ petition wherein his challenge to the post of A
-... Officer on Special Duty (Special Component Plan) which he was holding,
failed.

The appellant joined Secretariat service of the respondent as Lower
Division Assistant in the temporary capacity in the year 1975. Whereafter B
he was promoted as Upper Division Assistant. While the appellant was
holding the post of Upper Division Assistant in officiating capacity, he was
selected and appointed on ex- cadre post of Officer on Special Duty
(Special Component Plan) by order dated October 16, 1980. By Office
Memorandum dated May 8, 1984, this post of Officer on Special Duty
(Special Component Plan) was sought to be abolished and by notification C
dated May 14, 1984 Shri Shiva Shankar Singh, respondent No. 4, was
appointed as Officer on Special Duty (Special Component Plan) in newly
created post. Both the aforesaid office memorandum and the notification
were challenged by the appellant)n the writ petition in the High Court.

D
In support of his case in the High Court, the appellant had contended
that a Government servant holding a temporary post for more than three
years acquired right to be considered for confirmation against that post
and if necessary by converting the temporary post into a permanent one.
' He said that since he had completed more than three years as Officer on
Special Duty (Special Component Plan), he was entitled to hold that post E
which was being abolished by Office Memorandum dated May 8, 1984. His
further case was that this post was borne on the cadre of Directorate of
Harijan and Social Welfare and could not be abolished by the Secretariat
Administration (Establishment) of the State Government. The case set up
by the appellant did not find favour with the High Court and it dismissed F
his writ petition.

The only contention raised before us in this appeal is that the post
of Officer on Special Duty (Special Component Plan) was in the cadre of
the Directorate of Harijan and Social Welfare Department of the State
Government and the State Government in the Secretariat Administration G
(Establishment) could not have abolished the same. We may note that on
account of the interim orders issued by the High Court and later by this
Court, the post of Officer on Special Duty (Special Component Plan) has
been continued with the appellant, it appears, still holding the same. To
understand how this post which the appellant was holding was created and H
240 SUPREME COURT REPORTS [1997] SUPP.6S.C.R.

A how it was abolished, we may refer to sequence of certain events.
On October 16, 1980 a communication (No. 5158/26-3-80-11(17)80)
was addressed by the secretary to the Government of U.P. to the Director,
Harijan and Social Welfare Department according sanction to create one
temporary post at Secretariat level in the pay scale of Rs. 500-1000. It was
B stated in the letter that for the purpose of implementation of special
component plan for Scheduled Castes in an accelerated and effective
manner, the Governor was pleased to accord sanction to create the above
post from the date of filling up the post which date shall not be earlier than
the date of this order upto February 28, 1981. It was mentioned that the
C said post shall be a gazetted post and the designation whereof shall be
Officer on Special Duty (Special Component Plan). The holder of the said
post was to be paid in addition to pay, dearness allowance and other
allowances as applicable and approved by the Government from time to
time. This letter also described the qualifications for holding this post and
the functions which were to be performed. Then the letter gave the
D following directions :

"The above said expenditure shall be made in the income and
expenditure account for the current financial year 1980-81 and t
charged against the head "288 - Social Security and Welfare - Ka l
E - Scheduled Castes, Scheduled Tribes and other backward classes
t
welfare -2 - uplift of Scheduled caste under organisation puronid- '
hanit schemes by centre-special central relief/subsidiary
relief/component relief/state relief under the special component
plant for the all around development of scheduled castes.

F This order is issued with the Sanction of the finance department
received by its non-official Jetter No. %- 2968-10-80 dated 15th
October, 1980."
t
At the same time, by Office Memorandum dated October 16, 1980, '
G the appellant was appointed to the post of Officer on Special Duty (Special
Component Plan) in the pay-scale of Rs. 500-1000 created under the
aforesaid Government Order No. 5158/26-3- 80-11(17) 80 dated October
16, 1980. By office order dated January 22, 1982 a new pay-scale for the
post of .Officer on Special Duty (Special Component Plan) was sanctioned
and now this post was in the pay-scale of Rs. 770-1600. This was by letter
H of the Special Secretary to the Government of Uttar Pradesh to the
·r
M.K.MUDGIL v. STATE (D.P. WADHWA, J~J 241
Director, Harijan and Social" Welfare Department. The post was being A
extended from time to time by various Government orders. Then comes
the Office Memorandum dated May 8, 1984 issued by the Secretariat
Administration (Establishment), Section I abolishing this post and, at the
same time, creating a new post of the Officer on Special Duty (Special
Component Cell). This Office Memorandum we may reproduce as under: B

"Secretariat Administration
Establishment) section-I
No. 2667A(fwenty-E-1-544(2)/80 Lucknow
dated 8th May, 1984.
c
OFFICE MEMORANDUM

In reference to the Government Resolution No. Pay R. ·
1590(fen/42(M)/1980 dated 29th September, 1981 passed on the
recommendations made in the report of Uttar Pradesh Pay Com- D
mission, the undersigned is directed to say that the Governor is
pleased to accord sanction for creation of one temporary post ·Of
Officer on Special Duty (Special Component Plan) in the Uttar
Pradesh Secretariat from the date of issuance of this order or from
the date when the said post is utilised till 28th February 1985
whichever is later in the new pay scale of Rs. 770-40-1050- E.B.- E ·
50-1300-60-1420-E.B. 60-1600 in the cadre of Uttar Pradesh
t Secretariat Service with the condition that the said post may be
' abolished at any time before the specified date without any prior
notice. As a result of creation of this post, one temporary post of
Officer on Special Duty (Special Component Plan) in the old pay
scale of Rs. 500-25-700-E.B.-40-900-E.B.-50-1000 created by the F
Harijan and Social Welfare Section-3 by Government Order No.
5158-26.3.80-11(17)/80 dated 16th October, 1980 which was revised
to the new pay scale of Rs. 700-40-1050-EB-50-1300-60-1420-EB-
60-1600 by Government Order No. 4346/26.3.82-11(84)/81 dated
22nd January, 1982 of the Harijan and Social Welfare Section-3 G
and the period of which has been extended for the last time upto
28th February 1985 by the Government Order No. 633/26.3.1984
dated 30th March 1984 of the same department, that post shall be
deemed to be abolished from the date when the newly created post
with the same name and equivalent to former post is brought into
use. H

..
242 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A 2. The said post shall be deemed to be included temporarily in the
posts of Section Officers in the Cadre of Uttar Pradesh Secretariat
Service.

3. The holder of the said post shall also be paid in addition to
pay in the above mentioned pay scale, dearness allowances and
B other allowances as applicable under orders issued from time to
time by the Government.

4. The expenditure incurred in this regard, shall be made in the
income and expenditure account for the financial year 1984-85 and
charged against the Head "228 - Social Security and Welfare (Ka)
c Scheduled Castes, Scheduled Tribes and other backward classes
welfare (2) - Scheduled Castes Welfare (Ng-PURONIDHANIT)
Schemes - by the Centre - under Organisation (2) Social Uplift
Programme (No. 7733) -(Kha)-All round development of
Scheduled Castes under special component plan special Central
D Relief (Cent per cent central relief)/Aubaid subsidiary grant/com-
ponent/Government relief (grant No. 81).

5. These orders are issued with the assent of the Finance Depart-
ment received by its non-official letter No. E- 129/71 4 (A) dated
4th May, 1984.
E
Vinod Chandra Pandey
Deputy Secretary.

As noted above, in pursuance to this memorandum, the State
Government by notification dated May 14, 1984 appointed Respondent No.
F
4, Shiva Shankar Singh on this newly created post. This notification in
relevant part reads as under :

"Government of Uttar Pradesh, Secretariat Administration (Estab-
lishment) Section-I.
G
No. 2792/20-E-1-691/84 dated 14th May, 1984

Notification/Appointment

... The following permanent Upper Division Assistants of Uttar
H Pradesh Secretariat are appointed as Section Officers on ad hoc
M.KMUDGILv. STATE(D.P. WADHWA,J.] 243
and temporary basis from the date of taking charge thereof and A
are posted to the newly created post/vacancy shown in column 3
against their names respectively.

S.No. Name & Present Place of Description of post/vacancy
posting
B
1. Shri Shiva Shankar Singh Officer on Special Duty
Industry Department (Special Component Plan) in
Harijan & Social Welfare
Department, which is the post
of Section Officer in the
Secretariat Service Cadre. C
2.

The above posts have been notified by office Memo No. 2667-2667-
A/Twenty E 544 (2)/810 dated 8th May, 1984.
D
Sd/
Kamal Pandey,
{
Secretary."

As we have seen the above Jetter dated October 16, 1980 creates the
post of Officer on Special Duty at Secretariat level. To that effect letter E
was addressed by the Secretary, Government of Uttar Pradesh to the
Director, Harijan and Social Welfare. Similarly, Office Memorandum
dated May 8, 1984 reproduced above abolishes that post and creates a new
temporary post of Officer on Special Duty. There is hardly any scope for
controversy as raised by the appellant that the post of Officer on Special F
Duty which was a temporary post and to which he was appointed on ad
hoc basis was created in the Directorate and not in the Secretariat which
means in the Ministry. His contention, therefore, that Secretariat Ad-
ministration had no power or jurisdiction to abolish the post he was
holding, does not appear to have any basis. Admittedly, the post of Officer
on Special duty (Special Component Plan) which was temporary was being G
extended from time to time by various Government orders. There is no
Government order further extending this post or any sanction order from
the Finance Department as required under the Uttar Pradesh Rules of
Business, 1975. Even otherwise the post in the absence of any order of
extension or any financial sanction lapses of its own. The Office Memoran-
dum dated May 8, 1984 is specific and leaves no room for doubt that the H o
'
244 SUPREME COURT REPORTS [1997) SUPP. 6 S.C.R.

A temporary post of Officer on Special Duty (Special Component Cell) which
the appellant was holding was abolished. Under the Uttar Pradesh Rules
of Business creation of post carrying pay scale the maximum of which is
either Rs. 2,000 or less than Rs. 2,000 requires the sanction of Minister
In-charge which he can do only after Department of Finance has con-
curred. If there is difference of opinion between the Minister In-charge of
B a particular department where the post is sought to be created and the
Finance Department, the matter is referred under the aforesaid Rules to
the Chief Minister. The letter dated October 16, 1980 creating the post and
that Office Memorandum dated May 8, 1984 abolishing the post referred
to above record the sanction issued by the Finance Department. We may
C refer to para 4(2) of the Uttar Pradesh Rules of Business, 1975 which is as
under:

"4(2) Unless the case is fully covered by powers to sanction
expenditure or to appropriate or re-appropriate funds, conferred
by any general or special orders made by the Finance Department,
D no department shall, without the previous concurrence of the
Finance Department, issue any orders which may ·

(a) involve any abandonment of revenue or involve any expen-
diture for which no provision has been made in the Appropriation
Act;
E
(b) involve any grant of land or assignment of revenue or
concession, grant, lease or licence of mineral or forest rights or a
right to water, power or any easement or privilege in respect of
such concession;
F
(c) relate to the number or grade of posts, or to the strength
of a service, or to the pay or allowances of government servants
or to any other conditions of their service having financial implica-
tions; or

G (d) othenvise have a financial bearing whether involving expen-
diture or not;

Provided that no orders of the nature specified in clause (c)
shall be issued in respect of the Finance Department without the
H previous concurrence of the Department of personnel."
M.K.MUDGIL v. STATE [D.P. WADHW ·~, J.] 245
The Rule is specific and carries with it the mandate of the Constitu- A
tion under Article 166 thereof.

We have not been shown any order of the State Government extend-
ing the duration of the post of Officer on Special Duty (Special Component
Cell) which the appellant is holding or sanction of the Finance Department
agreeing to the continuation of that post. We do not find any bar that a B
post though created in the Secretariat establishment in the Ministry cannot
be used in any attached or subordinate office but that does not give right
to that office to hold on that post.

High Court has taken correct view of the matter. We find no reason C
to differ from the same. The appeal lacks merit, it is dismissed with costs.

R.C. Appeal dismissed.