S.C.Mathur, K.N.Goyal, J. - (1.) The present petition is directed against the posting of Sri. P. K. Misra, respondent 2 (for short Misra), a member of the Provincial Civil Service of the State of U.P., as Chief General Manager in the Hindustan Commercial Bank Limited, a private Banking Company, respondent 3, (for short Bank), on deputation. The facts about which there is practically no dispute may now be stated.
(2.) The first petitioner, namely, U.P. Bank Employees Union (for short Union) is a registered Trade Union and the second petitioner Sri Har Mangal Prasad (for short Prasad) is Assistant General Secretary of the said Union's State Unit. Prasad was working in the Meston Road Branch Office of the Bank at Kanpur. He is also a share-holder in the Bank. The Bank is a non-nationalised Banking Company in which the State of U.P. does not hold any share. The banking operations of the Bank are regulated by the provisions of the Banking Regulation Act, 1949. The Reserve Bank of India which has effective control in respect of the functioning of the Bank has its nominee on the Board of Directors of the Bank. The Bank had 134 branches in the entire country out of which 72 branches were located in the State of U.P. On 26th August, 1981 the Board of Directors of the Bank adopted a resolution that the Government of the State of U.P. be requested to spare the services of Misra so that he could be appointed on deputation as Chief General Manager in the Bank. It was stated in the resolution that this would be in public interest as with the background of his job experience in the State Government he would be in a position to tactfully seek co-operation from all the Banks in Uttar Pradesh, nationalised as well as no-nationalised, Reserve Bank of India, and the State and Central Governments, for achieving all round growth in the Bank's activities. At this time Misra was posted in the State Government as Deputy Secretary and Deputy Director Institutional Finance. A copy of this resolution is annexure A-2 to the counter-affidavit filed on behalf of the State of Uttar Pradesh. In pursuance of this resolution Sri. M. D. Dalai, Chairman of the Bank, wrote to the then Chief Secretary Sri Tribhuwan Prasad, on 7-9-1981, requesting him that favourable orders for Misra's deputation may be passed. A copy of the resolution was also attached to this letter. Relevant portion from the resolution was also reproduced in para 2 of the letter. A copy of this letter is Annexure-A-2 to the States counter-affidavit. The request of the Bank was processed at different levels in the State Government and finally the Chief Secretary, Minister of State for Appointment, Finance Minister and the Chief Minister concurred with the view that it will be in the interest of the State and in public interest if an officer of the State was sent on deputation to the Bank as requested. In paragraph 9 of the writ petition the petitioners have stated that they have definite information that States Appointment Secretary and Special Secretary Finance opposed the deputation of Misra and expressed the opinion that such appointment will not be in public interest besides being illegal. They are also alleged to have stated that such a deputation was unheard of in the history of the State. In other words, they stated that there was no precedent for such a deputation.The averments made in paragraph 9 of the writ petition have been replied to through paragraph 9 of the States counter-affidavit. In the counter affidavit there is no denial of the fact that the Appointment of Secretary and the Special Secretary opposed the deputation of Misra to the Bank. Therefore, it may be accepted that the two officers opposed the request of the Bank for Misra being relieved from State Service for being appointed as Chief General Manager in the Bank. In paragraph 9 of the writ petition it has also been stated that to the objection raised by the Appointment of Secretary and the Special Secretary Finance that there was no precedent for such a deputation, the State Minister Sri Rajendra Tripathi observed that examples are created by making examples. It has also been alleged that Misra got his appointment made, on account of the favour expressed by Sri Tripathi. Then it is alleged that the order of deputation was passed on extraneous considerations. In paragraph 9 of the States counter-affidavit it has been stated that there is nothing on record to substantiate the petitioners plea that Sri Rajendra Tripathi made the observations attributed to him. Thus it is denied that the order of deputation is passed on extraneous considerations. On 10-2-1983 a D.O., was issued on behalf of the State Government by Sri Babu Lal Singh, Joint Secretary in Appointment (2) Department placing Misra on deputation with the Bank. This deputation was for a period of one year. A copy of this D. O. letter has been annexed as Annexure A-3 to the State, counter-affidavit. Thereafter on 1-3-1982 Misra joined the Bank as Chief General Manager. On 21-5-1982 Government Order was issued containing the terms and conditions of Misras deputation. A copy of this Government Order has been annexed as Annexure A-4 to the States counter-affidavit. When the period of one year was due to expire, the State Government extended the deputation for another period of two years by its order dated 25-2-1983. These facts are enough for deciding the legal questions which have arisen for determination.
(3.) The petitioners contend - (1) the deputation of Misra with the Bank is contrary to the provisions of Fundamental Rule 111 and consequently Misra has no right to hold the post of Chief General Manager. It is alleged that the decision to send Misra on deputation to the Bank was not taken on the basis of the requirements of Fundamental Rule 111 (a) but on extraneous considerations. According to the petitioners Fundamental Rule 111 (a) requires objective consideration regarding the Public reason for which alone a Government servant may be sent on deputation but in the present case such objective consideration was not made; (2) in appointing Misra as, Chief General Manager in the Bank, requirements of Section 35-B (i) (b) of the Banking Regulation Act 1949 were not complied with and, therefore, his appointment is invalid. It is pleaded that under the provision approval of the Reserve Bank of India was required to be taken which was admittedly not taken. The provision is-claimed to be mandatory; (3) petitioner No. 1 claims that it has locus standi to maintain the petition as it represents the workers of the Bank who are vitally interested in seeing that the Bank is not managed by an unauthorised person and also in seeing that the Bank does not do anything which may expose it to action by the Reserve Bank of India; (4) petitioner No. 2 claims that he has locus standi to maintain the writ petition as he is a share-holder in the Bank.;