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1974 DIGILAW 26 (KAR)

M. S. PARTHASARATHI v. DIRECTOR OF PUBLIC INSTRUCTION

1974-02-08

VENKATACHALAIAH

body1974
( 1 ) THE petitioners have challenged, in this writ petition, an order of reversion dt. 29-1-1974 passed by the Director of Public Instruction in Karnataka reverting them from the Cadre of First Division Clerks to the Cadre of Second Division Clerks. The facts of the case are briefly these ( 2 ) THE petitioners were formerly working as Second Division Clerks. By an prder dt. 19-9-1970, they were promoted to the Cadre of First Division clerks under Rule 17 (c) of the Karnataka State Civil Services (General recruitment) Rules, 1957. The relevant part of the order of promotion reads as follows : the following IInd Division Clerks of the Department as per the provisional gradation list of IInd Division Clerks who are appointed or promoted after 1-11-1956 are promoted on a purely temporary basis for a period of one year only or till they are replaced by PSC Candidates whichever is earlier as per the provisions of the Rule 17 (c) of mysore State Civil Services (General Recruitment) Rules 1957 in the posts of 1st Division Clerks as noted against their names or until further orders. The claims of those who have passed the departmental tests as laid down in the C and R Rules, 1967, have only been considered. These promotions are also ordered subject to the under-standing that their work is found to be satisfactory. If any member who is now promoted has come to serious- adverse notice he should not be relieved for duty pending final orders from this office and a special report should be submitted to this office for final orders to the personal address of Joint Director of Public Instruction (Administration ). ( 3 ) RULE 17 (c), which came into force on 2-1-1965, reads as follows : 17. Appointment by direct recruitment or by promotion in certain cases.-Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post, the appointing authority may - (c) fill up by promotion temporarily on the basis of seniority cum-merit any vacancy relating to a post which is required to be filled by direct recruitment where selection to the post has not been finally made and there is likelihood of undue delay in making direct recruitment to the post or where the candidate selected for the post as per recruitment rules has not yet joined duty. Such promotion shall be made only after a requisition has been sent to the Commission or to the appropriate Recruitment Committee for selection of a suitable candidate. A candidate temporarily promoted under this sub-rule shall not have any preferential claim for regular promotion and also shall not count the period of service in the promoted post for seniority; he shall revert to his original post on the exipry of one year or on the appointment of a direct recruit selected in accordance with the rules of recruitment applicable to. the post whichever is earlier. ( 4 ) IT is not the cape of the petitioners that any of their juniors is allowed to continue in the Cadre of First Division Clerks. It is therefore clear that there is no question of violation of Art. 16 of the Constitution, in this case. The only question which arises for consideration is whether the petitioners have acquired an indefeasible right to continue in the Cadre of First Division Clerks, notwithstanding the fact that the period of one year, prescribed therein, has elapsed. It is not disputed that in the case of these petitioners the period of one year mentioned in Rule 17 (c) has expired. The argument of Sri Murlidhar Rao, the learned Counsel appearing for the petitioners, is that if before the period of one year comes to an end, a promotee, who is promoted under Rule 17 (c), is not reverted and is allowed to continue in the promoted post, beyond the period of one year, such promotes would become automatically entitled to be Created as a person promoted in the ordinary course. He has not been able to cite any authority in support of the above proposition. The right of the petitioners, in these cases, is circumscribed by the order of promotion. The order of promotion clearly stated that they were promoted only for a temporary period of one year. The petitioners were not prompted under rule 18 which prescribes the procedure for promotion of officials in the ordinary way. Rule 18, as amended in 1966, provides that a person promoted in the ordinary course shall be considered as having been promoted on an officiating basis for a priod of one year or for such period during which the period of officiation is extended by the appointing authority. Rule 18, as amended in 1966, provides that a person promoted in the ordinary course shall be considered as having been promoted on an officiating basis for a priod of one year or for such period during which the period of officiation is extended by the appointing authority. If the appointing authority considers that the work of the person so promoted, during the period of officiation or the extended period of offciation, is satisfactory, it shall as soon as possible. issue an order declaring the person to have satisfactorily completed the period of his officiation. After such an order is passed, Rule 18 requires that such a person should be confirmed as a full member of the service in the class or cadre to which he is promoted at the earliest opportunity in any substantive vacancy which may exist in the Cadre. It is not the case of the petitioners that the appointing authority has dealt with them as promotes under Rule 18 would be dealt with. ( 5 ) A person, who approaches a Court for a writ in the nature of mandamus, must show that he has a legal right, which requires to be protected by the Court by issue of 3 writ under Art. 226 of the Constitution. From the facts narrated above, it is clear that the petitioners were not promoted in the usual course. The fact that they were continued in the higher Cadre for some time beyond one year, would not confer an indefeasible right on them. The prayer of the petitioners that they should be declared as persons who have been regularly promoted under Rule 18, is wholly untenable, and the said contention is rejected. ( 6 ) THE second submission made on behalf of the petitioners is that the petitioners have been reverted on the basis of an order passed by this court in a writ petition, to which they were not parties. The preamble of impugned order of reversion stages that the petitioners haye being reverted pursuant to an order dt. 29-1-1974. That part of the impugned order is, no doubt not happily worded. A careful reading of the said order shows that during the hearing of WP. No. 2241 of 1973 and connected Writ Petitions the learned Addl. Govt. The preamble of impugned order of reversion stages that the petitioners haye being reverted pursuant to an order dt. 29-1-1974. That part of the impugned order is, no doubt not happily worded. A careful reading of the said order shows that during the hearing of WP. No. 2241 of 1973 and connected Writ Petitions the learned Addl. Govt. Advocate submitted that, if permitted, the Director of Public Instruction, would pass orders reverting all the persons who have been prompted under Rule 17 (c) to enable him to pass appropriate orders in accordance with law with a reference to persons in the Cadre of Second Division Clerks in the Department of Public instruction. This Court permitted the Director of Public Instruction to da so. The Director of Public Instruction reverted all such persons, including the petitioners, with a view to promote them in accordance with law. If he did not want to revert them, he need not have done so. But it is no,t correct to say that the petitioners were reverted because of a direction given by this Court. Hence the submission that the petitioners are affected by an an order issued in a writ petition, to which they were not parties, is not correct. ( 7 ) THE impugned order itself shows that all those temporary promotions, under Rule 17 (c) were revoked and the persons who have, been so promoted were reverted only with the object of promoting them to the higher Cadre in a regular way in accordance with law. In the circumstances, the petitioners cannot be considered as having any legitimate grievance. Their anxiety appears to be that they would be deprived of the benefit of the service they have rendered in the Cadre of First Division clerks for purposes of seniority and increments. When Rule 17 (c) itself specifically declares that a candidate promoted under that Rule shall not have any preferential claim for regular promotion and also shall not count the period of service in the promoted post for seniority and that he shall revert to his original post on the expiry of one year or on' the appointment of a direct recruit selected in accordance with the rules of recruitment, it is not possible to agree with the petitioners that they are in any way prejudiced by reason of the order of reversion. ( 8 ) IT was lastly contended by Sri Murlidhar Rao that in the Cadre of first Division Clerks, there are sufficient number of vacancies, in which the petitioners could be accommodated and in the circumstances there was no need for reverting them to a lower Cadre. I am not concerned with the propriety of the order passed by the Director of Public Instruction, but I am concerned only with the legality of the order. It is not demonstrated by the petitioners that the order in question is an illegal or unauthorised one. On the other hand, a reading of the order of reversion itself shows that the Director of Public Instruction is anxious to promote all those persons in accordance with law. In the circumstances, the petitioners have not made out a case for issuing a writ. ( 9 ) THIS petition, therefore, fails and it is dismissed without notice to the respondents. --- *** --- .