Research › Browse › Judgment

Allahabad High Court · body

1975 DIGILAW 38 (ALL)

SUPERINTENDING ENGINEER U P E BOARD v. B B SINGH

1975-01-17

GOPI NATH, SATISH CHANDRA

body1975
SATISH CHANDRA, J. The petitioner-respondent was em ployed as Assistant Supervisor in the office of the Sub-Divisional Offi cer (Hydel ). On November 14, 1967, he was promoted to officiate as senior electrician. Some complaints against him were enquired into, and ultimately he was exonerated of the charges. Subsequently, by an order of February 15, 1971, he was reverted to his substantive post. The petitioner- respondent filed a writ petition to question the validity of the order of reversion. He raised a two-fold plea. It was urged that the reversion was by way of punishment and operated as a reduction in rank within meaning of Article 311 of the Constitu tion. Since no opportunity of showing cause was given to him, the order violated Article 311 (2) of the Constitution. The learned single Judge repelled this plea, He held that from the affidavits it appeared that the charges of misconduct were not the basis of the order of reversion. The respondent was given an officiating chance in a stop-gap arrangement, because at that time qualified hands were not available. When the shortage disappeared, he was reverted. It was also found that the petitioners work was not found up to the mark, and since qualified hands were available, the respondent was reverted. Learned counsel for the respondent placed reliance upon a deci sion of the Supreme Court in State of U. P. v. Sughar Singh A. I. R. 1974 S. C. 423 in support of the submission that the order of reversion violated Article 16 of the Constitution. In that case it was found on facts that the order of reversion was based upon a misconduct entry made in the character roll. It was held that the order was passed by way of punishment. Sughar Singhs case came up for consideration before a Bench of this Court in State of U. P. v. Tilak Singh 1975 (1) A. L. R. 11. It was held that the mere circumstance that the petitioners service was terminated when on an over-all assessment of the service record it was found that he was not fit to be confirmed cannot lead to the inference that the termination order is founded on the right to punish the petitioner by way of dismissal or removal from service. In the present case the respondent was reverted because his performance was not found up to the mark. In the present case the respondent was reverted because his performance was not found up to the mark. In an officiating promotion it is implicit that the offi cer is liable to be reverted if he is not found suitable. Reversion on such ground cannot be a punishment. In Dhanpat Lal v. State of U. P. Writ No. 8655 of 1973, decided on February 22, 1974 another Division Bench of this Court considered the effect of Sughar Singhs case. It was held where an order of reversion was passed upon an assessment of the annual confidential remarks, it will not amount to imposition of a punishment so as to attract Article 311 of the Constitution, nor could such an order be said to be discriminatory. In this connection the Division Bench referred to the Supreme Court decision in R. L. Butail v. Union of India 1970 (2) S. C. C. , 876. In that case the Supreme Court held that the annual remarks in the character roll are intended for enabl ing an authority to make a general assessment of the work perform ed by a Government servant, and an order based upon such assess ment is not the imposition of any punishment. We are in agreement with the learned single Judge that in the circumstances, the order of reversion could not be characterised as having been passed by way of punishment. Article 311 (2) of the Constitution was not attracted. In the next place it was urged that persons junior to the res pondent were still officiating as senior electricians. The respondents reversion was, in the circumstances, violative of Article 16 of the Constitution. The learned single Judge held that even in the case of an officiating employee reversion cannot be ordered if his juniors are still working in the same post. If the reversion is due to departmen tal exisgencies, the rule of last come first go must be followed. Since those junior to the respondent were permitted to continue to officiate, the respondents reversion was illegal. On this view the writ peti tion was allowed and the order of reversion was quashed. Aggriev ed, the appointing authority has come up in appeal. Since those junior to the respondent were permitted to continue to officiate, the respondents reversion was illegal. On this view the writ peti tion was allowed and the order of reversion was quashed. Aggriev ed, the appointing authority has come up in appeal. Articles 14 and 16 would apply, according to Sughar Singhs case, when a person is reverted, or his services are terminated, without any reason or basis while persons junior to him are retained, Article 14 or 16 is not attracted where a Government Officers case is consider ed in due course to judge whether he was fit to be confirmed or conti nued, and the action of reversion or termination is taken on an over all assessment of his performance on the post. While assessing an individual officers performance no comparison can possibly be made with others. His merit has to be adjudged on his record of perform ance. When it is found that an individual officer is not suitable, he is in a class by himself. He is not similarly situate with other offi cers who are officiating but who are junior to him. It cannot hence be said that if an officer is reverted because he is found unfit or un suitable for a post, he is signaled out for hostile treatment out of n group of persons similarly situate, so as to attract Article 16. Of course, if it is established that other officiating officers whose merit was also evaluated and it was found that they were unsuitable, but yet a senior hand was reverted first, a case for holding that the order was discriminatory may arise. But such is not the case here. The respondents allegation is that while he was reverted, other officers, who were junior to him, were retained. There is no suggestion that the cases of the other officers had also been evaluated by the relevant authority, and they were found to be unfit. In the circum stances, those other officers, though junior to the respondent, cannot be placed in the same class as the respondent. The question of violation of Article 16 may arise when there is a general retrenchment or abolition of some out of many similar posts. In such cases a reasonable basis must be adopted to select officers for reversion, e. g. , the unsuitable to go first, or last come first go. The question of violation of Article 16 may arise when there is a general retrenchment or abolition of some out of many similar posts. In such cases a reasonable basis must be adopted to select officers for reversion, e. g. , the unsuitable to go first, or last come first go. In the present case, there has been no abolition of post nor any retrenchment. The reversion has been caused because of unsuitability. Article 14 or 16 of the Constitution has no application. The question may be looked at from another view-point. The respondent did not, in the writ petition, allege that his service record was as good or better than his juniors. From the counter affidavit filed on behalf of the State it is apparent that the service record of the respondent was not satisfactory. The respondent was in the cir cumstances not in the same class as his juniors, and so Article 16 of the Constitution will have no application. In Sughar Singhs case it was conceded on behalf of the State that Sughar Singhs service re cord was in no way inferior to that of his juniors. It was in this factual background that the Supreme Court observed that Sughar Singh was singled out of many similarly situate officers without any reason or basis and so Article 16 was attracted. As already stated, this decision is distinguishable on facts from the present case. In the result the appeal succeeds and is allowed. The judgment of the learned single Judge is set aside, and the writ petition is dis missed with costs. .