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Allahabad High Court · body

1975 DIGILAW 94 (ALL)

D. P. Budharaja v. Union of India

1975-02-10

D.N.JHA

body1975
ORDER D.N. Jha, J. - The petitioner has filed this petition under Article 226 of the Constitution praying for quashing of the order dated 29-9-1973 contained in Annexure 3, and further praying for issue of a writ, direction or order in the nature of mandamus, commanding the opposite parties to refrain from acting in furtherance of the notice contained in Annexure 3. 2. The case of the petitioner is that he initially entered into Railway service on 4th April, 1954 and was appointed as Commercial Clerk in the Northern Railway. He was selected as an Apprentice Block Maintainer by the Railway Service Commission in December, 1956. He had appeared at the said selection as a departmental candidate. The services of the petitioner thereafter were transferred to Signal and Telecommunication Department of the Northern Railway. The petitioner was sent for training and he obtained the same from December 1961 to January 1964 as an Apprentice Block Maintainer. After successfully completing the training on 5-2-1964 he was posted as an Electrical Signal Maintainer Grade I in the scale of Rupees 175-240. He was thereafter promoted to officiate as Assistant Block Inspector in the grade of Rs. 205-280 by a notice dated 29-4-1968 a copy of this is Annexure 1. The petitioner took charge on 30th April, 1968 and continued till 3-3-1970 when he was reverted to the post of Electrical Signal Maintainer. He was subsequently promoted vide notice dated 30-12-1972 to officiate as Assistant Signal Inspector in the grade of Rs. 205-280 and was posted as A.S.I. (Relieving) under Signal Inspector II Northern Railway, Lucknow. It is stated that this posting was made against a vacancy caused as a consequence of the transfer of Sri Baldeo Singh as A.S.I. Janghai. The assertion is that the post of Assistant Signal Inspector against which the petitioner was promoted was a clear and a permanent one. It is further stated that the orders contained in Annexure 2 dated 30-12-1972 were passed after approval of opposite party No. 2 Divisional Superintendent, Northern Railway, Hazratganj, Lucknow. The petitioner was sought to be reverted to the post of Electrical Signal Maintainer Grade I from the post of Assistant Signal Inspector vide notice dated 29-9-1973 contained in Annexure 3 on the plea that the promotion orders were passed erroneously by means of a notice dated 30-12-1972. The petitioner was sought to be reverted to the post of Electrical Signal Maintainer Grade I from the post of Assistant Signal Inspector vide notice dated 29-9-1973 contained in Annexure 3 on the plea that the promotion orders were passed erroneously by means of a notice dated 30-12-1972. The petitioner has filed the present writ petition challenging this order of reversion and he has asserted in the writ petition that the petitioner had passed his Intermediate Examination in Science with Physics, Chemistry and Mathematics and had read upto B.A. Final at the Government College Lyallpur and on account of partition of the country he had to discontinue his studies. It is further stated that Electrical Signal Maintainers were required to possess academic qualifications of not loss than matriculation who alone could be deemed eligible for promotion as Assistant Signal Inspectors. He further asserts that he was senior-most among such eligible candidate in the Lucknow Division at the time of his promotion made by notice dated 30-12-1972. It is stated in the petition that persons who were not matriculates and did not fulfil the requisite qualifications even though were senior were bypassed and only those persons who had passed matriculate examination were entitled to hold the said post. The petitioner further states that on receiving knowledge that he was likely to be reverted he preferred an appeal on 2-10-1973 to the opposite party No. 2 Divisional Superintendent and a copy of the same was also forwarded to the opposite party No. 3. The copy of the appeal was handed over to the clerk of Sri Doodnath in the office of the Signal Inspector II Lucknow on 3-10-1973 and a receipt had also been obtained by the petitioner. There was no response to the appeal made by the petitioner. He filed the present writ petition for protection of his rights. It is in these circumstances that the matter has been agitated in this Court through the present petition. 3. The petition has been resisted on behalf of opposite parties. The facts in general leading to the promotion of the petitioner on 29-4-1964 and his having worked on the said post till 30-3-1970 have not been disputed. It is also admitted that on 30-12-1972 the petitioner was promoted in the grade of Rs. 205-280 but it is asserted that this promotion was purely temporary and was made as a measure of local arrangement. It is also admitted that on 30-12-1972 the petitioner was promoted in the grade of Rs. 205-280 but it is asserted that this promotion was purely temporary and was made as a measure of local arrangement. It is said that no claim or legal right to hold that promotion post accrued to the petitioner merely because the said officiating promotion had the approval of the Divisional Superintendent. It is stated that when the order of reversion was served upon the petitioner he refused to receive it and proceeded on sick leave. During the period of leave on the ground of sickness he filed the present writ petition and after obtaining the stay order he again joined as Assistant Signal Inspector (Relieving). It is admitted that the post of Assistant Signal Inspector is a non-selection post in the grade of Rs. 205-280 and it is denied that the petitioner was posted to officiate in the said post on the basis of seniority. It is stated that the petitioner was not the senior-most Electrical Signal Maintainer Grade I who was eligible for promotion as Assistant Signal Inspector. It is asserted that there is no condition that an Electrical Signal Maintainer Grade I should possess academic qualification of matriculate for being eligible to be promoted as Assistant Signal Inspector. It has been further mentioned that there are Electrical Signal Maintainers senior to the petitioner who ought to have been promoted first but the petitioner got his promotion erroneously and the mistake was subsequently corrected by the approval of Divisional Superintendent when it was noticed. It is in these circumstances that the reversion orders were passed to rectify the error. In short, the submission made in the counter-affidavit is that the petitioner being junior was not entitled to promotion and on detection of the mistake he was reverted to the post of Electrical Signal Maintainer to give place to other senior employees. It has been denied that any appeal submitted by the petitioner was available on the records of the opposite parties. It is further asserted that the orders of reversion had the approval of the Divisional Superintendent and it was thereafter the reversion orders were passed. The notice dated 10-12-1973 reverting the petitioner has been filed as Annexure A-1. 4. The petitioner thereafter filed not only rejoinder-affidavit but a supplementary affidavit dated 3-1-75. It is further asserted that the orders of reversion had the approval of the Divisional Superintendent and it was thereafter the reversion orders were passed. The notice dated 10-12-1973 reverting the petitioner has been filed as Annexure A-1. 4. The petitioner thereafter filed not only rejoinder-affidavit but a supplementary affidavit dated 3-1-75. In the supplementary affidavit it has been asserted that Sri U.P. Mukherji and the petitioner did not belong to the same cadre and thus there Was no assignment of seniority inter se between them, and it is asserted that the petitioner should be deemed senior to Sri U.P. Mukherji. An extract has been filed showing the inter se seniority between the various persons of E.S.M. Grade I in the grade of Rs. 175-240, of S. & T. Department, Lucknow Division. This is Annexure 4 to the petition . In order to substantiate that persons who did not possess matriculate qualifications were reverted and in their place persons possessing eligible qualifications were promoted by a notice dated 16/20-1-1967 has been filed, copy of which is annexure 5. On behalf of opposite parties a supplementary counter-affidavit has been filed and it is stated that orders of posting were passed on 10-12-1973 but the petitioner refused to receive it and proceeded on sick leave on 14-12-1973 and filed the present writ petition. The sickness was a pretended one and the petitioner availed the same for filing the present writ petition. It was only after obtaining the stay order that the petitioner reported back to duties. It is stated that U.P. Mukerji was confirmed in Electrical Signal Maintainer Grade I in the scale of Rs. 175-240 with effect from 24-5-1969 whereas the petitioner was not confirmed in the scale of Rs. 175-240 and he was only a confirmed commercial clerk in the scale of Rs. 110-200 from 25-3-1955. The seniority of the petitioner vis-a-vis to Sri U.P. Mukerji is denied. 5. I have heard the learned counsel for the parties at some length. A preliminary objection was raised that the petitioner has indirectly sought to impugn the seniority list and he has net impleaded the persons mentioned in the seniority list and it was further asserted that though the petitioner claimed to be senior to U.P. Mukerji he has not impleaded him as an opposite party. In the circumstances it was urged that the petition should be dismissed on this score alone. In the circumstances it was urged that the petition should be dismissed on this score alone. The petitioner filed a supplementary rejoinder-affidavit re-asserting that U.P. Mukerji was not due for promotion for the post of Assistant Signal Inspector. On giving my anxious consideration I am of the view that the petitioner is not entitled to question the seniority list or to claim seniority over U.P. Mukerji or anyone in absence of persons shown senior to him in the seniority list annexure 4 being impleaded to the petition. If the intention of the petitioner was to claim seniority over other persons he should have impleaded the affected parties as opposite parties in the writ petition. The petitioner in spite of having been provided with an opportunity failed to do so or make any request for the same. In the circumstances I uphold the plea of opposite parties to the extent that the petitioner is precluded from questioning the seniority fixed by the department. Moreover, since no such relief has been claimed in the writ petition the submissions of the learned counsel to declare his seniority are accordingly rejected. This however, would not entail the dismissal of the writ petition itself which has been sought to be supported by other arguments. The learned counsel argued that matriculates alone were entitled for promotion to the post in question and it was on account of the non-eligibility of senior persons that they were reverted . The reversion order contained in Annexure 5 does not mention a word about the candidates not fulfilling the requisite qualifications of being matriculates, therefore, do not find any substance in the submission of the learned counsel. The learned counsel referred to Para 137 of the Indian Railway Establishment Manual which lays down conditions for recruitment to the post of Signal and Telecommunication Department. The channel of promotion has also been provided which is (a) by way of direct recruitment as apprentice (b) by promotion of directly recruited or promoted Signal/Block Inspectors on the basis of seniority-cum-suitability to be determined on the basis of written test followed by viva voice test. The qualifications for the post laid down are as under :- "Intermediate Science with Physics and Mathematics or Matriculation or its equivalent examination with Science as one of the subjects and must have either completed 2 years or more of a diploma course in Mechanical and/or Electrical Engg. The qualifications for the post laid down are as under :- "Intermediate Science with Physics and Mathematics or Matriculation or its equivalent examination with Science as one of the subjects and must have either completed 2 years or more of a diploma course in Mechanical and/or Electrical Engg. of a recognised institution or have at least 3 years experience in a technical capacity in an Electrical and/or Mechanical Engg. firm of repute. Departmental staff-Matriculation or its equivalent examination and 3 years service as a Signal Maintainer mechanical or electrical. In exceptional cases non-matriculate staff who are capable of maintaining safety apparatus efficiency may also be considered with the approval of the General Manager." 6. It would thus be evident that in exceptional cases non-matriculate staff who were deemed capable of maintaining safety apparatus efficiently could also be considered with the approval of the General Manager for promotion. I do not find any substance in the contention of the learned counsel for the petitioner that there was an absolute bar for the non-matriculate to be promoted to the post in question. On a perusal of the seniority list contained in Annexure 4 I find that the name of the petitioner finds place at serial No. 34. Thus it cannot be said that the petitioner was the senior-most person in the list and he could hold the post. It is also borne out from the facts that even once before the petitioner had been promoted and subsequently was reverted. The petitioner did not make any grievance at that time nor did he take suitable steps to question the seniority list in order to assert his rights. In the said writ petition this matter has again been raked up as collateral issue without any foundation having been laid down in the writ petition, as such, I do not find myself in agreement with the learned counsel for the petitioner on this score. In my opinion, the petitioner is not entitled to claim any relief on the basis of assertion of seniority as alleged in the writ petition. 7. The learned counsel in order to substantiate his first argument that there was violation of principles of natural justice in passing the impugned order of reversion relied on a decision reported in Musalappa Reddy v. State of Andhra Pradesh, (1969) Lab IC 712 (Andh Pra). 7. The learned counsel in order to substantiate his first argument that there was violation of principles of natural justice in passing the impugned order of reversion relied on a decision reported in Musalappa Reddy v. State of Andhra Pradesh, (1969) Lab IC 712 (Andh Pra). The facts of this case are that the petitioner was an Assistant Professor and was promoted to higher post of professor having qualified for the same in preference to the respondent who did not satisfy the required qualification. The respondent appealed against that order and as a result the petitioner was reverted to his original post without any notice and the respondent was appointed in his place. A writ petition under the circumstances was filed challenging the order and a Division Bench of Andhra Pradesh held that the petitioner was entitled to notice and ought to have been given an opportunity of being heard in the appeal filed by the respondent. In my opinion this case is of no help to the petitioner and the facts in the instant case stands entirely on different footing. The promotion of the petitioner Was only on ad hoc basis and as such he could not claim any lien to hold the said post. This decision, in the circumstances, is not applicable. 8. The next case relied upon by the learned counsel is Arimand Lal Wadhera v. State of Punjab, (1974) SLWR 250 (Punj). In this case the petitioner was selected by the State Public Service Commission of Pepsu in December, 1952 for appointment as a Stenographer and was posted in the Legislative Assembly. He was thereafter promoted as Reporter in the Pepsu Assembly in 1954 and was integrated in the Legislative Council of the State of Punjab with effect from November 1, 1956, when the merger of the erstwhile States of Punjab and Pepsu took place. As a result of the Reorganisation he was allocated to the new State of Punjab wherein he continued to serve in the Vidhan Parishad. He was then promoted as Superintendent. The Legislative Council of the State of Punjab was abolished from January 7, 1970 as a result of the enactment of Punjab Legislative Council (Abolition) Act. The petitioner was told that he could join the temporary post in the Rehabilitation Department and every effort would be made to absorb him in a permanent post. He was then promoted as Superintendent. The Legislative Council of the State of Punjab was abolished from January 7, 1970 as a result of the enactment of Punjab Legislative Council (Abolition) Act. The petitioner was told that he could join the temporary post in the Rehabilitation Department and every effort would be made to absorb him in a permanent post. On that assurance the petitioner agreed to join that post. Thereafter the post of Superintendent in the office of the Financial Commissioner (Revenue) fell vacant and the petitioner made a request for being absorbed against that post permanently. His application was forwarded and request was accepted and the Deputy Secretary to Government of Punjab offered the appointment which was accepted by the petitioner. The acceptance of the petitioner was conveyed to the Deputy Secretary to Government Revenue Department. 9. Some members of the staff thereafter made a representation against the permanent absorption of the petitioner and without giving him a copy of the representation made by the members of the staff of the Financial Commissioner's office against his appointment and without affording him an opportunity of hearing the petitioner was reverted to his former post of Superintendent in the Rehabilitation Department of the Punjab Government and his permanent posting as Superintendent in the office of the Financial Commissioner had been revoked. The learned Single Judge of the Punjab and Haryana High Court in the light of the facts held that revocation of permanent appointment, though an administrative order, affected his civil rights and as such could not be made without complying with the rules of natural justice. The rules of natural justice, it would appear, were made applicable as the petitioner was reverted from the permanent post to a temporary post held by him previously. In the present case the position is otherwise. The petitioner in the case was only promoted temporarily which can be termed as being posted on an ad hoc basis. In the circumstances in the present case no rights vested in the petitioner which could be said to have been violated. I am of opinion that the rules of natural justice cannot be attracted in every case where reversion order is passed. In the circumstances in the present case no rights vested in the petitioner which could be said to have been violated. I am of opinion that the rules of natural justice cannot be attracted in every case where reversion order is passed. Promotions are made on administrative grounds to carry out routine work and if rules of natural justice are attracted in each and every order of reversion of an incumbent from a promotion post it would practically make the working of a department impossible. This case, in my opinion, does not help the petitioner. 10. The next case is Arya Chandra Kumar v. The State, (1973) 1 Serv LR 744 (Pat). In this case the petitioner was appointed as a teacher and an appointment order was issued but before the petitioner could join the Government cancelled the order on the ground that the petitioner was not fully trained. A learned Single Judge of the Patna High Court held that petitioner should have been given an opportunity to explain that he was fully trained or not and quashed the order of the Government. In my opinion, this case is also not of any help to the petitioner. In this case the petitioner was selected by an interview and the complete facts had been placed by him and he also furnished original certificates and testimonials and it was thereafter that the petitioner received letter of the 18-10-1971 and he resigned from the post which he was occupying previously in Guraru High School and reported himself for duty the same day before the Block Education Officer at Sherghati. The petitioner then went to see the District Education Superintendent who asked to see him after few days. Thereafter on 4th November, 1971 he was handed over a letter from the District Education Superintendent to the effect that letter of appointment had been issued to the petitioner on account of a mistake of typist and accordingly it was cancelled. The facts are distinguishable from the present case and I do not think that such a broad principle of application of principles of natural justice, as argued by the learned counsel, can be made applicable to the facts of the present case. 11. The next case relied upon by the learned counsel is Devi Shanker Prabhakar v. The State of Haryana, (1971) 2 Serv LR 443 (Punj). 11. The next case relied upon by the learned counsel is Devi Shanker Prabhakar v. The State of Haryana, (1971) 2 Serv LR 443 (Punj). In my opinion the facts of the case are not at all applicable to the present case. The writ petition was allowed on the ground that there was violation of Articles 14 and 16 inasmuch as persons junior to him were retained while the petitioner Devi Shankar Prabhakar was reverted. In the present case the plea of Article 14 has not been categorically taken in the writ petition but as a collateral argument it was advanced that persons junior to the petitioner were working while the petitioner was reverted. No foundations whatsoever worth mentioning has been laid down in the writ petition and in absence of anything worth mentioning on record do not think that such a plea can be made applicable to the facts of the present case. 11-A. I am, therefore, not impressed by the argument of the learned counsel that principles of natural justice have been violated. If such a broad application of natural justice is to be made applicable in matters of reversion from ad hoc promotions it might make working in the department almost impracticable. It is the duty of the court also to see that executive working should not be made impossible. Time and again posts are either temporarily created or promotion posts fall vacant and administrative arrangements' are made from time to time. On administrative grounds people are reverted. As such I am of opinion that the broad principles of, application of natural justice, as argued by the learned counsel, cannot be laid down as hard and fast rule even though it is abundantly clear in various pronouncements that even in executive orders where rights of a person are affected principles of natural justice should be observed. I do not think that in this case this principle could be attracted because such ad hoc promotions are made from time to time in routine course of working in a department. I, therefore, do not find any substance that there has been violation of principles of natural justice inasmuch as the petitioner was not provided an opportunity before the reversion orders were passed. I, therefore, do not find any substance that there has been violation of principles of natural justice inasmuch as the petitioner was not provided an opportunity before the reversion orders were passed. The petitioner has not been able to establish that the persons who were posted in his place were junior to him and that his rights were being effected in any manner. The petitioner has also not been able to show that when he was reverted persons junior to him were working and he was discriminated in any manner. 12. The learned counsel argued that the order visited the petitioner with civil consequences. It may be pointed out that in every case of reversion there is loss of emoluments caused to a person but that would not make the order illegal in any manner. It is clear from the facts of the case that petitioner had only been promoted on ad hoc basis and he had not acquired any lien on the promotion post. It has been categorically stated in the counter-affidavit that the petitioner was only confirmed on the post of a commercial clerk in the grade of Rs. 110-200 and he was not even confirmed employee in the grade of Rs. 175-240. In the circumstances merely for having officiated for a few months it cannot be said that the order of reversion visited the petitioner with any civil consequences. The learned counsel relied on a decision reported in State of Mysore v. R.R. Kulkarni, 1972 Serv LR 795 : (1972) Lab IC 1280 (SC). The opposite parties had challenged the order of reversion passed against them by the Superintendent of Police Wireless in the High Court of Mysore. A Division Bench of the Mysore High Court allowed the writ petition and the matter, in the circumstances, went up before the Hon'ble Supreme Court. It may be stated that the opposite parties had been officiating before their reversion as wireless operators on the scale of Rs. 80-5-100 after successfully passing the examination held in 1955 by the Police Wireless Training Centre. They were reverted by the impugned order to the post of police constables in the scale of Rs. 35-1/2-48. It was thus clear that reversion to lower post caused serious loss to each of the three opposite parties. 80-5-100 after successfully passing the examination held in 1955 by the Police Wireless Training Centre. They were reverted by the impugned order to the post of police constables in the scale of Rs. 35-1/2-48. It was thus clear that reversion to lower post caused serious loss to each of the three opposite parties. The respondents had challenged the reversion order on the eve of their allotment to the State of Mysore on the ground that these orders amounted to punishment in violation of the provisions of Article 311 (2) of the Constitution. The State in appeal before the Hon'ble Supreme Court relied on the ground that the opposite parties were only officiating wireless operators and they could be reverted without infringing Article 311 provided, their reversion did not amount to punishment. It was urged that no case of punishment in the eye of law could be made out and as such no violation of Article 311 could be put forward. The Hon'ble Supreme Court on a perusal of facts observed that all the juniors were working in the State of Bombay as wireless operators while the opposite parties continued to serve as mere constables in Mysore State and opposite parties had been deprived of their chance to continue as operators in Bombay State simply because they had to bare service at Bombay after they had been reverted without any reason. The effect of it was that their juniors and less meritorious officers obtained preference over them. In this view of the matter it was held that the order is discriminatory to senior officers allocated to the newly formed State. 13. I have carefully gone through the decision and I am of the view that there is nothing in this case which helps the petitioner to support the view that the order of reversion in the present case visited him with civil 14. The learned counsel then placed reliance on a decision in Second appeal A.K. Chatterji v. The Union of India, (Second Appeal No. 502 of 1965) decided on 5th February, 1974. In this case a permanent vacancy in the post of Driver 'B' grade occurred on 1-10-1952 and the plaintiff was locally promoted to work on this post. Subsequently a selection was held for filling up the vacancies in the year 1955. In this case a permanent vacancy in the post of Driver 'B' grade occurred on 1-10-1952 and the plaintiff was locally promoted to work on this post. Subsequently a selection was held for filling up the vacancies in the year 1955. The procedure for selection was that a Selection Board was to be constituted by the authority and it was required to examine the service record and confidential reports of the eligible staff and then out of the eligible staff persons upto four times of the anticipated vacancies were to be called for a written and/or viva voce test, and on the basis of marks obtained by each candidate a panel was to be prepared. The panel, as prepared by the Selection Board and approved by the Divisional Superintendent, was disclosed on 6-1-1956 in which the plaintiff's name was entered at serial No. 9 and there were 12 other selected persons below him. This panel was also communicated to the persons concerned. It was subsequently discovered that certain irregularities had been committed in that selection and the General Manager then cancelled the panel already formed in which the name of the plaintiff was included at serial No. 9. 15. It was in these circumstances that a learned Single Judge of this Court was pleased to set aside the impugned order of reversion. I do not think that the facts of the case are of any help to the petitioner. A Government servant, who has been promoted to the selection post, if is later on demoted to his original post not because of any fault of the officer but because proper rules for making appointment to the selection had not been kept in view by the authorities there is no reduction in rank within the meaning of Article 311 and he was not entitled to any opportunity of requiring to show cause under Article 311 against the proposal to revert him. It is not the case of the petitioner that he had duly qualified in same panel which had been selected and he was being deprived of his legal right. In the instant case the petitioner was only promoted on ad hoc basis and he did not have any vested right to hold the post. In the circumstances I am not satisfied that the orders passed in the case is illegal and void. 16. In the instant case the petitioner was only promoted on ad hoc basis and he did not have any vested right to hold the post. In the circumstances I am not satisfied that the orders passed in the case is illegal and void. 16. The learned counsel for the opposite parties relied on a decision reported in Union of India v. Gajinder Singh, AIR 1972 SC 1329 : (1972 Lab IC 665). Their Lordships of the Supreme Court held : "Appointment to a post on an officiating basis is, from the nature of employment, itself of a transitory character and in the absence of any contract or specific rule regulating the conditions of service to the contrary the implied term of such appointment is that it is terminable at any time. The Government servant so appointed acquires no right to the post. But if the order entails or provides for forfeiture of his pay or allowance or the loss of his seniority in the substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that though, in form the Government had purported to exercise its undoubted right to terminate the employment, in truth and reality, the termination was by way of penalty." 17. In the instant case, as I have pointed out earlier, the learned counsel for the petitioner has laid no foundations to show that the petitioner was visited with forfeiture of his pay allowance or loss of seniority in his substantive rank. It has also not been shown that there are any circumstances from which it would be evident that the reversion order was passed by way of punishment. 18. I, therefore, altogether find no force in the writ petition and it is dismissed. I, however, make no order as to costs.