Budha Shankar Lal v. State Of U. P. — 1990 DIGILAW 1001 (ALL)

JUDGMENT M.L. Bhat, J. 1. The petitioners' case is that they were appointed as Lekhpals on 14-7-1959 and 9-9-1960 respectively. Thereafter they were promoted on officiating basis as Consolidators on 4-12-1970. They joined their duties as Consolidators on 8-1-1971. 2. The petitioners' trouble has started from June, 1975. On 28-6-1975 the petitioners were reverted as Lekhpals and in pursuance of the said order, the order dated 13-7-1975 came to be issued. In fact the basis of their reversion was that they were promoted after 27-11-1970. It may be mentioned that all the Lekhpals, who were promoted till 27-11-1970 were to be retained and anybody appointed after that date was reverted. Against the order of reversion the petitioners seem to have filed a writ petition in the High Court. During the pendency of that writ petition, the U.P. Public Services Tribunals Act of 1976 came into force. Pending petition before the High Court in respect of the petitioners in accordance with the provisions of the said Act abated and the petitioners filed a fresh petition before the Tribunals, which was constituted in the meantime. The Tribunal dismissed the fresh petition of the petitioners on 28-2-1979. The petitioners challenge this order also. In this manner the petitioners challenge three orders dated 28-6-1975, 13-7-1975 and 28-2-1979. It is the case of the petitioners that their juniors were retained and they were reverted, which is violative of the Articles 14 and 16 of the Constitution The petitioners submit that as Lekhpal, they were senior to respondents no. 5 to 11, inasmuch as the petitioners date of appointment is prior to that of respondents no. 5 to 11 and on the basis of their appointment they would be senior to respondents no. 5 to 11 as Lekhpal. The respondents no. 5 to 11 were also appointed initially on officiating basis and thereafter the petitioners were also promoted on officiating basis as Consolidators. The petitioners being senior in substantive grade i.e. Lekhpal to respondents no. 3 to 11 could not be reverted. The principle of reversion in this case should have been that senior in the substantive grade would be retained and juniors to the petitioners in the substantive grade would be reverted, if at all reversion was necessary. It is the case of the petitioners that the department had prepared a gradation list of consolidators and the petitioners were shown senior to respondents no. It is the case of the petitioners that the department had prepared a gradation list of consolidators and the petitioners were shown senior to respondents no. 5 to 11 in 1973. The respondent no. 2, therefore, has committed a serious legal error by dismissing the petition of the petitioners and by holding them as juniors to respondents no. 5 to 11. The tribunal has refused to interfere with the reversion of the petitioners, which reversion order is also challenged in the writ petition. 3. I have heard the learned counsel for the petitioners and perused the record. 4. It is borne out from the record that petitioner no. 1 was appointed as Lekhpal on 14-7-1959 and petitioner no. 2 was appointed on 9-9-1960 to the said post. Their date of appointment to Lekhpal is prior to that of respondents no. 5 to 11. Therefore, the petitioners would be senior to respondents no. 5 to 11 as Lekhpal. The respondents no. 5 to 11 seem to have been promoted on officiating basis as consolidator earlier but that would not make them senior to the petitioners as Lekhpal. Seniority in the substantive grade was the basis of their retention as consolidator. In the substantive grade the petitioners are senior on the basis of their date of appointment as Lekhpal. Therefore, respondents no. 5 to 11 cannot be said to be senior to the petitioner in the substantive grade. While retaining respondents no. 5 to II the petitioners could not be reverted because as Lekhpal they were senior to the said respondents. From the record it is also borne out that the petitioners are shown in the gradation list senior to Consolidators to the respondents no. 5 to 11. The position of the petitioners shown in the seniority list appears to be correct and they would be deemed senior to the respondents which in fact shows that they are senior as Consolidator also. The seniority in the present case shall have to be determined from the date of their initial appointment as Lekhpal because from Lekhpal they were promoted on officiating basis as Consolidator Therefore, it was the seniority in the substantive grade which will determine the rights of the petitioners vis-a-vis respondents no. 5 to 11. The seniority in the present case shall have to be determined from the date of their initial appointment as Lekhpal because from Lekhpal they were promoted on officiating basis as Consolidator Therefore, it was the seniority in the substantive grade which will determine the rights of the petitioners vis-a-vis respondents no. 5 to 11. The gradation list in the present case has removed the difficulty and made it abundantly clear that the petitioners were treated as senior consolidators to respondents no. 5 to 11. Therefore, the petitioners could not be reverted when respondents no. 5 to 11 were retained as consolidator. This action violative of the petitioners' right under Articles 14 and 16 of the Constitution. The cut-out date mentioned in the order dated 20-6-1975 about the retention of the Lekhpals as consolidators is also not valid, inasmuch as if a senior Lekhpal is promoted on officiating basis after his junior was promoted, if cannot be said that the junior had become senior and when the post of consolidator is filed up regularly. It is the senior Lekhpal, who is to be considered first for being absorbed as consolidator. A junior Lekhpal notwithstanding his promotion having been made first as consolidator, will not acquire any right superior to that of a senior Lekhpal, who was promoted later in a point of time because the seniority which will give them right to hold the post of Consolidator on substantive basis will be that of the Lekhpal and that will determine their right. Therefore, the Tribunals' findings are bad in this regard. 5. The learned counsel has invited my attention to some observation of the Supreme Court from the case of State of U. P. v. Sughar Singh, AIR 1974 SC 423 . That was a case of Head constables, who bad been sent for training as Cadet Sub-Inspector at the Armed Police Training Centre at Sita pur. They were junior to the writ petitioner. In that case they were allowed to be retained as Sub Inspectors and were not reverted to their substantive post of Head constable whereas the writ petitioner in that case was reverted as Head constable. Reversion was not as a measure of punishment. Therefore, it was held by the Supreme Court that it was a case of discrimination because other Head constables, who were junior to him in the substantive cadre were retained in the higher cadre. Reversion was not as a measure of punishment. Therefore, it was held by the Supreme Court that it was a case of discrimination because other Head constables, who were junior to him in the substantive cadre were retained in the higher cadre. The petitioner alone was reverted. So on the basis of this authority it is the seniority in the substantive cadre which would clinch the issue in this case also. The Tribunal has lost sight of this Important aspect of the matter and has slipped into error by holding that respondents no- 5 to 11 were senior to the petitioners because they were promoted on officiating basis earlier in a point of time when the petitioners. The approach adopted by the Tribunal seems to be dehors of the constitutional provisions and the settled principles of law. Therefore, the Tribunals' finding cannot be sustained. 6. There is no challenge to the promotion of respondents no. 5 to 11 as Consolidator, therefore by this order they are not going to be affected. They are made party only to convince the court that as junior they were retained as Consolidators and the petitioners were discriminated. No relief is sought against the said respondents. The order of reversion alone is challenged and not the retention of respondents no. 5 to 11 as consolidators. That being so, respondents no. 5 to 11 need not be aggrieved against the order which I propose to pass. The respondents have not explained the effect of the gradation list which they have prepared in 1973 in respect of consolidators in which the petitioners were shown senior to others, who have been retained. The petitioners position in the gradation list, as already stated, seems to reflect the correct position in law but on subsequent date the respondents have chosen to revert the petitioners in violation of their service rights and constitutional guarantees. The cut-out date given for reversion of the petitioners is also not consistent with the rights of the petitioners under the constitutional provisions. There is no explanation as to why 27-11-1970 was fixed as cut-out date for not reverting those, who were promoted as Consolidators without mentioning the seniority position of the person, who were to be retained or who were to be reverted. The approach in this regard seems to be very casual and the seniority of the petitioners has been completely ignored. The approach in this regard seems to be very casual and the seniority of the petitioners has been completely ignored. Therefore, this court does not approve the method adopted by the respondents in fixing the cut-out date and reverting the seniors and retaining the juniors to the post of Consolidator. 7. For the reasons stated above, the writ petition succeeds. The petitioners' reversion from the post of consolidator is discriminatory and if their juniors in the substantive grade had been retained, the petitioners could not be reverted from the post of consolidator to that of Lekhpal. That would be violative of Articles 14 and 16 of the constitution. Our system of law does not countenance the discrimination of equals. In fact the State is enjoined not to discriminate equals in the matter of service and other benefits in the service which are due to its employees. 8. The petitioners, therefore, are entitled to the following reliefs. The reversion order dated 28-6-1975 as also the order dated 13-7- 1975 are hereby quashed as being violative of the fundamental rights. By the writ of certiorari the order of the Tribunal contained in Annexure 7 to the is writ petition is also quashed as being violative of the provisions of the law and the constitution. The petitioners will be entitled to all consequential benefits. 9. The writ petition is accordingly allowed. There will be no order as to costs because the other side did not argue the case. Petition allowed.