Gopal Chandra Choudhury ; Abdul Maleque v. State of Assam
1991-11-29
B.P.SARAF, U.L.BHAT
body1991
DigiLaw.ai
Dr. B.P. Saraf, J — These two writ petitions involve common questions of law and fact and as such they were taken up together for hearing and disposal. At the relevant time the petitioner in Civil Rule No.805 of 1986 Shri Gopal Chandra Choudhury was serving as an Upper Division Assistant in the Directorate of Panchayat and Community Development Department, Government of Assam. Similarly, petitioner in Civil Rule No, 806 of 1986 Shri Abdul Maleque was working as Superintendent in the same Directorate. By a notification dated 7.2.85 issued by the Deputy Secretary to the Government of Assam, both the petitioners were temporarily promoted to the post of Block Development Officer under Regulation 4 (d) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951, hereinafter 'the Regulation'. After more than a year, by a notification dated 1.7.86 issued by the Deputy Secretary to the Government of Assam, both of them were reverted with immediate effect to their original posts in the Directorate of Panchayat and Community Development. The petitioners have challenged the order of reversion by filing these two writ petitions. The contention of the petitioners is that their appointment having continued for more than a year, it was incumbent on the part of the Government to regularise their promotion. Reliance is placed in this connection on a Government Circular dated 27.7.64. According to the petitioners, even a person who is temporarily promoted under Regulation 4 (d) of the Regulations is entitled to get his services regularised if he continues to hold the post for more than a year and the fact that the appointment was purelj temporary under Regulation 4(d) of the Regulations which empowers the Government to make officiating promotions only for a period which is not likely to last for more than one year will not in any way affect his right to regularisation in view of the above referred circular of the Government. We have heard the counsel for the petitioners Mr. A.S. Choudhury as also Mr. R. P. Sarma, learned Government Advocate. To properly appreciate th; claim of the petitioners to regularisation to the post to which they were temporarily promoted under Regulation 4(d) on the grounds indicated above, it will be expedient to refer to the provisions of Regulation 4(d), the relevant portion of which reads as follows : "4.
A.S. Choudhury as also Mr. R. P. Sarma, learned Government Advocate. To properly appreciate th; claim of the petitioners to regularisation to the post to which they were temporarily promoted under Regulation 4(d) on the grounds indicated above, it will be expedient to refer to the provisions of Regulation 4(d), the relevant portion of which reads as follows : "4. Promotion-It shall not be necessary to consult the Commission on the principles to be followed in making promotion in the following cases:- ...... d) Officiating promotion for a period which is not likely to last for more than one year % Provided that if the period of officiating promotion is extended beyond the term for which it was originally sanctioned, the period of promotion shall, for purposes of this regulation, be reckoned from the date when the promotion originally took effect and not from the date of the extension of the period." The relevant portion of the Government Circular No. AAP. 196/59/42 dated 27.7.64 relating to officiating promotions under Regulation 4(d) reads as follows : "27.2 Officiating promotion under regulation 4(d) for a period which is likely to last for more than one year to a service, which comes under tfie purview of the Commission, should be regularised within a period of one year in consultation with the Commission after observing the necessary formalities. The appointing authorities should send a copy of the orders of promotions to the Assam Public Service Commission and the Accountant General, Assam & Nagaland." It is evident from a reading of Regulation 4 that the powers of promotion thereunder under circumstances specified therein are by way of exceptions to the rules relating to promotion which require consultation with the State Public Service Commission ("Commission") on the principles to be followed in making promotions or the suitability of candidates for promotion. Clause (d) of the said Regulation provides that officiating promotions for a period which is not likely to last for more than one year may be made without such consultation with the Commission. The proviso thereto makes it further clear that if the period of officiating promotion is extended beyond the term for which it was originally sanctioned, the period of promotion shall, for the purposes of this Regulation, be reckoned from the date when the promotion originally took effect and not from the date of extension of the period.
The proviso thereto makes it further clear that if the period of officiating promotion is extended beyond the term for which it was originally sanctioned, the period of promotion shall, for the purposes of this Regulation, be reckoned from the date when the promotion originally took effect and not from the date of extension of the period. The language of Regulation 4 (d) read with the proviso is thus clear. There is no ambiguity. It permits the Government to make a departure from the requirement of making promotions in consultation with the Commission only in "case of officiating promotion for a period which is , not likely to last for more then one year". Officiating promotions which are likely to last for more than one year cannot be made by taking resort to this Regulation. The learned counsel for the petitioners did not dispute seriously this interpretation of Regulation 4 (d). He, however, placed reliance on the Circular of the State Government dated 27.7.64 extracted above. According to him, though Regulation 4 (d) does not contemplate officiating promotion without consultations with the Commission if it is likely to last for more than the year, the Circular contemplates officiating promotions for periods likely to last for more than one year and requires the State Government in such cases to regularise the appointment in consultation with the Commission. We have considered this submission. We have carefully gone through the Circular of the Government. We fund it difficult to read the Circular the way the learned counsel for the petitioners wants us to read nor do we find any inconsistency between Regulation 4 (d) and the Circular. The Circular is very clear. In fact, it reiterates what is contained in Regulation 4 (d). It reaffirms that officiating promotions without consultation with the Commission cannot last for more than a year. It clearly provides that officiating promotion under Regulation 4 (d),for a period which is likely to last for more than one year to a service which come under the purview of the Commission, "should be regularised within a period of one year in consultation with the Commission after observing the necessary formalities." In other words, the officiating promotion made under Regulation 4 (d) cannot continue beyond one year without regularisation within one year in consultation with the Commission after observing the necessary formalities.
The proviso to Regulation 4 (d) also assumes relevance in this context as it provides that if the original officiating promotion is extended, the period of promotion for the purpose of this Regulation shall be reckoned from the date when the promotion originally took effect. Tt, in fact, takes care of possible attempts to circumvent the restriction of one year contained in Regulation 4 (d) by taking resort to the device of continuing the officiating promotion beyond one year by extending the original appointment from time to time. Thus, the position that emerges in regard to officiating promotion can be summed up as under : (i) Promotions which come under the purview of Commission can be made only in consultation with the Commission. (ii) This requirement does not apply to officiating promotion for a period which is not likely to last for more than one year. This is by virtue of Regulation 4 (d) of the Regulations. (iii) If in any case it is found that any officiating promotion for a period which was originally not likely to last for more than one year, is likely to last for more than one year due to any reason it should be regularised within a period of one year in consultation with the Commission after observing the necessary formalities. (iv) For continuance of officiating promotions for one year also no consultation with the Commission is necessary. However, if the officiating promotion is likely to last for more than one year, it can continue beyond one year only if it is regularised within a period of one year in consultation with the Commission after observing the necessary formalities. If that is not done, then at the end of one year the officiating promotion should discontinue. There does not appear to be any power vested in the Gcvernment under Regulation 4 (d) read with the Circular in question to continue officiating promotion beyond one year without the same being regularised by proper consultation with the Commission within the year itself. We may now examine the facts of the present case in the light of these propositions. The petitioners were temporarily promoted under Regulation 4 (d) by a Notification dated 4.2.85. They joined on 19.2.85. Admittedly, the promotions were not regularised in consultation with the Commission after observing the necessary formalities. The officiating promotions, therefore, could have continued only till 18.2.86.
We may now examine the facts of the present case in the light of these propositions. The petitioners were temporarily promoted under Regulation 4 (d) by a Notification dated 4.2.85. They joined on 19.2.85. Admittedly, the promotions were not regularised in consultation with the Commission after observing the necessary formalities. The officiating promotions, therefore, could have continued only till 18.2.86. But they continued till 1.7.86 when the State Government reverted them to their original posts by the impugned notification. The order of reversion is under challenge before us. We, however, do not find anything wrong in the order of reversion of the petitioners from the posts to which they were temporarily promoted to officiate. The petitioners did not get any right to the said posts simply by virtue of the fact that in violation of the Rules their officiation continued beyond one year. It was wrong on the part of the Government to allow them to continue beyond one year. However, that cannot legitimatise the continuance of the petitioners in the promotion posts, they had a vested right only to their original posts and they were entitled to continue in the promotion posts beyond one year only on being regularised in consultation with the Commission. That having not been done, the petitioners cannot claim any right to continue on such post after the expiry of one year from the date of their officiating promotion under Regulation 4 (d). The learned counsel for the petitioners relied on the decision of the Supreme Court in K.H. Phandis vs. State of Maharashtra, AIR 1971 SC 998 . On going through this decision, we find that it has no application to the facts of the presentcase. It was a case where the reversion from the temporary officiating post to substantive post was challenged on the ground that it was not a reversion simpliciter but by way of punishment. It is not an authority for the proposition that a person cannot be reverted to his original post. This is clear from the following observation (at page 1001) : '-The order of reversion simpliciter will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service.
This is clear from the following observation (at page 1001) : '-The order of reversion simpliciter will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a tempo, any post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence." It was further observed that there is nothing wrong in the reversion which u "a pare accident of service". It is only if there is evidence that the order of reversion is not "a pure accident of service" but an order in the nature of punishment, that Article 311 will be attracted. That is not the case of the petitioners before us. This decision is, therefore, not relevant in deciding the present case. The other decision of the Supreme Court in Appar Apar Singh vs. State of Punjab,1991 Service Law Reporter 71 referred to by the learned counsel for the petitioners also deals with a case where the allegation was that the reversion from the officiating post was in fact not a reversion simpliciter but penal in nature. The learned counsel also referred to a decision of the Karnataka High Court in H.S. Kathyayini vs. The State of Mysore, (1974) 2 All India Services Law Journal 616. In this case the question for determination was whether under Article 320 (3) of the Constitution the Government is required to see k the concurrence of the Commission to an appointment on promotion or it has only to consult the Commission. The High Court held that the Government has only to consult the Commission and then take decision of its own. There is no such controversy in the case before us. Here no steps at all were taken to consult the Commission or to regularise the appointment after observing the necessary formalities. The question whether there should be concurrence or consultation, therefore, does not arise.
There is no such controversy in the case before us. Here no steps at all were taken to consult the Commission or to regularise the appointment after observing the necessary formalities. The question whether there should be concurrence or consultation, therefore, does not arise. In view of the foregoing discussion, we are of the opinion that the officiating promotions of the petitioners having not been regularised within a period of one year from the date of their original appointment under Regulation 4 (d) their services could not have been continued beyond one year. For continuation of officiating promotion beyond one year regularisation of "the officiating promotion" within one year is necessary. If no such regularisation is made within one year, continuation beyond one year even in officiating capacity to the promotion post will be contrary to and beyond the powers of the Government. In that view of the matter, in our opinion, th: reversion of the petitioners by the impugned order dated 1.7.86 was justified. We do not find any illegality therein. These writ petitions, therefore, have no merit and the same are accordingly dismissed. We make no order as to costs.