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2003 DIGILAW 941 (KAR)

SURESH RAMACHANDRA JOSHI v. KARNATAKA STATE ROAD TRANSPORT CORPORATION, BANGALORE

2003-11-10

H.L.DATTU

body2003
H. L DATTU. J. ( 1 ) SINCE common questions of fact and law are involved in all these writ petitions, they are all clubbed together, heard and disposed off by this common order. ( 2 ) FOR the purpose of narration of facts, I have taken into consideration the facts stated by the petitioner in W. P. No. 6013 of 1993. ( 3 ) PETITIONER was appointed as an Assistant Mechanical Engineer by a competent Authority of the respondent-the Karnataka State Road Transport corporation ('the Corporation' for short), by issuing a letter of appointment dated 1-1-1982. ( 4 ) WHILE working in that capacity, an order came to be made by the respondent-Corporation dated 14-11-1992 directing the petitioner to work as divisional Mechanical Engineer (Officiating) against the posts created temporarily for a period of three months. Pursuant to the aforesaid order, petitioner got himself relieved from Bagalkot Division on 16-11-1992 and reported at the Bijapur Division. ( 5 ) WITHIN three months from the date of posting as Divisional Mechanical engineer on officiating basis, the Corporation by its order dated 12-2-1993 has re-posted the petitioner to his substantive post, namely, Assistant mechanical Engineer. Aggrieved by the said order passed by the Competent authority of the respondent-Corporation, petitioner is before this Court for the following reliefs. They are: (a) To quash the order dated 12-2-1993 on the ground that the same is arbitrary, irrational, incompetent and violative of Articles 14 and 16 (1) of the Constitution; (b) To direct the respondents to review the promotions effected to the cadre of Divisional Mechanical Engineer (Class I Junior) on the basis of the final seniority list contained in Annexure-H. ( 6 ) THE case and grievance of other petitioners in this bunch of writ petitions is the same as that of the petitioner in W. P. No. 6013 of 1993. ( 7 ) DURING the pendency of these writ petitions before this Court, I am informed by learned Counsels for the parties to the lis, that some of the petitioners have been promoted as Divisional Mechanical Engineers on regular basis. ( 7 ) DURING the pendency of these writ petitions before this Court, I am informed by learned Counsels for the parties to the lis, that some of the petitioners have been promoted as Divisional Mechanical Engineers on regular basis. ( 8 ) SRI Sreedhar, learned Counsel appearing for the petitioners would submit, that, having promoted the petitioners on officiating basis to the next higher cadre, the respondent-authorities had no justification to retrace their steps by passing the impugned order dated 12-2-1993 and therefore, according to the learned Counsel, the action of the respondent-authorities is not only arbitrary but violative of Articles 14 and 16 (1) of the Constitution. In support of that contention the learned Counsel relies upon the observations made by a Division Bench ofthis Court in P. Ashokkumar v Karnataka State road Transport Corporation, Bangalore and Others. ( 9 ) SRI L. Govindraj and Smt. Meena Ramachandra, learned Counsels appearing for the respondent-Corporation ably justify the impugned orders. ( 10 ) FACTS are not in dispute. Petitioners in these writ petitions were appointed as Assistant Mechanical Engineers. By an order made on 14-11-1992, they were asked to work as Divisional Mechanical Engineers on officiating basis, in the posts created temporarily for a period of three months. Thereafter, the Competent Authority of the respondent-Corporation being of the view that the officiating arrangement made by him need not be continued, and therefore has passed the impugned order. In the said order he has stated as under:"the above officiating arrangement was made purely on temporary basis and was liable to be cancelled or discontinued at any time without assigning any reasons or notice. The Chairman and Managing Director/competent Authority after examining the necessity or continuing the said posts created on temporary basis for a period of 3 months after expiry of the period of 3 months posts, restored has ordered that there is no justification and need for continuation of the posts and directed discontinuance of the said posts of Divisional Mechanical Engineer, Class I (Junior), with effect from 12-2-1993 A. N. Accordingly, the Chairman and Managing Director, the Competent authority, has ordered that the above 24 Assistant Mechanical engineers who were temporarily posted to officiate as Divisional mechanical Engineer, Class I (Junior) against the posts created/restored/be and are hereby discontinued from the post of divisional Mechanical Engineer, Class I (Junior) and stand re-posted to their substantive posts". ( 11 ) THE basic principles are, a promotion on an officiating basis will not normally confer upon the promotee a right to hold the post. The employee/officer is liable to be reverted to the substantive post from which he was given officiating promotion at the end of such officiation unless he is duly regularised. Once regularised and confirmed, the service rendered during the officiating period will be reckoned for determination of seniority in the promoted post subject to the qualification that the initial officiating promotion was against a sanctioned post. Secondly, a person officiating in a post has no right to hold the post for all times to come. In the instant case, the action taken by the respondents is in accordance with the terms on which the officiating post had been given. It is no way a punishment and is not therefore a reduction in rank, and lastly, when the reversion to their original post has not in any way affected them insofar as their condition and prospects of service is concerned, it cannot be said that the action of the respondents is either arbitrary or illegal. At this stage, it is useful to make a reference to the observations made by the Apex Court in the case of union of India v K. R. Tahiliani and Another, wherein it is observed that:"an officiating hand has no right to the post and is perhaps a fleeting bird, who may have to go back to the substantive post from which he has been promoted on an officiating basis". The other earlier view of the Apex Court in R. S. Sial v State of Uttar pradesh and Others, was that an appointment to a post on officiating basis is from the very nature of employment itself of a transitory character and in the absence of terms of service to the contrary, the implied term of service of such an appointment is that it is terminable at any time. The Government servant so appointed acquires no right in the post. The Government servant so appointed acquires no right in the post. But, if the order entails or provides for forfeiture of his pay or allowance or the loss of his future chances of promotion, then the circumstances may indicate, that though on 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 attracting Article 311 of the Constitution. In Parshotam Lal Dhingra v Union of India, the Apex Court was pleased to observe:"it is therefore, quite clear that appointment to a permanent post in a government service, either on probation or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time". ( 12 ) IN view of this well-settled legal position, petitioners, in my opinion, cannot complain that the impugned orders passed by respondent-Corporation is either arbitrary or illegal and in violation of any constitutional provision. ( 13 ) HOWEVER, Sri Sreedhar, learned Counsel appearing for petitioners would bring to my notice the observations made by a Division Bench of this court in P. Ashok Kumar's case, supra and connected matters disposed off on 30-1-2003. In my view, the facts pleaded and the issues raised in those appeals are no way nearer to the facts in these petitions. Therefore, the observations made in the said decision would not assist the petitioners learned Counsel in any manner whatsoever. ( 14 ) IN view of the above, none of the reliefs sought for by the petitioners can be granted. Accordingly, petitions fail. They are rejected. Rule discharged. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly. --- *** --- .