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2019 DIGILAW 923 (ALL)

MOHD ISRAR KHAN v. ANISH KUMAR HAJELA

2019-04-12

RAJENDRA KUMAR, SUDHIR AGARWAL

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JUDGMENT : 1. Heard Sri Dhananjay Kumar, learned counsel for the appellant, learned Standing counsel for respondents and perused the record. 2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from judgment dated 27.10.2004 passed by learned Single Judge allowing petitioner-respondent Anish Kumar Hajela's Writ Petition No.27303 of 2001 and setting aside order dated 11.07.2001 passed by Deputy General Manager, Parichha Thermal Project Jhansi/Manager of U.P. Electricity Board Inter College, Parichha, Jhansi, reverting him and directing for recovery of alleged excess payment of salary. 3. The brief facts, as is evident from record, is that father of petitioner-respondent (hereinafter referred to as "petitioner") died in harness on 25.01.1997. Thereafter, petitioner submitted an application dated 04.02.1997 seeking appointment on the post of Lecturer on compassionate ground. The said application was forwarded to Chief Engineer, U.P. State Electricity Board, Lucknow by Chief Engineer, Agra Division, vide letter dated 16.7.1997. Thereafter, on recommendation made by General Manager, Parichha Termal Project on 21.8.1997, appointment letter was issued on 24.02.1998 to petitioner appointing him as Lecturer. Petitioner joined the post and continued to work. Thereafter, respondent authorities reviewed the matter and Chief Engineer vide letter dated 21.07.1998 took a view that compassionate appointment directly on the post of Lecturer could not have been made hence an order of reversion was passed reverting petitioner to the post of Assistant Teacher (L.T.Grade). This order was challenged before learned Single Judge and has been set aside. 4. Learned Single Judge has found that respondent authorities tried to justify impugned order dated 11.7.2001 on the basis of U.P. State Electricity Board Recruitment of Dependents of Board's Servants Dying in Harness (4th Amendment) Regulations, 1998 (hereinafter referred to as "Regulations, 1998") which came into force on 22.01.1998 and held that aforesaid amendments in Regulations are not retrospective and therefore, will not apply to petitioner's case where his father died on 25.01.1997 and application was submitted on 04.02.1997. 5. Learned counsel for appellant could not show any provision that aforesaid amendment in Regulations was retrospective. 6. Even otherwise, we find that petitioner was directly appointed as Lecturer. He was never appointed on the post of Assistant Teacher (L.T.Grade) and never promoted to the post of Lecturer. 5. Learned counsel for appellant could not show any provision that aforesaid amendment in Regulations was retrospective. 6. Even otherwise, we find that petitioner was directly appointed as Lecturer. He was never appointed on the post of Assistant Teacher (L.T.Grade) and never promoted to the post of Lecturer. Once a direct recruitment is made to a post, there is no question of reversion to lower post on which petitioner was never appointed and even by way of punishment such reversion cannot be made. 7. In taking the above view, we are fortified by judgment in Nyadar Singh and another Vs. Union of India and others, (1988) 4 SCC 170 = AIR 1988 SC 1979 wherein Court held that if a person is directly appointed on a particular post he can not be awarded a punishment of reduction in rank by appointing him on a lower post as it affects the very policy of recruitment. An example was given that a person appointed as Medical Officer cannot be reverted as a Compounder or Ward Boy. 8. Following the aforesaid authority, in P.V. Srinivasa Sastry and others Vs. Comptroller and Auditor General and others, (1993) 1 SCC 419 , Court has held that a person directly appointed as Upper Division Clerk can not be revered as Lower Division Clerk. It held in para 8 of the judgement as under : "8. The expression "reduction in rank" in Article 311(2) has an obvious reference to different grades in service. Whenever there is a reduction in rank it implies reversion from a higher post to a lower post. Reversion from a higher post to a lower post may be under exigencies of situation or by way of punishment. The expression "reduction in rank" occurring in Article 311(2) covers only such reversions which are by way of punishment. The expression "reduction in rank", within the meaning of Article 311(2) as the expression itself suggests, means reduction from a higher to a lower rank or post. But whether in this process an officer can be reduced from a higher rank or a post to a rank to which he never belonged and to a post which he never held? The expression "reduction in rank", within the meaning of Article 311(2) as the expression itself suggests, means reduction from a higher to a lower rank or post. But whether in this process an officer can be reduced from a higher rank or a post to a rank to which he never belonged and to a post which he never held? It the power to reduce an officer by way of punishment to a rank which was never held by such officer is conceded, then a person directly appointed as Upper Division Clerk cannot only be reverted to the post of Lower Division Clerk, but even to the post of a Peon; an Engineer to the post of a Fitter, a Head-Master of a School to the post of an Accountant or Clerk in the said School. As such even while imposing the punishment of reduction in rank, the order must have nexus with the post held by the delinquent officer concerned, from which he had been promoted to the post from which he is being reverted. It such an officer had not held that post or was not member of that cadre then he cannot be reverted to a lower cadre to which he did not belong or to a lower rank which he did not hold at any stage." (emphasis added) 9. These authorities have been followed in South Bengal State Transport Corporation Vs. Ashok Kumar Ghosh and others, (2010) 11 SCC 71 wherein referring to judgment in Nyadar Singh (Supra), Court has said as under : "20. We may next consider whether the punishment is permissible in service jurisprudence. It is well settled that while an employee can be reverted to a lower post or service, he cannot be reverted to a post lower than the post in which he entered service (See: Nyadar Singh vs. Union of India, (1988) AIR SC 1979). Further it is also well settled that reversion to a lower post or service does not permit reversion to a post outside the cadre that is from regular post to a daily wage post. We are therefore of the view that the punishment inflicted on the delinquent employee not being one of the punishments enumerated in Regulation 36, is not permissible in law." (emphasis added) 10. We are therefore of the view that the punishment inflicted on the delinquent employee not being one of the punishments enumerated in Regulation 36, is not permissible in law." (emphasis added) 10. A Division Bench of this Court has also followed the law laid down in Nyadar Singh (Supra) in Union Of India Through the Secretary, Ministry of Water Resources and others Vs. Central Administrative Tribunal, Lucknow and 4 others, (Service Bench No. 1596 of 2002), decided on 13.2.2017, wherein the court has held as under: "8. In Nyadar Singh v. Union of India, (1988) AIR SC 1979, Court has said that penalty of reduction in rank to a Government servant initially recruited to a higher time-scale, grade, service or post to a lower time-scale, grade, service or post virtually would amount to his removal from the higher post and substitution of his recruitment to lower post, affecting policy of recruitment itself, which is impermissible." 11. For these reason also, we find that order dated 11.07.2001 was illegal and therefore, has rightly been set aside by learned Single Judge. 12. We, therefore, do not find any merit in the appeal. Dismissed. 13. Interim order, if any, stands vacated.