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Khaja ZahiruddIn Shamsir Muhammad Habiboolli Vs. State (Revenue and Forest Department) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 2071 of 1966
Judge
Reported in(1969)IILLJ505Bom
ActsConstitution of India - Articles 226 and 311
AppellantKhaja ZahiruddIn Shamsir Muhammad Habiboolli
RespondentState (Revenue and Forest Department)
Excerpt:
.....to contend that he should not be reverted particularly when such posts are seniority-cum-merit posts - government entitled to revert petitioner to lower post. - - 311 of the constitution and is bad as contravening the provision of the said article inasmuch as the two notices required to be given by the said article have not been given to the petitioner; (2) that 53 persons junior to the petitioner were promoted as tahsildars prior to the promotion of the petitioner on 26 february, 1964 and, accordingly, the promotion of all the said 53 persons should be held to be discriminatory and, therefore, bad in law; relations both with officers of other departments as well as public had been positively strained. 11. in these circumstances, all the contentions raised by the petitioner fail......from the post of tahsildar, which he was holding in an officiating capacity to the post of naib tahsildar previously held by him. 2. the petitioner joined government service as a clerk on 6 november, 1939. by an order of the board of revenue of the former government of hyderabad dated 5 october, 1953 the petitioner was provisionally promoted as tahsildar and appointed as officiating naib tahsildar for one year under the land census scheme. there are no materials before us to show whether the petitioner was thereafter confirmed in the post of naib tahsildar. on the reorganization of states as from 1 november, 1966, the petitioner's services were allocated to the then state of bombay and the petitioner continued to work as naib tahsildar, first under the state of bombay and.....
Judgment:

Madon, J.

1.- In this petition under Art. 226 of the Constitution the petitioner, Khaja Zahiruddin Shamsir, seeks to set aside an order whereby he was reverted from the post of tahsildar, which he was holding in an officiating capacity to the post of naib tahsildar previously held by him.

2. The petitioner joined Government service as a clerk on 6 November, 1939. By an order of the Board of Revenue of the former Government of Hyderabad dated 5 October, 1953 the petitioner was provisionally promoted as tahsildar and appointed as officiating naib tahsildar for one year under the Land Census Scheme. There are no materials before us to show whether the petitioner was thereafter confirmed in the post of naib tahsildar. On the reorganization of States as from 1 November, 1966, the petitioner's services were allocated to the then State of Bombay and the petitioner continued to work as naib tahsildar, first under the State of Bombay and thereafter under the State of Maharashtra. By an order dated 26 February, 1964, passed by the Commissioner, Aurangabad Division, the petitioner was provisionally promoted as tahsildar and appointed to officiate as tahsildar, Basmathnagar district Parbhani.

3. It appears that twelve posts of special tahsildars, one for each of the said twelve posts in the Aurangabad Division, were sanctioned by the Government under its Memorandum in the Revenue Department No. TAG (Est) 2364/4982-S dated 17 February, 1964, to complete the work regarding reconstruction of tagai accounts. By an order dated 2 Juner, 1965 of the Commissioner, Aurangabad Division, the petitioner was transferred and posted as tahsildar, Tagai Accounts, Deputy Collector's Office, Hingoli, district Parbhani. By another memorandum dated 24 July, 1965, the Government accorded its sanction for the continuance of the said twelve posts up to the end of December 1965. Thereafter, by an order dated 28 December, 1965 the Government decided to continue further only five out of the said twelve posts to complete the remaining work regarding the reconstruction of tagai accounts and to discontinue the remaining seven posts with effect from 1 January, 1966. On the same day, an order was issued bearing date 28 December, 1965 reverting the petitioner from the post of tahsildar, Tagai Accounts, Deputy Collector's Office, Hingoli, district Parbhani, on discontinuance of the said post with effect from 1 January, 1966, to the post of naib tahsildar. The petitioner was asked to hand over charge of the said post on 31 December, 1965. It is this order of reversion which the petitioner challenges by this petition.

4. Three grounds were urged before us by Sri Devnani, learned counsel for the petitioner, in support of the petitioner's contention that the said order is invalid, namely :

(1) that the said order amounts to a reduction in rank of the petitioner under Art. 311 of the Constitution and is bad as contravening the provision of the said article inasmuch as the two notices required to be given by the said article have not been given to the petitioner;

(2) that 53 persons junior to the petitioner were promoted as tahsildars prior to the promotion of the petitioner on 26 February, 1964 and, accordingly, the promotion of all the said 53 persons should be held to be discriminatory and, therefore, bad in law; and

(3) that if any one of the tahsildars was to be reverted, it should be the person last promoted and, accordingly, the petitioner could not be so reverted inasmuch as there were 23 officers junior to the petitioner who were promoted after 26 February, 1964.

5. The petitioner's contention that the said order amounts to a reduction in rank proceeds upon the assumption that the petitioner was holding the post of tahsildar as a permanent or substantive post. There is no basis for this assumption. The order dated 26 February, 1964 expressly makes it clear that the petitioner was promoted provisionally and that he was appointed to officiate as tahsildar. It is pertinent to not that the post of tahsildar is not merely a seniority post but, as admitted in the petition itself, it is a seniority-cum-merit post. In Parshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC the Supreme Court has laid down that an appointment to a post, permanent or temporary, on probation or on an officiating basis, or a substantive appointment to a temporary post, gives to the Government servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service. It is not the petitioner's case that his service has ripened into a quasi-permanent service. The petitioner held the post of a tahsildar merely in an officiating capacity. He had no right on the said post and the Government was entitled to revert the petitioner to the lower post of naib tahsildar. The provision of Art. 311 have no application to a case such as this unless the reversion was by way of a penalty or punishment which would make it a case of reduction in rank within the meaning of Art. 311. Where a Government servant has no right to a particular rank, the mere reduction from the officiating higher rank to the substantive lower rank will not ordinarily be a punishment as held in Parshotam Lal Dhingra case : (1958)ILLJ544SC (vide supra).

6. Sri Devnani, learned counsel for the petitioner, has, however, contended that the petitioner's reversion was by way of a penalty, and has sought to support this argument by submitting that in view of what is stated in the affidavit-in-reply filed on behalf of the respondents, the reason given for reverting the petitioner in the said impugned order dated 28 December, 1965 is incorrect. In Sri Devnani's submission, the reason mentioned in the said order is the discontinuance of the post of tahsildar, Tagai accounts, in the Deputy Collector's Office, Hingoli. In the affidavit-in-reply, the petitioner's service record for the period 10 March, 1964 to 31 March, 1965 is set out. That record does not speak much to the credit of the petitioner. On the contrary, according to that record the petitioner was found to be slack in physical capacity for the duties of the post he he held, his attitude towards his brother officers was not friendly, while his attitude towards his subordinates was partial, he had no qualities of leadership and he was indifferent and often rude. In the service record under the general remarks it is stated :

'Incompetent officer. Has no executive ability at all. Relations both with officers of other departments as well as public had been positively strained.

Has no tact and ability to get things done. Lacks initiative altogether. Does not take adequate interest in his work.'

7. According to the affidavit-in-reply, in the select list of naib tahsildars fit to be appointed as tahsildars prepared on 9 and 10 December, 1965, the petitioner's name was deleted as the service record of the petitioner was not satisfactory and as his name was not considered fit for inclusion in the said select list. It is further stated in the affidavit-in-reply that the petitioner was reverted not because of the abolition of certain posts as alleged by the petitioner but because the petitioner was not found fit to continue as tahsildar. It is this sentence which is seized upon as falsifying the reason given in the impugned order. Now, there does not appear to be any basis for Sri Devnani's submission on that the reason mentioned in the impugned order for reverting the petitioner is the discontinuance of the said post of tahsildar, Tagai accounts, in the office of the Deputy Collector, Hingoli. The wording of the said order is that the petitioner is reverted as naib tahsildar from 'tahsildar, Tagai accounts, Deputy Collector's Office, Hingoli, district Parbhani, on discontinuance of the posts with effect from 1 January, 1966.' The discontinuance of the post is, therefore, not the reason given in the said order for reverting the petitioner but is the date from which the petitioner's reversion to the post of naib tahsildar would come into effect. It is, therefore, not correct to say that the reason given in the affidavit-in-reply for reverting the petitioner is different from reason mentioned in the said impugned order. The fact that the petitioner's services were not found to be efficient and the petitioner was not considered competent to continue in the post in which he was officiating per se would not amount to a reduction in rank or a penalty within the meaning of Art. 311. The order, on the face of it, does not give any indication that it is passed by way of a penalty nor are any facts alleged in support of this allegation. The general rule, as enunciated by the Supreme Court in parshotam Lal Dhingra case [1958 - I L.L.J. 544] (vide supra) is that if a Government servant has no right to the post, as where he is appointed to a post whether permanent or temporary, either on probation or on an officiating basis, and whose temporary service has not ripened into a quasi-permanent service under the rules, the termination of his employment cannot by itself be a punishment. The same principles apply to the reversion of a Government officer appointed to a higher post on an officiating basis to a lower post previously held by him. Sri Devnani has, however, placed reliance on another judgment of the Supreme Court in P. C. Wadhwa v. Union of India and another : (1964)ILLJ395SC . In that case the appellant, who was a member of the Indian Police Service and holding the substantive rank of Assistant Superintendent of Police (a post in the junior time-scale of pay) in the State of Punjab, was promoted to officiate as Superintendent of Police, which was a post carrying a higher salary in the senior time-scale, and posted as Additional Superintendent of Police. After he had earned one increment in that post, he was served with a chargesheet and before the enquiry which had been ordered had started, he was reverted to his substantive rank of Assistant Superintendent of Police, the ground suggested for reversion being unsatisfactory conduct. No details of the unsatisfactory conduct were stated and no explanation was asked for from the appellant. This order of reversion was challenged by the petitioner in a writ petition. The High Court dismissed the petition. On appeal, the Supreme Court held on the facts of the case that the said order of reversion was by way of punishment and that no opportunity was given to the petitioner to show cause against the action proposed to be taken against him. Accordingly, the Supreme Court allowed the appeal and set aside the said order of reversion. S. K. Das, acting Chief Justice, delivering judgment on behalf of himself and Ayyangar, J., on a construction of the relevant rules, held that the post of Superintendent of Police was a selection post. The relevant passage in the judgment is as follows :

'Under the rules framed by the Central Government, governing the rights, privileges, discipline, etc., of the members of the Indian Police Service, a member of that service who is in the junior scale of pay, has no right to go automatically into the senior scale without any selection, merely by reason of his seniority and even when he is officiating in a higher post, he may be reverted after a trial in that post or for administrative reasons and such reversion from the officiating post in the senior scale does not amount to 'reduction in rank' within the meaning of Art. 311 of the Constitution.'

8. Subba Rao, Raghubar Dayal and Mudholkar, JJ., however, held on the construction of the said rules that the said post was merely a seniority post. They accordingly held that if a person holding a post in the senior scale, though in an officiating capa-city, was found to be unfit to hold that post, action would have to be taken against him as required by the said rules because his reversion to a post in the lower scale would amount to reduction in rank within the meaning of Art. 311 of the Constitution. It is this part of the judgment which has been relied upon by Sri Devnani. The principle laid down therein has, however, no application to the facts of the present case. Here, admittedly, the post of a tahsildar is a seniority-cum-merit post. The petitioner was merely officiating in that post. The order is not passed against him as a penalty or a punishment and the petitioner cannot, therefore, succeed in bringing his case within the purview of Art. 311.

9. So far as the second ground urged on behalf of the petitioner is concerned, the petitioner is not entitled to challenge the promotion of 53 persons junior to the petitioner, who were promoted prior to 26 February, 1964, as the said persons are not before the Court. In fact, though this ground is taken in the petition, no relief is prayed for in respect thereof in the petition. Even otherwise, there does not appear to be any discriminatory treatment meted out to the petitioner. It is pointed out in the affidavit-in-reply that the said 53 persons were promoted prior to the petitioner, even though junior to the petitioner, as on the dates when the said promotions were made, the petitioner had not passed the Revenue Officers' Examination and he was, therefore, not eligible for such promotion and, accordingly, his name was not included in the select list of naib tahsildars fit for promotion as tahsildars. The petitioner passed the said examination only in October 1963, whereas the said 53 persons passed the said examination much earlier. It is further stated in the affidavit-in-reply that after the date of the petitioner's promotion, 33 naib tahsildars who were junior to the petitioner were promoted to the post of tahsildars. Out of these 33 persons, 4 were reverted to the post of naib tahsildar along with the petitioner. Out of the remaining 29 persons, 13 were thereafter reverted.

10. The petitioner's contention that since the petitioner was senior to those 33 persons, he should have been reverted after all the said 33 persons were reverted is also not sustainable. A person appointed provisionally in an officiating post has no right to contend that he should not be reverted as long as there are other officers junior to him officiating in such posts, particularly when such posts are seniority-cum-merit posts. If after a trial the petitioner was not found satisfactory to discharge the duties of the post of tahsildar, the Government was entitled to revert the petitioner to the lower post of naib tahsildar.

11. In these circumstances, all the contentions raised by the petitioner fail. Accordingly, we dismiss the petition with costs. Rule discharged.


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