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Suresh Chandra Sharma Vs. Rajaswa Parishad, U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Nos. 1042, 1044, 1258, 1507 and 4144 of 1964
Judge
Reported inAIR1971All122
ActsUttar Pradesh Subordinate Revenue Executive Service (Naib Tahsildars) Rules, 1944 - Rules 24, 28(3) and 39(3); Civil Services (Classification, Control and Appeal) Rules, 1930 - Rule 55(3); Constitution of India - Articles 14, 226 and 311(2)
AppellantSuresh Chandra Sharma
RespondentRajaswa Parishad, U.P. and ors.
Appellant AdvocateG.C. Ghildyal, Adv.
Respondent AdvocateStanding Counsel
DispositionPetitions dismissed
Excerpt:
service - temporary employee and permanent employee - rule 28 sub-rule 3 and rule 24 of u.p. subordinate revenue executive service (naib tahsildars) rule, 1944 - person appointed as a temporary employee by the board of revenue under rule 28 sub-rule 3 -not confirmed-continue to be temporary employee - in case of temporary employee no question of seniority or juniority arises. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a.....satish chandra, j.1. this group of writ petitions has been filed by naib tahsildars. the petitioners are aggrieved at the order of termination of their services. in one case the petitioner has been reverted to the post of collection amin.2. the petitioners were working as collection naib tehsildars on a seasonal basis. in 1955 the public service commission conducted an examination for the approval of naib tehsildars who were working on the collection side. the petitioners appeared at the examination and were approved by the public service commission. thereafter, they were appointed as naib tehsildars, collection. in november 1962 the cadre of collection naib tehsildars was merged with that of regular naib tahsildars by a government notification no. 2805 (m)/id-1263-d/59 dated november 15,.....
Judgment:

Satish Chandra, J.

1. This group of writ petitions has been filed by Naib Tahsildars. The petitioners are aggrieved at the order of termination of their services. In one case the petitioner has been reverted to the post of Collection Amin.

2. The petitioners were working as Collection Naib Tehsildars on a seasonal basis. In 1955 the Public Service Commission conducted an examination for the approval of Naib Tehsildars who were working on the Collection side. The petitioners appeared at the examination and were approved by the Public Service Commission. Thereafter, they were appointed as Naib Tehsildars, Collection. In November 1962 the cadre of Collection Naib Tehsildars was merged with that of Regular Naib Tahsildars by a Government Notification No. 2805 (M)/ID-1263-D/59 dated November 15, 1962. Since then the petitioners were working as Naib Tehsildars. Their services have been terminated by an order which says that their services are no longer required, therefore, they are terminated with immediate effect on payment of one month's pay in lieu of one month's notice.

3. The petitioners' grievance is that they were permanent Naib Tehsildars. The termination of their services amounts to dismissal in violation of Article 311(2) of the Constitution. In the alternative, it was urged that, in any events, the petitioners were probationers and the termination of their services violated Rule 55(3) of the Civil Services (Classification. Control and Appeal) Rules and on that ground the impugned order was void. It was also urged that the order was passed by way of punishment in violation of Rule 55(3) and Article 311(2) of the Constitution.

4. The respondents have pleaded that the petitioners were appointed to the temporary posts of Naib Tehsildars (Collection) in a temporary capacity. The order of appointment specifically stated that the appointment was temporary liable to termination at any time subject to one month's notice of discharge on either side, or one month's pay in lieu of notice. The petitioners were never confirmed or appointed to a permanent post. After their merger, the petitioners continued to remain Temporary Naib Tehsildars. It has been denied that the petitioners' services have been terminated by way of punishment.

5. The first question is whether the petitioners were holding a permanent post in a substantive capacity at the time when their services were terminated. The petitioners do not deny that they were initially appointed to a temporary post of Collection Naib Tehsildars and that their appointment was temporary, liable to termination on a month's notice. The petitioners' case is that initially, the entire service of Naib Tehsildars was temporary but, subsequently, a large number of posts were made permanent by 1-4-1962, 484 posts were made permanent and 339 temporary Collection Naib Tehsildars were confirmed. The petitioners were never confirmed. Simply, because a majority of posts were made permanent, will not mean that persons who were appointed in a temporary capacity would occupy posts substantively. The respondent's case is that, after 484 posts were made permanent, a large number of posts continued to remain temporary and petitioners were holding these temporary posts. This appears to be so. The Government's notification dated the 15th November 1962. by which the cadre of Collection Naib Tehsildars was merged with that of Regular Naib Tehsildars, states that the existing cadre -of the Subordinate Revenue Executive Service (Naib Tehsildars) consisted of 306 posts. It was increased by 484 posts, bringing the permanent strength of this service to 790. It, further, states that all the existing temporary posts of Collection Naib Tehsildars shall be deemed to be temporary addition to the cadre of the Regular Naib Tehsildars Service. This would clearly show that, at the time of merger, apart from 484 permanent posts of Collection Naib Tehsildars, there were in existence temporary posts of Collection Naib Tehsildars also. The petitioners, hence, cannot say that, since all the posts of Naib Tehsildars have been made permanent, they would be deemed to be holding a permanent posts. Further, the petitioners were never confirmed. They were never appointed in or against any permanent posts. Their appointment was to a temporary post and it continued as such till the date of merger.

6. By a Notification No. 1831 (1)/ IF-205T/62 dated 24th August 1963, made under Article 309 of the Constitution, the Governor amended the Subordinate Revenue Executive Service (Naib Tehsildars) Rules 1944. Rule 39 was added to these Rules. It stated:

'39. Notwithstanding anything contained elsewhere in these rules--

(1) All the permanent and temporary posts of 'Collection Naib Tehsildars' existing as on November 14. 1962. shall, with effect from November 15. 1962, be deemed to have been redesignated as 'Naib Tahsildars' and added to the permanent and temporary cadres respectively of the Service.

(2) all persons who were serving as Collection Naib Tahsildars in the State on November 14, 1962, in a substantive capacity, shall be deemed to have been appointed as 'members of the Service', as defined in Clause (g) of R. 3;

(3) persons who were serving as Collection Naib-Tabsildars in the State on November 14, 1962, in an officiating capacity or in temporary posts, shall be deemed to have been appointed as Naib Tahsildars in officiating or temporary vacancies, as the case may be, in accordance with the rules and shall be eligible for appointment as members of the service, in consultation with the Commission; and

(4) the Governor may direct that the said rules or any individual rule thereof shall not apply or shall apply with such modification as he may specify to the persons mentioned in Sub-rules (2) and (3) in respect of their recruitment on appointment to the service and other conditions of service relating thereto.'

It will, thus, be seen that on August 24, 1963, there were in existence not only permanent but temporary posts of Naib-Tehsildars also. By virtue of the merger, which became effective on 15th November 1962, all the temporary posts of Collection Naib Tahsildars became temporary posts in the cadre of Naib Tahsildars. Persons holding the temporary posts of Collection Naib Tahsildars were governed by Sub-rule (3) of Rule 39. Under it, such officiating or temporary Collection Naib Tahsildars were deemed to have been appointed as Naib Tahsildars in officiating or temporary vacancy. The petitioners, thus, would be deemed to have been appointed to the temporary posts of Naib Tahsildars. They were eligible for appointment as members of the Service in consultation with the Public Service Commission, but, admittedly, they were never appointed 'members of the service.' They continued to hold the temporary posts of Naib Tahsildars. The petitioners' case that they became permanent is without any merit.

7. In the alternative it was submitted that the petitioners would be probationers within the meaning of Rule 24 of the Subordinate Revenue Executive Service (Naib Tabsildars) Rules, 1944. Rule 24 states:--

'24. Probation-- (1) Every listed candidate on appointment in or against a substantive vacancy shall be placed on probation for a period of two years.

(2) Continuous service rendered in an officiating or temporary capacity in a post included in the cadre of the Service or on a higher post may be taken into account in computing the period of probation.'

It will be seen that Sub-rule (1) of R. 24 contemplates the placing on probation of a candidate who is appointed in or against a substantive vacancy. None of the petitioners were ever so appointed. They were appointed to a temporary vacancy and they continued to hold a temporary post. They cannot be deemed to be on probation. Hence, their case that they are probationers is unfounded.

8. Rule 28 of these Rules deals with officiating and temporary appointments. Sub-rule (3) of R. 28 provides that all vacancies lasting for more than three months shall, on the report of the Commissioner, be filled by the Board. The petitioners were appointed by the Board of Revenue. They would, in my opinion, be temporary Naib Tahsildars within the meaning of Rule 28, Rule 24 will not apply to them.

9. In this connection it was also urged that, even if the petitioners are held to be temporary employees, they were entitled to the protection of Rule 55(3) of the Civil Services (Classification. Control and Appeal) Rules. Rule 55 lays down the procedure to be followed for dismissing, removing or reducing in rank a public servant. Sub-rule (3) of Rule 55 relates to a probationer or a temporary Government servant. It reads as follows: '(3) This rule shall also not apply' where it is proposed to terminate the employment of either a temporary Government servant or of a probationer whether during or at the end of the period of probation. In such cases a simple notice of termination, which in the case of a temporary Government servant, must conform to the conditions of his service, will be sufficient.' Sub-rule (3) of Rule 55 was substituted in the present form by Notification No. 2174/11-B-204-56 dated August 4, 1961. Prior to the amendment Sub-rule (3) required that order for the dismissal, removal or reduction in rank of a probationer or of a temporary Government servant, on the ground, inter alia, that he was unsuitable for the service, could be passed provided he was given a notice of the charge and his explanation was considered. Learned counsel relied upon that old Sub-rule (3) but, as seen above, that rule was repealed and re-enacted on August 4. 1961. The new Sub-rule (3) would apply to the impugned order which was passed in 1964. Under Sub-rule (3), as it stands, a simple notice of termination, in accordance with the conditions of his service, is alone necessary to terminate the employment of a probationer or a temporary Government servant.

10. On the 30th January 1953 the Government issued Notification No. 230/II-B-1953 under the proviso to Article 309 of the Constitution for regulating the termination of the services of a temporary Government servant. It provided that the services of a Government servant in temporary service shall be liable to termination at any time by a notice in writing. The notice shall be of one month or one month's pay in lieu of notice. This was the condition of service of temporary Government servants. The impugned notice of termination gives the petitioners a month's pay in lieu of notice. Hence, it conforms with the conditions of service of temporary Government servants. The impugned order, instead of violating, complies with Sub-rule (3) of Rule 55.

11. Sub-rule (1) provides that no order of dismissal, removal or reduction in rank shall be passed on a person who is a member of a Civil Service unless the prescribed procedure is followed. This rule will not apply to a temporary Government servant or a probationer, because Sub-rule (3) of Rule 55 makes a special provision for such employees. Further. Rule 49 of these Rules prescribes various punishments which can be imposed upon Government servants. The Explanation says that the discharge

'(a) of a person appointed on probation during or at the end of the period of probation, in accordance with the terms of the appointment and the rules governing the probationary service, or

(b) of a person appointed otherwise than under contract to hold a temporary appointment on the expiration of the period of the appointment, or

(c) of a person engaged under contract, in accordance with the terms of his contract,

does not amount to removal or dismissal within the meaning of this Rule or Rule 55.'

There is a note appended to this Explanation:

'Note-- The general rule regarding the termination of services of a temporary Government servant is contained in notification No: 0230/II-B-1953, dated January 30,' 1953, which is given in Appendix II.'

It will, thus, be seen that the discharge of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal. The termination of services of such a person is governed by the Notification dated 30th January 1953. The petitioners were engaged under a contract which specifically provided that their services were temporary liable to termination on a month's notice. The petitioners' discharge or termination simpliciter would not be dismissal or removal within the meaning of Rule 49 or Rule 55. So, even if Rule 55(1) were held to be applicable to probationers or temporary Government servants, yet their discharge or simple termination of service would not be dismissal or removal within the meaning of Rule 55(1),

12. In Civil Misc. Writ No. 1507 of 1964, (Birendra Bahadur Singh v. The Board of Revenue and others), Mr. C.S.P. Singh, learned counsel for the petitioner raised an additional point. He urged that the petitioner's services were terminated by way of punishment and as such the order of termination would tantamount to dismissal from service. It has been stated in this writ petition that in 1962 the authorities gave the petitioner a warning. The District Magistrate, Varanasi, served on the petitioner on 27th December 1963, a charge-sheet. The petitioner furnished an explanation, but the authorities did not hold any enquiry at which the petitioner may have had an opportunity to prove his case, or, to show cause against the punishment which the authorities were contemplating to inflict on the petitioner. It has also been stated that in 1962-63 the Sub-Divisional Officer, Ballia, gave the petitioner an adverse entry in his character roll. The petitioner's case is that because of these events and entries, the petitioner's services have been terminated. The respondents have alleged that a charge-sheet was served on the petitioner. The petitioner asked for the extension of time to furnish his explanation, but he did not file any explanation. The alleged explanation dated 30-1-1964 was never received by the Collector. No enquiry was held. There was, hence, no question of giving the petitioner an opportunity of hearing. The recording of adverse entry has been admitted. But, it has been stated that the adverse entry was given with regard to the petitioner's work and conduct in the ordinary course. The respondents have alleged that the petitioner was a temporary employee and his services have been terminated by giving him one month's pay in accordance with the conditions of his service.

13. On these facts, learned counsel for the petitioner, urged that the order would be deemed, in law, to have been passed by way of punishment so as to amount to dismissal or removal from service. In my opinion, the submission is misconceived.

14. In Jagdish Mitter v. Union of India, AIR 1964 SC 449 it was held that 'temporary servants or probationers are generally discharged because they are not found to be competent or suitable for the post they hold. In other words, if a temporary servant or a probationer is found to be satisfactory in his work, efficient, and otherwise eligible, it is unlikely that his services would be terminated, and so, before discharging a temporary servant, the authority may have to examine the question about the suitability of the said servant to be continued, and acting bona fide in that behalf, the authority may also give a chance to the servant to explain, if any complaints are made against him, or his competence or suitability is disputed on some grounds arising from the discharge of his work; but such an enquiry would be held only for the purpose of deciding whether the temporary servant should be continued or not. There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not to punish the temporary servant but just to decide whether he deserves to be continued in service or not. If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule. 'It was then observed that,' it must be held that the termination of services of the temporary servant which in form and in substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued for some alleged misconduct.'

15. It was also held that, 'in some cases, the authority may choose to exercise its power to dismiss a temporary servant and that would necessitate a formal departmental enquiry in that behalf. If such a formal enquiry is held and an order terminating the services of a temporary servant is passed as a result of the finding recorded in the said enquiry, prima facie, the termination would amount to the dismissal, 'but, merely because' in resisting the plea of mala fides, the authority indicates in a Court of law certain facts justifying the the order of discharge and these facts relate to the 'misconduct, negligence or inefficiency of the temporary servant, it cannot logically be said that in view of the plea thus made by the authority long after the discharge, it should be held that the order of discharge was the result of the considerations set out in the plea. What the Court will have to examine in each case would be, having regard to the material facts existing upto the time of discharge, is the order of discharge in substance one of dismissal.'

16. It would, thus, be seen that the existence of some charges which may have impelled the authority to terminate the services of a temporary employee do not make a simple order of termination one of dismissal.

17. In Har Kirat Singh Walia v. Oil and Natural Gas Commission, Civil Misc. Writ No. 2622 of 1968, D/- 16-5-1969 (All). I, after a review of the various decisions of the Supreme Court, laid down the following propositions:

'(1) the Courts are to see whether the termination is founded on the right to terminate or is founded on the power to impose the punishment or removal or dismissal. For this, the form of the order is not decisive.

(2) The existence of allegations of misconduct, inefficiency etc. may constitute the background or the motive impelling the termination, but this fact is in every case wholly irrelevant for determining the legal character of the termination.

(3) The termination can be held to be founded on the power of imposing the punishment of removal or dismissal only if :--

(a) the order states that the servant is removed or dismissed from service;

(b) the order states something which amounts to attaching a stigma on his conduct or character;

(c) where the order is innocuous on its face, it is the direct result of the findings recorded at a formal enquiry held under the service rules prescribed for removal or dismissal;

(d) the order imposes or entails consequences, like forfeiture of some present and certain benefit already accrued to or earned by the officer, which under the service rules ensue on dismissal or removal.'

In the present case the impugned order is innocuous on its face. It does not state anything attaching a stigma on the character of the petitioners. It is admitted that no formal departmental enquiry into a set of charges was held against the petitioners. The order hence cannot be said to have been passed because of findings of misconduct. The order of termination cannot, in law, be deemed to be removal or dismissal so as to require compliance with Article 311(2) of the Constitution read with Rule 55.

18. In Civil Misc. Writ No. 1258 of 1964 (All), Sri Ram Prakash Awasthi v. The State of Uttar Pradesh an additional point was taken. It was stated that the petitioner was deprived of the protection guaranteed under Arts. 14 and 16 of the Constitution. The submission was based upon the allegations stated in paragraph 22 of the writ petition. It was pleaded that the petitioner was permitted to appear at the Departmental Examination to be held in 1964, but, just on the date of the Examination the petitioner was informed that he would not be allowed to appear at the Examination. It has been alleged that, two temporary Naib Tahsildars, namely, R. P. Sagar and Sri Suresh Chandra Sharma, were in the same position as the petitioner, but, they were allowed to appear at the Departmental Test. The respondents have stated that the petitioner applied for appearing at the Departmental Examination. The Convener of the Examinations granted the petitioner the requisite permission but he sent to the Board of Revenue a list of persons who had applied for the permission. The Board of Revenue scrutinised the applications and, as a result of the scrutiny, the petitioner along with certain other persons, were not found eligible to appear at the Examination. It appears that the Government had laid down five years' service as Collection Naib Tahsildars as qualification for appearing at the Departmental Examination. It has been denied that the authorities practised any discrimination against the petitioner. It has been alleged that Sri R. P. Sagar was also not allowed to appear at the Departmental Examination. Sri Suresh Chandra Sharma, the other person mentioned in the petition, was allowed to appear at the Examination by mistake, because there were two Naib Tahsildars of the same name. Sri Suresh Chandra Sharma was a temporary Naib Tahsildar. His services were also terminated. He did not continue by appearing at the Departmental Examination. In view of these facts, it cannot possibly be held that the respondents practised discrimination against the petitioner.

19. In paragraph 23 of the writ petition it has been stated that the principle of first come and last to go was not followed. There were 145 Naib Tahsildars junior to the petitioner. The petitioner has put in clean unblemished service as Naib Tahsildar for a period of ten years. It has also been urged that nineteen Naib Tahsildars had recently been appointed by a Notification dated 5th September 1963. These persons are very junior and the termination of the petitioner's services was, in the circumstances, discriminatory.

20. The respondents have repelled this contention. It has been alleged that the service record of the petitioner was neither clean nor unblemished. The petitioner was a temporary employee. There was no question of seniority or juniority with others. The petitioner has not given the names of 145 persons whom he claims were junior to him. There is no allegation that the service record of these persons was of the same kind as the petitioner's. It cannot hence be said that the petitioner was in the same situation as those persons. According to the respondents, the petitioner's service record was not good. In this situation. Arts. 14 and 16 will not be attracted.

21. The respondents have clarified that nineteen persons have been appointed in September 1963 as a result of competitive Examination held by the Public Service Commission for direct recruitment. These appointments have been made in substantive vacancies, in accordance with the Service Rules. The petitioner, who was a temporary hand, cannot claim any parity with such direct recruits. No question of any discrimination arises.

22. Shahabuddin Siddiqi, the petitioner in Civil Misc. Writ No. 4144 of 1964 (All), (Shahabuddin Siddiqui v. The State of Uttar Pradesh), has been reverted to his substantive post of Collection Amin. Learned counsel appearing for him raised an additional submission. This was based upon paragraph 25 of the counter affidavit. There it was stated that it was decided in consultation with the Public Service Commission that all erstwhile officiating or temporary Collection Naib Tahsildars who had not worked for at least five years as Collection Naib Tahsildar/Naib Tahsildar on 1st January 1963 should be reverted to their substantive posts while those who had put in five years' service as aforesaid on 1-1-1963 might be considered, for appointment as members of the service after they had appeared in the examination to be held by the Public Service Commission. Those who had not so completed 5 years were either reverted or their services were terminated. It was urged that the Governor had no authority to lay down such a qualification of five years' service. Rule 39 (3) of the Subordinate Revenue Executive Service (Naib Tahsildars) Rules, 1944 contemplated that the temporary or officiating Collection Naib Tahsildars 'shall be eligible for appointment as members of the service in consultation with the Commission. Sub-rule (3) of Rule 39 made the petitioners eligible for appointment as members of the service. The only condition was 'consultation with the Commission'. It was urged that the Governor had no power to impose an additional condition or qualification by laying down that only those temporary Naib Tahsildars who had put in five years' service as Collection or Regular Naib Tahsildar on 1-1-1963 would alone be eligible.

23. The submission cannot be accepted for several reasons. No such plea or point has been taken in the writ petition. If the petitioners were serious in pressing this point they should have amended their writ petition. They should have filed a copy of the Notification by which five years' service qualification was prescribed. They should have taken the point expressly so that the respondents may have had an opportunity to explain the reasons and the background for laying down this qualification. The petitioners cannot legitimately pick out a sentence from the counter-affidavit and make a point out of it.

24. Further, Sub-rule (3) of Rule 39 only says that the temporary or officiating Naib Tahsildars 'shall be eligible for appointment as members of the service.' It does not give the procedure which the Government may follow in order to appoint them as members of the service. The details of the manner and method of such appointment have been left to the Government. The counter affidavit says that this policy decision of prescribing five years' service as a qualification was decided by the Government in consultation with the Commission. Sub-rule (3) of Rule 39 says that the temporary Naib Tahsildars 'shall be eligible for appointment as members of the service in consultation with the Commission.' The Government could decide the principles to be followed in making appointments in consultation with the Commission. This is what has been done.

25. Last but not the least, Sub-rule (4) of Rule 39 would also be applicable. Under it the Governor can direct that any of these Rules shall not apply or shall apply with such modifications as he may specify, to the persons mentioned in Sub-rules (2) and (3) of Rule 39 in respect of their recruitment to the service and other conditions of service. A temporary Naib Tahsildar was covered by Sub-rule (3), and hence would be governed by Sub-rule (4). The Governor had the power to modify even Sub-rule (3) for the appointment of the Naib Tahsildars. Even if the Governor's policy determination to lay down five years' service as a qualification were held to be at variance with Sub-rule (3) of Rule 39, it would nevertheless be valid, and, would override Sub-rule (3) of 'Rule 39, by virtue of Sub-rule (4) thereof.

26. The petitioners were temporary employees holding the post expressly on the condition that their services were liable to termination at any time on one month's notice. They had no right to this post. Sub-rule (3) of Rule 39 does not confer a vested right on the temporary Naib Tahsildar to be appointed as members of the service. It only makes them eligible. It did not expressly or by any implication take away the petitioners' temporary capacity or the respondents' right to terminate the temporary appointment according to the terms of the contract.

27. Learned counsel for the petitioners relied on the decision of a learned Single Judge of this Court in Civil Misc. Writ No. 2619 of 1964 (All). Chandrama Prasad v. The Board of Revenue decided on 30-3-1967. In that case an order of reversion of temporary Collection Naib Tahsildar was quashed. After giving the facts and the rival contentions of the parties, learned Single Judge observed, 'with effect from the date of merger, i.e. 15th November 1962, the petitioner who was serving as Collection Naib Tahsildar on 13th November 1962 would be deemed to have become a regular Naib Tahsildar having no connection with the post of Amin and as such all proceedings leading to reversion order are null and void and are liable to be quashed. Even if the petitioner could be reverted he must have been given an opportunity of showing cause against his reversion. This was not done. It was against the principles of natural justice.' On this ground the order of reversion was quashed.

28. This decision was taken up in appeal but the Special Appeal No. 432 of 1967 (All), Board of Revenue v. Chandrama Prasad was dismissed on the 19th March 1968 by a Bench of this Court by an order stating, 'No one appears for the appellants in this case, although we have waited for nearly half an hour. The appeal is accordingly dismissed in' default.' It cannot hence be said that a Bench of this Court approved the decision of the learned Single Judge.

29. The learned Single Judge did not go into the question whether the petitioner was holding a temporary post of Naib Tahsildar. It may be that the learned Single Judge was under the impression that the petitioner was holding the post of Naib Tahsildar in a substantive capacity. That is why he has observed that he was a regular Naib Tahsildar having no connection with the post of Amin. In the present case, Shahabuddin Siddiqui, who has been reverted, was holding the post of Collection Amin substantively. He had a lien on that post. He was only officiating as a Naib Tahsildar. He has been reverted to his substantive post. It cannot be said that Shahbuddin Siddiqui had no connection with the post of Amin. On this ground the decision in Chandrama Prasad's case would be distinguishable.

30. Further, in my opinion, the learned single Judge did not lay down the correct law. An opportunity of showing cause against an order of reversion is necessary both under Article 311(2) of the Constitution as well as Rule 55 where the reversion is by way of punishment. In other words, where the reversion amounts in law, to reduction in rank. When a person holds a higher post in an officiating or temporary capacity, he has no right to it. An officiating or temporary promotion implies that the person would continue to hold that post only so long as the administrative exigency requires him or so long the appointing authority may think it beneficial to let him continue, otherwise he is liable to be sent back to his substantive post at any time. Such an innocuous order of reversion does not require any opportunity to show cause, because it does not affect any vested right of the servant. As seen above, in the Supreme Court decision in Jagdish Mitter's case and other cases, it has been settled that even if an informal enquiry is held by the appointing authority to see whether a public servant is suitable to continue in his officiating or temporary post, it is not an enquiry of penal nature, and does not make an order of reversion tantamount to reduction in rank.

31. In State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 the Supreme Court has laid down that principles of natural justice are attracted where an administrative action is based upon the determination of objective facts and adversely affects the vested right of an individual. If the order does not affect any vested right the principles of natural justice are not attracted. In view of this decision of the Supreme Court, the view taken by the learned Single Judge in Chandrama Prasad's case cannot be upheld.

32. Learned counsel for the petitioner relied on State of Uttar Pradesh v. Ansar Husain. AIR 1964 All 346. It was held in that case that a person who by the order of appointment was placed on trial and observation for two years and thereafter his case for confirmation was to be considered, would be a probationer as defined in Rule 14(4) of the U. P. Subsidiary Rules and as such would be entitled to protection of Sub-rule (3) of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. The case has no application to the facts of the present case. There is no such order placing the petitioners on probation for trial and observation for a certain period of time. As seen above, the petitioners were appointed to a temporary post in a temporary capacity. They were not probationers. Rule 55(3), as it now stands, does not provide for any particular procedure for terminating the services of a probationer.

33. In the result, none of the points urged in support of these petitions hat, succeeded. The petitions fail and are accordingly dismissed with costs.


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