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K.B. Sharma S/O Sri Ram Swarup Vs. Transport Commissioner, U.P., Lucknow and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 71 of 1966
Judge
Reported inAIR1968All276; (1969)IILLJ594All
ActsConstitution of India - Articles 226, 311 and 311(2)
AppellantK.B. Sharma S/O Sri Ram Swarup
RespondentTransport Commissioner, U.P., Lucknow and anr.
Appellant AdvocateHarish Chandra and ;A.S. Misra, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
.....of india - person does not acquire any special status by virtue of confirmation - order of confirmation passed under some mistake - when revised, reduced in rank - loss in seniority is not reduction in rank - not maintainable under article 311. - - --promotion of persons possessing exceptional brilliance in the case of services to which the principle of seniority with the rejection of unfit is applicable :the procedure that will be followed in selecting the candidates possessing exceptional brilliance under this system shall be the same that will be followed in making selection under item (ii) above. 4. having given my best consideration to the points urged by the learned counsel for the petitioner, i have come to the conclusion that his contention is without any substance in..........the fundamental rules for the contention that the lien acquired by the petitioner on the permanent post of head clerk as a result of the order, annexure 4, can in no circumstances be terminated lastly he places reliance on the observation made in paragraphs 12 and 28 of the case of parshotam lal dhingra v union of india, air 1958 sc 36. the argument is that as a result of his confirmation the petitioner acquired a permanent lien on the post of the head clerk and as such he could not be deconfirmed subsequently so as to result in a variation of the date of his confirmation otherwise than by following the procedure laid down under article 311 of the constitution.4. having given my best consideration to the points urged by the learned counsel for the petitioner, i have come to the.....
Judgment:
ORDER

Lakshmi Prasad, J.

1. This is a petition under Article 226 of the Constitution. The petitioner was a Stenographer in the office of the Transport Commissioner. By an orderdated March, 31, 1953, he was allowed to officiate as Head Clerk superseding some of his seniors. Uma Prasad Saxena, H. C. Pande II and D. D. Joshi were already then officiating as Head Clerks. In the year 1961 there fell a permanent vacancy in the office of the Head Clerk. Then arose the question as to which of the officiating Head Clerks was to be confirmed. After taking into consideration the relative, merits of all the four namely the petitioner and the above named three officiating Head Clerks, it was decided on 15-4-1961 that the petitioner be allowed to be confirmed with effect from 9-5-1960 superseding his above named three seniors Sarvasri Uma Prasad Saxena. H. C. Pande II and D. D. Joshi. It has been stated by the learned counsel for the petitioner that subsequent to the confirmation of the petitioner his above named three seniors were also confirmed as Head Clerks. It appears that sometimes subsequent to their confirmation they moved a representation seeking the restoration of their respective seniority. That representation wa,s ultimately allowed by an order dated September 11, 1964, refixing the seniority of all the four. A copy of that order is annexure 10 to the petition According to this order Uma Prasad Saxena is to be deemed to have been confirmed with effect from 9-5-1960. S. C. Pande II with effect from 1-1-1962, D. D. Joshi with effect from 1-4-1962 and the petitioner with effect from 11-6-1962. The present petition is filed for the quashing of the aforesaid order dated September 11, 1964, annexure 10, mainly on the ground that it virtually amounts to reduction of rank so far as the petitioner is concerned and as such it, having been passed without affording any opportunity to the petitioner, is in contravention of requirement of Article 311 of the Constitution and deserves to be struck down. Thus the prayer in the petition is that the order, annexure 10, be quashed.

2. The petition is opposed by the opposite parties namely the Transport Commissioner and the State of Uttar Pradesh. A counter affidavit has been filed on their behalf wherein it is stated in paragraph 7 that the petitioner was the junior-most but still the Deputy Transport Commissioner (Administration) ordered his confirmation superseding the seniors on grounds of comparative merits without declaring the other senior Head Clerks unfit. Annexure A to the counter affidavit is relied upon to show the criteria to be followed in making promotions. Clause (i) of paragraph 3 of annexure A runs as below:--

'Seniority subject to the rejection of the unfit:-- This system of promotion shall be applicable in the case of promotion from one lower grade or post of higher grade or post within the same service or from one subordinate service to another subordinate service.'

Clause (iii) of the same paragraph says:--

'Promotion of persons possessing exceptional brilliance in the case of services to which the principle of seniority with the rejection of unfit is applicable :-- The procedure that will be followed in selecting the candidates possessing exceptional brilliance under this system shall be the same that will be followed in making selection under item (ii) above.'

Clause (ii) reads as below .-

'Rigorous selection on merit from whole field of eligibility This should be applicable in case of promotions from certain subordinate services to State Services such as the promotion of Tabasildars to the posts of Deputy Collector, etc This principle may also be applied in cases of purely selection posts such as Members of the Board of Revenue, Heads of Departments, etc. where merit within the whole field of eligibility should he the sole criterion for holding such posts.'

The case made out in the counter affidavit appears to be that since the earlier order confirming the petitioner superseding his seniors did not specifically say that hii seniors were unfit for confirmation and deserved to be rejected, it was open to the competent authority to restore their seniority subsequent to their confirmation.

3. I have heard learned counsel for the parties. The main contention raised by the learned counsel for the petitioner is that in view of the order dated 20-4-1961. annexure 4, confirming the petitioner as a Head Clerk with effect from 9-5-1960 he acquired 'lien' to' that post within the meaning of that expression as defined in Rule 9 (13) of the Fundamental Rules. He has drawn my attention to Rule 12-A of the Fundamental Rules which provides that a Government servant, on substantive appointment to a permanent post, acquires a lien on that post and ceases to hold anv lien previously acquired on any other post. He thus maintains that as a result of the confirmation order passed in the year 1961 the petitioner ceased to have lien over any other post and acquired permanent lien in the post of the Head Clerk He further places reliance on Clause (a) of Rule 14-A of the Fundamental Rules for the contention that the lien acquired by the petitioner on the permanent post of Head Clerk as a result of the order, annexure 4, can in no circumstances be terminated Lastly he places reliance on the observation made in paragraphs 12 and 28 of the case of Parshotam Lal Dhingra v Union of India, AIR 1958 SC 36. The argument is that as a result of his confirmation the petitioner acquired a permanent lien on the post of the Head Clerk and as such he could not be deconfirmed subsequently so as to result in a variation of the date of his confirmation otherwise than by following the procedure laid down under Article 311 of the Constitution.

4. Having given my best consideration to the points urged by the learned counsel for the petitioner, I have come to the conclusion that his contention is without any substance In my view the observations made by their Lordships of the Supreme Court in paragraphs 12 and 23 of the report referred to above, have no application whatsoever to the facts of the case in hand. These apply where an employee is deprived of his status conferred on him by virtue of a certain order of confirmation independently of that order of confirmation. Here we are concerned with a case where the order of confirmation by which the petitioner claims to have acquired a certain status has itself been vacated. The simple question which thus arises is if or not an order of confirmation once passed is open to revision subsequently on any ground. An order of confirmation is an administrative order and there appears to be nothing In law to prevent it being revised if the circumstances ,in which it came to be passed warrant Its revision. As already stated the petitioner was confirmed superseding his three seniors who were working as officiating Head Clerks since before his officiation on a similar post. Having regard to the criteria laid down in annexure A to be followed in cases of such promotions, it is obvious that a senior, unless found unfit, must come first in the matter of promotion as against his junior. On the application of the petitioner the note resulting in the order, annexure 4, has been placed before me by the opposite parties. It is dated 15-4-1961. It contains the proposal put forthwith by the Personal Assistant to the Transport Commissioner. Same is accepted by the Deputy Transport Commissioner (Administration) by his order of even date and approved by the Transport Commissioner by his order of the same date. After discussing the case of the petitioner and his three eniors the proposal says:

'It will be seen from the above that Sri Sharma is easily the best among the above four Head Clerks and I have no hesitation in regarding him as the best and the ablest of the Head Clerks at present holding these posts in this office.'

Then an attempt is made in subsequent paragraphs to give a picture of the working of the petitioner with a view to show that he had a meritorious record. Thereafter it is said.

'Sri Sharma, as has been shown above, is the seniormost in age among all the 'our persons mentioned and he has only a few years more to serve before he retires. It would, therefore, be a fitting recognition of his past service of about two decades and half if he is rewarded by his confirmation in the post at which he has given his best and in which he has done so well. The other three persons have yet to serve for many more years and confirmation of Sri Sharmawould not affect them much. They all will soon have their chances of being confirmed.'

Then comes the order of the Deputy Transport Commissioner in the following words; --

'Sri K. B. Sharma is the ablest officiating Head Clerk in our office. In view of his outstanding merit, I have not the least hesitation in accepting the proposal although it may mean supersession of certain officiating Head Clerks who are senior to him. Sri K. B. Sharma is confirmed as Head Clerk with effect from 9-5-1960.

5. In view of the circumstances as appear from what is indicated above I am not prepared to accept the contention that the petitioner was confirmed superseding his seniors because his case was found to fall under item (iii) of paragraph 3 of annexure A. On a perusal of the entire order dated 15-4-1961 I am of opinion that the petitioner was then confirmed because on a comparison of the relative merits of all the four officiating Head Clerks he was found to be the best. That fact would not bring the case within item (iii) of paragraph 3. Only that case falls within item (iii) of paragraph 3 where the person selected for promotion is found to possess exceptional brilliance. There is neither any such finding in the order dated 15-4-1961 nor any material provided in it on which such a finding could be given. It is one thing to say that relatively speaking the petitioner is the best of all the four. That does not amount to saying that the petitioner is exceptionally brilliant so as to entitle him to promotion in preference to his seniors whose record is satisfactory and are otherwise eligible for confirmation. There is not a word in the order of the Deputy Transport Commissioner to indicate that he allowed the petitioner to be confirmed in preference to his seniors because he found him to be exceptionally brilliant. All that he says is that the petitioner is the ablest of all the officiating Head Clerks and deserves to be confirmed in preference to his seniors in view of his outstanding merits. This does not. in my opinion, mean that the petitioner is exceptionally brilliant In fact, as already stated above, there is no material provided in the proposal of the Personal Assistant on the basis of which it could be found that the petitioner possessed exceptional brilliance. As such the present case would not fall under item (iii) of paragraph 3 of annexure A but would necessarily be governed by item (i) of paragraph 3 of the said annexure So the petitioner could be allowed to be confirmed superseding his seniors only if the competent authority had found that his seniors were unfit. There is not a word in the order dated 15-4-1961 to say that his seniors were unfit for promotion, it is in these circumstances that on a representation made by the seniors of the petitioners subsequent to their confirmation for the restoration of their respective seniority that the thenTransport Commissioner passed the impugned order, annexure 10, restoring their respective seniority. In my view no exception can be taken to the impugned order passed in the circumstances indicated above. As already said Article 311 of the Constitution has no application whatsoever to the facts of the present case. An order of confirmation if passed under some mistake can certainly be revised with a view to correct the mistake. Such a revision, even if it may affect the person confirmed earlier, can by no means attract Article 311 of the Constitution. In the instant case it is difficult to see as to how it can be said that the impugned order has resulted in reduction of rank so far as the petitioner is concerned. Having regard to the fact of the case, it is clear that there has been, in fact, no order of deconfirmation either. What actually happened was that after the confirmation of the seniors of the petitioner subsequent to the petitioner's confirmation, it was decided by the competent authority that the petitioner's confirmation superseding his seniors was not in accordance with the criteria laid down in paragraph 3 of annexure A and as such he passed an order restoring their respective seniority which they held as officiating Head Clerks prior to their confirmation. That fact, though it has certainly resulted in lowering the position of the petitioner in the seniority list, can by no means be taken to have resulted in a reduction of his rank. That is another ground why Article 311 can have no application whatsoever to the present case. It is pertinent to notice that it is not unoften that an employee not found fit for confirmation at a particular moment with the result that his junior is allowed to be confirmed earlier than he but on his subsequent confirmation, is allowed his old seniority, vis-a-vis his junior confirmed earlier. So there appears to be nothing bad or contrary to law in the impugned order, annexure 10.

6. There is no substance in the contention that finality must attach to an order once passed and even if it is open to revision it can be revised only within some reasonable period after it has been passed. No such general proposition can be laid down Each case must depend on peculiar facts of its own. There are no rules laving down that a representation against one's supersession must be made within a certain period. If the seniors of the petitioner waited till they were confirmed for making a representation for the restoration of their respective seniority, no just exception can be taken. Naturally they would have had hardly any case for claiming seniority unless they were actually confirmed. It is only after their confirmation that they could successfully make out that there was no good reason for their supersession by their junior, namely the petitioner. So no exception can be taken to the impugned order that it came to be passed a few years afterby the successor-in-office of the authority which passed the earlier order of confirmation. If the authority passing the impugned order, annexure 10, on the representation of the seniors of the petitioner found that the order by which the petitioner was confirmed superseding his seniors was not justified on the facts mentioned in that order itself, in view of the criteria provided in annexure A for promotions, then he had no option but to revise that earlier order in order to give the seniors of the petitioner what rightfully belonged to them. I accordingly see no good reason to interfere with the impugned order, annexure 10.

7. Before I may take leave of the matter I may mention that the petition is alsobad for failure to implead the three officialswho are directly affected by the prayer asked for by the petitioner It is on their representation that the order, annexure 10came to be passed restoring their respectiveseniority and in case that order is to bequashed as asked for by the petitioner, it isonly too obvious that they would be thepersons most affected in the matter. In myview the omission on the part of the petitioner to implead them is fatal to his case.

In the end the petition is dismissed withcosts.


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