Skip to content


Shambhoo Ji Srivastava Vs. State of Uttar Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2997 of 1956
Judge
Reported inAIR1958All656; (1958)IILLJ686All
ActsConstitution of India - Article 311; Uttar Pradesh Fundamental Rules - Rules 12 and 13
AppellantShambhoo Ji Srivastava
RespondentState of Uttar Pradesh and anr.
Appellant AdvocateS.N. Dwivedi, ;K.K. Bajpai and ;P.N. Bakshi, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
service - constitution - article 311 of constitution of india - reduction in rank - temporarily - not amounts to punishment. - - ' rule 12 (b) clearly shows that the petitioner could not be substantively appointed both on his original post in the collectorate as also on the post of panchayat inspector. rule 11 of the rules mentioned above runs as follows :11. unless in any case it be otherwise distinctly provided, the whole time of a government servant is at the disposal of the government and he may be employed in any manner required by proper authority without claim for additional remuneration whether the services required of him are such as would ordinarily be remunerated from the revenues of the province or from a local fund or from the revenues of an indian state......a permanent em-ployee in the collectorate at orai. a selection took place for appointment to the post of panchayat inspector, the petitioner was selected for that post and was appointed as the panchayat inspector, orai on 10-6-1949. his case is that after his appointment as panchayat inspector he was anxious to improve his educational qualifications and therefore obtained permission of the district magistrate of orai for joining b. a. classes in d. v. college at orai.on 2-12-1953 the joint director of panchayat raj department, u. p. lucknow served upon the petitioner a charge-sheet containing seven charges and asked him to explain why he should not be properly punished. the petitioner's case is that in substance there was only one charge and the so-called other six charges were only.....
Judgment:
ORDER

J. Sahai, J.

1. The petitioner was a permanent em-ployee in the Collectorate at Orai. A selection took place for appointment to the post of Panchayat Inspector, The petitioner was selected for that post and was appointed as the Panchayat Inspector, Orai on 10-6-1949. His case is that after his appointment as Panchayat Inspector he was anxious to improve his educational qualifications and therefore obtained permission of the District Magistrate of Orai for joining B. A. Classes in D. V. College at Orai.

On 2-12-1953 the Joint Director of Panchayat Raj Department, U. P. Lucknow served upon the petitioner a charge-sheet containing seven charges and asked him to explain why he should not be properly punished. The petitioner's case is that in substance there was only one charge and the so-called other six charges were only the particulars of this charge, the charge being that the petitioner had drawn false travelling allowances on dates when he was actually present in the College. The dates in question were 29-8-1951, 29-11-1951, 30-11-1951, 7/3/1952, 24/3/, 1952, 29-3-1952 and 11-2-1953.

The petitioner submitted an explanation through the District Magistrate Jalaun on 26-12-1953 wherein he denied the charges and submitted that he was shown to be present in the College on proxy or mistaken marking of attendance. The petitioner's case is that no enquiry was held against him and alter considering his explanation the respondent No. 2 by his order dated 19-5-54 removed him from the post of Panchayat Inspector. According to the petitioner no opportunity was given to him for showing cause why he should not be removed from service.

The petitioner preferred an appeal to the respondent No. 1, the State of Uttar Pradesh. In the meantime he joined his post in the Collectorate at Orai. The State Government set aside the order removing the petit oner from the post ot Panchayat Inspector but ordered that he should be reverted to his permanent post in the Collectorate. The order of the State Government is in the followingterms :

'With reference to the correspondence ending with your letter No. 5/Sha/773/55 : 811/49, dated 17-9-1955, I am directed to say that since Sri Sham-bhoo Ji Srivastava was permanent employee of the Jalaun Collectorate and he held a lien on his per-manent post in the Collectorate whole he worked against a temporary post of Panchayat Inspector, the order of removal passed against him by you was ultra vires. The Governor is, therefore, pleased to order that the order of removal passed against him should be modified into that of reversion.'

On 10-5-56 the petitioner sent an application to respondent No. 2 requesting him to furnish him a certified copy of the appellate order of the Government. On 15-6-1956 the petitioner was informed by the Additional Assistant Director, Panchayat Raj, Lucknow that he should apply to the Government for a certified copy which the petitioner did on .21-6-1956. On 24-7-1956 the Officer-in-charge Collectorate Orai handed over a copy of the appellate order of the Government to the petitioner. There-after the present writ petition was filed on 3-10-1956.

2. The petitioner's complaint is that the order of the State Government amounts to the petitioner's reduction in rank. He has made an averment that, his pay as a Panchayat Inspector was Rs. 144/- per month whereas on reversion to the Collectorate he is drawing Rs. 110/- per month only. There is a further averment that the post of the Panchayat Inspector is an executive post while the post of the clerk in the Collectorate is only a ministerial post.

Whether or not the petitioner has been reduced in rank would depend upon the fact whether the petitioner had a right to continue on the post of the Panchayat Inspector. The Supreme Court in the case of P. L. Dhingra v. Union of India, AIR 1958 Section C. 36 (A) while expressing opinion as to what would amount to a reduction in rank observed as follows :

'A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government Servant has right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment.

But the mere fact that the servant has no title to the posit or the rank and the Government has by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment, is to find out if the order for the reduction also visits the servant with any penal consequences.

Thus, if the order entails or provides for the forfeiture of his pay or allowance or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty.

The use of the expression 'terminate' or 'discharge' is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to?

If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Artcile 311 which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.'

In the present case the petitioner was only temporarily appointed to the post of a Panchayat Inspector. (See Para. 3 of the counter affidavit). Paragraph 3 of the counter affidavit also shows that his appointment as Appeal Ahalmad in the Collectorate of Orai was a permanent appointment and was in a substantive capacity. He held a lien on his post in the Collectorate and had therefore no lien on the post of Panchayat Inspector (See paragraph 8 of the counter affidavit). A Government Servant cannot acquire lien on two posts. Rule 12 of Chapter III of the U. P. Fundamental Rules given on page 15 of the Financial Hand-book, Volume II, 1941-42 Edition, runs as follows :

'12. (a) Two or more Government Servants cannot be appointed substantively to the same permanent post at the same time,

(b) A Government Servant cannot be appointed substantively except as a temporary measure to two or more permanent posts at the same time.

(c) A Government Servant cannot be appointed substantively to a post on which another Government Servant holds a lien.'

Rule 12 (b) clearly shows that the petitioner could not be substantively appointed both on his original post in the Collectorate as also on the post of Panchayat Inspector. The allegations made in the counter affidavit that his substantive appointment was that of Ahalmad Appeals in the Collectorate and not that of Panchayat Inspector and that he held a lien on his posit in the Collectorate have not beencontroverted in the rejoinder affidavit, nor is thereany allegation contrary to those allegations in theoriginal affidavit filed by the petitioner. .

It must, therefore, be held that the petitioner held substantive appointment as a Ahalmad Appeals in the Collectorate Orai and he held a lien on that; post. It must also beheld that he held no lien on the post of Panchayat Inspector which post he occupied only temporarily. In this connection the provisions of Rule 13 of Chapter III of the Fundamental Rules printed on p. 15 of the Financial Hand-book Vomme II 1941-42 Edition are relevant, That rule runs as follows :

'13. Unless his lien is suspended under Rule 14 or transferred under Rule 14-B a Government servant holding substantively a permanent post retains a Hen on that post :

(a) while performing the duties of that post;

(b) while on foreign service, or holding a temporary post, or officiating in another post;

(c) during joining time on transfer to another post; unless he is transferred substantively to a post on lower pay, in which case his lien is transferred to the new post from the date on which he is relieved of his duties in the old post;

(d) while on leave; and

(e) while under suspension.'

Therefore even though the petitioner continued to work as Panehayat Inspector his lien on his original post of Ahalmad Appeals in the Collectorate continued to exist. The mere fact that the petitioner was working on the post of the Panehayat Inspector would not confer any right on him to insist on being retained on that post, his appointment to that post being in a temporary capacity and he having acquired no lien on that post. Rule 11 of the rules mentioned above runs as follows :

'11. Unless in any case it be otherwise distinctly provided, the whole time of a Government Servant is at the disposal of the Government and he may be employed in any manner required by proper authority without claim for additional remuneration whether the services required of him are such as would ordinarily be remunerated from the revenues of the Province or from a local fund or from the revenues of an Indian State.'

This would show that the petitioner could claim no right to himself with regard to the post of Panehayat Inspector. Rule 15 of the same Rules is also relevant. It runs as follows

'15. (a) A Government Servant may be transferred from one post to another, provided that, except

(1) on account of inefficiency or misbehaviour, or

(2) on his written request. A Government Servant shall not be transferred substantively to, or, except in a case covered by Rule 49 appointed to officiate in, a post carrying less pay than the pay of the permanent post on which he holds a Hen or would hold a lien had his lien not been suspended under Rule 14.

(b) Nothing contained in Clause (a) of this Rule or in Clause (13) of Rule 9 shall operate to prevent the retransfer of a Government Servant to the post on which he would hold a lien, had it not been suspended in accordance with the provisions o Clause (a) of Rule 14.'

This rule shows that a Government Servant can be transferred from one post to another and can be re-transferred to his original post without his having acquired any right to the post to which he was transferred. He cannot make a complaint of being retransferred to his original post That be ng so, to my mind, the petitioner does not fulfil the first test laid down by the Supreme Court in the case of P. L. Dhingra v. The Union of India (A), i.e. whether 'the servant had a right to the post or the rank.' To my mind the petitioner had no right to the post or the rank of the Panehayat Inspector.

3. In my opinion even the second test laid down by their Lordships of the Supreme Court in the case of P. L. Dhingra v. The Union of India (A) has not been fulfilled in the present case, the test being 'whether he has been visited with evil consequences of the kind hereinbefore referred to.' Those evil consequences are the forfeiture of his pay or allowance or the loss of seniority in the-substantive rank or stoppage or postponement o his future chances of promotion,

In my opinion none of these evil consequences have visited the petitioner. There is no forfeiture of his pay or allowance; nor his seniority in his substantive rank of Abalmad Appeals in the Collectorate has been affected. The chances of his future promotion have not been postponed or stopped. In the grade in which he is, he would be entitled to go to the maximum.

The order of reversion cannot operate to his not getting the maximum in the grade in which he is in the Collectorate. To my mind the words 'stoppage or postponement of future chances of Promotion' as used by their Lordships of the Supreme Court mean the stoppage or postponement of future chances of promotion in the grade and in the service in which he is in a substantive capacity. It does not mean the stoppage or postponement of his future employment in any other department on transfer because he has got no right to claim a transfer in another department or to occupy a post in another service. Unless it is shown that the petitioner's prospects in his, own service and in his own grade are blasted or retarded the petitioner cannot succeed in complaining that his future promotion has been postponed or stopped.

It would be significant to note that the Supreme Court has clearly stated that seniority in 'substantive rank' must be affected before a person can complain of having been reduced in rank. The petitioner's substantive rank is not that of Panchayat Inspector, but that of Ahalmad Appeals in the Collectorate. The words 'stoppage or postponement of his future chances of promotion' must also relate to his substantive post or to bis present. cadre or grade or present service.

The mere fact that the petitioner was taken on transfer in another department and having been found unfit there was reverted to his substantive post in his original department cannot to my mind, lead to the inference that the petitioner has been reduced in rank. That being so, the petitioner has not ful-filled even the second test as laid down by their Lordships of the Supreme Court in the case of IV L. Dhingra v. The Union of India (A).

4. Mr. Dwivedi, learned counsel for the petitioner states that the result of the orders passed against the petitioner by respondents Nos. 1 and 2 is that he is not given a post in any other department when he applies for it, as everybody takes it that he has been removed from service because of the original order of removal passed by respondent No. 2. It is clear that the order passed by respondent No. 2 removing the petitioner from service was set aside and substituted by a fresh order of reversion and retransferring the petitioner to his original post in the Collectorate. It is therefore not comprehensible that the order of removal which has actually been set aside can still operate to the prejudice of the petitioner.

5. The petition has no force and is dismissed but there is no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //