1. The petitioner joined as a Lower Division Assistant in the Office of the Orissa Hindu Religious Endowments Commissioner on 8-5-47. He was confirmed in that post on 4-6-1949 and was also promoted as an Upper Division Assistant in the scale of pay of Rs. 60-70 per month.
2. On 1-12-50 he was appointed as a Head Assistant in the said office in the scale of pay of Rs. 100-8-140 E. B. 10-180 per month. One Gunanidhi Khandait Roy, who was senior to the petitioner in the said office, and two other persons were then serving as Senior Inspectors of Endowment in the scale of 100-8-140 E. B. 10-18o/- per month. As the scales of pay of both the Inspector and Head Assistant were the same they did not feel aggrieved by the appointment of the petitioner as Head Assistant. After the passing of the Orissa Hindu Religious Endowments Act, 1951 (which was brought into force in 1955) and the statutory recognition of all the members of the staff of the Endowments Office as regular Government servants (see Section 6 of the Act) there was a complete re-organisation of the office of the Endowments Commissioner and revision of the pay scales of all the members of the staff with effect from 1st January, 1955. The pay of the Head Assistant of the office of the Endowments Commissioner was enhanced to Rs. 185-1o-205-E. B. 15-225/- per month, but the pay of the senior Inspector was enhanced to Rs. 120-5-155 E. B. 5-160-10-220 only.
The Commissioner of Endowments was then faced with somewhat difficult situation. The petitioner, though junior in service had worked very satisfactorily as Head Assistant and was serving in that post for more than 4 years. But Gunanidhi Kandayat Rai who was senior to him applied for being appointed to that post saying that though there was no supersession prior to the date of re-organisation of the office of the Endowments Commissioner in 1955 because the scales of pay of Senior Inspector (which he was holding) and the Head Assistant were the same, the position was altered subsequently in view of the fact that the scale of pay of the Head Assistant was made higher than that of Senior Inspectors and that he as an officer senior to the petitioner should be given that post. The then Endowments Commissioner, Sri B. K. Patro first allowed the petitioner to continue as Head Assistant temporarily without prejudice to the claim of his seniors (see annexure I) as he considered it undesirable tomake a change in the post suddenly. Then on 6-9-1956 (annexure II) he ordered that
'steps should be taken to appoint Shri Guna-nidhi Khanat Roy as Head Assistant; Secretary to put up detailed proposals'.
3. But the successor of Shri Patro, namely Shri C. Mahapatra by his order of 8-10-58 (annex. IV) observed that a test should be held to judge the relative merits of the petitioner and Gunanidhi. Khandait Roy. It appears that Gunanidhi Roy made a representation to the Government in the Law Department against the order of Shri Chintamani Mohapatra and Government in their letter No. 3103 dated 30-4-62 after obtaining a complete report from the Endowments Commissioner directed that Gunanidhi Khandait as the senior officer should be appointed as Head Asst. The Endowment Commissioner carried this direction into effect by his order dated 9-6-62 (Annex. C), and consequent on the appointment of Gunanidhi Khandait as Head Asst. the petitioner was reverted as Inspector and appointed temporarily as Grade I assistant without prejudice to the claims of his seniors. The petitioner felt aggrieved by this order and sent a representation to the Government subsequently, but that was subsequently rejected. He has therefore come up to this Court, for relief under Article 226 of the Constitution.
4. The main contention of Mr. A. Das appearing for the petitioner, is that the appointment of the petitioner as Head Asst. made on 1-12-50 was a substantive appointment and consequently he had a right to hold that post; hence when, due to reorganisation of the office, the scale of pay of the post of Head Assistant was enhanced he was entitled to the benefit of that scale, and that the appointment of Gunanidhi Khandait Roy to that post and his reversion was in the nature of a punishment which should not have been imposed on him without drawing up a proceeding and holding a regular departmental enquiry as provided in Article 311(2) of the Constitution.
5. On behalf of the Endowments Commissioner and the State of Orissa, counter affidavits have been filed to the effect that the reversion of the petitioner was not by way of punishment, but solely in consequence of the appointment of his senior Gunanidhi Khandait Roy as Head Assistant. It was also stated' that the petitioner never held the post of Head Assistant substantively from 1950 as alleged by him. The post was held by him only temporarily and when the reorganisation of the office took place with effect from 1-1-1955 also he was allowed to remain in that post in a temporary capacity without prejudice to the claim of his seniors. Hence it was contended that he had no right to that post.
6. It is unnecessary fqr the disposal of this petition, to consider whether, by the order of the Endowments Commissioner, dated 1-12-50 (Annexure B) the petitioner was appointed substanti-vely as Head Assistant or only temporarily. Till 1-1-1955 nobody felt aggrieved by that order because his seniors were also drawing pay as senior Inspectors on the same scale of pay as that of the Head Assistant. It was only when the scaleof pay of the Head Assistant was made higher than that of senior Inspectors that the claim of his seniors could not be over-looked. Eventually Govt. decided that Sri Gunanidhi Khandait Roy should be appointed to that post. The Endowments Commissioner did not state anywhere that the reversion of the petitioner was due to his unsatisfactory work, or else that it was due to any reason personal to him. It was done solely by way of recognising the claim of his senior to that higher post.
7. It is now well settled that Article 311 of the Constitution has no application where an order of reversion is passed, not by way of punishment but for other reasons which have nothing to do with the work of the public servant. Thus, in O. N. Chauhan v. Collector of Central Excise, Allahabad, (S) AIR 1955 All 528 it was held that where an officer who was serving in a senior post was reverted because another officer senior to him had successfully represented to the superior authority and that authority felt that the supersession of that officer was not justified and that the senior officer should get the post, there was no 'reduction in rank' within the meaning of Article 311. In G. K. Sinha v. Collector of Central Excise, (S) AIR 1957 All 152 the same principle was applied in a case where a Government servant was demoted not through any fault of his own, but because, while promoting him to the post the proper rules for appointment to a Selection Grade post were not kept in view.
In N. Devasahayam v. State of Madras, AIR 1959 Mad I (which is somewhat similar to the present case) the original order of seniority fixed by Government was revised and the seniority was refixed on the representation of some of the aggrieved officers with the result that a public servant officiating in a higher post was reverted to his substantive post in a lower grade and his senior was appointed to the post in the higher grade. It was held that Article 311(2) of the Constitution had no application. Again, in F. H. Wilson v. State of Kerala, AIR 1960 Ker 260 the same principle was applied where a Government servant was reverted from a higher post due to the successful representation of another officer who felt aggrieved at his claim having been ignored. In M. Kamalamma v. State of Mysore, AIR 1960 Mys 255 where seniority was refixed as a result of the modification of the rules governing seniority, the person affected by such re-fixation could not contend that they were 'reduced in rank' so as to attract the provisions of Article 311(2). In State of Bombay v. F. A. Abraham, AIR 1962 SC 794 also there are some observations which, to some extent support the view taken in the aofresaid decision. It is true that the facts of that case are somewhat slightly different. There their Lordships of the Supreme Court were concerned with the case of a public servant who was reverted after officiating in a higher post on the ground that his work while so officiating was not satisfactory. While ' holding that there was no 'reduction in rank' and. that the provisions of the aforesaid article had no application, their Lordships observed:-
'A person officiating in a post has no right to hold it for all times. He may have been giventhe officiating post because the permanent incumbent was not available, having gone on leave or being away for some other reasons. When the permanent incumbent comes back the person officiating is naturally reverted to his original post. There is no reduction in rank, for it was the very term on which he was given the officiating post.'
These observations show that a person may revert from a superior post for reasons which are not personal to him and which have nothing to do with his work in that post. Every public servant who is promoted either permanently to a superior post, or allowed to officiate in a superior post, knows fully well that the officer who is senior to him in the original gradation list may submit representation to the appropriate authorities against his super session and if his representation is eventually allowed he (the former) may have to revert to a Sower post in consequence of the promotion of that officer to the superior post. The right of representation by the aggrieved officer is a well known right recognised in the conditions of service of all public servants. Every public servant who holds a post either permanently or in an officiating or temporary capacity holds it subject to this right of representation by any officer who feels aggrieved by his appointment.
8. Mr. A. Das relied on some observations in the well known Dhingya's case, Parshotam Lal Dhingra v. Union of India, reported in AIR 1958 SC 36. But a feature which distinguishes that case from the present case is that, there, the reversion of the aggrieved was not due to extraneous reasons such as the representation by a senior officer, refixation of seniority, non-compliance with the rules in allowing an officer to be promoted, etc. Hence the principles laid down in that decision will not be applicable to cases, like the present, where the facts are different.
9. I would accordingly hold that there was no 'reduction in rank' when the petitioner was reverted from his post of Head Assistant to his present post as Grade I Assistant. It is true that as his reversion was not due to any adverse finding about his work as Head Assistant, he should be placed in the same position in which he would have been if he had not been appointed as Head Assistant in 1950 nor should his seniority amongst Inspectors be interfered with. Though the petitioner has asserted that his being reverted as a Grade I assistant his juniors who are now working as Inspectors are drawing higher pay, in the counter affidavit of the Endowments Commissioner, this has been denied and it has been asserted that the pay of Grade I assistant is higher than that of the Inspector. Mr. Mohanty for the Department also assured us that the petitioner would not in any way be allowed to suffer so far as his prospects are concerned on account of his long tenure as Head Assistant, and that he would not be placed in an unfavourable position compared to. his junior officers. In view of this assurance and the statement in the counter affidavit of the Endowments Department we do not think it necessary to say anything more on this aspect of the case.
The petition is dismissed, bat in the circumstances of this case there will be no order for costs.
10. I agree.