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State of Assam and anr. Vs. Biraja Mohan Deb and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal No. 1227 of 1966
Judge
Reported in1969(1)LC675(SC)
ActsConstitution of India - Article 311
AppellantState of Assam and anr.
RespondentBiraja Mohan Deb and ors.
DispositionAppeal allowed
Cases ReferredSee Purshottam Lal Dhingra v. Union of India
Excerpt:
.....observed that respondent was not originally appointed to permanent post - he was asked to act in higher post - did not acquire right to hold that post for all times - he can be asked to revert to his original post - apex court set aside order of high court. - sections 8 & 7a: [s.b.sinha & dr. mukundakam sharma, jj] jurisdiction of special court/tribunal held, it is limited only to cases of land grabbing. ordinary title suits are not within the exclusive jurisdiction of special court or tribunal. special courts and tribunals are not substitutes for civil courts. sections 8 & 2(c): [s.b. sinha & dr. mukundakam sharma, jj] petition to special court tenability - petition merely alleging that respondent created forged sale deed of suit property in his favour no allegation that..........notice or in the absence of their being a rule that a person if allowed to officiate in a higher post can be reverted to the substantive post the reversion of a civil servant will be a reduction in rank and the provisions of article 311 will be attracted.4. it is clear that the appointment of respondent no. 1 was on a purely temporary basis. it was stated in the order by which he was appointed with effect from january 12, 1959 that the appointment could be terminated without notice. the order relating to his promotion also shows that he was only to act as upper division assistant with effect from october 1, 1963. in the memorandum relating to his promotion it was mentioned that the continuance of his appointment would be subject to satisfactory performance of duties. the order.....
Judgment:

Grower, J.

1. This is an appeal by special leave from a judgment of the High Court of Assam & Nagaland where by the High Court allowed the petition under Article 226 of the Constitution filed by respondent No. 1 and quashed the order of the Assistant Director of Public Instruction, N.C.C. Assam, dated April 25, 1964.

2. The facts may be briefly stated. Respondent No. 1 retired from military service on January 11, 1959. He was re-employed as a temporary Lower Division Assistant in the office of the 0 C.21, Assam Engineering Platoon N.C.C., Jalakabari with effect from January 12, 1959. At that time he was drawing a monthly pension of Rs.30.50. His pay was fixed at Rs. 64.50 in addition to the pension which he was drawing, the salary scale being 60-4-80-EB-5-125. The post to which he was appointed temporarily is stated to be a temporary post itself liable to be renewed from year to year. On September 26, 1963 the Assistant Director of Public Instruction, promoted respondent No. 1 to officiate as Upper Division Assistant in the grade of Rs.125-5-175. He was, however, reverted to his original temporary post of Lower Division 'Assistant on April 24, 1964. In August 1964 he filed a writ petition in the High Court which was allowed.

3. The main reasoning which appears to have prevailed with the High Court was that in the absence of any term, express or implied, that the services could be terminated after giving a reasonable notice or in the absence of their being a rule that a person if allowed to officiate in a higher post can be reverted to the substantive post the reversion of a civil servant will be a reduction in rank and the provisions of Article 311 will be attracted.

4. It is clear that the appointment of respondent No. 1 was on a purely temporary basis. It was stated in the order by which he was appointed with effect from January 12, 1959 that the appointment could be terminated without notice. The order relating to his promotion also shows that he was only to act as Upper Division Assistant with effect from October 1, 1963. In the memorandum relating to his promotion it was mentioned that the continuance of his appointment would be subject to satisfactory performance of duties. The order of reversion was merely to the effect that respondent No. 1 was being reverted and transferred to the office of the O C.20 Assam Air Sqn. N.C.C. Gauhati to work as Lower Division. Assistant. It was repeated that the appointment was on a purely temporary basis. The High Court appears to have been influenced by the fact that respondent No. 1 had been promoted to a higher post. The order of appointment to that post, however, showed as stated before that he was being promoted purely in an officiating capacity and subject to the satisfactory performance of duties. The law is well settled now that the appointment either on probation on or officiating basis is from the very nature of such employment itself of a very transitory character and in the absence of any special contract or specific rule regulating the conditions of service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. See Purshottam Lal Dhingra v. Union of India (1). The same principle would be applicable to a case of reversion from an officiating higher post to an original lower post to which a person has been appointed. It does not in any way amount to punishment and cannot be regarded as a reduction in rank so as to attract Article 311(2) of the Constitution. As pointed out in the State of Bombay v. F A. Abraham a person officiating in a post has no right to hold it for all times. He may have been given the officiating post because the permanent incumbent was not available and when the latter comes back the person officiating would naturally revert to his original post. Again sometimes a person is given an officiating post to test his suitability to be made permanent later. It is an implied term of the officiating appointment that if a person is found unsuitable he will have to go back.

5. In the present case respondent No. 1 was not originallyappointed to a permanent post and when he was asked to act orofficiate in a higher post he did not acquire the right to hold thatpost for all times. He could, at any time, be asked to revert to hisoriginal post and that is what happened in the case of respondentNo. 1.

The appeal is consequently allowed and the judgment of theHigh Court is set aside. The petition filed under Article 226 of theConstitution by respondent No. 1 shall stand dismissed. As there isno appearance on behalf of any of the respondents, there will be noorder as to costs.


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