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Kheivl Singh Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 683 of 1971
Judge
Reported inILR1975Delhi291
ActsConstitution of India - Articles 14 and 226
AppellantKheivl Singh
RespondentUnion of India and ors.
Advocates: G.D. Gupta,; B.N. Lokur and; C.K. Mahajan, Advs
Cases ReferredGurnam Singh v. State of Rajasthan and
Excerpt:
service - reversion - articles 12 and 226 of constitution of india - petitioner temporarily promoted reverted back to his original post - petition filed challenging same - as decided by supreme court in precedent person temporarily promoted does not acquire any substantive right to post and not entitled to complain if reverted - as reversion of petitioner to original post made due to administrative policy and not by way of punishment no opportunity for hearing required to be given - reversion upheld. - - the petitioner was not satisfied by this reply and sent a legal notice, dated 18th december, 1970, through his counsel to respondents 1 to 3, claiming that the order of suspension of his promotion and other ancillary orders affecting his career be revoked. (6) it was submitted that.....yogeshwar dayal, j.(1) this is a petition under article 226 of the constitution of india being placed before the full bench in view of the order of reference, dated 22-2-1972 passed by deshpande and b.c. misra jj. the main question for consideration in this petition is whether the selection of 174 upper division clerks for temporary promotion us head clerks, grade ii in the army ordnance corps record offices made in february, 1970, could be validly suspended by the government in may, 1970, and cancelled in august 1970 reverting these upper division clerks from the posts of head clerks, grade ii, to their original posts of upper division clerks.(2) initially, the petition was filed by khem singh, petitioner alone against three respondents. shri krishan lal, respondent no. 4. was on his.....
Judgment:

Yogeshwar Dayal, J.

(1) This is a petition under Article 226 of the Constitution of India being placed before the Full Bench in view of the order of reference, dated 22-2-1972 passed by Deshpande and B.C. Misra JJ. The main question for consideration in this petition is whether the selection of 174 upper division clerks for temporary promotion us head clerks, grade Ii in the Army Ordnance Corps Record Offices made in February, 1970, could be validly suspended by the Government in May, 1970, and cancelled in August 1970 reverting these upper division clerks from the posts of head clerks, grade Ii, to their original posts of upper division clerks.

(2) Initially, the petition was filed by Khem Singh, petitioner alone against three respondents. Shri Krishan Lal, respondent No. 4. was on his application allowed to intervene. In the meantime in pursuance of the orders of respondents I and 2, fresh selection had been made. In the fresh selection, 116 upper division clerks were promoted as head clerks, grade Ii and were common to the first selection. Fifty-eight upper division clerks, who were promoted in view of the fresh selection were different- Shri S. P. Soni, one of the upper division clerks, who had been selected to the post of head clerk grade Ii in the fresh selection also applied to be added as party to the writ petition and also prayed that he may be imp leaded and permitted to defend the case on behalf of persons who were similarly interested. He was allowed to join as a party by order of this Court dated 31st March, 1972. Both the petitioner and Shri S. P. Soni filed separate applications under Order 1 Rule 8 of the Code of Civil Procedure for leave of the Court to file a petition in a representative capacity and also to defend the petition in that capacity respectively. The petitioner was allowed to pursue the petition on behalf of 171 persons who had been selected for promotion in the first selection and S. P. Soni was allowed to defend the petition on behalf of another 89 persons vide orders of the Division Bench, dated 28th April, 1972 and 12th May, 1972.

(3) In the writ petition it is averred that the petitioner was a confirmed upper division clerk and was at present working as head clerk, grade Ii, in the Ordnance Depot, Shakur Basti, Delhi, to which post the petitioner was promoted by order dated 16th February, 1970 with effect from 1st December, 1969. However, on a signal being received at the Ordance Depot, Shakurbasti, the promotion of all the upper division clerks to head clerk grade Ii post pending further instructions, was ordered to be suspended, by order, dated 3rd August, 1970. The petitioner was also informed that since the promotion to the post of head clerk had been suspended, the concerned individuals are entitled to pay allowances as upper division clerk only from the date of the orders for suspension of the promotion and the effective date of suspension will be 18th May, 1970. Soon thereafter the petitioner received the formal order of suspension of promtion, dated 13th August, 1970 with effect from 18th May, 1970 and consequently it was ordered that the petitioner and other similarly situated will be entitled to pay allowance as upper division clerk only from the date of the order for suspension of promotion. The petitioner made a representation, dated 24th September, 1970, against the suspension order and he was informed by reply, dated 27th November, 1970, sent by the Chief Records Officer, Officer-in-charge (respondent No. 3) that the suspension of promotions was ordered as per the instructions of the Direction of Ordinance Services, Army Headquarters (respondent No. 2) and the whole question is already under examination at the Army Headquarters and the decision arrived at will be communicated to the persons concerned. The petitioner was not satisfied by this reply and sent a legal notice, dated 18th December, 1970, through his counsel to respondents 1 to 3, claiming that the order of suspension of his promotion and other ancillary orders affecting his career be revoked.

(4) On this notice being received, the petitioner was informed by letter dated 8-3-1971 on behalf of respondents I to 3 that it has been intimated by the Army Headquarters that suit will be defended, if filed in the Court. On receipt of this reply, the petitioner filed the present writ petition, on or about June 4, 1971, praying for quashing the orders regarding suspension of promotion of the petitioner as Head Clerk, grade Ii, dated 18-5-1970, 3-8-1970, 13-8-1970 and 8-3-1971. It was also prayed that the respondents be prohibited permanently from making fresh selections in regard to the posts of Head Clerks (now office Superintendents) in regard to such posts which were filled up by the petitioner and 173 others and from treating the said panel as cancelled or suspended or acting contrary to and against the said panel and from continuing to withhold the payment of salary and allowances and increment for the post of Head Clerk, grade II. It was further prayed that the petitioner be declared entitled to continue to hold the post of head clerk, grade If (now office Superintendent). A prayer was also made for other consequential orders.

(5) It was further averred in the writ petition that until 31-5-1970 the promotion from the post of Upper Division Clerk was made to the post of Head Clerk, grade Ii, and from the post of Head Clerk, Grade Ii the promotion was made to the post of Head Clerk, Grade I, and the two posts of Head Clerk, Grade I and Head Clerk Grade Ii were amalgamated into one post and redesignated as office Superintendent with effect from 1-6-1970. It was further averred that the appointing authority for the post of Head Clerk, grade Ii, (now office Superintendent) was Director of ordnance Services, Army Headquarters, New Delhi (respondent No. 2). The appointing authority had, however, delegated its powers with regard to the posts of Head Clerk, grade Ii, to the Officer-in-charge, Army Ordnance Corps, Records, Secunderabad (respondent No. 3). The promotions to the post of Head Clerk, grade Ii were to be made in accordance with the Recruitment Rules. (copy of which has been filed as Annexure Iii to the petition) and/or Administrative Instructions. These Administrative Instructions also provided that upper division clerks for the post of head clerk grade Ii will be selected from amongst the upper division clerks with five years' service in the grade. The instructions also provided that the person selected will be on a two-year probation.

(6) It was submitted that the very idea of constituting a separate body like the Dpc is to have an independent body to deal with all promotions in order to select the best persons available for a particular service. The petitioner also filed three Administrative Instructions, dated 29th April, 1955, 26th July, 1957 and 7th August, 1969, issued by the Ministry of defense. The Instructions of 29th April, 1955, interalia provided that the procedure for effecting officiating promotions to and confirmations in selection posts has been reviewed by the Government of India and it has been decided that in regulating promotions to higher posts on the basis of selection, the most appropriate procedure should be (a) to rely on carefully drawn up and regularly reviewed select lists for making promotions; and (b) where such promotions are initially made on an officiating basis, for confirmations, to follow the order of merit given in the select lists. Subject to maintenance of efficiency. These instructions also provided that the select lists will be compiled on the basis of merit by duly constituted DPCs and approved by the authority competent to make appointments to the higher grade. The said instructions also provided a field of choice.

(7) The instructions, dated 26th July, 1957, were issued in continuation of the instructions dated 29th April, 1955, mentioned earlier. These instructions provided (1) that appointments to selection posts and selection grade should be made on the basis of merit with regard to seniority only to the extent indicated therein; (2) that the Departmental Promotion Committee or other selecting authority should first decide the field of choice i.e. the number of eligible officers awaiting promotion who should be considered for inclusion in the 'select list', provided however that an officer of outstanding merit may be included in the list of eligible even if he is outside the normal field of choice. The field of choice is stated to be first determined at the discretion of the Dpc to three times the number of vacancies instead of five or six times. Then the instructions provide how the officers should be graded and how the select list should be reviewed periodically.

(8) The Instructions, dated 7th August, 1967 are again in continuation of the Instructions dated 29th April, 1955, and 26th July, 1957,and provide how the select list should be reviewed from time to time. The petitioner also filed along with his petition, an order of the Government of India, dated 15th December, 1969, conveying sanction of the President to revise the existing ratio between Supervisors and Clerks on the basis of I : 12 on a Corps/Command/Service basis.

(9) It was submitted in the writ petition that the 'present system of entry and promotion' regarding promotion from the post of upper division clerk to the post of head clerk, grade Ii, has been one which is laid down in the recruitment rules and the procedure of selection has been laid down in the office Memoranda of the Ministry of defense. It is further stated that the rule followed by the Dpc has been that it looked into only two last confidential reports of the employee concerned and this rule has been followed by Dpc for the last several years; that in view of the revision of ratio as sanctioned by the President, an ad hoc Dpc was constituted and a panel of 231 upper division clerks had been prepared by the Dpc after following the procedure laid down in the aforesaid office memoranda of the Ministry of defense referred to earlier and which had been followed by the Dpc for the last several years. Out of the said panel consisting of 231 upper division clerks, the first 173 upper division clerks including the petitioner whose name appears at Seriall No. 120 in the panel have already been promoted to the post of head clerk. It was also submitted that the suspension of the said promotion of the petitioner and other similarly situated was wholly illegal and it was issued without giving any opportunity of being heard to the petitioner and without giving any reasons. It was further submitted that the suspension entails penal consequences inasmuch as during the period of suspension of promotion the individual concerned will be entitled to pay and allowances as upper division clerk only.

(10) In reply to the writ petition- an affidavit, dated 15-9-1971.Lt. Col. Smn Hukku. Assistant Director of Ordnance Services (Personnel) Army Hcadquarters, New Delhi, was filed on behalf of respondents 1 to 3. In this reply, it was denied that the suspension of the first select panel entailed any penal consequences inasmuch as such suspension has taken place during the period of probation of the officer concerned and the panel has not been suspended by way of punishment. It was also submitted that the Director of Ordnance Services- Army Headquarters (respondent No. 2) who is the appointing authority and who had delegated its powers to the Officer-in-Charge, Army Ordnance Corps Record Office (respondent No- 3) can always order suspension of the orders passed by his delegate, when in his opinion the promotion was not in order. It was further submitted that the acceptance of these recommendations or the non-acceptance/suspension of the recommendations of the Dpc is a matter within the competence of respondent No. 2 and the recommendations of the Dpc arc subject to his approval/acccptance/revision. No reasons need be afforded to each individual explaining the reasons why 'econimendations. of a DPC' are not acceptable to the appointing authority nor are respondents bound to give reason why the panel was suspended. It is stated that the panel was suspended after due consideration by the authorities concerned and the suspension/cancellation took place by- reason of the fact that a very large number of complaints had bee'. received that the panel had not been properly constituted and the decision to cancel the panel was taken after the complaints had been looked into. It was also denied that the petitioner at present was employed as head clerk, grade II. It was stated that after passing the impugned order, the petitioner was reverted as upper division clerk on 19-5- 1970.

(11) Later on an additional affidavit was also filed on behalf of respondents Nos. 1 to 3 of Shri M. Subramanyam, Joint Secretary (C), Ministry of defense, New Delhi. In this affidavit the entire history of the case concerning suspension of promotion of upper division clerks to head clerk grade Ii post was given. It was inter alias stated :

(1)That on the recommendations of a Committee, called the Devanath Committee, which went into the question of the ratio of various grades of clerks and supervisors, Government issued sanctions improving the ratio of supervisors (head clerks grade I and II) to clerks from I : 20 to 1:12. As a result of this improvement in the ratio the total number of posts of supervisors went up by 227. Out of these 227, 215 additional posts were created in the grade of head clerk grade 11 and 12 posts in the grade of head clerk grade 1. Since at the relevant time the promotion to grade I was made from the lower grade Ii the total number to additional promotions to be made to the post of head clerk grade Ii was 227. Out of these 227 posts, only 174 fell to the communities other than scheduled castes and scheduled tribes. A panel of 231 names of candidates from these unreserved communities was drawn up to make these promotions and also to allow for anticipated vacancies on account of normal wastage and other contingencies.

(II)That an 'ad hoc' Dpc was convened by the Army Headquarters and it met in January-February 1970 and a pane! of 231 names was drawn up. Immediately after this was done the panel was released by the Army Ordnance Corps Records Office. Some complaints against the large scale supersessions as a result of this panel were made by the President, the Vice President, the General Secretary and the Joint Secretary of the Indian National defense Workers Federation. In a meeting of the Departmental Council of the Joint Consultative Machinery of ihe Ministry of defense some members of the staff side also raised this issue of large scale supersessions and certain allegations. were made about the unsatisfactory manner in which tins panel had been drawn up. Complaints were also received in this Ministry from members of Parliament. Some of the copies of the complaints were also filed with the affidavit.

(III)That the points which were raised in the complaints in support of the demand that the panel should not be implemented, were inter alias that :

(A)the additional posts had been created so as to remove stagnation in the clerical cadre and the field of choice should have been restricted to 3 times the number of vacancies ;

(B)the field was not restricted to 3 times, with a view to favor a particular individual so as to bring him within the field of choice and place him on the panel ;

(c) the method of assessment of Dpc was improper; and

(D)large scale supersessions would not have arisen had the Director of Ordnance Services given comprehensive instructions to the Army Ordnance Corps Records.

Letters were also received from other associations urging that the recommendations of Dpc were in order. These letters have also been filed with the affidavit. After a preliminary examination of the various allegations which were made against the Dpc recommendations, decision was taken by the Additional defense Secretary to suspend the promotions made from the panel. Thereafter, a meeting was convened by the Additional defense Secretary and this was attended amongst others by the Officiating Director of Ordnance Services and the then Joint Secretary (C). At this meeting it was decided that investigations be made in the matter relating to the Dpc which had been held to prepare this panel. In pursuance of this decision the matter was referred for investigation to Shri Dk Bhattacharya, the then Joint Secretary (C) in the Ministry of defense. The terms of reference made to Shri Bhattacharya were very comprehensive, and have been set out in the affidavit, Shri Bhattacharya submitted his report dated 26th June, 1970 and found that the select panel prepared by the Dpc suffered from various glaring irregularities. Mr. Bhattacharya found inter-alia that:

(A)there was nothing on record to show whether the ad-hoc Dpc made any examination and exercised their discretion to determine the field of choice ;

(B)there were no orders or instructions which laid down !he manner in which the confidential reports should be assessed by the Dpc and there were also no instructions in respect of the number of confidential reports which were to be considered. The ad hoc Dpc of February 1970, according to its minutes, considered the reports of 2 years namely 1968 and 1969 only and where only one report was available, assessment was made on the basis of one report only.

MR.Bhaltacharya considered a few sample cases and found that there is a doubt whether Dpc members took the trouble of even going through the dossiers of the officers.

(12) This report of Shri Bhattacharya was studied by Shri S. K. Mukherjee, Additional Secretary. defense who made his own suggestions and he came to the conclusion that a review of the proceedings of the 1970 ad hoc Dpc was inescapable. A note to this effect was recorded by the Additional defense Secretary and the then defense Secretary, Shri H. C. Sarin, after going through the case, also confirmed the same view and found that the proceedings of the 1970 Dpc needed a review for the following reasons :-

(A)The number of personnel considered had been inflated and no reasons had been recorded by the Dpc as to why they decided to consider 874 cases in order to fill up 174 posts.

(B)The DPCs examination was prima facie perfunctory in as much as it had examined only 2 CRs while the normal practice is to examine at least 5 reports, besides making a general assessment of the overall dossiers. In some cases, the Dpc had completely over-looked the reports which they have stated to consider the suitability of individual concerned.

Thereafter on 26th April, 1971, a meeting was held at which the Chief of the Army Staff and the officiating Director of Ordnance Services were present along with Shri K. B. Lall, defense Secretary, Shri S. K. Mukherjee, Additional Secretary and Shri D. K. Bhattacharya. At the said meeting the defense Secretary pointed out that the ad hoc Dpc of February, 1970 was held to fill up a very large number of vacancies created by the Government in order to ease problem of stagnation and that the idea was to give one more opportunity to a large number of clerks who remained as such because the normal wastage vacancies were not enough. The defense Secretary was of the view that since this promotion was special one it should have been ensured that all deserving clerks, who were stagnating, should get a chance for promotion but this could be done by going through the record of five years instead of two years to eliminate supersessions on the basis of 'very good' or 'outstanding' reports secured by juniors during the last two years only. Minutes of the said meeting were circulated and under the directions of the Chief of the Army Staff the same members of the ad hoc Dpc who had assembled in February 1970 were asked to assemble again and the proceedings were to be completed by 15-6-1971.

(13) In view of this decision, the Director of Ordnance services directed the Dpc to re-assemble and draw lip its proceedings bearing in mind the terms as indicated therein. A particular term indicated that all records should be scrutinised carefully regarding efficiency and integrity of individuals who are to be assessed by the Dpc for the panel. The review will be based on five annual confidential reports instead of two.

(14) The petitioner filed a separate rejoinder affidavit in reply to the affidavit of Lt. Col. Hukku and title additional affidavit of Shri M. Subramanayam. In reply to the affidavit of Shri Hukku the petitioner has controverter the allegation that he had been reverted on 19-5-1970 and filed a bunch of documents to show that he was still working as head clerk, grade Ii ( supervisor). We arc not concerned with the contention regarding the date of reversion as nothing turns upon it and thereforee nothing further need be said about it.

(15) In reply to the additional affidavit filed by Shri Subramanyam, the petitioner filed the terms of reference to Dev Nath Committee and also referred to the order of the President revising the ratio of upper division clerks vis-a-vis head clerks grade I and II. It was submitted that in accordance with the order of the President revising the ratio the present system of 'entry and promotion' had to continue. It was submitted that at least for the last 20 years confidential reports of the last two years of the upper division clerks were seen for the purposes of selection by the DPC. It was further submitted that the rule of looking to only last two years confidential reports has been followed not only in regard to the post of head clerks grade Ii, but also in the case of head clerks grade I, store-keepers grade Ii and grade I and supervisor and foreman. These two confidential reports have been seen irrespective of the fact whether qualifying service and experience for purposes of promotion was required to be of more number of years. In any event.. it is for the Dpc to exercise its own discretion in such matters and the said discretion cannot be curtailed by the Government by issuing any instructions in such matters. The petitioner also filed along with the rejoinder a copy of the office memorandum dated 30th August, 1969 (Annexure C). This memorandum gives the latest instructions regarding the DPCs, their functions and the procedure to be observed by the DPCs etc. This memorandum was issued as earlier the instructions were spread over a number of memoranda circulated by the Ministry which are indicated in the margin of this memorandum. It was submitted that in accordance with this memorandum it is staled in paragraph 5(a)(i) that each Dpc should decide the method and procedure for itself and thereforee the authorities could not interfere with the method and procedure adopted by the Dpc which was held in February, 1970. Making of complaints regarding the panel prepared by DPC' was admitted but it was submitted that these complaints were made by different office bearers of the Indian National defense Workers Federation and they should be considered as one complaint only and there was no truth in the allegations made in the complaint. It was submitted that the complaints were made by those employees who were dissatisfied by the selection made by the DPC. It was also submitted that the promotion of the petitioner was by respondent No. 3, by his order dated 16th February, 1970, who is the appointing authority and his promotion could not be suspended by respondent No. 2. It was also submitted that even in the case of civilian store-keepers of this very department whose terms and conditions of service are identical to clerks, the ratio of their supervisory staff was also revised and in their case also only 2 years confidential reports were screened and the marks lor purposes of grading were allocated to different columns of confidential reports on exactly the same basis on which the petitioner has been selected by the DPC. The supersession in the case of civilian store-keepers grade Ii was extremely high as compared to that of head clerks grade II. A writ petition filed by one of the superseded storekeepers, Shri Dhani Ram. has been dismissed by this Court as the High Court has upheld the selection made by the Dpc in their cases. Regarding the report of Col. Bhattacharya, it is stated that simply because the grading would have been different if the last five years' confidential reports were taken into consideration, it cannot be the ground for setting aside the earlier selections made by the earlier DPC'. It is further submitted that the rule of looking into five years' confidential reports cannot affect the promotions already made and the said rules cannot thus be given the retrospective effect. It can have application to Future promotions only. It was also submitted that the new instructions which had now been issued and on the basis of which the new Dpc is said to have made the new selections were not issued in consultation with the Ministry of Flome Affairs. Even in the new Dpc the Government has considered 906 upper division clerks. It is not understandable how the consideration of 874 upper division clerks in the earlier Dpc could be said to be inflated.

(16) Separate counter-affidavits were filed on behalf of Krishan Lal, respondent No. 4 and Shri S. P. Soni and separate replies were filed by the petitioner to their affidavits.

(17) It will be noticed that the conclusions arrived at by Col. Bhattacharya or the recommendations of Mr. Mukherjee, Additional Secretary, or the conclusions by Shri H. C. Sarin, defense Secretary, arc not justiciable as if this Court is sitting in appeal. What is relevant is the ultimate bona fide decision of the authorities. There are no imputations of any motive or malafides or any statutory restrictions for arriving at their decision.

(18) From the aforesaid resume of facts, one thing clearly stands out that petitioner and others, who arc similarly situated, were substantive upper division clerks and were promoted as temporary head clerks, grade II. and all the individuals promoted were to be on a probation for a period of two years. As held by the Supreme Court in the celebrated case of Parshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC , the servant so appointed does not acquire any substantive right to the post and consequently cannot complain any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. (See paragraph 11 on page 42).

The suspension of promotion or reversion of such an employee docs not entail any evil consequences more than those which arise out of such suspension or reversion and thereforee such suspension or reversion can be ordered without granting any hearing to the employee concerned and without passing any reasoned order. Such an employee cannot impugned the order of suspension or reversion on the ground of want of reasons or on failure of giving opportunity before passing such an order. The same view was reiterated and explained in the recent Full Bench decision of this Court in Civil Writ No. 1395 of 1970 in the case of A. N. Dhingra v. Union of India, decided by one of us along with Prakash Narain and Prithvi Raj JJ.

Mere deprivation of higher emoluments in consequence of an order of reversion could not in such a case by itself satisfy the test of 'entailing evil consequences'. These are the normal incidents of the order of reversion. If the loss of emoluments attaching to the higher rank in which a person is officiating was the only consequence of his reversion, the petitioner would have no cause of action. As to when an order of termination in the case of a probationer or reversion from officiating promotion would entail evil consequences is best illustrated by the case of Madhav Laxman Vaikunthe v. State of Mysore : [1962]1SCR886 ,and as explained in the case of Divisional Personnel Officer, Southern Railway v. S. Raghavendrachur : (1967)ILLJ401SC . In this case, the appellant Vaikunthe, who held the rank of a Mamlatdar in the first grade, and was officiating as District Deputy Collector, was alleged to have wrongly charged traveling allowance for 59 miles instead of 51 and was, as a result of a Departmental enquiry, reverted to his substantive rank for three years and directed to refund the excess he had charged. He made a representation to the Government which was of no avail although the Accountant General was of the opinion that the appellant had not overcharged and committed no fraud. Ultimately, the appellant was promoted to the selection Grade but the order of reversion remained effective and affected his position in the Selection Grade. After retirement he brought a suit for a declaration that the order of reversion was void and for recovery of a certain sum as arrears of salary and allowances. The trial Court held that there was no compliance with the provisions of Section 240(3) of the Government of India Act 1935, granted the declaration but refused the arrears claimed. Vaikunthe filed an appeal and the State a cross-objection. The High Court dismissed the appeal and allowed the cross-objection, holding that the order of reversion was not a punishment within the meaning of section 240(3) of the 1935 Act. The Supreme Court held that the matter was covered by the observations in Dhingra's case and the tests of punishment laid down by the Supreme Court viz., (1) whether the servant had a right to the rank or (2) whether he had been visited with evil consequences of the kind specified therein and that the second test certainly applied. The Supreme Court concluded that Vaikunthe might or might not have the right to hold the higher post, but there could be no doubt that he was visited with evil consequences as a result of the order of reversion. It was held :

'MEREdeprivation of higher emoluments, however, in consequence of an order of reversion could not by itself satisfy that test which must include such other consequences as forfeiture of substantive pay and loss of seniority.'

Since the requirement of Section 240(3) of the 1935 Act, which corresponds to Article 311(2) of the Constitution, had not been found to have been fully complied with, the order of reversion was held to be void.

(19) There was an important aspect of this decision which was lost sight of by the High Court. The impugned order there ran as follows: 'After careful consideration Government have decided to revert you to Mamlatdar for a period of three years . . . .'

It was pointed out in Dhingra's case (1) that if the order of reversion entailed or provided for the forfeiture of the pay or allowances of the Government servant or loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance might 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 had terminated the employment 33 and by way of penalty. Sinha. C.J., who spoke for the Court pointed out:

'.. . . . .he would have continued as a Deputy Collector but for the order of the Government, dated August 11, 1948, impugned in this case, as a result of the enquiry held against him, and that his reversion was not as a matter of course or for administrative convenience. The order. in terms, held him back for three years. Thus his emoluments, present as well as future, were adversely affected by the order aforesaid of the Government. In the ordinary course, he would have continued as a Deputy Collector with , the emoluments of the post and would have been entitled to further promotion but for the set back in his service as a result of the adverse finding against him, which finding was ultimately declared by the Accountant General to have been under a misapprehension of the true facts. It is true that he was promoted as a result of the Government Order dated March 26, 1951, with effect from August 1, 1950. But that promotion did not entirely cover the ground lost by him as a result of the Government Order impugned in this case.'

Again, at p. 893, the learned Chief Justice pointed out :

'If the loss of the emoluments attaching to the higher rank in which he was officiating was the only consequence of his reversion as a result of the enquiry against him, the appellant would have no cause of action. But it is clear that as a result of the Order dated August 11, 1948 (Ex. 35), the appellant lost his seniority as a Mamlatdar, which was his substantive post. That being so, it was not simple case of reversion with no evil consequences; it had such consequences as would come within the test of punishment as laid down in Dhingra's case.'

Finally it was pointed out :

'If the reversion had not been for a period of three years, it could not be said that the appellant had been punished within the meaning of the rule laid down in Dhingra's case. It cannot be asserted that his reversion to a substantive post for a period of three years was not by way of punishment. From the facts of this case it is clear that the appellant was on the upward move in the cadre of his service and but for this aberration in his progress to a higher post, he would have, in ordinary course, been promoted as he actually was sometime later when the authorities realised perhaps that he had not been justly treated . . . . . .'

The real ground on which Vaikunthe's reversion to his original post of Mamlatdar was held to be a violation of his Constitutional guarantee was that his chances of promotion were irrevocably barred for a period of three years.

The consequences which the petitioner and others like him will suffer in the present case are quite normal to the effect that they will get full emoluments for .a, substantive rank of upper division clerk which they were holding and are not the evil consequences as contemplated in the Dhingra's case and/or Vaikunthe's case, or Raghavendrachar's case.

(20) Faced with this difficulty, the learned counsel for the petitioner found it very difficult to formulate even his contentions to challenge the impugned orders. However, the learned counsel for the petitioner formulated his contentions as under :-

(1)The new instructions evolved by the Government subsequent to the petitioner's promotion could not be given retrospective effect i.e. they could not be applied to the promotion of the petitioner already made. The new instructions, dated 26-4-1957 being the instructions which came out as a result of the general meetings of the defense Secretary with the Chief of Army Staff, Additional Secretary Shri Mukherjee and Col. Bhattacharya, as referred to in the affidavit of M. Subramanyam.

(2)These instructions could not be followed without concurrence of the Ministry of Home Affairs. In order to elaborate the contention it was contended that under rules 2 and 3 of the Government of India (Allocation of Business) Rules, 1961, read with Schedule Ii, it was only the Cabinet Secretariat, Department of Personnel, vide Part Iv, Entry Nos. 21, 22, which was competent to prescribed conditions of service of the Central Employees excluding those under the control of Ministry of Railways and Department of Atomic Energy, and since these instructions were not issued by the Cabinet Secretariat, Department of Personnel, they are wholly void and could not govern the functioning of the Dpc of the civilians in the defense Ministry.

(3) The petitioner should have been heard before the order of suspension and/or reversion.

(4)The Director of Ordnance Services, (respondent No. 2) had no power to order suspension/reversion as he had delegated his powers to the Officer-in-charge, Army Ordnance Corps Record Office, (respondent No. 3).

(5) The order of suspension/reversion is discriminatory and hit by Article 14 of the Constitution.

So far as the first submission is concerned, there is no question of any retrospective effect to be given to these instructions. The appointment itself of the petitioner was temporary .and on probation. Another thing to be noted is that there are no statutory rules relating to recruitments in questions and Dpc is constituted to assist the appointing authority by executive instructions. Again, executive instructions provide the guidance to the DPC. The recommendations of the Dpc can always be scrutinized, the same had not become final

(21) The petitioner, however, relied on instructions issued by Ministry of Home Affairs dated 30th August, 1969. The relevant part whereby provides as under :- 'Procedure to be observed by Departmental Promotion Committees. (a) For doing with cases of promotion to selection posts.

(I)Each Departmental Promotion Committee should decide its method and procedure for itself subject to consultation with the Commission where the Commission are represented on the Committee. Ordinarily a personal interview should not be regarded as necessary and the panel for promotion may be drawn up on the basis of the assessment of the record of work and conduct of the officers concerned.

(II)Each Departmental Promotion Committee should decide the field of selection, i.e. the number of eligible officers to be considered for inclusion in the panel. The field of choice, wherever possible, should extend to five or six times the number of vacancies expected to be filled within a year.

(III)The officers in the field of selection, excluding those considered as unit for promotion by the Departmental Promotion Committee, should be classified by the Departmental Promotion Committee as 'outstanding', 'very good', 'Good on the basis of their merit as determined by their respective record of service..................'

These instructions may be read Along with the instructions of the Ministry of defense as contained in the office memorandum dated 29.11 April. 1955, and another dated 26th July, 1957. A combined reading of these instructions show that each Dpc should decide :

(i) Its method and procedure by itself.

(II)Each Dpc should decide the field of choice i.e. the number of eligible officers to be considered for inclusion in the panel.

(III)The officers in the field of selection, should be classified on the basis of their merit as determined by their respective record of service; and

(IV)The select list should be prepared by the Dpc on the. basis of merit and approved by the authority competent to make the appointments to the higher grade.

(22) It is clear from the minutes of the first Dpc that the Dpc had not decided upon the field of selection at all. Again, though instructions contemplate the entire record of service being considered, the Dpc had considered mostly the record of service for the last two years and in some oases even the record of last two years was not seen. The authorities at title highest level in there meeting held on 26th April, 1971, noticed that the ad hoc Dpc of February 1970 was held to fill up a very large number of vacancies created by the Government in order to ease the problem of stagnation and that the idea, was to give one more opportunity to a large number of clerks who remained as such because the normal wastage vacancies were not enough. The defense Secretary was of the view that since this promotion was a special one it should have been ensured that all deserving clerks who were stagnating should get a chance for promotion but this could be done by going through the record of five years instead of two years to eliminate supersessions on the basis of 'very good or 'outstanding' reports secured by juniors during the last two years only. This decision was arrived at in view of the clear violation of the operative instructions as contained in the office memor.a,ndum dated 30th August, 1969, of the Ministry of Home Affairs mentioned earlier. The record of the Dpc was examined at all levels and at the highest level the conclusion arrived at was that the Dpc apart from committing irregularities did not serve the purpose for which it was created, namely, to ease the problem of stagnation, and unless confidential reports for five years can be seen the problem cannot be solved.

(23) This conclusion cannot be called capricious, malafide or arbary. It was a bonafide decision arrived at after a careful consideration. The Dpc itself is not a statutory body but is merely a machinery devised by the appointing authority to assist him. As the panel prepared by the Dpc of February 1970 had not become final, it cannot be said that the new instructions were being given retrospective effect. Even otherwise instructions contained in the memorandum dated 30-8-1969 were not 'new instructions'. It is a case of a failure to observe existing instructionby DPC.

(24) Another limb of the same contention, as urged by the learned counsel for the petitioner, was that the instructions give discretion to the Dpc and the discretion having been exercised cannot be reopened to prescribe a new method or criterion. There is no denying the fact that the instructions contemplated Dpc to devise their own method and procedure for selection. To the extent the instructions give positive directions to the contrary and if they are not followed with the result that serious irregularities effecting the merit of selection are committed, the competent authorities are not debarred from refusing to follow the select panel prepared by the DPC.

(25) So far as the instructions contained in the office memorandum dated 30th August, 1969 are concerned, they are positive in saying that the basis of merit of the officials should be determined by the respective record of service which clearly means the entire record of service. The authorities concerned can, in individual cases and in peculiar circumstances, always say whether the period for which the record of service has been seen by the Dpc is proper or improper taking into account the purpose of selection. The instructions as to the entire record of service being seen is not a matter relating to the method and procedure which is to be adopted by the DPC. May be that in some selection after looking at service record of last two years is proper. Merely because earlier DPCs had been looking into the records of two years, it, however, cannot be said that the hands of the approving authorities are tied down in such matter. It is a matter of internal administration. Whether the better rule for selection is to see two years' or five years' confidential reports is for the Government to decide, It all depends on the facts of each case. It is primarily for the authorities concerned to see whether the Dpc had conducted proceedings in accordance with the instructions and the exigencies of the situation.

(26) The second submission also has no force. It will be noticed that in the second schedule of the Government of India (Allocation of Business) Rules, 1961, one of the entries mentioned under the Ministry of defense) is entry No. 9 which reads, 'Civilian Services paid from defense Estimates'. It will thus be seen that so far as civilian services paid from the Ministry of defense are concerned, the Ministry of defense has every right to issue instructions governing the condi- tions as to the recruitment and promotion of such employees, and it cannot be said that the instructions, as issued by the Chief of Army Staff on 26th April, 1971, were ultravires the powers of the Ministry of defense.

(27) The learned counsel for the petitioner, however, submitted that in view of entry No. 22, relating to Cabinet Secretariat, Department of Personnel, as contained in Schedule Ii, the Ministry of defense could not have issued the instructions dated 26th April, 1971. Entry No. 22 comes in Part Iv of the matters which are dealt with by the Department of Personnel of the Ministry of Cabinet Secretariat and reads as under :

'22.Conditions of service of Central Government employees excluding those under the control of the Ministry of Railways (Rail Mantralaya) and the Department of Atomic Energy (Parmanu Oorja Vibhag) other than those having a financial bearing and in so far as they raise points of general service interests'. It will be noticed that this is a general entry of the business which is transacted by the Department of Personnel of the Cabinet Secretariat, whereas entry No. 9 in the Ministry of defense deals specifically and specially for civilian services paid from defense Estimates. It will also be noticed that entry No. 22 deals with conditions of service of Central Government employees otter than those having financial bearing and in so far as they raise points of general service interests. So long as the instructions issued by the Department of Personnel are general and do not come in conflict with the instructions issued by the Ministry of defense relating to civilian services paid from defense Estimates, they would also apply; but where any special instructions are issued by the Ministry of defense in relation to such employees, such instructions would govern contiditions of service, even if they are in derogation or conflict with the instructions issued by the Department of Personnel of the Cabinet Secretariat. As entry No. 22 itself shows, .the instructions issued by the Department of Personnel merely relate to points of the general service interests and such instructions cannot render the instructions issued by the Ministry of defense as nugatory. So long as the instructions issued by the Ministry of defense are there relating to the conditions of service of their employees, they would hold the field and to the extent such instructions are silent any other relevant instructions issued by the Ministry of Cabinet Secretariat Department of Personnel may be utilised by the Ministry of defense, if they so choose.

(28) In order to show that Ministry of defense had no power to issue instructions in the matter of conditions of service relating to the petitioners, the learned counsel for the petitioner relied on the judgment of the Supreme Court reported as A. K. Subraman and others v. Union of India and others : (1975)ILLJ338SC , particularly the observations of the Supreme Court at page 489 in paragraph 17, wherein the counsel for the petitioner relied upon an office memorandum of the Ministry of Works, Housing and Supply, Government of India, on the subject of principles for seniority in the Central Engineering Service and Central Electrical Engineering Service (Class I) in the Central Public Works Department. The observations of the Supreme Court are that 'the learned Solicitor General did not address us on this office memorandum as he rightly found considerable difficulty in doing so. It will appear from the recital in this memorandum that it has not emanated from the Home Ministry for issuing instructions in service matters under the allocation of Business Rules of the Central Government under Article 77(3) of the Constitution.'

(29) It will be noticed that this case has no application as according to the Allocation of Business p.ules, the specific entry No. 9 under the Minisy of defense in the Second Schedule, which is very wide and has been adverted to earlier, includes power of the Ministry of defense to issue instructions relating to conditions of service of such employees as mentioned therein. It cannot be said that it is only the Department of Personnel which can issue instructions in the matter of conditions of service of the Central Government employees. It will be noticed that there are various other Ministries which have power to issue instructions in service matter. Reference may be made to entry No. 12 in Part I, relating to the Ministry of Agriculture. Entry No. 12 reads : 'All India Services-Indian Agricultural Service: Indian Forest Service.' There , similar entries in some other Ministries also. The case before the Supreme Court related to the Assistant Engineers in the Central Engineering Service (Class II) who were promoted as Class I Executive Engineers in the Ministry of Works, Housing and Supply, Government of India and it may be that the service to which they belonged was such that there was no entry in the Allocation of Business Rules covering such class of employees at the relevant time for the Ministry of Works, Housing and Supply. But in view of the specific entry No. 9 under the Ministry of defense in the Second Schedule of the said Rules, this judgment is of no assistance.

(30) Regarding the third submission, we have already held (above that as the petitioner did not have the right to hold the post; he was not entitled to tiny hearing before the suspension of the select panel and later on on reversion. The suspension of reversion was not by way of punishment but was by way of administrative reasons and thereforee the petitioner has no right to be heard.

(31) The fourth submission again has no force. Admittedly, according to the petitioner himself, the appointing authority was respondent No. 2 and respondent No. 2 had delegated his powers of appointment to respondent No. 3. Merely by delegating powers to a person the appointing authority does not exhaust his own power and thereforee respondent No. 2 continued to possess his powers of suspension or reversion of employees as he was the appointing authority. The delegater does not become functus officio or denuded of its power by merely delegating his authority. (See Godavari S. Parulekar etc. v. State of Maharashtra : 1966CriLJ1067 .

(32) The last submission on behalf of the petitioner relates to iscrimination under Article 14 of the Constitution. The only averments with respect to this submission are contained in clause (k) of paragraph 13 relating to the grounds in the writ petition. All that is averred is :

'ITmay be stated that the criterion for selection adopted by the Dpc in case of petitioner and others, was exactly the same as was in the case of civilian store-keepers. The same criterion has in fact been followed by the Dpc turn the last several years. The impugned act of the authorities is clearly vocative of Articles 14 and 16 of the Constitution.'

INreply to this averment, Col. Hukku in his affidavit stated that it is admitted that selection of civilian store-keeper (Grade II) was made by the same Dpc which selection has not been set aside. The rest of the contents are denied and it is stated that the impugned decision was taken after due consideration and the provisions of Articles 14 and 16 of the Constitution had not in any way been violated and nor the impugned decision is arbitrary or mala fide. The petitioner in his reply to the additional affidavit filed by Shri M. Subramanyam on behalf of respondents 1 to 3 stated in paragraph 1 :

'ITmay be stated that the said rule. of looking to only two last years confidential reports has been followed not only in regard to the post of head clerks, grade Ii, but also in case of head clerks grade I, storekeepers grade Ii and grade I and supervisor (technical) grade Ii and grade I and Foreman.'

ITwill be noticed that in the writ petition no allegation giving relevant facts in respect to store-keepers have at all been mentioned to show any discrimination. In the affidavit filed by Col. Hukku on behalf of respondents I to 3 though it was admitted that the same Dpc made promotion of the store-keepers but the fact of discrimination was denied. The averments made by the petitioner in bids rejoinder to the additional affidavit filed on behalf of respondents 1 to 3 are meaningless. The additional affidavit has been filed to give the history of the circumstances which led to the suspension and cancellation of the select panel. As no factual foundation has been laid down in the writ petition to substantiate the plea under Article 14 of the Constitution, this ground also fails. In any case, 'the select panel in the case of upper division clerks for promotion to grade Ii head clerk post was scrapped on the basis of complaints that it had been prepared contrary to the existing instructions and suffers from various irregula- rities. Admittedly, no complaints were made in the panel prepared by Dpc with respect to store-keepers. That selection itself took place two years earlier in 1968 and there was no complaint by the employees about the non-following of the instructions or of any irregularities being committed by the DPC. Even if two years Confidential Reports were seen by the Dpc in the case of store-keepers it cannot per se be said that it amounted to discrimination. It is possible that the purpose of removing of stagnation was served even by that criterion. It is well settled that Article 14 has no application where action is taken by the authorities to remove one evil and merely because no action is taken to remove another alleged evil it cannot be said that evil which is sought to be removed is hit by the provision of Article 14 of the Constitution. It may be that two persons may commit different offences but only one person is prosecuted by the authorities. The one who is prosecuted cannot complain of violation of Article 14 merely because the other one is not prosecuted. Article 14 has no application in such cases.

(33) The learned counsel for the petitioner cited various cases in support of the submission that the panel once prepared by the Dpc cannot be interfered with by the appointing authority or any higher authority.

THElearned counsel for the petitioner cited the case of Ex-Major N. C. Singhal v. Director General Armed Forces and another 1972 S.L.R. 178. This case related to the change of condition of service to the prejudice of the appellant. At the time when the appellant was recruited as class C officer of A.M.C. Reserve Service, the conditions of service were governed by paragraph (13) of the Army Instruction No. I/S of 1954 according to which his previous full pay commissioned service could be taken in the matter of 'ante date' for the purposes of his pay. The condition of service in this regard was not liable to be altered or modified to the prejudice of the appellant by subsequent administrative instructions which were given retrospective effect. There is no question in the present case of any change in condition of service.

THEnext case relied upon is the case of R. Prasad v. Union of India and others LPA 46 of 1968, decided on January 31, 1972 by Jagjit Singh and Pritam Singh Safeer JJ. This case related to the quashing of seniority list relating to the petitioner R. Prasad whereby the seniority was sought to be refixed after almost eight years of the issue of previous final seniority list without framing statutory rules. The Division Bench held that it was not legally permissible. The case has no relevance at all to the facts of the present case.

THEcase of Union of India v. R. K. P. Joseph and others : [1973]2SCR752 again has no relevance to the present case. That case relates to the interpretation of a general order issued by the Ministry of defense, Government of India, dated July 15, 1960, called office memorandum, providing for certain benefits to ex-military personnel on re-employment on the basis of their length of actual military service. The question involved was whether the respondent in that case was entitled to the benefit of the general order. This has no relevance at all to the present case. The authority has merely to be noticed and to be ignored.

THElearned counsel for the petitioner then relied on the case of Shri Iqbal Singh v. General Manager, Northern Railway etc. (1974) 2 SLR 557, decided by one of us Along with Misra and Sachar JJ. In this case the learned Judges of the Full Bench found that reversion from officiating post to substantive post has penal consequences and thereby quashed the reversion orders. It is not a case where select panel has been scrapped by the authorities like the one in the present case.

THEnext case: Jagjit Singh Uppal and others v. The Union of India and others : AIR1971Delhi155 again has no application on the facts of the present case. In the cited case the name of the petitioners had been removed from selection panel on which the names had been brought sometime back and it was directed that they will hold their present posts ex gratia till such time as they are reempanelled through fresh selection. The result of the issue of this letter, was that though the petitioners continued to hold the post to which they were appointed after the earlier selection and subsequent passing of the prescribed course, they will again have to appear and compete for being selected and if at all selected would become junior to those who have been empanelled in the subsequent selections or even in the selection which took place when the petitioners were also empanelled. The order was challenged on the ground that it affects their status and is likely to affect their seniority which is unjustified both in law as well as the practice prevalent in the department. The facts leading to that writ petition were that the petitioners who were railway employees in subordinate grades came to know that applications were invited for selection to the posts of Assistant Station Masters and Section Controllers from staff in various categories who had already passed some qualifying courses. The letter further provided that the members of the staff in the specified categories who had not attained the age of 40 years may also apply even if they had not passed prescribed courses because it was reasonably possible for them to pass through the course before attaining the age of 40 years. The petitioners though they had not passed the prescribed course were thus made eligible to apply for being selected for appointment to the posts of Assistant Station Masters and Section Controllers and they did prefer applications. The employees who applied and were held eligible, including the petitioners, were then called for a written examination and a viva voce test. The result of the selection thus conducted was announced and the petitioners were declared to be successful in the test held. Out of the persons selected those who had passed the prescribed course prior to the selection being held were promoted and appointed in vacancies in the higher posts. The petitioners, however, after being selected, were sent for qualifying in the requisite course. After qualifying in the courses the petitioners were promoted to officiate against permanent vacancies from various dates. The panel on which selected candidates had been placed in the selection held in 1961-62 included the names of the petitioners was exhausted by promotion of all the persons on the panel by 1964. A further selection in similar way was then held in 1965 in which persons junior to the petitioners and also some of the persons who had appeared in the written and viva voce tests along with the petitioners were selected and this second panel was exhausted by appointment of the selected personnel to the higher posts by 1966. Thereafter on 26th July, 1966, the impugned order was issued staling that the petitioners' names had been deleted from the select list and that they were to hold their present posts ex gratia till they qualify in the promotion course and were duly empanelled in a subsequent selection. The respondent had contested the writ petition and had contended that the rules prescribed the bringing of only such persons on the select panel as had passed the prescribed course and since the petitioners were empanelled contrary to this provision they have to be de-empanelled. Prakash Narain J. found that the contention of the respondent about the requirement for being brought on the panel had been fulfillled by the petitioners and their de-empanelling was contrary to the rules. The learned Single Judge also held that the orders issued against the petitioners were discriminatory.

THIScase also is of no assistance to the petitioner for more than one reason. The petitioners in that case had been selected for promotion in accordance with the statutory rules which required selection to be done in accordance with the practice regulating such promotion. The learned Single judge found as a fact that the practice was that for a person to be empanelled only his merit was to be considered and it was only that the condition of passing the requisite test was provided before a person could actually be promoted. It was found on facts that not only earlier but even subsequently, the eligible persons were first brought on the panel and if they had not completed the age of 40 years they could pass the prescribed courses before the order of promotion was actually passed. Since the select panel had been prepared in accordance with the rules and the petitioners were being discriminated as against the persons selected earlier and/or later, the order was held to be discriminatory of Article 14 of the Constitution.

(34) In the present case as we have found earlier, the entire select panel was being scrapped on the ground that the administrative instructions applicable for preparing the select panel had not been properly followed by the Dpc and no right had been acquired in the meantime by the petitioner by his temporary promotion.

THElearned counsel for the petitioner also relied upon the judgment of the Division Bench of Hardy and Ansari JJ. in the case of Union of India v. Zorawar Singh 1970 L.P.A. 98 .This appeal arose out of the judgment of Rangarajan J. passed in C.W. 770-D of 1965. It will be noticed in this case that the respondent was holding a substantive post of Senior traveling Ticket Examiner in the Northern Railway and the respondent was directed to appear in a written test to be held by the Selection Board for selecting persons for the post of Chief Ticket Inspector in the higher scale. The respondent appeared in the written test and also appeared for the interview before the Selection Board. Out of the 20 candidates, who had been called for the interview, a panel of five candidates was framed and the Selection Board recommended the appointment of these five candidates including the petitioner to the posts of Chief Ticket Inspectors. As per the letter of the Divisional Superintendent, Northern Railway, Bikaner, (the appointing authority), the respondent was promoted to the selection post.of Chief Ticket Inspector in the higher scale. As a result of this promotion, the respondent's pay and allowances increased. After the respondent had been working as Chief Ticket Inspector for about 17 months, the Divisional Superintendent cancelled the promotion of the respondent and the other four persons who were selected Along with him. No reasons were disclosed in the letter cancelling the promotion. But according to the appellants, the reasons for cancelling the respondents' promotion were that certain irregularities had been committed in the selection of the panel by the Selection Board and in pursuance of the impugned order dated 1965, the respondent was reduced from the rank of Chief Ticket Inspector to the lower rank of Senior traveling Ticket Examiner. It is clear from the judgment of the learned Single Judge that under the rules the panel remained current for only one year and got exhausted after one year. It is also clear from the judgment of the learned Single Judge that no interference with the panel already drawn up as a result of selection is possible except as provided by the rules. The learned Single Judge took the view that in view of the statutory rules, there was no other power in the appointing authority, who had once approved the panel, to cancel it after it had exhausted itself. The learned Single Judge also took the view that no question of the applicability of Article 311 of the Constitution arose in that case. The learned Single Judge also mentioned that even before him there was no proof of any irregularities as alleged in the affidavit filed on behalf of the railways.

THErailway authorities being dissatisfied went up in Letters Patent Appeal which was heard by Hardy and Ansari JJ. and the appeal was dismissed. The learned counsel for the petitioner relied on certain observations of the Division Bench which stated that once a select panel is prepared and the persons are appointed in pursuance thereof it stood exhausted and cannot be cancelled.

ONan examination of the judgment of the learned Single Judge it is clear that the said finding was given in view of particular statutory rule in such matters which are contained in the Railway Establishment Manual.

INthe present case there is no statutory restriction as to as and when select panel can be cancelled. We have found as a fact that the respondent had given good and bonafide reasons why the select panel had to be scrapped. There being no statutory restriction like one in the case of Zorawar Singh (supra), the authority of the Division Bench has got no applicability on the facts of the present case.

Next, was placed on the case of Shyam Behari Lal ahd others v. The General Manager Eastern Railway (1973) 2SLR 168. In this case the select panel was prepared by the Selection Board and panel was approved by the appointing authority. The General Manager of the Railway called for a report and then cancelled the selection and the panel of the selected candidates. Paragraph 216 (J) of the Indian Railway Establishment Manual provided as under :-

'AFTERthe competent authority has accepted the recommendations of Selection Board, the names of the candidates selected will be notified to the candidates. A panel once approved should normally not be cancelled or amended. If after the formation and announcement of the panel with the approval of the competent authority it is found subsequently that there were procedural irregularities or other defects and it is considered necessary to cancel or amend such a panel, this should be done after obtaining the approval of authority next higher than the one that approved the panel.'

THErule gives power to the General Manager to cancel the panel if there are procedural irregularities or other defects. The counsel for the General Manager had conceded that there was no procedural irregularities but there were other defects as contemplated by paragraph 216 (J). The learned Judge took the view that the defects pointed out did not come within the meaning of paragraph 216 (J) and consequently it was beyond the power of the General Manager to cancel the panel. This case depended for its decision on the power as given by statute. The power is being exercised here by the Government without any restriction or reservation being prescribed in law.

THEnext case of Gurnam Singh v. State of Rajasthan and others (1971) 2 Slr 799 again has got no relevance. In this case the Supreme Court was faced with variance between the executive instructions and statutory rules providing for promotion on the basis of merits alone. The Supreme Court had held that the instructions which were the restrictions and limitations on the exercise of discretion of the selection committee, provided for in the statutory rules, are invalid. In the present case there are no statutory rules providing for selection. The executive instructions merely provide for Dpc to assist the appointing authority and the appointing authority can always overrule the decision of the Dpc for good reasons arrived at bonafide.

(35) It must thereforee be held that none of the impugned orders suffered from any -infirmity and there is no merit in the writ petition which is dismissed. However, on the facts and circumstances of the case, the parties are left to bear their own costs.


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