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Deputy General Manager Phones, Delhi Telephone District, New Delhi and anr. Vs. Inder SaIn Alag - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 278 of 1971
Judge
Reported inILR1980Delhi511; 1981LabIC462; 1981(1)SLJ487(Delhi)
ActsIndian Posts and Telegraphs (Stenographers) Recruitment Rules, 1961 - Rule 4; Constitution of India - Article 309
AppellantDeputy General Manager Phones, Delhi Telephone District, New Delhi and anr.
Respondentinder SaIn Alag
Advocates: Ravinder Sethi,; P.N. Lekhi and; M.K. Garg, Advs
Cases Referred and Labh Singh Waryam Singh v. Union of India
Excerpt:
.....department in the clerical grades will be eligible for appointment as stenographers only in the circle office or the circle or office to which they belong. it will be at the discretion of the head of the circle or office concerned to permit them to appear at the examination and his decision will be final.....'.; respondent disputed the interpretation of the appellant column 4 of the schedule to the rules and alleged the violation of principles of natural justice and provisions of article 311 of the constitution of india as he was not given reasonable opportunity to show-cause against the orders of deconfirmation and reversion.; 1. column 4 of the schedule to the indian posts and telegraphs (stenographers) recruitment rules, 1961 can be divided into four parts. the first is that..........department in the clerical grades will be eligible for a appointment as stenographers only in the circle office or the circle or office to which they belong. it will be at the discretion of the head of the circle or office concerned to permit them to appear at the examination and his decision will be final......'(8) according to the appellants the respondent was not eligible for appointment as a stenographer because he substantively belonged to the c.t.s. office and not to the office of the general manager telephones as he was holding a four year tenure post only as a steno typist/typist clerk. thereforee, he was wrongly permitted to sit for the competitive examination in which he qualified. this mistake was corrected by the impugned orders. in our opinion, grave injustice was done to.....
Judgment:

Prakash Narain, J.

(1) In this appeal under Clause X of the Letters Patent we are concerned with two principal points which arise for decision. The first is the construction to be put on certain provisions of the Indian Posts and Telegraphs (Stenographers) Recruitment Rules, 1961, hereinafter referred to as the Rules, which were promulgated under the proviso to Article 309 of the Constitution of India by a notification dated November 13, 1961. The second point which arises in the case is whether the. rules of natural justice are attracted where an appointment made under the rules is later, nullified on the ground of there being a mistake committed by somebody in permitting an employee of the Indian Posts and Telegraphs Department to sit for a competitive examination in a recruitment for certain posts done under the rules.

(2) The respondent was appointed a Time Scale Clerk in the office of the Controller of Telegraphy Stores (hereinafter referred to as the C.T.S.),Jabalpur on February 26,1952. He was later confirmed in this post with effect from the date of his original appointment. On January 1, 1953 the respondent was appointed as a Steno Typist/Typist Clerk. This appointment did not entail any promotion and the respondent continued to be a Time Scale Clerk working as a Steno Typist/Typist Clerk. The only advantage that the respondent got by this appointment was that he became entitled to get special pay of Rs. 25 P.M. In July, 1955 the respondent was transferred to C.T.S., Delhi, on his own request. Even in this office he continued to work as Steno Typist/Typist Clerk. Some time in 1962 there was a requirement for Typist Clerk/Steno Typists in the office of the General Manager, Telephones, New Delhi. A test for selection was held. This was not a statutory test and no promotion was involved. Presumably, this test was held to select the best possible available Steno Typists. The respondent was permitted to sit for this test and was selected. Accordingly, on September 21, 1962 an order was issued appointing the respondt as a Steno Typist in the office of the General Manager Telephones, New Delhi, with effect from September 15, 1962 for a period of four years. The appointment letter specifically stated that on completing the tenure of four years the respondent will be repatriated to his parent office, namely, C.T.S., Delhi. While the respondent was working as a Steno. Typist in the office of the General Manager Telephones it was decided in 1964 to recruit Stenographers in accordance with the provisions of the rules to fill up some temporary posts of Stenographers in the office of the General Manager Telephones, New Delhi. The respondent applied for permission to sit in the competitive examination for this selection. Permission was granted to him and. he sat in the competitive examination. On successfully competing in the said competitive examination, the respondent was appointed a temporary Stenographer by an order dated May 29, 1964 with effect from the forenoon of May 20, 1964. The rules provided for a probationary period. The respondent was held to have successfully completed his probation period. Accordingly, by an order dated March 21, 1968 the respondent was confirmed as a Stenographer with effect from March I, 1967. The lien of the petitioner had been transferred from C.T.S., Jabalpur to C.T.S., Delhi, when he was transferred to Delhi in July, 1955. He continued to hold his lien on the post of a Time Scale Clerk throughout. On his confirmation as a Stenographer by an order dated April 22, 1968 the Controller of Telegraphs Stores, New Delhi terminated the respondent's lien on the post of a Time Scale Clerk with effect from March 1, 1967. Thereafter the respondent held lien on the pest of a Stenegrapher having been appointed to that post under the rules. Some time in 1967 the Indian Posts and Telegraphs Department hold a selection for the past of a Stenographer to be attached to the Qffice of the Indian Co-operation Mission at Kathmandu in Nepal where the Indian Posts, and Telegraphs pepartment had undertaken to execute certain projects for that country. To hold this selection volunteers were called from amongest officials of offices of the Posts and Telegraphs Department throughout the country. The respondent volunteered to go to Nepal, if selected. From amongst a large number of volunteers the respondent was ultimately selected for this post in Nepal. Accordingly, he joined the office of the Indian Co-operation Mission at Kathmandu on June 10, 1968. The benefit that the respondent got was that his basic pay was fixed at Rs. 220 P.M., Foreign Allowance Rs. 595 P.M., Children's Education Allowance of Rs. 180 P.M., making a total of Rs. 990 P.M. In addition to the increase in emoluments the post carried the advantage of free-furnished accommodation with all the amenities. By this posting, the respondent did riot lose his lien on his substantive post as a Stenographer in the office of the General Manager Telephones, New Delhi. Some time towards January, 1970 the respondent was informed that he was being reverted to the post of a Time Scale Clerk and was, thereforee, required to come back to New Delhi. On enquiries the respondent learnt that it had been held that his. appointment to the post of a Stenographer was irregular add that is why he was being recalled. Indeed, orders were passed resulting in the petitioner being reverted to the substantive post of Time Scale Clerk. On September 19, 1970 the Deputy General Manager (Administration) of the office of the General Manager Telephones, New Delhi, ordered de-confirmation of the respondent from the post of lower grade Stenographer. Further, on September 21, 1970 the Deputy General Manager (Administration) directed the respondent's reversion to his substantive post of Time Scale Clerk in the office of the C.T.S., New Delhi. The decision to de-confirm and revert the respondent had, however, been taken in January, 1970. The respondent made representation against the proposed orders on February 2 and March 24, 1970. These representations were rejected. This led the respondent to file a petition under Article 226 of the Constitution challenging, the order of de-confirmation and the order of reversion.

(3) The respondent contended that the relevant provisions of the rules have been misread by the competent authorities in ordering deconfirmation and reversion. He also contended that in any case he was denied reasonable opportunity to show cause against the proposed de-confirmatian and reversion and, thereforee, not only rules of natural justice have been violated but also the provisions of Article 311 of the constitution.

(4) The appellant's case in its reply to the rule nisi was that the Government was always entitled to correct a mistake and What has been done is to correct an adminstrative mistaked. In such circum stances the question of natural justice or Article 311 of the Constitution being attracted did not arise, On,merits it was contended that the respondent was not eligible,under the rules for sitting in the competitive examnation which was held to recruit Stenographers. This mistake was discovered later on and has been corrected by the impugned orders.

(5) The learned Single Judge who,heard the petition filed by the respondent was of the view that column 4,of the Schedule to the Rules is very clear and,there was scppe for,the conflicting views as were put forward before him. He did not give any definite opinion as to what the rules mean. The learned Judge took the view that the principles of natural justice required that if civil consequences ensue, as according to him they did in the present case, the respondent was entitled to be intformed of the grounds on which was proposed to de-confirm and revert him. 'This, not having been done, the impugned orders were liable to be struck down. The learned Judge also observed that the initial recruitment of the respondent as a Stenographer could not be regarded as wholly void and So, the ratio of The State of Punjab V. Jugdip Singh,and others : (1966)ILLJ749SC and Labh Singh Varyam Singh v. Union of India, : AIR1967Delhi67 .was not attracted. Aggrieved, by that decision the Government has come up in appeal and that is how the matter, is before us.

(6) Mr. Ravinder Sethi appearing for the appellant has reiterated the two points which were urged before the learned Single Judge also. He first contends that the respondent was not eligible for either taking the competitive examination or for being appointed as a Stenographer under the rules and inasmuch as he was appointed by mistake, the Government has inherent power to. correct that mistake. Next, he contends that when a mistake is sought to be corrected, being an administrative mistake, the rules of natural justice are not attracted.

(7) Rule 4 of the said Rules provides that the method of recruitment, age limit, qualification and other matters connected therewith shall be as specified in columns 4 to 8 of the 'Schedule attached to the Rules. Column 4 of the Schedule, so far as it is relevant, reads as under:

'100per cent by means of an open competitive examination. The examination is open 'to outside candidates nominated by Employment Exchanges and all officials of the Posts and Telegraph Department who are in the clerical grades, carrying the scales of pay Rs. 110-4-150-5-175-Efficiency Bar-6-205-Efficiency Bar-7-240, or Rs. 110-3-131- 4-155-Efficiency Bar-4-175-5-180, within the jurisdiction of the Circle or office concerned and are either permanent or quasi-permanent. The officials of the Posts and Telegraphs Department in the Clerical grades will be eligible for a appointment as Stenographers only in the Circle Office or the Circle or Office to which they belong. It will be at the discretion of the Head of the Circle or Office concerned to permit them to appear at the examination and his decision will be final......'

(8) According to the appellants the respondent was not eligible for appointment as a Stenographer because he substantively belonged to the C.T.S. office and not to the office of the General Manager Telephones as he was holding a four year tenure post only as a Steno Typist/Typist Clerk. thereforee, he was wrongly permitted to sit for the competitive examination in which he qualified. This mistake was corrected by the impugned orders. In our opinion, grave injustice was done to the respondent in the appellants construing the provisions of the relevant, rules. This has already been read earlier and we now proceed to analyze what the rule means.

(9) It is common case that what is to be construed is column 4 of the Schedule read earlier. On a careful reading of this provision it will be noticed that it can be divided into four parts. The first is that recruitment to the post of a Stenographer is by a competitive examination. The second part is that the competitive examination is open to persons nominated by Employment Exchanged and all officials of Posts and Telegraphs Department Who are in the clerical grade carrying the specified scale of pay and are either permanent or quasi-permanent. The third part is that persons selected in the competitive examination will be 'eligible' for appointment as Steno-graphers in the Circle or Office to which they 'belong'. The fourth part is that it would' be the discretion of the head of the Circle or Office in which an employee of Postsand Telegraphs Department is service to permit him to appear or not to permit him to appear in the competitive examination. That the respondent is an employee of the Posts and Telegraphs Department is not in dispute nor can it be said that he Was not substantively in the appropriate grade of a Clerk. If that be so, the respondent was certainly eligible for sitting in the competitive examination. It is contended that inasinch as he did not 'belong' to the General Manager Telephones' office or that circle, he could not be permitted, as he was, to sit in the competitive examination. If this construction of the rule was to be accepted the rule may become repugnant to Articles 14 and 16 of the Constitution. The eligibility to sit for the competitive examination can have nothing to do with posting after selection. The word 'eligible' in the third part of the rule means and can only mean that once a person is selected he should be posted in the circle or office to which he belongs. Reading this part of the rule as the appellants would have us read, the same, would make it contradictory to the second part of the rule. The only intelligible way to read this part of the rule is to confer either an entitlement on the person, selected to be posted in his parent circle or office or a liability on him that he would be so posted. Indeed, the fourth part of the rule' when read with the third part of the rule makes the scheme understandable. The fourth part of the rule gives a discretion to the head of the circle or office in which an aspirant is serving to permit or not to permit employees serving under him to sit for the competitive examination. This power is given t;o the head of the circle or office so that if there is already surplus staff in his office or adequate staff in his office in the already of Steno-graphers, he may decline more persons from. his office to take the competitive examination. The power to decline permission to sit for the competitive examination is given to ensure that eligible persons are not made to sit for the examination and be selected and yet have no opening for being posted. The third part of the rule also does not mean and cannot mean that the posting can only be in the circle or office to which the person belongs. Eligibility for posting is distinct from posting being possible only in the circlet to which a person belongs. There is on compulsion in the third part of the rule, as we read it, that the posting can only be in the circle or office to which the qualified or selected person belongs. Furthermore, the word 'belong' is rather vague. It may mean, as is contended by the appellant, that the person holds his lien on a post in a particular circle or office or it may mean the circle or office in which a person is serving for the time being. It is not necessary to give any definite meaning to the word 'belong,' as whichever way one may look at it. we are of the opinion there is no absolute compulsion of posting only in the circle to which a person belongs on being selected in the competitive examination.

(10) In the view that we have taken in construing the rule it is unnecessary for us to dilate on the fundamental rules to which our attention has been invited or to the concept of lien in those rules.

(11) There was some confusion created on the question as to whether the respondent was on deputation. We have seen the service record and despite what is said in the affidavit filed on behalf of the appellants by way of return to the rule nisi it is clear that the respondent was never on deputation at any point of time. When he came from C.T.S., Jabalpur to Delhi he came on transfer. When he was appointed a Steno Typist there was no promotion involved. When he went and joined as a Steno Typist in the office of the General Manager Telephones, he went on a tenure post on transfer from one department to another or one office to another and was not on deputation. He held his lien in C.T.S., Delhi till it was terminated. The plea regarding deputation was taken up to support the contention that the respondent did not belong to the office of the General Manager Telephones and so was not eligible to take the competitive examination. Besides the plea being wrong, as we have already held, it made no difference to the eligibility of the respondent to take the examination. Further, the discretion having once been exercised in favor of the respondent permitting him to take the examination, it must be assumed that ineligibility, if any, ceased to exist. It cannot be urged by the appellants that the permission was given without jurisdiction. Be that as it may, in our opinion, the respondent was fully eligible to sit for the competitive examination. The question of posting was different and he could be posted anywhere on being selected.

(12) The above being the correct position in law, the second point regarding natural justice merely becomes academic. However, we must, in all fairness to the learned counsel for the appellants, notice that he has relied on Sunder Lal and others v. The State of Punjab and others, , Ranjit Singh I.P.S. v. The President of India and others 1971 (2) Slr 261(4) and Labh Singh Waryam Singh v. Union of India, : AIR1967Delhi67 , to contend that the question of natural justice does not arise in a mistake being corrected. We, however, feel that the contention is not sound and reliance on the three cases is misplaced. The respondent had been confirmed in the post of Stenographer and so, had a right to the post. Indeed, he held a lien on that post. Any deconfirmation or reduction inrank would per se attract Article 311 of the Constitution. The law on this aspect is settled. Even correcting a mistake, which there was none, would entail civil consequences, as rightly held by the learned Single Judge. The three cases relied upon are distinguishable. In the Full Bench case of the Punjab High Court relied upon, the question of natural justice neither came up for consideration nor has it been dealt with. In the Division Bench judgment of the Punjab High Court reported in Service Law Reporter the demotion was from an officiating post to which the writ petitioner had no right. This case deals with the power of the Government to correct its mistake and it has been held that when a mistake is being corrected, Article 311 of the Constitution is not attracted. The facts in the present case are different where the respondent was a confirmed Stenographer and so per se Article 311 is attracted. Furthermore, the decision does not discuss or deal with the question of natural justice as it neither arose for consideration nor is it dealt with. The case really deals with Article 311 of the Constitution being attracted in the case of officiating appointments made by mistake. In the decision of the Delhi High Court on which reliance has been placed, once again, the person concerned was not confirmed. The mistake which was corrected was the mistake in giving him pay of a higher post. Merely giving higher pay does not mean substantive appointment. The case dealt with a challenge to demand for refund of salary.

(13) In view of our discussion above, we must answer both the questions formulated earlier in favor of the respondent. The result is that the appeal is dismissed with costs.


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