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D.R. Oza Vs. Government of Gujarat, Revenue and Agricultural Department - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 895 of 1965
Judge
Reported inAIR1971Guj39
ActsConstitution of India - Articles 16, 226 and 311(2)
AppellantD.R. Oza
RespondentGovernment of Gujarat, Revenue and Agricultural Department
Appellant Advocate P.V. Hathi, Adv.
Respondent Advocate K.A. Dabu, Asstt. Govt. Pleader and; M.G. Doshit, Asstt. Govt. Pleader
Cases ReferredKraipak v. Union of India
Excerpt:
service - reversions - articles 16, 226 and 311 (2) of constitution of india - petitioner held class ii post of engineer - promoted to class i - reverted to his original post as per order passed by state government - order challenged - state reverted his services as he was going to attain age of superannuation - irrelevant consideration taken by government - order of government arbitrary. - - hathi that there was reduction of rank in violation of article 311(2), the contention must fail as the petitioner did not hold any substantive rank in class i and the reversion is not shown to be one by way of penalty as it attaches no stigma to the petitioner. it may very well be that matters relating to employment or appointment to any post are wide enough to include matters of promotion...........dated january 13, 1964, at annexure 'c' by which he has been reverted from gujarat agriculture service class i to gujarat agriculture service class ii and posted at rajkot as agriculture engineer. there is no dispute that the petitioner held a substantive post in gujarat agriculture service as agriculture engineer in class ii post. by the order at annexure a, dated, march 7, 1963, the petitioner was promoted to gujarat agriculture service class 1 post temporarily pending availability of officers selected for this post by the public service commission and from march 20, 1963 the petitioner was posted to the post of deputy director of agriculture. the petitioner worked about 11 months and suddenly by the impugned order at annexure 'c', dated january 13, 1964, the petitioner was.....
Judgment:
ORDER

1. The petitioner in this petition challenges the order of the State Government, dated January 13, 1964, at Annexure 'C' by which he has been reverted from Gujarat Agriculture Service Class I to Gujarat Agriculture Service Class II and posted at Rajkot as Agriculture Engineer. There is no dispute that the petitioner held a substantive post in Gujarat Agriculture Service as Agriculture Engineer in Class II post. By the order at Annexure A, dated, March 7, 1963, the petitioner was promoted to Gujarat Agriculture Service Class 1 post temporarily pending availability of officers selected for this post by the Public Service Commission and from March 20, 1963 the petitioner was posted to the post of Deputy Director of Agriculture. The petitioner worked about 11 months and suddenly by the impugned order at Annexure 'C', dated January 13, 1964, the petitioner was reverted to his original Class II post. It is the case of the petitioner which is not controverted that various persons mentioned by him were junior to him in the seniority list prepared under Rule 7 of the Allocated Government Servants (Absorption, Seniority, Pay and Allowance) Rules, 1957, and that two of these persons Shri Thorat and Shri Kathavate were not even on the seniority list. By the impugned order the persons junior to the petitioner were promoted to the Gujarat Agriculture Service Class I post while the petitioner was reverted to his substantive post in Class II. Even thereafter by the further orders the other juniors have been promoted while the petitioner is continued only in the same Class II post. The petitioner has therefore challenged the impugned order on the ground that he is arbitrarily discriminated by the State in violation of the guarantee enshrined in Article 16. On behalf of the State affidavit has been filed by the Under Secretary. Agriculture and Co-operation Departments. The only reason which is made out in this affidavit for reverting the petitioner is that the question of continuance of the petitioner beyond the age of 55 years when he was to attain the superannuation age was under the consideration of the Government and pending such consideration, the petitioner was allowed to continue in the substantive post pending further orders. The State also denied that there was any reduction in rank which would attract Article 311(2) of the Constitution or there was any discrimination because the petitioner had no right or lien in Class I cadre and he was merely officiating in Class I post.

2. As regards the first contention of Mr. Hathi that there was reduction of rank in violation of Article 311(2), the contention must fail as the petitioner did not hold any substantive rank in Class I and the reversion is not shown to be one by way of penalty as it attaches no stigma to the petitioner. Therefore, there is no violation of Article 311(2) of the Constitution.

3. Mr. Hathi's second contention must, however, be accepted that the guarantee of Article 16 is violated. In Kishori v. Union of India : [1962]44ITR532(SC) their Lordships of the Supreme Court pointed out that what Article 16(1) provides is that there should be equality of opportunity for all persons in matters relating to employment or appointment to any post under the State. It may very well be that matters relating to employment or appointment to any post are wide enough to include matters of promotion. Inequality of opportunity for promotion as between citizen's holding different posts in the same grade may, therefore, be infringement of Article 16. Therefore, if out of the Income-tax Officers of the same grade some are eligible for promotion to superior grade and others are not, the question of contravention of Article 16(1) may well arise. In fact, the Division Bench of the Bombay High Court consisting of Tendolkar and S.T. Desai, JJ. in P.K. More v. Union of India : (1958)IILLJ38Bom has interpreted Article 16 as taking within its ambit even temporary employees. At page 139 the Division Bench has pointed out as under: -

This concept of equality in matters of employment is no more than a corollary of the fundamental right to equal justice in all matters. Its positive aspect demands equal treatment in equal circumstances. Its negative aspect for bids any impediment or unfair burden being laid upon one than upon others for the same engagement and condition and also forbids any special privilege being conferred in favour of any individual. This equality forbids any class legislation or governmental action based on similar consideration but does not forbid classification or distinction which is reasonable and not an arbitrary selection. What is enjoined is that all citizens in matters of service under the State shall be treated alike under like circumstances and conditions both in the privileges conferred and the liabilities and obligations imposed. The primary aim is to prevent any person or class of persons from being singled out as a special subject for purposeful or invidious discrimination or hostile treatment. What is insisted upon is not hypothetical equality or equality in matters of minor importance or matters of detail or routine. The purpose is to ensure similarity and equal treatment and not identity of treatment in matters relating to initial engagement, during continuance of that engagement and at the terminal end of that engagement. The guarantee of equality embraces all matters of employment - the Article in terms clear and ample speaks of all matters relating to employment - and it is impossible to accede to the suggestion that what is contemplated by Article 16 is only the initial stage when the citizen is employed to serve the State. Nothing so unfair and startling could have been within the contemplation of the framers of the Constitution. The guarantee was intended to endure and not to be illusory.'

The Division Bench further pointed out that no distinction can be made in this connection between a permanent employee and a temporary employee and as it has no relevance and indeed was foreign to the fundamental right of equal opportunity insisted upon in the Constitution. Our Constitution regards equality of status and opportunity as instancing the democratic ideal it seeks to translate. Dignity of individual evolution of his personality, social justice and equality would have little meaning unless there was guarantee to the citizen real equality of opportunity. Obviously that equality would be unreal if every citizen was not eligible to appointment or employment under the State, whether temporary or permanent, according to his qualifications and capacity and without any barriers except those based upon public utility. It was further pointed out by the Division Bench that differentiation must always rest on grounds of reason and not on prejudice or bias or extraneous consideration. Therefore, the order terminating the services even of a temporary employee can be challenged when it violated Article 16 if it arbitrarily picked out that employee for purposeful or invidious discrimination or hostile treatment. In A.N. Nagnoor v. State of Mysore, AIR 1964 Mys 229 the Division Bench consisting of Kalagate and Govind Bhat, JJ. held that the order of the Government promoting a junior in supersession of senior without considering the claim of the senior for promotion when it was due to him had to be quashed even though the promotion was a temporary one as it was in violation of the principle of equality of opportunity embodied in Art. 16. In V.L. Poonekar v. L.S. Kaul, 10 Guj LR 136 : 1969 Lab IC 1019 I have held that it is well settled that even in matters of privileges as that of promotion in view of Article 16 which has introduced a concept of rule of law, the State cannot act arbitrarily. The State must show appropriate statutory rule or principle showing rational purpose for its action which relates to the function the State performs in passing any such order to the detriment of the concerned Government Servant. In such matters even though there may be no duty to act judicially, such an administrative order can be reviewed by a suitable writ by keeping the State within the bounds of the rule of law. In view of this settled legal position, even in the matter of such temporary employee when the State reverts its servant who has been temporarily promoted to class I post, the State cannot arbitrarily seek to affect his rights. Such an administrative order of the State can even by reviewed by this Court, if the State had acted arbitrarily or the order is unreasonable, or perverse or is based on extraneous considerations. In the present case, the only ground alleged by the State is that the petitioner was going to attain the age of superannuation on December 12, 1964 and as the question of his further continuance was to be considered, pending final decision he was put on his substantive post. This is completely an irrelevant and extraneous consideration which should not have been taken into account in considering this important question whether the petitioner should be immediately reverted and his junior should be posted in his place in the Class I post.

4. At the time when the promotion order was passed on March 7, 1963, at Annexure 'A', the promotion was temporary, pending availability of candidates selected by the Public Service Commission. It is not disputed that the Public Service Commission has not selected anybody for the post. The petitioner would, therefore, normally have continued in Class I post until the officers selected by the Public Service Commission were in fact available. The question regarded further continuance after he had attained superannuation age would be material in order to decide his continuance in service of the State after December 12, 1964, and that question would be at that time equally applicable whether the petitioner was continued in his officiating capacity in Class I or in his substantive post in Class II. That is why this consideration was entirely and extraneous one, which completely vitiated the order reverting the petitioner. The only other reason was that the petitioner being a temporary employee, the State Government could have reverted him. That also is not a reason at all. Article 16, as I have mentioned, guarantees equal treatment or equal justice even in case of temporary employees and the Government cannot arbitrarily pick out the petitioner for discrimination by reverting him without any reason and putting up other junior employees of the same class in his place. Therefore, the order of the State being arbitrary and unreasonable, it must be declared to be invalid and inoperative on this short ground. It is, therefore, not necessary to go into the other question raised by Mr. Hathi that in this case the petitioner's right to continue officiation in Class I was affected by this order, and, therefore, even though the State may have no duty to act judicially, the State was bound to act fairly and justly in accordance with the minimum principles of natural justice by informing the petitioner as to what it intended to do and by allowing him to make a representation to convice the authorities that the petitioner was not liable to be reverted in view of the latest decision of the Supreme Court in Kraipak v. Union of India : [1970]1SCR457 . In any event this decision also settles the question that such an arbitrary administrative action of the State in matters of promotion or demotion would be subject to the process of judicial review. Therefore, at least the petitioner can be granted this declaratory relief that the impugned order at Annexure 'C' , dated January 13, 1964, in so far as it seeks to revert the petitioner is invalid and inoperative and that it shall not affect the petitioner's services in any manner.

5. Miss Dabu has no doubt argued at the beginning that this petition should be dismissed as it is unduly delayed for more than one year and as persons affected are not joined in the petition. The petitioner made proper representations and there is no unreasonable delay at all which has in any manner prejudiced the State. Besides, the petitioner was almost nearing the super annuation age at the time of the order, and at the time of the petition he was continued in service. Mr. Hathi states that the petitioner has finally retired in December 1967. The petitioner does not claim any relief against other juniors who have been promoted. The relief which I amendment granting is also a relief of declaration of invalidity of the action of the State Government held to be in violation of the petitioner's fundamental right under Article 16. In that view of the matter, there is no substance in any of the preliminary contentions raised by Miss Dabu.

6. In the result the petition is allowed by making the rule absolute only in so far as the impugned order reverting the petitioner is declared to be invalid and inoperative, and it is further held that this order shall not affect the petitioner's service and shall not come in his way in computation of any of his service rights or benefits. Rule accordingly made absolute with costs.

7. Petition allowed.


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