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Union of India (Uoi) Through the General Manager, Western Railway Vs. B.S. Misra - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 53 of 1969
Judge
Reported in1972WLN1081
AppellantUnion of India (Uoi) Through the General Manager, Western Railway
RespondentB.S. Misra
DispositionAppeal dismissed
Cases ReferredM.M. Dutta v. Union of India
Excerpt:
criminal procedure code - section 403--acquittal by withdrawal of prosecution and acquittal at the end of trial--no distinction between.;the accused shall be deemed to have been acquitted when the public prosecutor withdrew from the prosecution in respect of the offence for which the plaintiff was put on trial. under the criminal procedure code no distinction is made between an acquittal resulting from the withdrawal of the prosecution and acquittal at the trial. for example, section 403 criminal procedure code will apply in either case.;(b) railway establishment code - rule 1704--departmental proceedings initiated without prior approval--held, proceedings are without jurisdiction-approval cannot be accorded in appeal.;the condition precedent for the initiation of the proceedings by the.....kan singh, j.1. the second appeal before me is by the union of india and is directed against the appellate judgment and decree of the learned additional civil judge ajmer dated 28-8-68 and raises a question about the validity of certain punishments imposed by the authorities of the western railway on the respondent b.s. misra who was clerk in grade ii and was officiating in grade 1 at the relevant time his case was briefly this on 11. 7.60 he was officiating as a clerk grade i in the time scale of rs. 80 5-120 -eb 8-200 -10-220 (ps) and was posted in the office of the divisional accounts officer, western railway, jaipur. he was under the control of the deputy chief accounts officer (traffic accounts) western railway, ajmer. as the plaintiff-respondent was arrested by the police in.....
Judgment:

Kan Singh, J.

1. The second appeal before me is by the Union of India and is directed against the appellate judgment and decree of the learned Additional Civil Judge Ajmer dated 28-8-68 and raises a question about the validity of certain punishments imposed by the authorities of the Western Railway on the respondent B.S. Misra who was Clerk in Grade II and was officiating in Grade 1 at the relevant time His case was briefly this On 11. 7.60 he was officiating as a Clerk Grade I in the time scale of Rs. 80 5-120 -EB 8-200 -10-220 (PS) and was posted in the office of the Divisional Accounts Officer, Western Railway, Jaipur. He was under the control of the Deputy Chief Accounts Officer (Traffic Accounts) Western Railway, Ajmer. As the plaintiff-respondent was arrested by the police in connection with the general strike by the staff of the Western Railway, he was placed under suspension. The plaintiff was prosecuted under the Essential Services Maintenance Ordinance NO. 1 of 1960. However, the prosecution was withdrawn and in consequence the plaintiff was acquitted by the criminal court on 17.8 60. The grievance of the plaintiff was that inspite of his acquittal by the criminal court he was not permitted to resume his duty During the period of his suspension the plaintiff was reverted with effect from 18.7.60 from Clerk Grade I as Clerk Grade II which was his substantive grade in the scale of Rs. 60.3.81-EB 4-125-5-130. The challenge against this order is that in as much as Serva Shri Ravosant Dasani and Chandkaran Rathi as also other persons junior to the plaintiff in the substantive grade were allowed to officiate in Grade I, the plaintiff was discriminated against and consequently the plaintiff's reversion was hit by Article 16 of the Constitution. The further grievance of the plaintiff was that inspite of his acquittal the Deputy Chief Accounts Officer (T.A) instituted disciplinary proceedings against him. The plaintiff was served with a charge sheet and he was called upon to show cause why he be not dismissed from service or awarded some other minor penalty. Eventually on 10 4 61 the Deputy Chief Accounts Officer (T. A) imposed the punishment of stoppage of two years increments of the plaintiff with cumulative effect. The third grievance of the plaintiff was that he was served with a charge sheet for not joining duty at Ajmer, but he continued to report himself for duty at workshop Accounts Officer, Jaipur. A penalty of forfeiture of passes was imposed on the plaintiff on 28 6.62 by the Deputy Chief Accounts Officer, (T A) Ajmer. The plaintiff went up in appeal to the Chief Accounts Officer and Financial Advisor at Bombay. The last mentioned officer reduced that penalty to that of stoppage of plaintiff's increments for one wear without cumulative effect. The last two orders of punishment were challenged by the plaintiff on a number of grounds as mentioned in paras 10 and 11 of the plaint respectively. The plaintiff prayed for a declaration that he continued in the Clerk Grade I and was entitled to all his annual increments unaffected by the impugned orders passed by the Railway Authorities. Ha further prayed for a direction to the defendant to settle his dues in accordance with the declaration aforesaid.

2. The suit was contested by the Union of India. It was admitted that the plaintiff was arrested, but it was denied that the impugned orders we re illegal or irregular as alleged. It was submitted that the plaintiff was reverted to his substantive post in the ordinary course and no discrimination was practised against him. As regards the penalties it was submitted that Article 311 of the Constitution or Rule 1707 of the Railway Establishment Code were not attracted. Regarding these it was submitted that the orders were legal. Some other legal pleas were also raised.

3. The learned Munsif, Ajmer City, who tried the suit, framed a number of issues He held that the order of the plaintiff's reversion from Grade I to Grade II was not illegal, but the other two orders were illegal. In the result, the learned Munsif refused the declaration regarding the order of reversion of the plaintiff from Grade I to Grade II but regarding the other two orders he declared that they were illegal and ineffective and that the plaintiff was entitled to his salary for the period 17.10.61 to 12.3.62.

4. Aggrieved by the judgment and decree of the learned Munsif the Union of India went up in appea1 to the court of the Additional Civil Judge, Ajmer. The plaintiff filed the cross-objections against the judgment and decree of the trial court regarding the refusal of the relief about the order of reversion. The learned Additional Civil Judge, however, dismissed the appeal as well as the cross-objection.

5. It is in these circumstances that the Union of India has come up in second appeal to this Court.

6. I may deal with the various contentions raised by learned Counsel for the Union in respect of the two orders for stoppage of increments in the first instance. It will be convenient to read the relevant orders at this point. Ex. A/32 dated 10.4.61 is the order which reads as under:

Western Railway

Notice of imposition of a penalty (NIP) under Rule 1702 of the State Railway Establishment Code Vol I

(Appendix G of the Western Railway Discipline & Appeal Rules (vide Rule 1715-I)

JAIPURNo. JP/Adm/E 1049/45 Dated 10th April, 1961ToShri B.S. Misra,GGIIThrough: SA DAO's Officer.You are here by informed that in accordance with the order passed by the Dy CAO(TA) Ajmer the following penalty has been awarded to you:

Stoppage of increments for two years, with cumulative effect (This has reference to your last defence dt. 8th March'61 in reply to charge sheet No. JP/ADM/E-1049/45 of 22-8-60)

You are required to acknowledge receipt of this Notice on the form subjoined.

Sd/-U.B.L. Mathur,For Dy CAO(TA) W. Rly, Ajmer-----------------------------------------------------------------------------------If the notice cannot be delivered to the accused employee through the normal official channels it should be sent to him through the post in a registered acknowledgement due cover, at his home address or his last known address.

The plaintiff went up in appeal to the Chief Accounts Officer and Financial Advisor at Bombay. The order passed by him is Ex. A/49 and is dated 25-8-62 This order reads as follows:

Western Railway

No. JP/Adm/E 1049/45/BSM DY.CAO(TA)'sOffice, Ajmer,25th August, 196ToShri B.S.Misra, GG.II. workshop Accounts Office;Western Railway Ajmer.Sub:DAR action against non-gazetted staff Shri B.S. Misra

Ref:Your personal interview with the FA & CAO on 17-8 1962 & mercy appeal dated 17-8-62.

With reference to your mercy appeal dated 17-8-62 to the FA & CAO, it is informed that the FA & CAO is pleased to reduce your penalty to 'with-holding of one increment for one year without cumulative effect.'

Necessary action to sanction the increment as due and the payment of arrears is being taken. Sd/-E K.Namboori,25-9-1962For Dy. C.A.O (TA)-AII.

7. Both the courts have held these orders to be invalid on a number of grounds, the main ground being that on account of the acquittal of the plaintiff by the criminal court the disciplinary proceedings could not have been initiated without the prior approval of the Head of the Department. It is not disputed that in terms of Rule 1707(11) of the Discipline and Appeal Rules for the non-gazetted staff the prior approval of the Head of the Department was not taken. I may read of the Rule:

R 1707(11) Where it is considered the departmental action should be taken against an employee for an offence for which he has been prosecuted in a court of law and acquitted, the Head of the Department's prior approval should be taken before action is taken.

Both the courts have held that as the prior approval of the Head of the Department was not taken the proceedings stood vitiated.

8. Learned Counsel for the Union has raised a threefold contention in challenging the conclusion reached by the courts below. In the first place, learned Counsel submitted that the Rule was directory and not mandatory in as much as the word 'should' has been used which means what the authorities may do and it will not have the force of a mandate In the second place, the learned Counsel submitted that the plaintiff had filed an appeal against the order of the Deputy Chief Accounts Officer (T A) Ajmer to the Chief Accounts Officer and Financial. Advisor that he had withdrawn that appeal and converted the same into a mercy petition and the Chief Accounts Officer had accordingly reduced the penalty from stoppage of two increments to that of one increment without cumulative effect. Learned Counsel, therefore, contends that the plaintiff should be taken to have waived his objection regarding the non-taking of the prior approval of the head of the Department. Lastly, it was argued that this Rule was applicable to proceedings which result in imposition of major penalties like that of dismissal or removal and is not attracted where only a minor penalty like that of stoppage of increment is imposed.

9. Now, I may deal with the three contentions in the order in which they are noted.

10. Re. 1: In elaboration of his argument learned Counsel further submitted that since the prosecution was withdrawn and there was no trial, the Rule is not even otherwise attracted as the plaintiff cannot be said to have been acquitted on merits and what is, according to him, contemplated by the Rule is an acquittal on merits and not such an acquittal as results from the withdrawal of the proceedings. I was not impressed by this submission at all. The term 'acquittal' has to be taken in its ordinary connotation as used in the Code of Criminal Procedure. Section 494 Criminal Procedure Code provides that any Public Prosecutor may, with the consent of the Court before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of one or more of the offences for which he is tried and upon such withdrawl, if it is made before a charge is framed the accused shall be discharged in respect of such offence or offences, & if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences. The offence under Section 5 of the Essential Services Maintenance Ordinance No. 1 of 1960 for which the accused was prosecuted was punishable with one year's imprisonment or fine, or both. The offence was thus triable as a summons case and no charge was required to be framed. The result, therefore, was that the accused shall be deemed to have been acquitted when the Public Prosecutor withdrew from the prosecution in respect of the offence for which the plaintiff was put on trial. Under the Criminal Procedure Code no distinction is made between an acquittal resulting from the withdrawal of the prosecution and acquittal at the end of the trial. For example Section 403 Criminal Procedure Code will apply in either case.

11. Now, whether Rule 1707 (11) is mandatory or directory has to be gathered from the underlying object of the Rule. The underlying object of the Rule appears to be to provide a safe guard to the civil servant against harassment resulting from the initiation of the disciplinary proceedings when he had once been prosecuted and acquitted by a criminal court for the same offence. It is true, the initiation of departmental proceedings is not a second prosecution so as to attract the provisions of Section 403 Criminal Procedure Code or for that matter Article 20 of the Constitution. Nevertheless it cannot be gain said that a civil servant was likely to be harassed by a departmental proceeding for the same offence. The discretion has been reserved to the authorities to initiate the departmental proceedings inspite of the acquittal of the Government servant by a criminal court, but the safe guard of prior approval of the Head of Department had been provided so that a more senior & responsible officer like the Head of the Department may apply his mind & then determine whether the Government servant should be subject to disciplinary proceedings inspite of the order of acquittal. If any lesser authority initiates the departmental proceedings without the prior approval of the Head of the Department then the underlying object of the Rule would be defeated. It has been observed by Maxwell on the Interpretation of Statutes. Twelfth Edition at page 315 that:

Where the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition on doing it in any other, no doubt can be entertained as to the intention.

In State of Uttar Pradesh v. Jogendra Singh : (1963)IILLJ444SC their Lordships observed:

The word 'may' generally does not mean 'must' or 'shall' in the light of the context. Where a discretion is conferred upon public authority coupled with an obligation, the word ''may' which discretion should be construed to mean a command Sometimes, the Legislature uses the word 'may' out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed.

The condition precedent for the initiation of the proceedings by the Deputy Chief Accounts Officer was the taking of prior approval of the Head of the Department. The word 'prior' in the Rule may be underlined. Any subsequent approval would not do even if it is there In the circumstances the proceedings taken against the plaintiff at the instance of the Deputy Chief Accounts Officer (T. A), Ajmer were without jurisdiction.

12. Re 2: It does appear that the plaintiff was desirous of with drawing the appeal lodged by him before the Chief Accounts Officer and Financial Advisor and have it be treated as mercy petition instead and accordingly the Chief Accounts Officer and Financial Advisor treated the appeal as a mercy petition and in consequence reduced the penalty imposed, However, as already observed, what the Rules contemplated is prior approval of the Head of the Department Learned Counsel for the respondent argued that on the relevant date when the departmental proceedings were initiated the General Manager was the competent authority to accord approval for the initiation of the proceedings, Even if one were to assume that the Chief Accounts Officer and not the General manager was the competent authority on the relevant date, the fact that stares one in the face is that there was no prior approval of such authority. Approval in such matters cannot be expost facto. If that were so the word 'prior' preceding the word 'approval' in the Rule will be rendered redundant. Therefore the Chief Accounts Officer while hearing the appeal could not have accorded approval for the initiation of the proceedings Apart from this there is no express order of the Chief Accounts Officer even for such an expost facto approval. Therefore, if the imposition of the penalty itself was illegal it could not be made legal by an order for reduction of the penalty by the Chief Accounts Officer be it on a mercy petition or an appeal. Therefore, I do not therefore find any force in the second contention either.

13. Re. 3: It is true, ultimately only a minor penalty was imposed on the plaintiff and Rule 1707 of which sub Rule (11) is a part deals with procedure for dismissal. The opening words of the Rule are that when the Railway servant is charged with an offence the maximum penalty for which is dismissal, the procedure for holding an inquiry shall be as given in the rule. In the present case, the plaintiff was served with the charge sheet & called upon to show cause why he be not dismissed or awarded any minor penalty It is the nature of the charge that will determine the mode of procedure and not the penalty that would ultimately be imposed on the civil servant. Therefore, for starting such a proceeding Sub-rule (11) of Rule 1707 had to be complied with. It might have been a different matter if right from the inception the proceedings were for a minor penalty only. In that event sub Rule (11) of Rule 1707 would not be attracted. Also it might be open to the authority to drop the proceedings for the major charge and then switch on to the proceedings for minor penalties, where the charge, is intended to be confined ultimately for the minor penalty only, but then there should be a clear notice of that to the government servant. It was so held in Dr. Krishan Singh v. State of Rajasthan 1965 RLW 153 by a Division Bench of this Court of which I was a member and in which we had to deal with a similar provision under the Rajasthan Civil Service (Classification Control and Appeal) Rules, 1958. The relevant Rules were 16 and 17. The notice to the Government Servant in that case was one under Rule 16 which was for a major penalty, but the disciplinary authority switched on to procedure under Rule 17 which was for minor penalties, without notice for the same to Government servant. The order passed was quashed in circumstances. The observations were as follows:

It is permissible for the disciplinary authority to proceed under Rule 17 for imposing minor penalties, although it has proceeded initially under Rule 16, but it is certainly necessary that if it proposes to change the procedure from Rule 16 to Rule 17, a clear notice to that effect must be given to the person concerned before proceeding under Rule 17. In case like the present one, where the respondent wanted to proceed against the petitioner in respect of some wrong which was alleged to have been committed by him five years earlier or for that matter two and a half years earlier, it was all the more necessary that he should have been given a personal hearing and the evidence on whose basis he was sought to be punished should have been examined in his presence.

In the present case, as I have already observed, I do not consider the question of competence of the authorities to switch over from the procedure for the major penalties to that of minor penalties But, here the question is whether the proceedings under Rule 1727 could have been commenced? The answer is that for commencing them prior approval of the competent authority was necessary. If the authorities wanted to switch over from the procedure under Rule 1707 to that under Rule 1712, then there should have some order for such a change of procedure. Here the order was passed after the proceedings in accordance with Rule 1707 were concluded, that is, after the evidence of both the parties was recorded. There is, therefore, no escape from the impact of Sub-rule (11) of Rule 1707 to these proceedings. Learned Counsel for the appellant relied on M.M. Dutta v. Union of India : AIR1969Cal604 In that case the charge sheet mentioned the major penalty of removal. The learned Judge observed that punishing authority is not barred from inflicting minor penalty of recovery of pay for pecuniary loss caused by negligence after complying with procedure for minor penalties. It was further observed that the rule after initiating action for special remedy, the alternative general remedy cannot be availed of on failure to comply with the special procedure does not apply, as both the major and minor penalties are provided for by the same code. It was added that where a minor penalty only has been imposed the authority cannot be asked to justify the order with reference to the requirements of the procedure laid down for major penalties. Then, finally, it was urged that it is not the intention or object of the Railway authorities at the commencement of the proceedings, but the nature of the penalty which is eventually imposed, that determines the procedure which must be followed in order to render the order valid. With all respects, I am unable to share this view. In my humble view, it is the nature of the charge with which the Government servant has been served which will determine the procedure to be adopted by the disciplinary authority the penalty would come only at the conclusion of the proceedings and I fail to see how that could afford the criterion for judging the validity of what has already been done by the disciplinary authority. So far as I am concerned, the Division Bench case to which I was a party settles the matter. I, therefore, over rule this contention as well.

14. Now, I may deal with the orders Ex. A/42 and Ex. A/52, reproduced above. The gravamen of the charge against the plaintiff was that after being relieved by the D A O Ajmer on 6.10 61 he reported in S.A.O. Workshop, Jaipur, but he did not carry out the orders of the Senior Accounts Officer for reporting for duty in the Officer of the SAO Ajmer on 8.10.61 and on subsequent days. This inquiry too commenced as one for a major penalty, but eventually the penalty was awarded for stoppage of one set of passes and five sets of P.T.O.S for 1962 and three sets of passes and six sets of P.T.O.S for 1963. The Chief Accounts Officer before whom the appeal was lodged considered the penalty as inadequate and gave a notice of enhancement of punishment to the plaintiff. There after the penalty was enhanced to with holding of increments for two years with cumulative effect. The courts below had held this order to be wrong on two grounds; the first one was that the plaintiff was not afforded a reasonable opportunity to produce his defence witnesses. The second ground was that the Deputy Chief Accounts Officer (General) in the Office of the chief Accounts Officer and Financial Advisor at Bombay made a (sec) suggesting a penalty of stoppage of two increments. This according to learned Counsel, has materially prejudiced the case of the plaintiff Learned Counsel for the appellant has submitted that both the grounds were not tenable. He pointed out that the Deputy Chief Accounts Officer (T A), Ajmer before concluding the inquiry had put a question to the plaintiff whether all reasonable facilities had been given to him to enable him to clear his position in respect of the charges issued to him. The answer of the plaintiff was that the reasonable facilities had been given to him in cross examining the witnesses and to enable him to clear his position in respect of the charges levelled against him. Then a certificate Ex. A/41 was also given by the plaintiff saying that the Inquiry Officer had given reasonable facilities for cross-examination the witnesses and clearing out the position in respect of the charges levelled against him. The courts below were not impressed by his contention which was also advanced before them. It was observed that this was in relation to the opportunity of cross-examining the witnesses and there by clearing the position of the plaintiff, but the plaintiff had not given up his defence witnesses for which he had already submitted a list and, therefore, according to the learned District Judge, it was the duty of the Inquiry Officer to call the defence witnesses for the plaintiff. As the proceedings were commenced for a major penalty, according to Rule 1707 (d), it was the duty of the Inquiry Officer to take evidence in defence as the Government servant may adduce and by filing the list he had requested the Inquiry Officer to take his evidence. It has not been shown by the Union, if on any date the Government servant had given up his witnesses. In the circumstances I am unable to hold that the learned District Judge was in error in repelling this contention of the Union.

15. For appreciating the second ground I may read Ex. 4/72:

FA & CAO may kindly see the noting at NP-19 in terms of which a show Cause Notice was issued to Shri B.S. Misra, GG II, workshop and Stores Accounts Officer, Ajmer, asking him to show cause why the penalty imposed on him by the Dy. CAO(TA) should not be enhanced to with holding of increments for a period of two years having the effect of postponing future increments (Page 176). Shri Mishra's reply is at P. 180c. Para by Para remarks on this reply have been given at portion marked 'A' to 'B' at NP-22 and 23.

2. From the remarks referred to above and from the tone of Shri Mishra's reply, it would appear that the enhanced penalty proposed is amply justified. This is also the view of the Dy. CAO (TA) vide his note at bottom of NP 23.

3. Papers are submitted to FA and CAO for his final orders.

4. It may be added in this connection that if the penalty is enhanced as proposed, Shri Mishra does not have the right of any further appeal as the enhanced penalty was within the powers of the authority which imposed the original penalty. vide Rule 1724 (3) R I.

Sd/-Dy. CAO (G)23/25-10-62FA & CAOHis increment should be with held for a period of 2 years with cumulative effect i.e having the effect cf postponing future increments. Sd/-FA & CAO25-10 62Dy. CAO(TA) AIIAAO (Genl)SAO (ws)-AIISd/-AAO/(S)

There is no manner of doubt that under the statutory rule the appellate authority was the C.A.O. i.e. Chief Accounts Officer and Financial Advisor. There are two of the notes which show that it was the Deputy Chief Accounts Officer (G) who had expressed the opinion that from the preceding remarks and from the tone of Shri Mishra's (plaintiff) reply it would appear that the enhanced penalty proposed was amply justified. This was also the view of the Dy. CAO (TA) vide his note at bottom of NP-23.

16. I may pause to observe that the Dy. CAO (TA) was the original authority who imposed the punishment and against his order the appeal was lodged by the plaintiff While according to the procedure an original authority could offer its comments on the memo of appeal, vide subsidiary Rule (2) of Rule 1718 it is not competent for the original authority to make such comments or remarks which might tend to influence the mind of the appellate authority. What business the Dy. C.A Order. (TA), Ajmer had to suggest the enhancement of the penalty is difficult to understand. The Appellate Authority has passed a one-line order, without giving reasons that the increment of the plaintiff be with held for a period of two years with cumulative effect, that is, having the effect of postponing future increment. An Appellate Authority which has to function as a Tribunal, as the present case, has to follow the principles of natural justice. It has not only to do justice, but should appear to do justice and should not allow the opinion of other persons to operate on its mind, but it has to form an independent opinion of its own without looking to the opinion regarding the merits expressed by others. If at all the remarks of the Dy. C.A.O. (TA), Ajmer were to be made use of, the plaintiff should have been apprised of such remarks. In view of this I am unable to sustain the order of the Chief Accounts Officer and Financial Advisor dated 25.10.62.

17. Learned Counsel for the Union further raised the plea that the suit was barred by time. Learned Counsel argued that the suit was governed by Article 100 of the Limitation Act and not by Article 113 there of. This Article relates to suits to alter or set aside any decision or order of a civil court in any proceeding other than a suit or any act or order of an officer of Government in his official capacity, and the limitation is one year. The contention is that the second part of the Article applies in the present case. Here the substance of the matter has to be examined. The plaintiff's case was that his status as Government servant getting the higher scale of pay remained unaffected by the impugned orders and he was consequently entitled to all the benefits as such This suit would not, therefore, be governed by Article 100 and the courts below were, therefore, right in holding that it was governed by Article 113 of the Limitation Act which provided 6 years period of limitation for such a suit.

18. Lastly, I may deal with the cross-objection filed by the respondent. The plaintiff was served, according to him, with the order of reversion on 15-9-60 and not earlier. The order of reversion Ex. A/ 64 was issued on 5-7-60. It reads as follows:

Western Railway

No. TA/Aj/Adm/40W/E839/33l Dated 5th July, 1960FromThe Dy. GAO(TA)AjmerTo(1) SAD (W&S;) Aii (ii) DAO-JpC/- SAO (SV) CCA.Sub:Promotions, Reversions and transfers of class III staff Gen. A/cs Unit.

Ref: SAO (SV) CCG's letter No. SA/SV/36902/607/387 dated 27-6-60

Consequent on Shri Mukat Beharilal on reversion from the post of Section V. having reported for duty to forenoon, the following transfers and reversions are ordered here by:

(i) Shri Mukat Beharilal is posted as CAF under SAD (W & S) Aj vice Shri Babulal Deora Offg. CAI transferred.

(ii) Shri Babulal Deora offg. CAF SAO (W & S)'s Office Aj is transferred to DAO's Office JP vice Shri B.S. Misra offg. CAF reverted.

(iii) Shri B.S. Misra Offg. CAF DAO's Office JP. is reverted as CA II.

(2). DAO JP. will please transfer one junior most CA II in his Office to SAO(W & S) Aj, if there is any surplus with him and if Shri Misra is willing to continue as CA II at Jp. Sd/-5/7for Dy. C.A.O. (T.A.).

This order is sought to be challenged by the plaintiff on the ground that Shri Ravosant Dasani and Shri Chandkaran Rathi who were junior to him were allowed to officiate in Grade I while the plaintiff was reverted. It was, there fore, necessary for the plaintiff to have shown that he was really senior to these persons. The gradation list of 1958 has been placed on record as Ex. A/ 63. In that list the name of Revosant Dasani is at Serial Number 191 and that of Chandkaran Rathi is at No. 194, whereas the plaintiff's name is at No. 215 On 5-7-60 this was the list of seniority which was in force. Therefore, at the time the order of reversion was passed it cannot be said that persons junior to the plaintiff were allowed to remain in the officiating Grade I and the plaintiff was discriminated against when he was reverted An ingenious argument is put forth by the plaintiff that a second gradation list made effective from 1-9-60 was published later on and as the subsequent gradation list in which the plaintiff was shown as senior to these two gentlemen was made effective from a date prior to the date on which the plaintiff was served with the order Ex. A/64, the order Ex. A/64 was rendered void. The validity of the order has to be examined in the light of the facts as they existed on the date of the order and not on the basis of which might have taken place subsequently. If the plaintiff was served with the order on 15 -9-60, then it would only mean that he will be deemed to be in the higher scale till then in an officiating capacity and might claim the salary on that footing, but that cannot affect the validity of the order of reversion if it was otherwise valid as it appears to be. The discrimination contemplated either under Article 14 or 16 of the Constitution is conscious discrimination which is not the case here.

19. There is, therefore, no force in the cross objection. The result is that both the appeal and the cross-objection are here by dismissed with costs.


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