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K.C. Kashyap Vs. Lieutenant Governor (Administrator) and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 17 of 1966
Judge
Reported inAIR1967HP34
ActsConstitution of India - Article 311(2)
AppellantK.C. Kashyap
RespondentLieutenant Governor (Administrator) and anr.
Appellant Advocate Hira Singh, Adv.
Respondent Advocate Chhabil Das, Adv.
DispositionPetition allowed
Excerpt:
.....and direction to appoint him as head assistant - reversion of petitioner from officiating rank in pursuance of an illegal order amounted to reduction in rank under article 311 - facts revealed that provisions of article 311 (2) were not complied with in reducing rank of petitioner - order of reversion void. -..........1962, on the recommendation of the departmental promotion committee, sarvshri n. n. jaggi and ram asra puri were promoted to the two newly created posts of head assistants over the head of the petitioner who was the senior-most assistant in the department. sarvshri n. n. jaggi and ram asra puri had not put in even a year's service in the pay scale of rs. 150-10-300 whereas the petitioner had worked in that pay scale for three years and had also worked for a year in the higher pay scale of rs. 160-10-330. the promotion of sarvshri n. n. jaggi and ram asra puri over the head of the petitioner was contrary to statutory rules and principles of natural justice. the petitioner made a representation to the directorof industries against his supersession. that representation was rejected. a.....
Judgment:
ORDER

Om Parkash, J.C.

1. This is a petition, under Articles 226 and 311 of the Constitution of India. The petitioner, Shri K. C. Kashyap, prays thatthe respondents be directed to appoint him as Head Assistant in the Industries Department with effect from the 4th September, 1962. The petition is based on the following allegations:--

2. The petitioner entered in the service of the Himachal Pradesh Government in 1950. He was appointed as an Assistant in the Industries Department with effect from the 24th September, 1958. The petitioner ranked third in seniority in the seniority list of Class III.employees of the Industries .Department. The scale of pay of the Petitioner, as an Assistant, was Rs. 116-250. The pay scale was revised to Rs. 150-10-300 with effect from the 30th September, 1959. The petitioner was promoted as an Assistant at the Headquarters in the pay scale of Rs. 160-10-330 with effect from the 17th November, 1961. On the 4th Sept. 1962, on the recommendation of the Departmental Promotion Committee, Sarvshri N. N. Jaggi and Ram Asra Puri were promoted to the two newly created posts of Head Assistants over the head of the petitioner who was the senior-most Assistant in the department. Sarvshri N. N. Jaggi and Ram Asra Puri had not put in even a year's service in the pay scale of Rs. 150-10-300 whereas the petitioner had worked in that pay scale for three years and had also worked for a year in the higher pay scale of Rs. 160-10-330. The promotion of Sarvshri N. N. Jaggi and Ram Asra Puri over the head of the petitioner was contrary to statutory rules and principles of natural justice. The petitioner made a representation to the Directorof Industries against his supersession. That representation was rejected. A representation to the Minister-in-charge met the same fate. The petitioner, then, appealed to the 'Lieutenant Governor (Administrator). His appeal was accepted. The Lieutenant Governor set aside the recommendation of the Departmental Promotion Committee and ordered the appointment of the petitioner to the post of the Head Assistant. On the 1st April, 1966, the Secretary of the Industries Department issued an order appointing the petitioner as Head Assistant with immediate effect. The orderwas incorrect inasmuch as the petitioner was entitled to be appointed as Head Assistant with effect from the 4th Sep. 1962. On the 2nd July, 1966, the petitioner was reverted from the post of the Head Assistant to the post of Assistant. The order of reversion amounted to reduction in rank and as the petitioner was not afforded any opportunity to represent against 'ibis reversion, the order violated the provisions of Article 311 of the Constitution of India andwas void. The order of reversion was also without jurisdiction and contrary to law and principles of natural, justice.

3. On the above allegations, the petitioner prays that the order of reversion be quashed and the respondents be directed to appoint him as Head Assistant in the pay scale of Rs. 250-350 with effect from the 4th September, 1962 and to allow him all the benefits of that post.

4. The petition has been opposed on behalf of the respondents. Most of the facts alleged in the petition are not denied. It is admitted that the petitioner had joined the service in 1950 and was appointed as Assistant on the 24th September, 1958. It is, further, admitted that the petitioner had worked in the pay scale of Rs. 150-300 with effect from the 30th September, 1959, and then in the pay 'scale of Rs. 160-10-330 with effect from the 17th November, 1961. It is, also, admitted that Sarvshri N. N. Jaggi and Ram Asra Puri were appointed as Head Assistants with effect from the 4th September, 1962 on the recommendation of the Departmental Promotion Committee. But it is denied that the promotion was in supersession of the petitioner or was against any statutory rule or the principles of natural justice. The plea of the respondents is that the promotion was made on the basis of merit-cum-seniority and that the case of the petitioner was considered along with other eligible officials by the Departmental Promotion Committee which had selected Sarvshri N. N. Jaggi and Ram Asra Puri, in preference to the Petitioner. The assertion of the petitioner that he was the senior-most Assistant is denied. It is pointed out that the seniority list, referred to by the petitioner, was a tentative seniority list and was not a final one. It is admitted that the appeal of the petitioner, against the promotion of Sarvshri N. N. Jaggi an Ram Asra Puri, was accepted and that in consequence of the acceptance of the appeal, the petitioner was appointed as Head Assistant with effect from the 1st April 1966. But it is not admitted that according to the appellate order, the petitioner was entitled to be appointed as Head Assistant from the 4th September, 1962.

The respondents contend that the order promoting the petitioner as Head Assistant was erroneous and that on the 17th June, 1966, on the representations of Sarvshri N. N. Jaggi and Ram Asra Puri, the Lieutenant Governor, who had succeeded to the Lieutenant Governor, who had accepted the appeal of the petitioner, had reviewed and clarified the order. The successor-Lieutenant Governor was of the view that his predecessor did not intend to promote the petitioner as a Head Assistant and that he only meant that the selection made by the Departmental Promotion Committee be set aside and a fresh selection made. The successor-Lieutenant Governor, therefore, directed that the correct way to carry out his predecessor's order would be to hold the Departmental Promotion Committee again and the cases of all the candidates including the petitioner, be considered by that Committee on merits. According to the respondents, the petitioner was reverted to his post of Assistant in pursuance of the order dated the 17th June, 1966 of the successor Lieutenant Governor. It is denied that the order of reversion amounted to reduction in rank or that it violated the provisions of Article 311 of the Constitution or the principles of natural justice or was without jurisdiction. The respondents contend that the petitionerwas holding the post of Head Assistant in as officiating capacity and not in a substantive capacity and that he could be reverted from his oificiating post without complying with the provisions of Article 311 (2) of the Constitution.

5. It is to be noted that the claim of the petitioner to be appointed as Head Assistant from the 4th September, 1962 is based on the order of the Lieutenant Governor, by which his appeal against the promotion of Sarvshri N. N. Jaggi and Ram Asra Puri was accepted. The claim is controverted, on behalf of the respondents. Their contention is that the order of acceptance of the appeal did not direct that the petitioner be promoted with effect from the 4th September, 1962. The further contention, on behalf of the respondents, is that the order promoting the petitioner as Head Assistant was erroneous and that it was subsequently reviewed and set aside by the successor-Lieutenant Governor.

6. The respondents have put in a copy of the order of the Lieuten;.nl Governor dated the 2nd February, 1966, accepting the appeal of the petitioner. The copy is Annexure 'R'. The order is set forth below in extenso .-

'This is an appeal filed by Shri K. C. Kashyap Assistant in the Industries Department (Employment Wing) Himachal Pradesh Government against the orders of the Director of Industries, superseding his claim for the post of Head Assistant.

Shri Kashyap has submitted in his appeal that grave injustice has been done to him because quite against the rules his claim has been overlooked on flimsy grounds. The Industries Department has tried to justify that there were no rules previously under which the post of Head Assistant was to be filled by seniority subject to the rejection of the unfit and as such promotions on the basis of selection were done and accordingly D. P. C. after considering the cases of Sarvshri N N. Jaggi, Ram Asra Puri and K.C. Kasyap, promoted Shri Ram Asra Puri as Head Assistant. The file goes to show that there were no recruitment and promotion rules of ministerial Class III employees of the. Industries Department and the D. P. C. while making selection departed from the existing procedure for making promotion of such posts in the department on the basis of seniority-cum-merit and instead adopted the procedure of selecting the person on merit-cum-seniority basis. The file does not show that this departure from the existing procedure had the prior approval of the administrator who is the competent authority to frame recruitment and promotion rules or to make any changes in the method in the then existing rules. Besides, Shri Ram Asra Puri was included within the field of choice for promotion as Head Assistant along with Assistants and Head Clerks of the Industries Department in his capacity as Senior Auditor although he had served as such only less than a year i. e. from 1-12-1961 to 4-9-1962 and did not fall within the field of choice even on merit. In addition to this, one strange factor has come to my notice that Shri Ram Asra Puri's C. Rs. for the period 1959-60, 1960-61 and for the period of 1-2-1961 to 30-11-1961 during which he worked as senior clerk in the H. P. Sect, were considered, but there is no C. R. in respect of his work for the period from 1-2-1961 to 4-9-1962 during which he worked as senior auditor in which capacity his name was included within the field of choice. The C. Rs. of S/Shri Kashyap and Jaggi go to show that confidential reports for the period 1958-59, 1959-60 and 1960-61 have not been accepted by the Head of the Department, i. e. the Director of Industries. The Department did not care to see that the C. Rs are finally accepted by the authorities before they are-placed for consideration by the D. P. C. The C. Rs for the period 1962-63 in respect of Shri K. C. Kashyap are not on the file and the administrative department reports that these have been misplaced somewhere. It is possible that this has been done deliberately in order to minimise the claim of Shri Kashyap as against Shri Puri. Strangely enough, Shri Ram Asra Puri has been dealing with this case in which he himself is a party. There is sufficient justification in the appeal of Shri K. C. Kashyap and I accordingly accept the same.'

7. The aforesaid detailed order clearly and unmistakably indicates that the appellate authority had criticized the Departmental Promotion Committee for departing from the procedure of making promotions on the basis of seniority-cum-merit and adopting the principle of merit-cum-seniority, without prior approval of the competent authority. The order, further indicates that the appellate authority had considered the cases of Sarvshri N. N. Jaggi, Ram Asra Puri and the petitioner and had decided that the petitioner was entitled to be appointed as Head Assistant in preference to Sarvshri N. N. Jaggi and Ram Asra Puri. The appellate order did not mention the date from which the petitioner was to be appointed as Head Assistant. For the determination of that point, recourse is to be had to the relief claimed, by the petitioner, in his appeal, which was accepted by the appellate authority. The copy of the appeal is annexure E. After stating facts about making representations against the promotion of Sarvshri N. N. Jaggi and Ram Asra Puri, the petitioner had stated, in his appeal, that he was far senior to Sarvshri N. N. Jaggi and Ram Asra Puri, inasmuch as he had worked in the pay scale of Rs. 150-300 for more than three years while Sarvshri N. N. Jaggi and Ram Asra Puri had worked in that pay scale for a year only and that the Departmental Promotion Committee had unauthorizedly departed from the past practice of making promotions on the basis of seniority-cum-merit.

In paragraph 10 of the appeal, the petitioner had prayed that the promotions made be set aside and he be promoted as Head Assistant with retrospective effect. It is significant to note that the contentions, raised by the petitioner, in his appeal, were accepted in toto by the appellate authority. The acceptance of the appeal, without any qualification or limitation, clearly meant that the promotion of Sarvshri N. N. Jaggi and Ram Asra Puri was set aside and the petitioner was promoted as Head Assistant with effect from the 4th September, 1962, the date on which Sarvshri N. N. Jaggi and Ram Asra Puri had been promoted. It follows that the petitioner was, on the basis of the order dated the 2nd February, 1966, entitled to be appointed as Head Assistant, in preference to Sarvshri N. N. Jaggi and Ram Asra Puri, with effect from the 4th September, 1962. The order dated the 1st April, 1966, of the Secretary, Industries Department, appointing the petitioner as Head Assistant with immediate effect contravened the order of the Lieutenant Governor and was illegal.

8. The contention, raised, on behalf of the respondents, that the order of the appellate authority was erroneous is not supported by any material on record. Neither in the return, nor during the course of arguments, it was shown in what particular the order was erroneous. It was not alleged that the appellate authority had contravened any statutory rule or principle of natural justice or had passed the order in misapprehension of rules or the facts and circumstances of the case. There was no justification for reviewing the appellate order. The order dated the 17th June, 1966, of the successor-Lieutenant Governor did notfive any reasons for reviewing the order of is predecessor. The copy of the order of successor-Lieutenant Governor is Annexure RC. It reads :--

'I have spoken to the Development Minister. I entirely agree with what he has stated in his note dated June 9, 1966. It is clear to me that the orders passed by my predecessor in his note dated the 2nd February, 1966 only meant that the selection made by the D. P. C. should be set aside and not that the appellant should be promoted. The correct way to carry out my predecessor's orders would be to hold the D. P. C. again and the case of all the candidates, including that of Shri K. C. Kashyap should be considered by D. P. C. on merits.' '

9. The note of the Development Minister, to which reference has been made, in the aforesaid order, has not been produced. It has already been shown that the order, dated the 2nd February, 1966 of the appellate authority clearly meant that the petitioner be promoted as Head Assistant with effect from the 4th September, 1962 and not merely that the selection made by the Departmental Promotion Committee be set aside. The appellate authority had criticized the Departmental Promotion Committee for adopting the principle of merit-cum-seniority, without the approval of the competent authority in making promotion to the post of Head Assistant. The appellate authority had, in clear terms accepted theappeal of the petitioner, without any qualification, thus admitting the claim of the petitioner that he was entitled to be appointed as Head Assistant as against Sarvshri N. N. Jaggi and Ram Asra Puri. In view of the clear findings of the appellate authority, there could be no question of referring the matter back to the Departmental Promotion Committee. That Committee could not over-ride the findings of the Lieutenant Governor. The direction of the successor-Lieutenant Governor that the order of his predecessor did not mean that the petitioner was to be promoted as Head Assistant as against Sarvshri N. N. Jaggi and Ram Asra Puri, and that the matter be referred back to the Departmental Promotion Committee is vitiated by an error apparent on the face of the record and is liable to be quashed at the instance of the petitioner whose rights have been adversely affected by that direction.

10. It was contended, on behalf of the respondents, that even if it be held that the order dated the 17th June, 1966, of the successor-Lieutenant Governor was illegal, the order reverting the petitioner from the post of Head Assistant cannot be set aside as he was merely officiating in that post and could be reverted at any time without assigning any reasons. The contention, on behalf of the petitioner, on the other hand, was that he was holding the post of the Head Assistant sub-stantively and could be reverted only after complying with the provisions of Article 311(2) of the Constitution. The further contention, on behalf of the petitioner, was that his reversion was by way of punishment and amounted to reduction in rank within the meaning of the above Article.

11. The order dated the 1st April, 1966, appointing the petitioner as Head Assistant did not state whether he was appointed in a substantive capacity or in an officiating capacity. The order simply stated that the petitioner was appointed as Head Assistant. The affidavit, filed in support of the return, states that the petitioner was appointed in an officiating capacity. The petitioner did not state, in his petition, that he had been substantively appointed as Head Assistant. He has not filed any counter-affidavit that he had been appointed substantively. In the circumstances of the case, it is to be assumed that the petitioner had been appointed as Head Assistant in an officiating capacity only.

12. It has not been shown that, under service rules, the petitioner had a right to the officiating rank of Head Assistant. But there is no doubt that the reversion of the petitioner from the officiating rank, in pursuance of the illegal order dated the 17th June 1966, had visited the petitioner with penal consequences and amounted to reduction in rank within the meaning of Article 311 of the Constitution. The petitioner was illegally deprived of his pay, allowances and other benefits to which he was entitled from the 4th September, 1962, to the 31st March, 1966, under the order dated the 2nd February, 1966 of the appellate authority. Admittedly, the provisions of Article 311 (2) of the Constitution were not complied with in reducing the petitioner in rank. The order of reversion was, therefore, unconstitutional and void.

13. As a result of the above discussion, the petition is allowed. The orders of the Secretary, Industries Department, dated the 1st April, 1966 and the 2nd July, 1966 and the order dated the 17th June, 1966 of the Lieutenant Governor are quashed by the issue of a writ of certiorari. The respondents are, by the issue of a writ of mandamus, directed to give effect to the order dated the 2nd February 1966 of the Lieutenant Governor, passed on the appeal of the petitioner, and in pursuance of that order to appoint the petitioner as an officiating Head Assistant in the Industries Department with effect from the 4th September, 1962. The petitioner will be entitled to get his costs of the petition from the respondents.


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