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Kishori Lal Kapoor Vs. the Lt. Governor and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 20 of 1961
Judge
Reported inAIR1963HP54
ActsConstitution of India - Articles 14, 309 and 311; ;Central Civil Services (Temporary Service) Rules, 1940 - Rule 3
AppellantKishori Lal Kapoor
RespondentThe Lt. Governor and anr.
Appellant Advocate M.L. Aukta, Adv.
Respondent Advocate K.C. Pandit, Govt. Adv.
DispositionPetition allowed
Cases ReferredParshotam Lal Dhingra v. Union of India
Excerpt:
constitution - reversion - petitioner worked as junior clerk in state secretariat - selected to post of auditor in co-operative and supplies department - petitioner lien was maintained for such period as he was not confirmed in co-operative and supplies department - reverted back to post of junior clerk - petitioner contended that he was not on deputation and was working under permanent post - mere fact that lien of petitioner on post of junior clerk was retained cannot lead to conclusion that petitioner was on deputation - no notice given to petitioner before dismissal - petitioner entitled to relief. - .....of india and has been filed by shri kishori lal kapoor agafnst the lieutenant-governor himachal pradesh and the registrar, co-operative societies himachal pradesh.2. the petitioner was a junior clerk in the himachal pradesh secretariat in the year 1950 and was confirmed in the year 1952.3. the co-operative and supplies department himachal pradesh invited applications for the posts of auditor and with the permission of the then chief secretary to the himachal pradesh administration he applied for one of those posts and was selected by a selection board presided over by the then home minister. the registrar, co-operative societies himachal pradesh through the officer-on-special duty to himachal pradesh offered to the petitioner one of the posts of auditor subject to certain.....
Judgment:
ORDER

C.B. Capoor, J.C.

1. This is a petition under Article 226 read with Article 311 of the Constitution of India and has been filed by Shri Kishori Lal Kapoor agafnst the Lieutenant-Governor Himachal Pradesh and the Registrar, Co-operative Societies Himachal Pradesh.

2. The petitioner was a junior clerk in the Himachal Pradesh secretariat in the year 1950 and was confirmed in the year 1952.

3. The Co-operative and Supplies Department Himachal Pradesh invited applications for the posts of auditor and with the permission of the then Chief Secretary to the Himachal Pradesh Administration he applied for one of those posts and was selected by a Selection Board presided over by the then Home Minister. The Registrar, Co-operative Societies Himachal Pradesh through the Officer-on-Special Duty to Himachal Pradesh offered to the petitioner one of the posts of auditor subject to certain conditions mentioned in the office order copy of which is Annexure 'A' to the petition. The offer was accepted by the petitionerand he joined his new appointment on 7th January, 1954. His lien on the post of the junior clerk in the Himachal Pradesh Secretariat was maintained for such period as he be not confirmed by the Co-operative and Supplies Department. He worked as District Audit Officer in various districts with effect from 13-1-1954 to 19-2-1959 when he was reverted to the substantive post held by him in the Secretariat vide office order dated 6-2-1959 copy of which is Annexure 'B' to the petition and against that order he made a representation to the Registrar, Co-operative Societies which was rejected.

He submitted an appeal to respondent No. 1 which was also rejected and the order of rejection was communicated to him by memorandum dated 3-12-1960. Thereafter he submitted a memorial to the President of India which was withheld by the Registrar, Co-operative Societies. The petitioner's contention is that he was not on deputation with the Co-operative and Supplies Department and had been working in the said department against a permanent post and in any case had acquired a quasi-permanent status and as such he could not have been reverted without having been afforded opportunity to show cause against the proposed reversion. Along with the petitioner two other persons one of whom was previously in the Industries Department were selected for the cost of an auditor and in the final list of seniority prepared the petitioner was placed at No. 2. His contention is that his work had all along been satisfactory and he could not be reverted while a junior to him continued to work at the post. The order of feversion is also challenged by him on the score of being discriminatory.

4. The petitioner's prayer is that the order of reversion made by respondent No. 2 and the order made by respondent No. 1 rejecting the appeal be quashed and thestatus quo ante be restored with all attendant benefits.

5. The petition has been opposed by the respondentsupon the main grounds that the petitioner was appointed to the temporary post of auditor in the Co-operative and Supplies Department as a temporary measure, that though subsequently the post was made permanent the petitioner was not confirmed at that post and had not been permanently absorbed in that department, that he was on deputation with that department and as such he could be reverted to his parent department without the issue of any notice to him,that the order of reversion was not in the nature of a penalty and it was not necessary to comply with the provisions of Article 311 of the Constitution. It is also pleadedthat the petitioner's work as District Audit Officer was not satisfactory and he was considered to be unfit for the job.

6. The following questions arise for decision :

1. (a) Whether the petitioner had been permanently absorbed in the Co-operative and Supplies Department?

(b) Whether he had acquired a quasi-permanent status at the post of an auditor? 2. Whether the order of reversion was in violation ofthe provisions of Article 311 of the Constitution ofIndia?

3. Whether the order of reversion was violative of Article 14 of the Constitution of India?

4. Whether the services of the petitioner could have been dispensed with by the Co-operative and Supplies Department without issuing to him one month's notice?

5. To what relief, if any, is the petitioner entitled?

FINDINGS :

7. Question No. 1 (a) : The petitioner has not even alleged much less proved that he had been confirmed at the post of auditor. The mere fact that the post against which he was working at the time of his reversion was permanent would not lead to the conclusion that he had been made permanent or had been permanently absorbed in the Co-operative and Supplies Department. The question is answered in the negative.

8. Question No. 1 (b) : The petitioner it is true worked for about 5 years in the Co-operative and Supplies Department but that fact by itself is not sufficient for the acquisition of quasi-Government service status. According to Rule 3 of the Central Civil Service (Temporary Service) Rules, 1949, a Government servant is to be deemed to be in quasi-Government service 'inter alia' if the appointing authority being satisfied as to his suitability in respect of age, qualification, work and character for employment in a quasi-permanent capacity has issued a declaration to that effect in accordance with such instructions as the Governor-General may issue from time to time. No such declaration has been shown to have been made with regard to the petitioner. The question is answered in the negative.

9. Question No. 2 : The petitioner did not hold a lien on the post of auditor or for the matter of that on any post in the Co-operative and Supplies Department. The order of reversion did: not entail forfeiture of pay of a post on which he held a lien. As a result of the order of reversion the basic salary of the petitioner was reduced from Rs. 210/- to Rs. 100/- --a substantial drop indeed--but that by itself cannot be considered to be either a punishment or forfeiture of emoluments. Whenever a Government servant is reverted to an inferior post he suffers monetary loss but according to the majority deciwui in the well-known case of Parshotam Lal Dhingra v. Union of India, reported in AIR 1958 S C 36, such a loss is not considered: to be a forfeiture of emoluments or a penalty. Every order of reversion entailing reduction in rank does not attract the provisions of Article 311 of the Constitution. That Article protects only such reduction in rank as is in the nature of a penalty. It has been urged on behalf of the petitioner that the order of reversion must be held to have been made as a punishment as according to the respondents his work was not satisfactory.

The order of reversion does not purport to have been made on the ground that the work of the petitioner was not upto the standard, it has been observed in the aforesaid Dhingra's case that even if misconduct, negligence, inefficiency or any other disqualification be the motive or the inducing factor for the Government to take action under the terms of the contract of the employment or the specific service rule the motive operating on the mind of the Government is wholly irrelevant if a right exists under the contract or the rules to terminate the service of or revert a Government servant vide paragraph 28. I, therefore, hold that the petitioner was not entitled to a show cause notice as contemplated by the aforesaid article of the Constitution. The question is answered against the petitioner.

10. Question No. 3 : Article 14 of the Constitution affords equal protection of law. It merely guarantees that persons placed in similar circumstances shall be treated alike. It does not guarantee that if two persons are working at the same posts the senior one shall not be reverted so long as the junior one continues to work at the post. The aforesaid Article has no application to the instant case.

11. Question No. 4: It appears from Annexures 'A' and 'B' to the petition that the services of the petitioner were liable to be terminated by one month's notice on either side. Such a notice was not given to the petitioner by the Co-operative and Supplies Department. The stand of the respondents is that it was not necessary to give such a notice to the petitioner as he was on deputation with the Co-operative and Supplies Department and held a lien on the post of a junior clerk in his parent department. It has not been mentioned either in Annexure 'A' which was the offer of appointment or in Annexure 'B' the acceptance of the offer that the petitioner will be on deputation with the Co-operative and Supplies Department or as to what will be the terms of the deputation. The Under Secretary to the Himachal Pradesh Administration had written a letter dated 5-11-1958 to the Registrar, Co-operative Societies Himachal Pradesh wherein it was stated that 'inter alia' the petitioner was on deputation with the Co-operative and Supplies Department and on behalf of the respondents reliance has been placed upon that letter also in support of the contention that the petitioner was on deputation with the Co-operative and Supplies Department. That letter was written about 4 years after the appointment of the petitioner as an auditor and it cannot control the terms of appointment which find place in Annexure 'A' and 'B' to the petition.

The mere fact that the lien of the petitioner on the post of a junior clerk was retained in the parent department cannot lead to the conclusion that the petitioner was on deputation with the Co-operative and Supplies Department. I am further of the opinion that even if for the sakeof argument it be held that the petitioner was on deputation with the Co-operative and Supplies Department he could not be reverted to the parent department without complying with the condition as to the giving of one month's notice. The Co-operative and Supplies Department could not dispense with the services of the petitioner without giving him one month's notice. It has not been disputed on behalf of the respondents that such a notice was not given to the petitioner. The order of reversion was, therefore, clearly in breach of a specific term subject to which the petitioner was appointed to the post of an auditor and it must be quashed. He is entitled to be reinstated to the post which he held at the time of the order of reversion or to an equivalent post with all attendant benefits.

12. Question No. 5 : The petitioner is entitled to the relief as indicated in the foregoing portion of the order.


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