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PETITIONER: BALKRISHNA PANDEY

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT14/12/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  888            1996 SCC  (2) 282  JT 1995 (9)   566        1996 SCALE  (1)7

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the order of Patna High  Court made  in C.W.J.C. No. 754/79 on 13.4.1979. The admitted facts are that the appellant was appointed as a Junior  Statistical   Supervisor  in   the   Department   of Statistics.  When   a  temporary   post  of   Sr.Statistical Assistant  fell   vacant  in   the  Directorate  of  Special Employment and  Planning  (for  short  ’S.E.P.’),  it  would appear that  on an  application made by him and forwarded by the parent department, the appellant came to be appointed to the temporary  post as Senior Statistical Assistant by order dated 12.7.1973 and he joined the post on 1.9.1973. It would appear that  the post  was made  permanent on  1.1.1978.  On 16.8.1977, when the gradation list of the Senior Statistical Assistants (for  short, "S.S.As.")  in  the  Directorate  of S.E.P. was prepared, the name of the appellant was not shown therein. The  appellant thereon  made a representation dated 26.9.1977. By  proceedings dated  September 28,  1977,  Arun Prasad Mandal,  the fifth  respondent  herein,  came  to  be promoted initially  as S.S.A.  followed by further promotion as Senior  Research Assistant  (for  short,  "S.R.A.").  The appellant  was   reverted  to   the  parent   Department  by proceedings dated  23.2.1979. The  appellant challenged  the reversion and  the High Court dismissed the writ petition as stated earlier.  After reversion,  he was promoted as S.S.A. in the parent department. These facts are not in dispute.      Shri L.R.  Singh, the learned counsel appearing for the appellant, contended  that since  the order  of  appointment shows that he was appointed by selection, in other words, by consideration  of   comparative  merits   according  to  the procedure, his  appointment must  be deemed to be on regular basis in the Directorate of S.E.P. Though initially the post was temporary,  once it  was made  permanent on 1.1.1978, he must be  deemed to  have been absorbed to the permanent post and thereby  he is entitled to be considered for the post of

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promotion as  a S.S.A.  instead of considering his case, the fifth respondent  came to  be promoted twice overlooking the claim of  the appellant  for  S.R.A.;  and,  therefore,  the reversion is bad in law.      In the  counter-affidavit dated  13.8.1979 filed by the State it  was  mentioned  that  the  appellant  came  to  be appointed as a S.S.A. to a temporary post on deputation; his lien as  a  Junior  Statistical  Supervisor  in  the  parent department, namely,  Statistical  Department,  continued  to exist; on  his reversion  to the  parent department  he  was promoted in  his own  right as  S.S.A.; the fifth respondent had his initial appointment in the Directorate of S.E.P. and as he  is permanent  incumbent to  the post,  he came  to be promoted in  his own  right. When  the post  of S.S.A.  fell vacant, he  being the  permanent incumbent of the department came to  be promoted  to the  said post. Since the appellant was only  a deputationist,  he cannot  claim  his  right  to promotion in  the Directorate  of S.E.P. In his own right he had his  promotion  as  S.S.A.  in  his  parent  department. Therefore, there is no illegality in the action taken by the Government.  The   High  Court,   therefore,  was  right  in dismissing the writ petition.      The question,  therefore, is  whether the  promotion of the fifth respondent as S.S.A. is valid in law. It is rather unfortunate that  despite filing of the counter affidavit as early as  on 13.8.1979, no rejoinder-affidavit was filed nor any unimpeachable  documentary evidence  has been  placed on record to  establish the nature of his appointment as S.S.A. in the Directorate of S.E.P. In that state of things, we are necessarily driven  to accept  the uncontroverted  averments made  by  the  State  in  the  counter  affidavit.  It  gets corroboration  from   the  seniority   list   prepared   and maintained  by  the  parent  department  of  the  appellant, namely, Statistical Department. Therein it was shown in item 9 that  the appellant  was continuing  in the Directorate of S.E.P. on deputation.      It  is  settled  law  that  an  employee  on  temporary promotion would continue to hold the lien in his substantive post until  it  is  duly  terminated.  He  cannot  hold  two substantive posts  at the  same time.  Once it  is concluded that  the  appellant  is  a  deputationist  working  in  the Directorate of S.E.P., his name was rightly not shown in the seniority list  of that  Department. Therefore, he continued to  hold  his  lien  and  seniority  as  Junior  Statistical Supervisor in  the parent  department. On reversion, he came back to  his post  as a Junior Statistical Supervisor and in his own  right he  was promoted  as S.S.A.  Since the  fifth respondent happened  to be  a  permanent  incumbent  in  the Directorate of  S.E.P.,  he  was  promoted  as  S.S.A.  When further vacancy  in the  higher ladder,  namely, S.R.A., had fallen vacant,  he  was  considered  and  promoted  in  that vacancy. Under  those circumstances,  the High Court is well justified in refusing to interfere with the matter and we do not find any justification warranting interference.      We are informed that pursuant to the interim directions granted by  the High  Court  and  also  by  this  Court  the appellant has continued to work in the Directorate of S.E.P. Though he  was continuing  in the  Department,  he  must  be deemed to  have continued  to hold  his  lien  as  a  Senior Statistical Assistant  in  the  parent  department,  namely, Statistical Department  and he  will be  entitled to all the rights and  to further promotion, if any, in that department according to rules.      The appeal  is accordingly  disposed of  with the above observations. No costs.

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