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PETITIONER: NARESH CHANDRA SAHA

       Vs.

RESPONDENT: UNION TERRITORY OF TRIPURA & ORS.

DATE OF JUDGMENT: 06/10/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. HEGDE, K.S.

CITATION:  1970 AIR  364            1970 SCR  (2) 639  1970 SCC  (3)  22

ACT: Civil Service Reposting in officiating post held at the time of dismissal after order of dismissal set  aside--subsequent reversion to substaintive post-Legality. Practice   and  Procedure-Petition  filed  in   High   Court challenging   order  passed  7  years  before-If  could   be entertained.

HEADNOTE: The  appellant,  who  was  a junior  officer  in  the  State service,  was appointed as an officiating senior officer  on May  10,  1954.   On  May 12,  1954,  an  order  was  passed reverting him to the, post of junior officer.  On the ground that  he refused to obey the order of reversion, on  May  6, 1957 he was suspended, and ultimately dismissed.  The orders of the suspension and dismissal were set aside by the  Court of Judicial Commissioner.  By order dated November 7.  1960, he was reinstated in the post of the senior officer which he was holding on the date of his suspension. with effect  from the  afternoon  of May 7, 1957.  By the same order,  he  was reverted  to  his substantive post of  junior  officer  with retrospective effect from June, 7, 1957, as another  officer was  already occupying the post.  The appellant,  thereupon, challenged both the orders dated May 12, 1954, and  November 7,  1960,  but  the  Judicial  Commissioner  dismissed   the petition. In appeal to this Court, HELD  : (1) The order dated November 7, 1960  reverting  the appellant to his substantive post did not entail  forfeiture of  the appellant’s pay or allowances, or loss of  seniority in his substantive rank, or stoppage or postponement of  his future chances of promotion.  The appellant could not  claim the salary of the senior post from the date of suspension or dismissal   till   date  of  reinstatement,   because,   the appropriate authority, when reinstating the appellant  could revert him, as from an earlier date, to his substantive post from the officiating post, provided the order was not passed mala fide. [641 H; 642 B-C] Parshotam Lal Dhingra v. Union of India, [1958] S.C.R.  828, referred to. (2)  There  is  nothing  to  show  that  any   retrospective

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operation  was given to the order dated May 12, 1954 In  any event,  the Judicial Commissioner was justified in  refusing to  entertain any contention as to its validity seven  years after the order was passed. [640 H]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2203 of 1966. Appeal  by special leave from the judgment and  order  dated November  8,  1965  of the  Judicial  Commissioner’s  Court, Tripura in Writ Petition No. 27 of 1961. M.   K. Ramamurthi and Shyamala Pappu, for the appellant. V.   A Seyid Muhammad, S. P. Nayar and B. D. Sharma, for the,respondents. 640 The Judgment of the Court was delivered by Shah,  J. The appellant joined the Tripura Civil Service  on October 30, 1949, and was posted as a probationer Divisional Purchasing  Officer, Dharmnagar.  In 1953 the Tripura  Civil Service  was  split into two  cadres-senior  officers  being absorbed  as Sub-Divisional Officers and junior officers  as Sub-Treasury  Officers.  The appellant was absorbed as  Sub- Treasury Officer with effect from April 1, 1950.  On May 10, 1954, the appellant was appointed officiating Sub-Divisional Officer with effect from September 10, 1953.  By order dated May 12, 1954, the appellant was reverted to the post of Sub- Treasury  Officer  with  effect  from  May  6,  1954.    The appellant   made  several  representations  to   the   Chief Commissioner   but  without  success.   The  appellant   was suspended  by order dated May 6, 1957, for failure  to  obey the orders of the Additional District Magistrate and he  was dismissed with effect from July 3, 1958, by the order of the Chief Commissioner. The appellant moved a petition in the Court of the  Judicial Commissioner at Tripura challenging the orders of suspension and dismissal.  On February 19, 1960 the Court set aside the impugned orders.  By order dated November 7, 1960 the  Chief Commissioner  reinstated  the  appellant  to  the  post   of Superintendent of Surveys and by the same order reverted him to  his  substantive  post  of  Sub-Treasury  Officer   with retrospective effect, from June 7, 1957.  The appeal of  the appellant to the President having been rejected, he moved  a petition  in  the Court of the Judicial Commissioner  for  a writ quashing the orders dated May 12, 1954 and November  7, 1960.   The appellant contended that in order  of  reversion cannot be made to have retrospective operation. The  petition insofar as it relates to the first  order  was belated.   Again  there  is  no  ground  for  holding   that retrospective  operation was in fact given to that order  of reversion.   By the order dated May 12, 1954  the  appellant was  reverted  to the post of SubTreasury Officer,  but  the order did not state the date from which the order was to  be effective.   In  summarising  the  averments  made  in   the petition,   the  Judicial  Commissioner  stated   that   the petitioner  had alleged that the order dated May  12,  1954, was  to  have  effect  from May 6, 1954.   A  copy  of  that petition  is  not filed in this Court and we are  unable  to accept, especially having regard to the terms of the  order, that any retrospective operation was sought to be given.  In any  event  the  Judicial  Commissioner  was  justified   in refusing  to entertain any contention as to the validity  of the  order of reversion made nearly seven years  before  the date on which the petition was filed, 641

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The second order dated November 7, 1960, passed by the Chief Commissioner consists of two parts-(i) that the appellant be reinstated in the post of the Superintendent of Surveys with effect from the afternoon of May 7, 1957; and (ii) that  the appellant  be  reverted  to the  substantive  post  of  Sub- Treasury  Officer  with retrospective effect  from  June  7, 1957.   The appellant, as already stated, was  suspended  on May  6,  1957.   The order of suspension and  the  order  of dismissal  which followed it were set aside by the  Judicial Commissioner,   and   the   Chief   Commissioner   therefore reinstated  the appellant with effect from the afternoon  of May  7,  1957 to the post occupied by the appellant  on  the date  on which he was suspended.  But the appellant was  not holding the post of Superintendent of Surveys  substantively : he was merely officiating in that post.  He was  therefore reverted  with effect from June 7, 1957 to  his  substantive post.   The order was passed because the post was filled  by another officer approved by the U.P.S.C. Counsel for the appellant relied upon the observations  made by  S.  R. Das, C.J., in Parshotam Lal Dhingra v.  Union  of India(1) :               "But  the  mere fact that the servant  has  no               title  to  the  post  or  the  rank  and   the               Government   has,  by  contract,  express   or                             implied,  or  under  the rules,  the right  to               reduce him to a lower post does not mean  that               an order of reduction of a servant to a  lower               post or rank cannot in any circumstances be  a               punishment.   The  real test  for  determining               whether  the reduction in such cases is or  is               not by way of punishment is to find out if the               order  for  the  reduction  also  visits   the               servant with any penal consequences.  Thus  if               the   order  entails  or  provides   for   the               forfeiture  of  his pay or allowances  or  the               loss of his seniority in his substantive  rank               or  the stoppage or postponment of his  future               chances  of promotion. then that  circumstance               may   indicate  that  although  in  form   the               Government had purported to exercise its right               to  terminate the employment or to reduce  the               servant to a lower rank under the terms of the               contract of employment or under the rules,  in               truth   and   reality   the   Government   has               terminated  the  employment as and by  way  of               penalty." These  observations.  in  our judgment, do  not  assist  the appellant.   The order reverting the appellant from June  7, 1957, to his substantive post does not entail forfeiture  of his   pay  or  allowances  or  loss  of  seniority  in   his substantive  rank or stoppage or postponement of his  future chances of promotion, (1)  [1959] S.C.R. 828, 863. 642 Counsel  for the appellant urged that whenever a  person  is reinstated  as  from  the date on which  his  services  were terminated  he must be restored to the same office which  he was holding at the date of the termination of employment  or suspension  and  must  receive  salary  upto  the  date   of reinstatement which that office carried.  We find no warrant for   the  submission.   If  the  appellant  had  not   been suspended,  it was open to the Chief Commissioner  still  to revert  him to his substantive post.  We see no  reason  for holding that the Chief Commissioner could not do so when  he

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reinstated  the appellant.  There is no ground for  thinking that  the  order  was  made  maliciously.   The  reason  for reversion  was that since June 7, 1957 another  officer  was occupying  the post of the Superintendent of  Surveys.   The post    having   been   already   filled,   the    appellant cannot  claim  that when he was reinstated lie  should  have been  paid  emoluments  attached  to  the  office  of   Sub- Divisional  Officer  on  the footing that  he  continued  to occupy  that office which he was holding in  an  officiating capacity. The appeal therefore fails and is dismissed.  Having  regard to  the circumstances of the case there will be no order  as to costs. V.P.s.                       Appeal dismissed. 643