http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: KISHORE CHANDRA PANIGRAHI

       Vs.

RESPONDENT: STATE OF ORISSA AND ORS.

DATE OF JUDGMENT:       29/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      PATTANAIK.J.      Leave granted.      This Appeal  by Special  Leave is  directed against the order of  the  Orissa  Administrative  Tribunal  dated  19th April, 1990,  passes in  D.A. No.134  of 1986 as well as the order of the said Tribunal dated 3.9.1990 passed by the said Tribunal on an application for review.      The appellant  had been appointed to the post of a peon in Class  IV in  the year  1976 in the Office of the Special Treasury, Berhampur.   He was promoted to the post of Junior Clerk in  the year  1982 which  is a  post in class III.  By order dated  18.10.1986 he  was reverted  to his substantive post of  peon in  class IV.   He  therefore, challenged  the order  of   reversion  before   the  Orissa   Administrative Tribunal. The  Tribunal came  to hold  that the promotion of their appellant  to the post of junior clerk was temporarily made without  prejudice to  the claim of seniority of others and the said promotion being contrary to the statutory rules and not  having conferred  any right  on the  appellant  the order of reversion cannot be challenged and a such cannot be interfered with  by the Tribunal.  The appellant, therefore, has approached this Court in this appeal.      Mr. Mishra,  learned counsel  for the appellant did not challenge the  finding of the Tribunal that the promotion of the  appellant   to  the   post  of   Junior  Clerk  was  in contravention of the provisions of the Statutory Recruitment Rules  called   Orissa  Ministerial   Services  (Method   of Recruitment and  conditions of service of clerks, assistants in the District Office and Office of the Heads of Department Rules)1963, (hereinafter  referred to  as  ’the  Recruitment Rules"). He  however contended  that  the  State  Government having come  forward with  a  set  of  Rules  called  Orissa Ministerial  Services  (Regularisation  of  Recruitment  and conditions of  Service of Irregular Recruits in the District Offices  and   Offices  Subordinate   thereto)  Rules,  1986 (hereinafter referred  to as  "The Regularisation Rules) and thereunder having  regularised all  the recruitments made to the post  of clerks  prior to  8th  October,  1982  and  the appellant having  been promoted  to the post of Junior Clerk

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

in Class  III on  8th September,  1982, his services must be held to  be regularised  under the  Regularisation Rules and therefore, the  order of  the Tribunal  is erroneous.    The learned counsel  appearing for  the respondents on the other hand contended,  that the  Regularisation Rules  regularises only  those   direct  recruitments   made  contrary  to  the Statutory Rules  and does  not govern  the case of promotion like that  of appellant.   According to him though under the Administrative instructions   an  employee from Class IV can be promoted  only to some special post in Class IV like that of diarist  and despatcher and could not have been promotion direct to  the post or junior clerk, and therefore, his case is not  covered by  the aforesaid  Regularisation Rules.  In view of the rival submissions two questions really arise for consideration:- 1.   Whether the  promotion of  the appellant to the post of Junior Clerk  can be  held to  be valid promotion conferring any right on the appellant, and therefore, whether the order of reversion to the substantive post of peon in Class IV can be held to be penal. 2.    Whether  the Regularisation  Rules cover  the case  of appellant.      So far  as the  first question  is concerned it is well settled law  that temporary  promotion of  an employee  to a higher post  contrary to  the Provisions  of the Recruitment Rules does not counter any right on the employee against the said  promoted   post  and,   therefore,  reversion  to  the substantive rank cannot be held to be penal in nature. It is an admitted  fact that  the posts  of junior  clerks in  the District Offices  are filled  up by a set of rules framed by the governor  in exercise  of power under Article 309 of the Constitution which is the Recruitment Rules.  The said rules do not  contemplate any promotion from Class IV to Class III excepting to  a category of post like District,  Despatcher. In other  words  under  the  Recruitment  Rules  it  is  not permissible for  a peon  in Class  IV to  be promoted to the post of  a Junior  Clerk  in  Class  III.  Consequently  the promotion of  the appellant  to the  post of Junior Clerk in Class III  was perse illegal being contrary to the statutory Recruitment Rules  and did  not  confer  any  right  on  the appellant who  holds the said post.  Therefore, the order of reversion passed  by the employer reverting the appellant to the substantive  post must  be held to be legal and does not suffer from any illegality.      So far  as second  question is  concerned, the Rules no doubt purpose  to regularise  irregular recruits to the post of junior clerks and assistants in Class III but the history of the  aforesaid Regularisation  Rules indicates that where in several  departments direct recruitments were made by the Departmental Authorities  without filling  up  the  post  in accordance with  the Statutory  Recruitment Rules  and  such employees contended  to occupy  the post  for a considerable length  of   time  and   were  to  face  termination.    The appointment being  contrary  to  the  Statutory  Rules,  the Governor in  exercise of  power under  Article  309  of  the Constitution came  forward with  the  Regularisation  Rules. Such Regularisation  Rules does  not bring  within his sweep the case  of promotion of an employee in Class IV to that of a Clerk  in Class  III.   We are  unable to  agree with  the submission of  Mr. Mishra,  the  learned  counsel  that  the appellant’s case is covered by the Regularisation Rules.      In the  permises, as  aforesaid, we  do  not  find  any infirmity with  the  decision  of  the  Tribunal  warranting interference  by   this  Court  under  Article  136  of  the Constitution.   The appeal  is accordingly dismissed. But in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

the circumstances, there will be no order as to costs.