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PETITIONER: UNION OF INDIA AND ANOTHER

       Vs.

RESPONDENT: GAJENDRA SINGH, ETC., ETC.

DATE OF JUDGMENT07/03/1972

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN HEGDE, K.S.

CITATION:  1972 AIR 1329            1972 SCR  (3) 660  1973 SCC  (3) 797  CITATOR INFO :  RF         1974 SC 423  (16)  RF         1974 SC1317  (8)  R          1974 SC1898  (7)  RF         1976 SC1766  (12)  RF         1976 SC2547  (21)

ACT: Constitution  of  India--Arts. 14,  16  and  311(2)--whether version  amounted  to  reduction in  rank  to  attract  Art. 311(2)--If  retention of junior in officiating capacity  Was violative of Arts. 14 and 16 of the (Constitution of India.

HEADNOTE: The  facts of the appeals are similar and the facts of  C.A. No. 314 are as follows : The respondent was a permanent Kanungo who was promoted  to officiate  as Naib Tehsildar under paragraph 37(ii)  of  the Standing  Order No. 12, passed by the second appellant.   He was  reverted from the officiating post for the reason  that he  did  not  pass  the  departmental  examination  of  Naib Tehsildar  within  the  period prescribed  by  the  Standing Order. The  respondent contended in the writ petition that  he  was entitled  to continue in the post of Naib Tehsildar until  a qualified person became available that since he was promoted under  para  37(ii)  of  the  Standing  Order,  passing   of departmental  examination was not necessary to officiate  in the  post  of  Naib Tehsildar,  that  junior  Kanungos  were retained  in  the  posts  of Naib  Tehsildar  by  which  the respondent had lost his seniority in the substantive rank of Kanungo  and hence the reversion amounted to a reduction  in rank  within the meaning of Art. 311(2) of the  Constitution and  retention of juniors in the post of Naib Tehsildar  was violative of Arts. 14 and 16 of the Constitution. The Judicial Commissioner, decided the case in favour of the respondent and held that the reversion of the respondent was attended with penal consequences and since he was not  given a reasonable opportunity of making representation agaist the order,  the  order  was bad and the  order  was  accordingly quashed, Allowing the appeal, HELD  : (i) Appointment to a post on an  officiating  basis, is,  from the nature of employment, itself of  a  transitory

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character  and  in the absence of any contract  or  specific rule regarding the condition of service to the contrary, the implied term of such an appointment is that it is terminable at any time. the Government servant so appointed acquires no right to the post.  But if the order entails or provides for forfeiture  of  his  pay or allowance etc.  or  stoppage  or postponement  of his future chances of promotion, then  that circumstance would indicate that in form the Government  had purported  to exercise its undoubted right to terminate  the employment, but in truth and reality, the termination was by way of penalty. r 863D] Parshotam Lal Dhingra V. Union of India, [1958] S.C.R.  828, referred to. Further,  by  the mere fact that some of  the  juniors  were allowed  to  continue in the post of Naib  Tehsildar  on  an officiating basis, it could 661 not  be, said that the respondent lost his seniority in  his substantive rank of Kanungo. [863H] (ii)  Articles  14 and 16 of the Constitution are  also  not violated in the present case because the junior persons were retained in their offlciating capacities either because they had passed the departmental examination or because they  had been  exempted from passing that examination.  In any  case, the  respondent was not similarly situated with his  juniors and  therefore, there was no discrimination to  attract  the Articles. [864-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION  C.A. No. 314 to, 320 of 1967. Appeals  by special leave from the judgment and order  dated July 23, 1966 of the Judicial Commissioner’s Court at  Simla in Writ Petitions Nos. 18, 19, 20, 21, 23 24 and 25 of 1965. R. N. Sachthey, for the appellants (in all the appeals). Rameshwar Nath, for the respondents (in C.As. Nos. 314,  315 and 318 of 1967). The Judgment of the Court was delivered by Mathew,  J. These appeals, by special leave by the union  of India  and the Financial Commissioner of  Himachal  Pradesh, are  from a judgment of the Judicial Commissioner,  Himachal Pradesh, allowing Civil Writ petitions Nos. 18, 19,’ 20, 21, 23, 24 and 25 of 1965, filed by the respondents and quashing the   orders  passed  by  the  financial  Commissioner   2nd appellant   reverting  the  respondents  to  the  posts   of Kanungos.   As the facts in all the appeals are similar,  we will deal with Civil Appeal No. 314. The  respondent  was  a permanent  Kanungo  in  the  Revenue Department.  He was romoted on March 26, 1962, to  officiate as  Naib Tehsildar under para ’37(ii) of Standing Order  No. 12,  passed by the 2nd appellant.  He was reverted from  the officiating  post to his substantive post on June  1,  1965, for  the  reason  that  he did  not  pass  the  departmental examination  of Naib Tehsildar within the period  prescribed in Para 34 of the Standing Order. The  respondent contended in the writ petition that  he  was entitled  to continue in the post of Naib Tehsildar until  a qualified person became available, that no qualified  person was  available  when  he was reverted,  that  since  he  was promoted  under para 37(ii) of the Standing Order, he  could not  have reverted for the reason that he did not  pass  the departmental examination as the passing of the  departmental examination  was  not  necessary in  the  case  of  Kanungos promoted  under  para  37(ii)  of  the  Standing  Order   to

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officiate  in the post of Naib Tehsildar.  He  further  con- tended  that  Kanungos junior to him who  were  promoted  to offi- L1031Sup.Cl/72 662 ciate  in  the post of Naib Tehsildar were retained  in  the posts of Naib Tehsildar and that has resulted in the loss of his  seniority in the substantive rank of Kanungo and  hence the  reversion  amounted to a reduction in rank  within  the meaning   of  Article  311(2)  of  the  Constitution.    So, according  to  the respondent, he should have been  given  a reasonable  opportunity of making a  representation  against the  reversion and since such an opportunity was not  given, the  order  of  reversion  was  bad.   The  respondent  also contended that the retention of his juniors in the, post  of Naib Tehsildar was violative of his fundamental right  under Articles 14 and 16 of the Constitution. The  learned Judicial Commissioner, by his order  held  that para  37(ii) of the Standing Order did not confer any  right on  the respondent to continue to officiate in the  post  of Naib Tehsildar until a qualified person became available  as that  para  only  conferred  a  power  on  the   appropriate authority to allow him to continue to officiate in the  post till  a  qualified  hand  became  available.   The   learned Judicial  Commissioner then held that since  the  respondent was  promoted  under para 37(ii) of the Standing  Order,  he could  not have been reverted on the score that he  did  not pass the departmental examination, that since the juniors of the  respondent  who were also promoted  on  an  officiating basis,  were  allowed  to  continue  in  the  post  of  Naib Tehsildar,  the  reversion had resulted in the loss  of  his seniority  in his substantive rank.  He, therefore, came  to the conclusion that the order of reversion was attended with penal  consequence  is and that the respondent  should  have been given a reasonable opportunity of making representation against the order, and quashed it. Paragraphs  34  and 37 of the Standing Order passed  by  the Financial Commissioner read as under:-               "34(i) Ordinarily an A class candidate  should               pass  the Naib Tehsildar’s examination  within               two   years  after  completing   his   revenue               training as prescribed in paragraphs 25 and 27               and  a B Class candidate should pass the  Naib               Tehsildar’s  examination within two  years  of               his  first  selection.  The  Commissioner  may               extend  this  period  for  another  year   for               special reason to be recorded in writing.               (ii)  The Financial Commissioners may  further               extend  the period in which a  candidate  must               pass  the examination or exempt any  candidate                             from  passing  the examination  in  ex ceptional               cases    on   the   recommendation   of    the               Commissioner."               "37(i)   Officiating  appointments   of   Naib               Tehsildars   are  made  by  Commissioners   in               Divisions. preference 663               should be given to direct tehsildar candidates               who  have undergone revenue training  for  one               year  under paragraph 4(i) but  not  completed               the  requisite  period  of  service  as   Naib               Tehsildar under paragraph 4(i)(b).               (ii)  If  no such Tehsildar candidate  and  no               qualified Naib Tehsildar candidate of his list

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             is  available  for  a  vacant  post  of   Naib               Tehsildar,  the  Commisioner  may  appoint   a               Tehsildar candidate who has completed his  two               years service if unemployed or an  unqualified               Naib Tehsildar candidate or a Kanunogo to fill               the  vacancy until a qualified person  becomes               available." We do not think that the Judicial Commissioner was justified in  quashing the order of reversion for the reason  that  in passing   the  order  the  2nd  appellant  contravened   the provisions of Article 311(2). Appointment  to a post on an officiating basis is, from  the nature  of employment, itself of a transitory character  and in  the absence of any contract or specific rule  regulating the conditions of service to the contrary, the implied  term of such an appointment is that it is terminable at any time. The Government servant so appointed acquires no right to the post.   But if the order entails or provides for  forfeiture of his pay or allowance or the loss of his seniority in  the substantive  rank  or the stoppage or  postponement  of  his future chances of promotion, then that circumstance may indicate that though in form the Government had purported to exercise its undoubted right to terminate the employment, in truth  and  reality, the termination was by way  of  penalty (see Parshotam Lal Dhingra v. Union of India(1). We  do not understand how the respondent lost his  seniority in  his  substantive rank of Kanungo by the mere  fact  that some of his juniors were allowed to continue in the post  of Naib  Tehsildar on an officiating basis.  His  juniors  were not  promoted on a regular basis.  Like the respondent  they were  also  promoted  to  officiate  in  the  post  of  Naib Tehsildar  under  para  37(ii).  We do  not  see  how  their retention in the posts on an officiating basis would  entail loss of seniority of the respondent in his substantive rank. No  provision  in the Standing Order or any other  rule  has been  brought  to our notice to show that  by  allowing  the juniors  of the respondent to continue to officiate  in  the posts of Naib Tehsildar the respondent lost his seniority in his substantive rank.  We do not, therefore, think that  the order of reversion was attended with any penal  consequences so as to attract the provisions of Article 311(2). (1) [1958] S.C.R. 828. 664 The respondent, no doubt, was appointed to officiate in  the post  of Naib Tehsildar in pursuance of para 37(ii)  of  the Standing  Order  and that did not provide that he  could  be reverted  for his not passing the  departmental  examination within  any specified time but that would not ’,,in any  way vitiate  the  order of reversion as the  respondent  had  no right  to  hold  the  post and the  2nd  appellant  had  the undoubted  power  to  revert him.  The  fact  that  the  2nd appellant  give a wrong reason for reverting the  respondent would  not in any way affect the power which he  undoubtedly possessed to revert him. The  contention of the respondent that the retention of  his juniors, to officiate in the post of Naib Tehsildar violated his  fundamental  right  under Articles 14  and  16  of  the Constitution has no substance for his juniors were  retained either because they had passed the departmental  examination or  because  they  had  been  exempted  from  passing   that examination.   The respondent was not, therefore,  similarly situate  with  his  juniors and,  therefore,  there  was  no discrimination to attract the Articles. We,   therefore,  set  aside  the  order  of  the   judicial Commissioner and allow the appeal but, in the circumstances,

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we make no order as to costs. S.C.                              Appeals allowed. 665