Case Note & Summary
The case arose from seven civil appeals by special leave filed by the Union of India and the Financial Commissioner of Himachal Pradesh against a judgment of the Judicial Commissioner, Himachal Pradesh, which had allowed writ petitions and quashed orders reverting respondents from officiating posts of Naib Tehsildar to their substantive posts of Kanungo. The respondents were permanent Kanungos in the Revenue Department. In the representative Civil Appeal No. 314, the respondent was promoted on March 26, 1962, to officiate as Naib Tehsildar under paragraph 37(ii) of Standing Order No. 12. He was reverted on June 1, 1965, for not passing the departmental examination for Naib Tehsildar within the period prescribed by paragraph 34 of the Standing Order. The respondents contended that they were entitled to continue until a qualified person became available, that no qualified person was available, that passing the departmental examination was not necessary for promotions under paragraph 37(ii), that junior Kanungos were retained in Naib Tehsildar posts causing loss of seniority in their substantive rank, that reversion amounted to reduction in rank under Article 311(2) requiring reasonable opportunity, and that retention of juniors violated Articles 14 and 16 of the Constitution. The Judicial Commissioner held that paragraph 37(ii) did not confer a right to continue until a qualified person became available, but that since juniors were retained, reversion had resulted in loss of seniority and was attended with penal consequences; the court quashed the reversion order for want of reasonable opportunity. On appeal, the Supreme Court considered whether the reversion was a reduction in rank requiring compliance with Article 311(2) and whether retention of juniors was discriminatory. The Court stated that an 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 conditions of service to the contrary, the implied term is that it is terminable at any time; the government servant so appointed acquires no right to the post. Relying on Parshotam Lal Dhingra v. Union of India, the Court observed that an order may be penal if it entails forfeiture of pay or allowance, loss of seniority in the substantive rank, or stoppage or postponement of future chances of promotion. The Court found that the respondent lost no seniority in his substantive rank of Kanungo merely because some juniors were allowed to continue in officiating Naib Tehsildar posts; no provision in the Standing Order or any other rule was shown that such retention caused loss of seniority. Therefore, the reversion was not attended with penal consequences and did not attract Article 311(2). The Court further held that the fact that the appellant gave a wrong reason for reverting the respondent would not affect the undoubted power to revert him because the respondent had no right to hold the post. On Articles 14 and 16, the Court held that juniors were retained either because they had passed the departmental examination or because they had been exempted from passing it; the respondent was not similarly situated with his juniors, so there was no discrimination. Accordingly, the Supreme Court set aside the order of the Judicial Commissioner and allowed the appeals, making no order as to costs.
Headnote
A) Service Law - Officiating Appointment - Nature of Officiating Appointment - Constitution of India, 1950, Article 311(2) - An officiating appointment is transitory and terminable at any time absent contract or specific rule; the appointee acquires no right to the post. Reversion to substantive post is not reduction in rank unless it entails penal consequences such as forfeiture of pay or allowance or loss of seniority. Held that reversion of respondent from officiating Naib Tehsildar to substantive Kanungo for failure to pass departmental exam did not attract Article 311(2) because no penal consequences were shown; mere retention of juniors in officiating posts did not cause loss of seniority in substantive rank. (Paras not mentioned) B) Service Law - Penal Consequences - Indicators of Penalty in Reversion - Constitution of India, 1950, Articles 311(2), 14, 16 - The court relied on Parshotam Lal Dhingra v. Union of India to hold that an order of termination or reversion may be penal if it entails forfeiture of pay/allowance, loss of seniority in substantive rank, or stoppage/postponement of future promotion chances. In this case no such consequence was established because no rule shown linking retention of juniors to loss of seniority. Held that reversion order was not attended with penal consequences. (Paras not mentioned) C) Constitutional Law - Equality and Non-Discrimination - Articles 14 and 16 of Constitution of India - Non-discrimination in retention of juniors - Constitution of India, 1950, Articles 14, 16 - Juniors were retained in officiating Naib Tehsildar posts either because they had passed the departmental examination or had been exempted; respondent was not similarly situated. Therefore no discrimination. Held that retention of juniors did not violate Articles 14 and 16. (Paras not mentioned) D) Administrative Law - Reversion - Power to Revert and Wrong Reason - Constitution of India, 1950, Article 311(2) - Since respondent had no right to hold officiating post and the appellant had undoubted power to revert, the fact that a wrong reason was given for reversion did not vitiate the order. Held that reversion was valid exercise of power despite possibly incorrect reason. (Paras not mentioned)
Issue of Consideration
Whether reversion from an officiating post to a substantive post for failure to pass a departmental examination amounted to reduction in rank under Article 311(2) of the Constitution requiring reasonable opportunity, and whether retention of juniors in officiating posts violated Articles 14 and 16 of the Constitution.
Final Decision
Supreme Court set aside the order of the Judicial Commissioner, allowed the appeals, and upheld the reversion orders. No order as to costs.
Law Points
- Officiating appointment is transitory and terminable at any time absent contract or specific rule
- government servant acquires no right to post
- reversion not reduction in rank unless entails forfeiture of pay or allowance
- loss of seniority in substantive rank
- or stoppage/postponement of future promotion
- mere retention of juniors in officiating posts does not cause loss of seniority in substantive rank
- wrong reason for reversion does not vitiate exercise of power to revert
- Articles 14 and 16 not violated when juniors not similarly situated due to passing or exemption from departmental examination
