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Prayag Dass Seth v. Secretary To Govt. U.P And Another Opposite Parties.

Allahabad High Court

Jan 16, 1967

Judgment

Subsequent
References

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Structured Summary of the Opinion

Factual and Procedural Background

These are writ petitions filed under Article 226 of the Constitution seeking to quash a State Government order dated 28-3-1966 which reverted the petitioners from the post of Senior Marketing Inspector back to Marketing Inspector.

Relevant factual points stated in the opinion: - By notification dated 21-9-1964 the State Government promoted 31 Marketing Inspectors to Senior Marketing Inspectors; the petitioners (except one separately named petitioner in Civil Misc. Writ No. 2222 of 1966) were included in those promoted. - By the impugned order dated 28-3-1966 the petitioners were reverted to the post of Marketing Inspectors and eleven other Marketing Inspectors were promoted as Senior Marketing Inspectors. - The petitioners challenge the order on grounds that (a) their 1964 promotion had conferred a right to the post, (b) the reversion is penal in nature because it makes them subordinate to former subordinates/juniors, (c) the reversion will deprive them of future promotion opportunities under departmental rules, and (d) the order was passed without affording them an opportunity to show cause, allegedly violating Article 311. - Respondents explained administrative reasons for the reshuffle: sanctioning of temporary posts, a seniority/promotions list conditioned on educational qualification, acceptance of representations by certain Inspectors holding two-year Diplomas in Agriculture (who contended that their diploma was equivalent to High School), abolition/reversion of certain posts earlier, and consequential necessary reallocation of promoted posts. - An intervening or impleaded party (Sukhbir Singh) later stated that the State suspended his promotion (12-8-1966) and he was reverted by a departmental order (2-9-1966), asserting that his absence as a party would make the petitions unmaintainable.

Legal Issues Presented

Whether the State Government order dated 28-3-1966 reverting the petitioners from Senior Marketing Inspector to Marketing Inspector is liable to be quashed under Article 226.
Whether the earlier promotion (notification dated 21-9-1964) conferred on the petitioners a vested right to continue in the post of Senior Marketing Inspector.
Whether the reversion order is punitive or penal in nature and, if so, whether it attracts the protection of Article 311 of the Constitution (in particular Article 311(2)).
Whether acceptance of representations by other Inspectors (holding two-year Diplomas in Agriculture) and consequent reshuffling of promotions was lawful and could justify reversion of the petitioners.
Whether absence of the eleven persons who were promoted by the impugned order (and who would be affected by a setting aside of that order) renders the petition proceedings unmaintainable because those persons are necessary parties.

Arguments of the Parties

Petitioners' Arguments

The earlier promotion (21-9-1964) had conferred on them a right to the post of Senior Marketing Inspector which could not be taken away by the later order dated 28-3-1966.
The impugned order is penal in nature because it makes them subordinate and junior to a large number of persons who were previously their subordinates and juniors, and it will, by departmental rules, deprive them of future promotion prospects.
The order was passed without affording them opportunity to show cause, thus violating Article 311 of the Constitution.
Reliance was placed on a departmental order dated 26-7-1965 (M-821.XXXIX-CI-M-196/63) — specifically clause (iii) of paragraph 1 — contending that age limits and related instructions would prevent them from future promotion.
They relied on judicial authority (Sudama Prasad v. Divisional Superintendent and N.S. Bhatnagar v. Union of India) to support the contention that reversion could violate constitutional provisions in appropriate circumstances.

Respondents' Arguments (State and Department)

The impugned order was administrative and corrective, passed for valid reasons: (a) acceptance of representations by certain Inspectors holding two-year Diplomas in Agriculture that their diplomas were equivalent to High School, (b) reshuffling required to give effect to those successful representations, and (c) abolition or reversion of other posts which necessitated reverting incumbents.
The promotions of the eleven Diploma-holders were justified because they were senior to the petitioners and entitled to preference; the petitioners had no inherent right to occupy the temporary posts permanently.
The reversion was not punitive; it was innocuous and did not result in loss of original seniority in the cadre of Marketing Inspectors.
Certain structural changes had occurred earlier: three temporary posts were abolished (Government Order dated 2-12-1965), and some officers reverted to prior ranks, producing a further need to revert others.
The departmental instruction dated 26-7-1965 (relied upon by petitioners) did not, according to the Department's counter-affidavits, relate to filling of posts of Senior Marketing Inspectors by promotion and thus did not operate against the petitioners.
Absence of the eleven persons who were promoted by the impugned order (and who occupy the posts the petitioners now claim) meant those persons were necessary parties; in their absence, the petitions could not be effectively decided and therefore could not succeed.

Impleaded/Intervening Party (Sukhbir Singh)

Stated that after interim relief by the Court, the State suspended the operation of his promotion (12-8-1966) and he was reverted by a departmental order (2-9-1966).
Asserted that he (and similarly placed promoted Inspectors) would be adversely affected by the success of these writ petitions and therefore were necessary parties; their non-impleadment would render the petitions liable to fail.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mazhar Hasnain v. State of U.P., AIR 1961 All 316	Where a person was appointed by mistake in place of a senior person whose claim to seniority is upheld, correction of that mistake by placing the persons in their proper order is permissible; appointments made where appeal/revision is possible are subject to the result of such proceedings.	The Court found these observations "apposite" and applied the principle to hold that the petitioners' promotions were made under a mistake (insofar as senior persons' representations were later upheld) and could be corrected. Hence the reversion was lawful as a corrective administrative action rather than an unlawful deprivation.
Sudama Prasad v. Divisional Superintendent, AIR 1965 Raj 109	In that case reversion was held to violate Articles 16(1) and (2) where the subsequently appointed person had no preferential claim under rules or Article 16(4).	The Court treated this case as distinguishable on its facts because, unlike that case, the persons promoted here had preferential claims (seniority or entitlement under rules/Article 16(4)). Therefore Sudama Prasad did not support the petitioners' challenge.
N.S. Bhatnagar v. Union of India, Civil Misc. Writ No. 4701 of 1965 (Dated 2-8-1966, All)	In that case the order of reversion was not passed to give effect to the preferential claim of another officer (and was thus distinguishable).	The Court observed that N.S. Bhatnagar is distinguishable from the present facts because here the reversion was to give effect to valid preferential claims of other Inspectors; consequently the precedent did not aid the petitioners.

Court's Reasoning and Analysis

The Court undertook a fact-based, categorised analysis of the reversion order and the reasons supplied in the counter-affidavits. The reasoning proceeded along these lines:

Numerical and factual clarification: The impugned order purports to revert fourteen Marketing Inspectors but the counter-affidavit clarifies that actually fifteen persons (including Sri P.N. Nigam) were reverted. Of these, eleven were reverted because the appeals/representations of eleven other Marketing Inspectors (holding two-year Diplomas in Agriculture) were accepted and those eleven were promoted in accordance with their proper seniority.
Distinguishing two groups: The Court separated the petitioners into two categories for analysis:
- Group A (five persons: P.D. Seth, A.A.K. Afridi, Pratap Singh, Gyan Chandra Sharma, Baij Nath Dubey): their reversion was caused by abolition of three temporary posts and by the return/reversion of previous incumbents to posts of Senior Marketing Inspector. Because the temporary posts were abolished or previous incumbents returned, the petitioners could not continue to retain the temporary posts — the vacancy disappeared and their promotion came to an end. The Court held these reversions were "completely innocuous and justified."
- Group B (the other petitioners reverted because eleven Diploma-holders were promoted): the eleven promoted Inspectors were senior to the petitioners and entitled to preference. Their successful representations led to a corrective reshuffling. The Court held that the order of promotion of those eleven and the consequent reversion of the petitioners was "innocuous" and not intended as punishment; it did not strip the petitioners of their original seniority in the Marketing Inspectors' cadre.
On constitutional protections and Article 311: The petitioners argued Article 311 applied because the order was punitive and passed without a show-cause opportunity. The Court analysed the nature of the reversion and found it was not a reduction in rank attracting Article 311(2). The reversion was corrective of a mistaken promotion or necessitated by abolition/reversion of posts and therefore not a disciplinary reduction in rank.
On the departmental order dated 26-7-1965 and age-limit argument: Petitioners contended clause (iii) of paragraph 1 (age limit 40 years for promotion) would bar them from future promotion. The Court noted (a) the petitioners had officiated as Senior Marketing Inspectors since 1964 (and the clause provided that those who had officiated before age 40 would be considered), and (b) the Department in its counter-affidavits asserted that the 26-7-1965 order did not relate to filling Senior Marketing Inspector posts by promotion. On that basis the Court concluded the departmental order did not operate against the petitioners as claimed.
On necessary parties and the impleaded promoted Inspectors: The Court accepted the submission that the persons who were promoted by the impugned order occupied the posts the petitioners now claimed. If the impugned order were set aside, those eleven Inspectors would be adversely affected and would have to be reverted. Thus the Court regarded those eleven as necessary parties whose absence made the petitions procedurally problematic for that relief.
Reliance on precedent: The Court relied principally on Mazhar Hasnain (AIR 1961 All 316) for the proposition that appointments subject to appeal or revision can be corrected when a senior person's claim is upheld; it held that principle applicable here. Other authorities cited were distinguished on their facts (Sudama Prasad and N.S. Bhatnagar).

Holding and Implications

Holding: Petitions dismissed.

Effect on the parties and immediate consequences: - The Court held that the impugned order of 28-3-1966 was not a reduction in rank attracting Article 311(2) and that the reversions were administratively justified — either as corrective measures to give effect to valid seniority claims or because of abolition/reversion of posts. - The petitioners retain their original seniority in the cadre of Marketing Inspectors (the Court explicitly noted they had not lost their seniority in the original cadre). - No costs were awarded ("there will be no orders as to costs"). - The Court distinguished earlier authorities relied upon by petitioners and applied the Mazhar Hasnain principle to uphold the respondents' corrective administrative action.

Broader implications: This decision concerns the specific administrative facts of these petitions; the Court treated cited precedents as applicable or distinguishable as a matter of fact. The opinion did not purport to lay down a new general legal rule beyond applying existing principles; the immediate effect is dismissal of the petitions and confirmation of the respondents' administrative corrections.

AGJ/D.V.C

Show all summary ...

1. These are petitions under Article 226 of the Constitution. They seek to quash an order dated 28-3-1966 passed by the State Government. The petitioners were working as Marketing Inspectors in the Marketing Section of the Food and Civil Supplies Department of the State Government. By a notification dated 21-9-1964 the State Government promoted 31 Marketing Inspectors to the post of Senior Marketing Inspectors. The petitioners, excepting Sri S.B Dutta (who is the petitioner in Civil Misc. Writ No. 2222 of 1966) were included among these 31. On 28-3-1966 the State Government passed another order reverting the petitioners to the post of Marketing Inspectors. By the same order eleven other Marketing Inspectors were promoted as Senior Marketing Inspectors. This order is challenged on the ground that by the earlier order of promotion the petitioners had secured a right to the post of Senior Marketing Inspectors. The impugned order is penal in nature because it makes the petitioners subordinate and junior to a large number of persons who were till then their subordinates and juniors and that because of other rules of the department, the order of reversion has the effect of depriving the petitioners from promotion to the post of Senior Marketing Inspector in future. It is alleged that since the order was passed without affording any opportunity to the petitioners to show cause, the order violates the provisions of Article 311 of the Constitution.

2. The respondents had contested the case. They had given in detail the reasons for the reversion of the petitioners. It is stated that in April 1964, 151 temporary posts of Senior Marketing Inspectors were sanctioned by the Governor. He decided to fill 100 posts by direct recruitment and the remaining 51 by promotion from amongst the Marketing Inspectors. A list of Marketing Inspectors, who were entitled to be promoted, was drawn up on the basis of seniority subject to rejection of unfit and subject to educational qualification being not below High School. Some Marketing Inspectors, though fairly senior, were not considered qualified for promotion because they possessed two years Diploma in agriculture, but had not passed the High School Examinations. These Inspectors made a representation that the two years Diploma in Agriculture was equivalent to High School. The department investigated and ultimately upheld the representation. It then became necessarx to reshuffle the promotions of the Marketing Inspectors. The Marketing Inspectors holding two years diploma in Agriculture were promoted in accordance with then-place in the seniority list, and, consequently eleven Marketing Inspectors, who were junior to these ones, had to be reverted back. The impugned order was passed in order to do justice to the valid claims of the other Inspectors. It is stated that all the eleven concerned persons have not been reverted as a measure of punishment.

3. It is further stated that three posts of Senior Marketing Inspectors were abolished by the Government Order dated 2nd December, 1965. Because of this, three Senior Marketing Inspectors had to be reverted to their original post of Marketing Inspectors. Two Regional Marketing Officers and two Assistant Food Controllers were reverted as Senior Marketing Inspectors on 30th January, 1966. Because of this, four Senior Marketing Inspectors again had to be reverted as Marketing Inspectors.

4. For these reasons seven Marketing Inspectors had to be reverted. Before orders could be finalised, two Senior Marketing Inspectors were promoted as Area Rationing Officer with the result that only five Senior Marketing Inspectors were reverted as Marketing Inspectors. These five persons were Sri P.D Seth, Sri A.A.K Afridi, Sri Pratap Singh, Sri Gyan Chandra Sharma and Sri Baij Nath Dubey. These five gentlemen were senior to the other eleven persons who were reverted on account of the promotion of eleven persons holding the two years diploma in Agriculture. It is urged for the respondents that the petitioners have not suffered their seniority at all. Persons who were junior to the petitioners have not been given any precedence. The order was not impelled with any motive to take away any right or privilege to which they were lawfully entitled. It is submitted that the post of Senior Marketing Inspectors is temporary and otherwise also the petitioners had no right to that post. For all these reasons Article 311 of the Constitution is not attracted.

5. In Writ Petitions 2083 and 2084 of 1966 one Sukhbir Singh applied for and has been impleaded as a respondent. He was one of the persons who held the Diploma in agriculture and who had been promoted by the impugned order dated 28th March, 1966. He has filed a counter affidavit stating that after this Court had passed the interim stay order in the present petitions the State Government by a general order dated 12th August, 1966 suspended the operation of the order promoting him. Thereupon the Regional Food Controller, respondent No. 2 passed an order on 2-9-1966 reverting Sukhbir Singh to the post of Marketing Inspector. He states that he will be adversely affected by the success of the present writ petitions and hence he was a necessary party to the writ petitions. He not having been impleaded, the writ petition is liable to fail in his absence. All those 11 persons who were promoted by the impugned order are in the same position. The petitioners have not seriously challenged the reason which impelled the respondents to pass the impugned order promoting 11 other Marketing Inspectors and reverting the petitioners. It is abundantly clear that the impugned order has been passed in order to regularise the position which had arisen on the acceptance of the appeal or the representation filed by those 11 Inspectors. Those eleven Inspectors were senior to the various petitioners here. They were entitled to be promoted in preference to the petitioners (there being no allegation that they were thought unfit). The number of posts of Senior Marketing Inspectors which can be filled by promotion is limited. If the order reverting the present petitioners is set aside the eleven Inspectors who have been promoted will have to be reverted because they are now occupying the posts which the petitioners claim. The petitioners cannot be promoted in vacuum. They cannot get the posts of Senior Marketing Inspectors unless such posts are available and vacant. At present they are all filled by those eleven Inspectors. It is, therefore, clear that the eleven Inspectors were necessary parties to the present petitions. In then-absence the petitions cannot succeed. The dispute cannot be effectively decided, in the absence of those eleven persons. One of the grievances expressed by the petitioners is that the representation of those eleven was accepted by the respondents without affording any opportunity to the petitioner to show cause. Success of this point will adversely affect them. For all these reasons, these petitions cannot succeed in the absence of those eleven persons.

6. In order to complete the judgment, 1 may indicate my views on the points raised on the merits. The impugned order reverts fourteen Marketing Inspectors. In the counter-affidavit it has been made clear that actually fifteen persons were reverted and the order omits to mention the name of Sri P.N Nigam who was also reverted. Of these 15, eleven were reverted because of the acceptance of the appeal by eleven other Marketing Inspectors who held a diploma in agriculture. The eleven persons reverted for this reason are those mentioned at serial Nos. 6 to 14 of the impugned order and also Sri Nigam. The other five mentioned at serial Nos. 1 to 5 of the impugned order, were reverted because the previous incumbents of the posts of Senior Marketing Inspectors held by these five, came back by reversion.

7. The cause of these five persons namely P.D Seth, A.A.K Afridi, Pratap Singh, Ghyan Chandra Sharma and Baijnath Dubey stands on a different footing. Of these P.D Seth is the applicant in petition No. 1413, Pratap Singh in 2221, Gyan Chandra Sharma in 2084 and B.N Dubey in 2083. Sri A.A.K Afridi has not come to this Court. The facts stated in the counter-affidavit as to the cause for which these five were reverted has not been seriously disputed. Three posts of Senior Marketing Inspectors were abolishd. When the temporary post was abolished the petitioners could not continue to retain it thereafter. Some Deputy Regional Marketing Officers and Assistant Regional Food Controllers were reverted to their pre-existing rank of Senior Marketing Inspectors. To the posts of Senior Marketing Inspectors held by these persons, the petitioners could continue to remain by promotion only so long as the posts were available. After the reversion, the vacancy disappeared with the result that the petitioners' promotion came to an end. The order putting these five persons back to their original post of Marketing Inspectors was, therefore, completely innocuous and justified.

8. In the case of the other petitioners who were affected by the promotion of eleven Inspectors who held the diploma in agriculture, the position is no different. Those eleven were senior to these petitioners and were entitled to preference over them. Their appeal was upheld. The order of their promotion and the consequent reversion of the petitioners was innocuous. It was not intended as a punishment. It did not visit the petitioners with any evil or penal consequences. The petitioners had not lost their seniority in their original cadre of Marketing Inspectors. They retained their original seniority. The petitioners urge that in view of the Government Order No. M-821.XXXIX-CI-M-196/63 dated July 26, 1965, issued by the State Government to all Regional Food Controllers in Uttar Pradesh, the petitioners have lost all chances of future promotion. A copy of this order is annexure ‘B’ to writ petition no. 2083. This is a departmental instruction. It does not appear to have statutory force. The petitioners rely upon clause (iii) of paragraph 1 of this older where it is stated that the age limit for promotion of departmental candidates will be 40 years. Officials who started as officiating Senior marketing Inspectors before the age of 40 years will, however, be considered for promotion. Learned counsel has stated that live petitioners are above the age of 40 and will be hit by this clause. They are P.D Seth, K.N Sharma, Harpal Singh, Satyapal Singh and Pratap Singh of these P.D Seth and Pratap Singh do not come under this group. They are among the other five dealt with above. The other three also do not, in my opinion, are affected by this order. The second part of this clause enables those who have officiated as Senior Marketing Inspectors to be considered for promotion. These petitioners have worked as Senior Marketing Inspectors since 1964 in virtue of the order D/- 21-9-1964. Moreover, in the counter affidavits it has been asserted that this Government Order does not relate to filling of posts of Senior Marketing Inspectors by promotion. Thus the Department itself does not hold out the said order against the present petitioners.

9. In Mazhar Hasnain v. State of U.P AIR 1961 All 316, a learned single Judge of this Court dealt with a case where one Mazhar Hasnain was appointed Munsarim by the District Judge. Another person Iqbal Hasan made a representation that he was senior to Mazhar Hasnain. The State Government upheld his claim to seniority.

10. Consequently Iqbal Hasan was appointed Mansarim in place of Mazhar Hasnain and the order indicated that Mazhar Hasnain will be entitled to promotion after Iqbal Hasan. It was held by this Court that:

“The sole question that arises is: Was the petitioner entitled to the rank? If he had been sent and another person was senior who had not been appointed, the petitioner was not entitled to the rank and in fact he was appointed by mistake, and if that mistake has been corrected, it cannot be said that any right of the petitioner; has been taken away from him. He has been placed at the place, where he should have been if there had been a proper interpretation as has been made by the State Government”.

11. The learned Judge continued to observe:

“If this contention of the learned counsel is accepted that once a person is transferred on promotion to another place, thereafter he cannot be reverted back on representation made by sone other person, then, in that event, the right of representation will lose all its force. An appointment, where an appeal or revision is possible, is always subject to the result of such appeal or revision”.

12. These observations are apposite to the facts of the present cases. The promotion of the present petitioners was under a mistake which was sought to be corrected because of acceptance of the representation filed by the adversely affected Inspectors. It could be said that the petitioners' promotion was subject to their representations and the petitioners were not entitled to hold the rank of Senior Marketing Inspectors.

13. For the petitioners reliance has been placed upon Sudama Prasad v. Divisional Superintendent, AIR 1965 Raj 109. That case is distinguishable. There the person who was appointed subsequently did not have any preferential claims either under the rules or under Article 16(4) of the Constitution. It was held that the order of reversion violated Clauses (1) and (2) of Article 16 of the Constitution.

14. For the petitioner reliance has also been placed on the judgment of Hon'ble G.C Mathur, J., in Civil Misc. Writ No. 4701 of 1965, D/- 2-8-1966 (All), N.S Bhatnagar v. Union of India. There the order of reversion was not passed to give effect to the preferential claim of another officer that case is distinguishable.

15. In my opinion the impugned order is not reduction in rank so as to attract Article 311(2) of the Constitution. In the result, the petitions fail and are dismissed. Under the circumstances, there will be no orders as to costs.