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Case Number

Writ Petn. No. 79 of 1963

Attorney(S)

H.D. Srivastava and Umesh Chandra
Standing Counsel (Uma Shanker Srivastava)

Judges

N.U Beg, J.

Acts

Articles 16 and 14 of the Constitution of India. A perusal of R. 17(1)(a) and (b) of the U.P Subordinate Revenue Executive Service (Naib Tahsildars) Rules, 1944
Rules 17(1) and (2) and 31(i)(iii) and other rules of the Subordinate Revenue Executive Service (Naib Tahsildars) Rules
Rule 17(1)(a) and (b) of the Subordinate Revenue Executive Service (Naib Tahsildars) Rules
provisions of Article 311 of the Constitution.12.
ARTICLE 309 CONSTITUTION OF INDIA
ARTICLE 311 CONSTITUTION OF INDIA
17(1)(a). Rule 17(1)(b)

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Legal Opinion Summary: Vidya Sagar v. Board of Revenue (Writ Petition)

Factual and Procedural Background

The petitioner, Vidya Sagar, was confirmed as Supervisor Kanungo on 1 April 1952 and appointed officiating Naib Tahsildar on 24 October 1958. On 12 December 1962 the Board of Revenue issued a list (Annexure 1) reverting 81 officiating Naib Tahsildars to their substantive posts as Supervisor Kanungos and appointed 82 Supervisor Kanungos as eligible for officiating Naib Tahsildar. Vidya Sagar was reverted and his name did not appear among those declared eligible. On 13 December 1962 the Board issued another order (Annexure 2) listing 54 Supervisor Kanungos declared as permanent Naib Tahsildars; the petitioner’s name was absent from this list as well.

The petitioner filed a writ petition seeking certiorari to quash Annexures 1 and 2 and mandamus or other relief directing the Board to act according to Rules 17(1) and (2) and 31(i)(iii) and other rules of the Subordinate Revenue Executive Service (Naib Tahsildars) Rules framed under the proviso to Article 309 of the Constitution.

Legal Issues Presented

Whether the lists in Annexures 1 and 2 were prepared in accordance with Rule 17(1)(a) and (b) of the Subordinate Revenue Executive Service (Naib Tahsildars) Rules as they existed on 12–13 December 1962.
Whether an amendment to Rule 17, made on 8 January 1963 and given retrospective effect from 15 March 1962, could validate selections that otherwise appeared non-compliant with the earlier wording of Rule 17(1)(a).
Whether the reversion of the petitioner from an officiating higher post to his substantive post amounted to a "reduction in rank" within the meaning of Article 311 of the Constitution and thereby required an opportunity to be heard.
Whether refusal to select an eligible person for promotion, or loss of seniority caused by promotion of juniors, constituted reduction in rank under Article 311.
Whether the selections reflected in Annexures 1 and 2 were discriminatory in violation of Articles 14 and 16 of the Constitution.
Whether the impugned orders were merely administrative and created no legal right to sustain a writ petition.

Arguments of the Parties

Petitioner's Arguments

The lists (Annexures 1 and 2) were not prepared in accordance with Rule 17(1)(a) and (b) as they stood on 12–13 December 1962; under that Rule only a permanent Supervisor Kanungo with not less than seven years' service could be promoted, and some selected persons did not fulfil that condition.
The retrospective amendment to Rule 17 could not validate the selections made in December 1962.
Reversion to the substantive post amounted to a reduction in rank within Article 311, entitling the petitioner to an opportunity to represent his case.
Refusal to select the petitioner and loss of seniority due to promotion of juniors amounted to reduction in rank.
The orders were discriminatory and thus violative of Articles 14 and 16 of the Constitution.

Opposite Party's Arguments

The Rule 17 was amended on 8 January 1963 to allow entitlement where a person had put in not less than seven years' service either as a Supervisor Kanungo or in an equivalent or higher post in a subordinate or officiating capacity on 1 January of the selection year; the amendment was given retrospective effect from 15 March 1962, and all selected persons satisfied the amended test.
Reversion of an officiating incumbent to his substantive post does not amount to reduction in rank within Article 311 where reversion is ordered under the rules or under the State's contractual power to revert; therefore no hearing was required.
The selections were made "strictly on merits" under Rule 17 and considered factors such as personality, integrity, capacity for supervision, and previous record; they were not discriminatory.
The impugned orders were administrative in nature and did not create a legal right (an argument the court noted but did not decide upon because it found the petition lacked merit on other grounds).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Autar Pandey v. State of Uttar Pradesh, 1962 All LJ 31 (AIR 1962 All 328)	Majority view that a retrospective amendment of rules framed under Article 309 may be validly made.	The court relied on this Full Bench decision to hold that the retrospective amendment to Rule 17 could validate the selections in Annexures 1 and 2, defeating the petitioner's challenge based on the earlier wording of the rule.
Jai Shanker Hajela v. The Uttar Pradesh Government, 1959 All LJ 213 (AIR 1958 All 741) (Full Bench)	Reversion from a temporary/officiating higher grade to the substantive lower grade is not "reduction in rank" within Article 311 if ordered under the State's power of reversion under contract or service rules.	The court accepted this principle to conclude that reversion of the petitioner to his substantive post under the rules did not amount to reduction in rank and therefore did not attract Article 311 procedural protections.
P.C. Wadhwa v. Union of India (Civil Appeal No. 720 of 1962) (cited: AIR 1934 SC 423 as given in text)	Where reversion is in substance punitive (a cloak for punishment), Article 311 requires that the officer be given an opportunity to show cause; substance prevails over form.	The court distinguished this Supreme Court decision: unlike in P.C. Wadhwa where reversion masked punishment and there were charges and inquiry, here there were no charges, no show-cause notice, and no departmental inquiry; thus Article 311 did not apply.
Krishna Lal v. Director of Education, U.P. Lucknow, 1960 All LJ 50 (AIR 1961 All 315)	Refusal to select a person for promotion does not amount to reduction in rank.	The court relied on this earlier decision to reject the petitioner's contention that non-selection amounted to reduction in rank under Article 311.
High Court, Calcutta v. Amal Kumar Roy, AIR 1962 SC 1704	The term "rank" in Article 311(2) refers to a person's classification and not to his precise place in the cadre hierarchy; loss of seniority within the same cadre is not reduction in rank.	The court applied this principle to hold that the petitioner's loss of seniority on promotion of juniors did not constitute reduction in rank under Article 311.
Rudraradhya v. State of Mysore, AIR 1961 Mys 247	Equality of opportunity under Article 16 does not prevent the State from prescribing qualifications/standards; promotion suitability is for the promoting authority to determine after assessing seniority, competence and other relevant factors.	The court invoked this reasoning to support the view that selection based on tests of merit does not amount to discrimination under Articles 14 and 16, so long as equal opportunity to be considered was afforded.

Court's Reasoning and Analysis

The court proceeded issue by issue, applying legal rules and cited precedents strictly as presented in the opinion:

Rule‑compliance and retrospective amendment: The petitioner argued that selections contravened Rule 17(1)(a) as it stood on 12–13 December 1962 because that rule then required seven years' service as a permanent Supervisor Kanungo. The opposite party pointed to an amendment dated 8 January 1963 which broadened the eligibility test and was declared retrospective to 15 March 1962. Relying on the Full Bench decision in Ram Autar Pandey, the court held that retrospective amendment of rules framed under Article 309 can be valid; on that basis the petitioner's challenge to selections on original-rule grounds failed.
New factual assertion in rejoinder: The petitioner alleged in a rejoinder affidavit (for the first time) that two selected candidates had not been confirmed as Supervisor Kanungos on 1 January 1962. The court declined to consider this belated plea because it was not pleaded in the writ petition or principal affidavit, the opposite party had no opportunity to meet it in its counter‑affidavit, no amendment or supplementary affidavit was sought, and the assertion lacked documentary support and was verified only on the petitioner’s belief. Consequently the claim was rejected for lack of proper pleading and evidence.
Article 311 – reduction in rank: The petitioner contended that reversion amounted to reduction in rank invoking Article 311 and therefore required an opportunity to be heard. The court accepted the opposite party’s reliance on the Full Bench decision in Jai Shanker Hajela that reversion from officiating higher grade to substantive lower grade is not "reduction in rank" within Article 311 when ordered under the State's power of reversion under contract or rules. The court distinguished P.C. Wadhwa — where reversion was effectively punitive and lacked due process — because here there were no charges, no show-cause notice, and no departmental inquiry; the reversion was a rule-based administrative reversion, not a disguised punishment. Thus Article 311 did not apply.
Non‑selection and seniority arguments: The court rejected the argument that refusal to select amounts to reduction in rank by following Krishna Lal. It also rejected the contention that loss of seniority equates to reduction in rank, applying High Court, Calcutta v. Amal Kumar Roy to emphasize that "rank" denotes classification, not a candidate's particular place in the seniority order.
Articles 14 and 16 – discrimination: The court examined Rule 17(1)(a) and (b), noting selection is to be made "strictly on merits" with factors like personality, integrity, intelligence and record of service considered equally for all candidates. The court observed the petitioner did not allege non-consideration or mala fide conduct, and the counter-affidavit stated the petitioner’s case was considered and he was found unfit. Relying on Amal Kumar Roy and Rudraradhya, the court concluded that equal opportunity to be considered is what Articles 14 and 16 protect; selection on merits, if honestly exercised, is not susceptible to writ attack merely because the authority preferred other candidates.
Administrative‑nature argument: Although the opposite party argued the orders were administrative and created no legal right to challenge, the court found it unnecessary to decide this point because the petition failed on merits.

Holding and Implications

Holding: The court DISMISSED the writ petition and awarded costs to the opposite party. The order of dismissal appears in the opinion as: "Petition dismissed."

Implications:

Direct effect: The selections contained in Annexures 1 and 2 stand; the petitioner’s reversion and non‑selection were upheld and the petitioner received no relief.
On legal principles: The court applied existing precedent to confirm (a) that a retrospective amendment to service rules framed under Article 309 can be effective to validate selections (Ram Autar Pandey); (b) that reversion from officiating post to substantive post under rules is not reduction in rank for Article 311 purposes (Jai Shanker Hajela), provided the reversion is not a cloak for punitive action (distinguished from P.C. Wadhwa); and (c) that loss of seniority within a cadre does not amount to reduction in rank (High Court, Calcutta v. Amal Kumar Roy). The court found no breach of Articles 14 or 16 where a selecting authority, acting honestly, applies merit-based criteria equally to candidates.
Precedential effect: The opinion relied on and applied existing case law; it did not purport to establish any new legal principle beyond the application of those precedents to the facts before it.

Signed/Reported in the opinion record: CH/HGP/R.G.D

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Vidya Sagar v. Board Of Revenue, U.P Lucknow Opposite Party.

1. The Petitioner in this Writ Petition Vidya Sagar was confirmed on the post of Supervisor Kanungo from the 1st of April, 1952. On the 24th of October, 1958, he was appointed as an officiating Naib Tahsildar. On the 12th of December, 1962, the Board of Revenue which is the opposite party in this writ petition issued a list of 81 officiating Naib Tahsildars who were reverted to their substantive post of Supervisor Kanungos, and, in their place, appointed 82 Supervisor Kamingos who were declared eligible for appointment as officiating Naib Tahsildars. The petitioner was one of the persons who was reverted to the substantive post of Supervisor Kanungo, and was not put in the list of those Supervisor Kanungos who were declared eligible for appointment as officiating Naib Tahsildars. A copy of the said order is Annexure 1. On the 13th of December, 1962, the opposite party Issued another order giving a list of 54 Supervisor Kanungos who were declared as permanent Naib Tahsildars. The petitioner's name was absent from this list also. A copy of this order is filed as Annexure 2 to the writ petition. Thereafter the petitioner filed the present writ petition for the issue of a writ of certiorari to quash the orders contained in Annexures 1 and 2, and the issue of a writ of mandamus or other writ, order or direction directing the opposite party to act in accordance with Rules 17(1) and (2) and 31(i)(iii) and other rules of the Subordinate Revenue Executive Service (Naib Tahsildars) Rules framed by the Government of Uttar Pradesh in exercise of the powers conferred on hint under the proviso to Article 309 of the Constitution of India.

2. The first contention of the learned counsel for the petitioner is that the lists were not prepared in accordance with Rule 17(1)(a) and (b) of the Subordinate Revenue Executive Service (Naib Tahsildars) Rules as they existed on the 12th and 13th of December, 1962, the dates of the issue of orders contained in Annexures 1 and 2. Under Rule 17(1)(a) as it existed on the said dates only a permanent Supervisor Kanungo who had put in not less than seven years service could be promoted to the post of Naib Tahsildar. It is a fact that the lists prepared according to Annexures 1 and 2 did include the names of certain persons who did not fulfil the above condition.

3. The case of the opposite party, however, is that the said rule was amended on the 8th of January, 1963. According to the amended rule in order to entitle one to hold the post of Naib Tahsildar, it was enough if he had put in not less than seven years service either as a Supervisor Kanungo or

“in an equivalent or higher post in a subordinate or officiating capacity on the first day of January of the year in which the selection is made.”

4. This rule was given retrospective effect from the 15th of March, 1962. All the persons whose names are contained in Annexures 1 and 2 were either Supervisor Kanungos or had held an equivalent or higher post in a substantive or officiating capacity on the first day of January, 1962, the year in which the selection was made.

5. On behalf of the petitioner it is argued that the rule could not be thus amended with retrospective effect Reliance on behalf of the opposite party is, however, placed on the majority view in the decision of the Full Bench case of Ram Autar Pandey v. State of Uttar Pradesh, 1962 All LJ 31: [AIR 1962 All 328). According to the view taken by Srivastava and Dwivedl, JJ. in the said Full Bench case, a retrospective amendment of rules framed under Article 309 of the Constitution of India can be made. In view of this decision the contention of the learned counsel for the petitioner in this regard must fail.

6. Learned counsel for the petitioner then argued that two of the selected candidates, viz those whose names appeared at Nos. 23 and 76 had not been confirmed as Supervisors Kanungos on the 1st January, 1952, and therefore, even the amended rule was not complied with. This fact has not been stated by the petitioner in his writ petition or the affidavit accompanying it, nor has this plea been taken in them. For the first time it is stated in the rejoinder affidavit. The petitioners has to be confined to the pleas taken by him in the writ petition. The opposite party filed a counter-affidavit in reply to the allegations contained in the affidavit filed with the writ petition or the supplementary affidavit filed with the amended writ petition. No amendment of the writ petition was applied for in the present case of was any supplementary affidavit filed on this point. The opposite party, therefore, had no opportunity to meet this case. In fact the opposite party has stated in its counter-affidavit that all the selected candidates have complied with the condition imposed by the amended rule. The petitioner has not tried to summon any papers or to file any document to substantiate his allegation in the rejoinder affidavit that persons whose names appear at Nos. 23 and 76 of the list had not been confirmed as Supervisor Kanungos on the 1st of January, 1962. This part of his rejoinder affidavit is verified as true merely to his belief and information. Thus there is also not enough material provided even by the petitioner to prove the truth of this allegation. Under the circumstances this point must also fail.

7. The third point urged by the learned counsel for the petitioner is that Article 311 of the Constitution of India applies to the present case. Therefore, the petitioner should have been given an opportunity to represent his case. This argument is based on the contention that reversion of the petitioner amounted to reduction in rank within the meaning of Article 311 of the Constitution of India. On the other hand, on behalf of the opposite party it is argued that reversion of an officiating incumbent to his substantive post does not amount to reduction in rank. The contention of the opposite party is supported by a decision of this Court in Full Bench case of Jai Shanker Hajela…Plaintiff- v. The Uttar Pradesh Government…Plaintiff-., 1959 All LJ 213 : (AIR 1958 All 741 (FB)). In this case it was held that

“reversion from a temporary or officiating higher grade to the substantive post in the lower grade is not ‘reduction in rank’ within the meaning of Article 311 even though the reversion is ordered on account of unsatisfactory work or conduct of the civil servant, provided it is ordered by the State in exercise of its power of reverting him under the contract, express or implied, or under the rules of service.”

8. The contention advanced on behalf of the opposite party must, therefore, be accented.

9. Strong reliance was also placed on behalf of the petitioner on the case of P.C Wadhwa v. Union of India (Civil Appeal No. 720 of 1962) decided by the Supreme Court of India on the 27th of August, 1963: (AIR 1934 SC 423). In this case an officiating Additional Superintendent of Police was charged for not carrying out the orders of his superior officers. A copy of this charge-sheet was served on him with a notice to submit his defence. The papers of his personal file indicated that his reversion was ordered on account of his unsatisfactory record and in order to enable the departmental inquiry to go on against him. In that case the contention of the reverted officer who was the appellant in the Supreme Court was that

“he has really been reverted by way of punishment though the order of reversion is expressed in innocuous terms”.

10. The Supreme Court accepted the said contention and held:

“A matter of this kind has to be looked at from the point of view of substance rather than of form.”

11. Finally it concluded as follows:—

“Our conclusion is that in the present case the appellant was revetted by way of punishment, but he was given no opportunity of showing cause against the action proposed to be taken against him. Therefore, the order of reversion dated November 3, 1958 was in violation of the provisions of Article 311 of the Constitution.”

12. This case is clearly distinguishable from the present one. No charge was levelled against the petitioner in the present case nor was any notice to show cause against any alleged misconduct served on him. No departmental inquiry was instituted against him. In the present case, therefore, it cannot be said that the reversion of the petitioner was by way of punishment. Here we have a simple order of reversion under the rules. Moreover, in the case cited the apparently innoncuous order of reversion was merely a cloak for what was in fact a penal order passed by way of punishment in the present case it is not the petitioner's case that the order of reversion was passed for the oblique purpose of concealing the real nature of the order. The case cited has, therefore, no application to the circumstances of the present case.

13. The next contention of the learned counsel for the petitioner was that refusal to select a person for a particular post amounts to reduction in rank. A similar contention advanced before a Bench of this Court in the case of Krishna Lal v. Director of Education, U.P Lucknow, 1960 All LJ 50 : (AIR 1961 All 315) was rejected, and the same contention advanced in this case must, therefore, meet the same fate.

14. Another argument advanced by the learned counsel for the petitioner was that the petitioner having lost his seniority as a result of the promotion of his juniors, his case must be held to be one of reduction in rank. This contention also cannot be accepted in view of the observations of their Lordships of the Supreme Court in case of High Court Calcutta v. Amal Kumar Roy, AIR 1962 SC 1704. In this case it was laid down by their Lordships that the expression “rank” in Article 311(2) has reference to a person's classification and not to his particular place in the same cadre in the hierarchy of the service to which he belonged. Therefore losing some place in the seniority list in the same cadre does not amount to reduction in rank within the meaning of Article 311(2).

15. The last argument of the learned counsel for the petitioner was that the orders contained in Annexures 1 and 2 are discriminatory and are, therefore, hit by Articles 16 and 14 of the Constitution of India. A perusal of R. 17(1)(a) and (b) of the U.P Subordinate Revenue Executive Service (Naib Tahsildars) Rules, 1944 shows that selection for the post of Naib Tahsildars is to be made “strictly on merits”, and not on the basis of seniority alone vide R. 17(1)(a). Rule 17(1)(b) shows that in making the selection regard is had to a number of factors including personality, character, intelligence, tact, energy, capacity for supervision, drive, integrity and previous record of service. The above considerations apply to all the candidates equally. No question of discrimination arises. If the selecting authority acts in an honest manner, and, applying the above tests, selects some officers out of a large number of candidates, its conclusions cannot be characterised as discriminatory. The petitioner had an equal right to his case being considered along with others, and so long as his case is considered and the authorities act in an honest manner, the decisions taken by them cannot be challenged by means of a writ petition on the ground that they were incorrect. All that Article 16 guarantees is an equality of opportunity and nothing more. It is not the allegation of the petitioner that his case was not considered by the selecting authority nor is it his case that the higher authorities ??? in at mala fide fashion. On the other hand, paragraph 9 of the counter-affidavit shows that the petitioner's case was considered and he was not found fit for appointment as Nath Tahsildar bearing in mind the provisions of R. 17 and the tests of merit laid down therein. The authorities, therefore, have fully complied with the provisions of R. 17.

16. In the case of AIR 1962 SC 1704 it has been laid down by their Lordships of the Supreme Court that in a case where a person's case for promotion is considered, and, after considering his case, he is not promoted to a higher grade, although such a person is senior to some of the persons who have been selected for promotion, fire action of the authorities cannot be struck down as discriminatory within the meaning of Articles 14 and 16(1) of the Constitution of India. It was further laid down in the same case as follows:

“Equal opportunity contemplated by Article 16(1) do as not mean getting the particular post for which a number of persons may have been considered. So long as the plaintiff, alone with others under consideration, had been given his chance, it cannot be said that he had not equal opportunity along with others, who may have been selected be preference to him. Where the number of posts to be filled is less than the number of persons under consideration for those posts, it would be a case of many being called and few being chosen.”

17. In Rudraradhya v. State of Mysore, AIR 1961 Mys 247 it was held by a Bench of the Mysore High Court that equality of opportunity does not prevent the State from laying down qualifications or standards to enable it to get the best service. It was further observed that it is for the State or the promoing authority to determine the suitability of a person for promotion after an assessment of all relevant considerations, such as seniority, competence, rectitude and antecedent official records, none of which is less important than the other for the preservation of purity and efficiency in public service.

18. Far the above reasons I am unable to hold that the action of the authorities in holding the petitioner to be unfit for promotion was violative of Articles 14 or 16 of the Constitution of India.

19. On behalf of the opposite parties it was also argued that the impugned orders were of an administrative nature and do not create any legal right so as to entitle a party to file a writ petition. Reliance in this connection was placed on the case of 1960 All LJ 50 : (AIR 1961 All 315) and AIR 1961 Mys 247. I do not think it necessary to go into this aspect of the matter as I am of the opinion that the petition must fail on the ground that the contentions raised therein appear to be devoid of merit. I accordingly dismiss this writ petition with costs.

CH/HGP/R.G.D

20. Petition dismissed.

Vidya Sagar v. Board Of Revenue, U.P Lucknow Opposite Party.

Legal Opinion Summary: Vidya Sagar v. Board of Revenue (Writ Petition)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Opposite Party's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Vidya Sagar v. Board Of Revenue, U.P Lucknow Opposite Party.

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