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Naresh Chandra Saha v. Union Territory Of Tripura And Others
Naresh Chandra Saha v. Union Territory of Tripura & Ors.
Civil Appeal No. 2203 of 1966, decided on 06 October 1969
Factual and Procedural Background
Naresh Chandra Saha joined the Tripura Civil Service on 30 October 1949. Following a 1953 re-organisation that created separate senior and junior cadres, he was absorbed as a Sub-Treasury Officer (junior cadre). He was later appointed to officiate as a Sub-Divisional Officer (senior cadre) with effect from 10 September 1953, but by order dated 12 May 1954 he was reverted to his substantive junior post. Allegedly refusing to obey that reversion, he was suspended on 6 May 1957 and dismissed on 3 July 1958.
On 19 February 1960 the Court of the Judicial Commissioner, Tripura, quashed both the suspension and dismissal orders. The Chief Commissioner thereafter passed a composite order on 7 November 1960: (i) reinstating the appellant to the post he had been holding when suspended (Superintendent of Surveys) with effect from the afternoon of 7 May 1957, and (ii) simultaneously reverting him to his substantive Sub-Treasury Officer post with retrospective effect from 7 June 1957 because the higher post had already been filled by another officer approved by the Union Public Service Commission.
The appellant filed Writ Petition No. 27 of 1961 before the Judicial Commissioner, challenging both the 1954 and 1960 reversion orders. The petition was dismissed on 8 November 1965. He then obtained special leave and brought the present civil appeal before the Supreme Court of India.
Legal Issues Presented
- Whether the order dated 7 November 1960, retrospectively reverting the appellant from the officiating senior post to his substantive junior post, was legally valid or constituted a penalty.
- Whether the Judicial Commissioner was justified in refusing to entertain a challenge to the reversion order dated 12 May 1954, raised nearly seven years after it was passed.
Arguments of the Parties
Appellant's Arguments
- The retrospective reversion contained in the order of 7 November 1960 was impermissible; upon reinstatement following an invalid dismissal, an employee must be restored to the same post and paid the salary attached to it up to the date of reinstatement.
- Reliance was placed on Parshotam Lal Dhingra v. Union of India to contend that a reduction in rank becomes punitive if it carries penal consequences such as loss of pay, seniority, or promotional prospects.
Respondents' Arguments
The opinion does not contain a detailed account of the respondents’ legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Parshotam Lal Dhingra v. Union of India [1958] SCR 828 | Test for determining when a reduction in rank amounts to punishment: presence of penal consequences such as forfeiture of pay, loss of seniority, or blocked promotion prospects. | The Court held that the appellant’s reversion did not entail any such penal consequences; therefore, the principle did not assist the appellant. |
Court's Reasoning and Analysis
Justice J. C. Shah, delivering the judgment of the Court, analysed the two impugned orders separately:
- Order of 12 May 1954: The record disclosed no evidence that the order was given retrospective effect. Even if such a contention existed, raising it after seven years was unduly delayed. The Judicial Commissioner was therefore correct in declining to examine its validity.
- Order of 7 November 1960: The order comprised (a) reinstatement to the higher post from the afternoon of 7 May 1957, and (b) reversion to the substantive post as of 7 June 1957. The Court found:
- The appellant was only officiating in the higher post and had no substantive right to it.
- The reversion caused no forfeiture of pay or allowances, no loss of seniority in the substantive post, and no impediment to future promotion; hence, under the Dhingra test, it was not punitive.
- The authority could have reverted him even if he had never been suspended; doing so upon reinstatement was likewise permissible, absent mala fides. The post had already been validly filled by another officer, making reversion administratively necessary.
Accordingly, the Supreme Court concluded that both grounds of challenge lacked merit.
Holding and Implications
Appeal Dismissed. The Supreme Court affirmed the dismissal of the writ petition and upheld both reversion orders. No order as to costs was made.
Implications are confined to the parties: the appellant remains in his substantive Sub-Treasury Officer post without entitlement to higher-post salary for the disputed period. The decision applies established principles and does not announce new precedent.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
PETITIONER:
NARESH CHANDRA SAHA
Vs.
RESPONDENT:
UNION TERRITORY OF TRIPURA & ORS.
DATE OF JUDGMENT:
06/10/1969
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
HEGDE, K.S.
CITATION:
1970 AIR 364 1970 SCR (2) 639
1970 SCC (3) 22
ACT:
Civil Service Reposting in officiating post held at the time of dismissal after order of dismissal set aside--subsequent reversion to substaintive post-Legality.
Practice and Procedure-Petition filed in High Court challenging order passed 7 years before-If could be entertained.
HEADNOTE:
The appellant, who was a junior officer in the State service, was appointed as an officiating senior officer on May 10, 1954. On May 12, 1954, an order was passed reverting him to the, post of junior officer. On the ground that he refused to obey the order of reversion, on May 6, 1957 he was suspended, and ultimately dismissed. The orders of the suspension and dismissal were set aside by the Court of Judicial Commissioner. By order dated November 7. 1960, he was reinstated in the post of the senior officer which he was holding on the date of his suspension. with effect from the afternoon of May 7, 1957. By the same order, he was reverted to his substantive post of junior officer with retrospective effect from June, 7, 1957, as another officer was already occupying the post. The appellant, thereupon, challenged both the orders dated May 12, 1954, and November 7, 1960, but the Judicial Commissioner dismissed the petition.
In appeal to this Court,
HELD : (1) The order dated November 7, 1960 reverting the appellant to his substantive post did not entail forfeiture of the appellant's pay or allowances, or loss of seniority in his substantive rank, or stoppage or postponement of his future chances of promotion. The appellant could not claim the salary of the senior post from the date of suspension or dismissal till date of reinstatement, because, the appropriate authority, when reinstating the appellant could revert him, as from an earlier date, to his substantive post from the officiating post, provided the order was not passed mala fide. [641 H; 642 B-C]
Parshotam Lal Dhingra v. Union of India, [1958] S.C.R. 828, referred to.
(2) There is nothing to show that any retrospective
1
operation was given to the order dated May 12, 1954 In any event, the Judicial Commissioner was justified in refusing to entertain any contention as to its validity seven years after the order was passed. [640 H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2203 of 1966. Appeal by special leave from the judgment and order dated November 8, 1965 of the Judicial Commissioner's Court, Tripura in Writ Petition No. 27 of 1961.
M. K. Ramamurthi and Shyamala Pappu, for the appellant.
V. A Seyid Muhammad, S. P. Nayar and B. D. Sharma, for the,respondents.
640
The Judgment of the Court was delivered by Shah, J. The appellant joined the Tripura Civil Service on October 30, 1949, and was posted as a probationer Divisional Purchasing Officer, Dharmnagar. In 1953 the Tripura Civil Service was split into two cadres-senior officers being absorbed as Sub-Divisional Officers and junior officers as Sub-Treasury Officers. The appellant was absorbed as Sub- Treasury Officer with effect from April 1, 1950. On May 10, 1954, the appellant was appointed officiating Sub-Divisional Officer with effect from September 10, 1953. By order dated May 12, 1954, the appellant was reverted to the post of Sub- Treasury Officer with effect from May 6, 1954. The appellant made several representations to the Chief Commissioner but without success. The appellant was suspended by order dated May 6, 1957, for failure to obey the orders of the Additional District Magistrate and he was dismissed with effect from July 3, 1958, by the order of the Chief Commissioner.
The appellant moved a petition in the Court of the Judicial Commissioner at Tripura challenging the orders of suspension and dismissal. On February 19, 1960 the Court set aside the impugned orders. By order dated November 7, 1960 the Chief Commissioner reinstated the appellant to the post of Superintendent of Surveys and by the same order reverted him to his substantive post of Sub-Treasury Officer with retrospective effect, from June 7, 1957. The appeal of the appellant to the President having been rejected, he moved a petition in the Court of the Judicial Commissioner for a writ quashing the orders dated May 12, 1954 and November 7, 1960. The appellant contended that in order of reversion cannot be made to have retrospective operation. The petition insofar as it relates to the first order was belated. Again there is no ground for holding that retrospective operation was in fact given to that order of reversion. By the order dated May 12, 1954 the appellant was reverted to the post of SubTreasury Officer, but the order did not state the date from which the order was to be effective. In summarising the averments made in the petition, the Judicial Commissioner stated that the petitioner had alleged that the order dated May 12, 1954, was to have effect from May 6, 1954. A copy of that petition is not filed in this Court and we are unable to accept, especially having regard to the terms of the order, that any retrospective operation was sought to be given. In any event the Judicial Commissioner was justified in refusing to entertain any contention as to the validity of the order of reversion made nearly seven years before the date on which the petition was filed,
641
The second order dated November 7, 1960, passed by the Chief Commissioner consists of two parts-(i) that the appellant be reinstated in the post of the Superintendent of Surveys with effect from the afternoon of May 7, 1957; and (ii) that the appellant be reverted to the substantive post of Sub- Treasury Officer with retrospective effect from June 7, 1957. The appellant, as already stated, was suspended on May 6, 1957. The order of suspension and the order of dismissal which followed it were set aside by the Judicial Commissioner, and the Chief Commissioner therefore reinstated the appellant with effect from the afternoon of May 7, 1957 to the post occupied by the appellant on the date on which he was suspended. But the appellant was not holding the post of Superintendent of Surveys substantively : he was merely officiating in that post. He was therefore reverted with effect from June 7, 1957 to his substantive post. The order was passed because the post was filled by another officer approved by the U.P.S.C.
Counsel for the appellant relied upon the observations made by S. R. Das, C.J., in Parshotam Lal Dhingra v. Union of India(1) :
"But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to
reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponment of his future chances of promotion. then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty."
These observations. in our judgment, do not assist the appellant. The order reverting the appellant from June 7, 1957, to his substantive post does not entail forfeiture of his pay or allowances or loss of seniority in his substantive rank or stoppage or postponement of his future chances of promotion,
(1) [1959] S.C.R. 828, 863.
642
Counsel for the appellant urged that whenever a person is reinstated as from the date on which his services were terminated he must be restored to the same office which he was holding at the date of the termination of employment or suspension and must receive salary upto the date of reinstatement which that office carried. We find no warrant for the submission. If the appellant had not been suspended, it was open to the Chief Commissioner still to revert him to his substantive post. We see no reason for holding that the Chief Commissioner could not do so when he
3
reinstated the appellant. There is no ground for thinking that the order was made maliciously. The reason for reversion was that since June 7, 1957 another officer was occupying the post of the Superintendent of Surveys. The post having been already filled, the appellant cannot claim that when he was reinstated lie should have been paid emoluments attached to the office of Sub- Divisional Officer on the footing that he continued to occupy that office which he was holding in an officiating capacity.
The appeal therefore fails and is dismissed. Having regard to the circumstances of the case there will be no order as to costs.
V.P.s. Appeal dismissed.
643
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