Bombay High Court
Supply Commissioner'S Office ... vs State Of Maharashtra And Ors. on 25 March, 1988
Equivalent citations: 1988(3)BOMCR83
Author: Sujata Manohar
Bench: Sujata Manohar
JUDGMENT Sujata Manohar, J.
1. This petition is filed on behalf of 32 employees in the Supply Commissioner's Office. The names of these employees are set out in paragraph 2 of the petition.
2. The office of the Supply Commissioner was set up under a Government Resolution dated 30-6-1960, being Resolution No. EST-1059/31729-S-IV of Agriculture and Forests Department. The resolutions stated that the work relating to Food and other Civil Supplies matters such as purchases of foodgrains in this State as well as in other States, their despatches to the destinations in this State, movements of sugar after allotment orders are issued etc., has increased considerably in volume and in complications. Government therefore considers it necessary to set up an organisation to deal with the day to-day executive type of work in various Civil Supplies matters and has decided to create a separate office viz. Office of the Supply Commissioner. The work from the Agriculture and Forests Department was transferred to the Supply Commissioner's Office. Three officers dealing with civil supplies matters in Agriculture and Forests Department at Deputy Secretary's level were asked to supervise the work of the Supply Commissioner's Office at that level.
3. As of June 1986 there were in the Supply Commissioner's Office 30 posts of Inspecting Officers, 21 posts of Supply Inspectors and 18 posts of Senior Clerks, which are the posts relevant to the present petition. Of the 30 posts of Inspecting Officers, 8 were permanent posts and 22 were temporary posts. Of the 21 posts of Supply Inspectors, 14 were permanent posts and 7 were temporary posts. Of the 18 posts of senior clerks, 8 were permanent posts and 10 were temporary posts. In June 1986 the petitioners, that is to say, 32 persons on whose behalf this petition has been filed (hereinafter referred to, for the sake of convenience, as the petitioners) were occupying some of the temporary posts in these 3 grades. They were also designated as holding these posts in an officiating capacity. The petitioners were reverted with effect from 31-7-1986 to lower posts as set out in the office order of 24-7-1986. There were some mistakes in the office order which were corrected by a subsequent office order dated 25-7-1986. As a result, with the exception of Smt. H.H. Nakhava, who has been posted to an equivalent post, the other 31 persons have been reverted to posts in the lower cadre, some of them have been reverted to posts two steps down. They have also suffered a substantial loss in salary as a result of this reversion.
4. According to the respondents, these reversions are a result of abolition of 1 permanent post of Inspecting Officer, 7 permanent posts of Supply Inspectors and lapse of 22 temporary posts of Inspecting Officers and 7 temporary posts of Supply Inspectors. According to the respondents, 31 persons concerned were reverted to lower posts in which they were already confirmed. They justify their action relying upon Rule 27 of the Maharashtra Civil Service (General Condition of Service) Rules, 1981. This action of reversion is being challenged in this petition.
5. The petitioners have given the particulars of appointment of each one of them in a tabular form which contains the date of each person's initial appointment, designation of the post to which appointed, post in which he was confirmed, date of confirmation, post to which he was first promoted and the period for which the post was held, post presently held, whether in officiating or in substantive capacity, date from which the post was continuously held, post in which he is proposed to be reverted and the monetary loss suffered as a result of such reversion. The complete tabulation is annexed as Ex. D to the affidavit of S.V. Rage dated 26-8-1986 in support of Notice of Motion No. 1943 of 1986 taken out in this writ petition.
6. The table shows that these 31 persons were holding their respective posts as of June 1986 continuously for periods over 10 years, although they were designated as merely officiating in that posts. In case of 9 persons the respondents have contended that their continuous officiation has been of much less than 10 years on account of a break of 22 days which was given to these persons as from 25-4-1982. These persons are at Sr. Nos. 8, 9, 10, 11, 12, 16, 17, 18 and 29 in the table. Prior to break, however, these persons were officiating in the same posts and hence if this break of 22 days is ignored, they have already officiated in the posts which they were holding as of June 1986 for a period of at least 10 years. Only exceptions are persons at Serial Nos. 16 and 18 who have continuously officiated in the post for 6 years, person at Serial No. 14 who has continuously officiated for 7 years and person at Serial No. 31 who has officiated only for one year.
7. The second factor which requires to be noted is that although the posts occupied by these persons as of June 1986 have been designated as temporary, these posts have been in existence at least from the year 1972 onwards. The respondents have contended that these posts are temporary because of the fluctuating nature of work in the office of the Supply Commissioner. The continuous renewal of these posts, however, from 1972 to 1986 would indicate that there was continuous work for over 14 years which required continuance of these posts.
8. Government Resolution of the Government of Maharashtra, Finance Department, dated 15-9-1967 is also relevant. It refers to a previous Government Resolution dated 16-3-1963 where the Government had directed that 80 percent temporary posts which had been in existence for over 5 years should be made permanent subject to certain conditions. Even after conversion of such posts into permanent posts, there were still a large number of temporary posts. Hence under the Government Resolution of 15-9-1967 Government directed the Administrative Departments to submit proposals for conversion of temporary posts into permanent ones in the light of the following conditions :
(i) 90% of the posts in continuous existence for 3 years or more which are required on a permanent or long term basis, for the discharge of functions of a more or less permanent character, should be allowed to be permanent.
(ii) For the purposes of determining the number of temporary posts which should remain temporary as provided in (i) above, the cadre strength should be reckoned with reference to the permanent posts and such temporary posts as have been in existence for over one year.
(iii) xx xx xx (not relevant).
Passing of such a resolution would clearly indicate that the posts which had been in existence continuously for more than 3 years and which were required on a long term basis for the discharge of functions of a more or less permanent character should not remain as temporary posts. Applying these criteria laid down by the respondents themselves, there was no justification for continuation of such a large number of temporary posts in the office of the Supply Commissioner for a period of 14 years or more.
9. In the case of O.P. Singla and Anr. v. Union of India (UOI) and Ors., , the Supreme Court was required to consider a case where promotees had been officiating continuously for a long number of years in temporary posts even though the promotees had worked in that post for 5 to 12 years. The Supreme Court observed that the fact that temporary posts had been continued for years on end showed that the work assigned to the holders of those posts was at least at some later stage, no longer of a temporary nature. It held: "In these circumstances, it will be wholly unjust to penalise the promotees for the dilatory and unmindful attitude of the authorities". It was quoted with approval the observations of an earlier Supreme Court judgement in the case of Baleshwar Das v. State of U.P., to the following effect:
"We must emphasise that while temporary and permanent posts have great relevancy in regard to the career of Government servants, keeping posts temporary for long, sometimes by annual renewals for several posts, and denying the claims of the incumbents on the seore that their posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointees are functionally identical. If, in the normal course, a post is temporary in the real sense and the appointees knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights. Not so, if the post is, for certain departmental or like purposes, declared temporary, but it is within the ken of both the Government and the appointee that the temporary posts are virtually long-lived"......
The same ratio would apply to the present case also. It would be unfair and wholly arbitrary to consider petitioners who have held these posts for a period of around 10 years as occupying temporary posts and reverting them on that basis.
10. In the case of G.K. Dudhani v. S.D. Sharma, on facts the Supreme Court held that the posts in question although designated as temporary posts were not fortuitous posts created for the purpose of special tasks but formed, an integral part of the regular cadre and appointments to those posts were made regularly as set out in the judgement. The Supreme Court said that in such a case the holders of these posts were entitled to seniority on the basis of continuous afficiation in the temporary posts. In the present case, in each of the cadres of Inspecting Officers, Supply Inspectors and senior clerks, there were some posts which were designated as permanent and some which were designated as temporary. Persons occupying temporary and permanent posts in the same cadre did similar work. Although the respondents contend that a large number of posts were temporary because of fluctuation in work, in fact, these posts were required to be continued for over 14 years. In these circumstances, distinction now sought to be made between persons occupying permanent posts and persons occupying temporary posts appears to be wholly arbitrary.
11. It was also submitted that the petitioners were merely officiating in theses posts and were not holding the posts in a substantive capacity. In the case of R.S. Sial v. State of U.P., the characteristics of an appointment on an officiating basis are set out. It states, "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 appointment acquires no right to the post." The petitioners in the present case were occupying these posts on a temporary basis. They were not promoted, for example, on a leave vacancy or the like. They were promoted in the normal course. They have been in these posts for over 10 years. Such a long period of work in the same post indicates that they were occupying these posts in a substantive capacity.
12. In the case of Baleshwar Dass v. State of U.P., reported in A.I.R. 1981 S.C. 4 the Supreme Court has observed, "Moreover because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment. The Supreme Court said that when such appointees have held posts for a long period of time they must be considered as holding posts substantively. The same ratio applies to the present case."
13. My attention was drawn to a resolution of the Government of Maharashtra, General Administration Department, dated 19-9-1975 where it was stated that every Government servant who has rendered continuous service for not less than 3 years in a post or posts included in a cadre should be deemed to be a permanent Government servant for all purposes, including the admissibility of full pensionary benefits. The benefit would extend only to the cadre in which the employee was initially appointed. This resolution, therefore, does not assist the petitioners. Looking, however, to all the circumstances of the present case, treating the petitioners as holding temporary posts in an officiating capacity appear to be wholly arbitrary.
14. It was submitted by Mr. Chogle, learned Counsel for the respondents, that the ratio of the Supreme Court cases cited above should not be applied to the present case because the Supreme Court dealt with the question of seniority. The observations of the Supreme Court however equally apply to a case such as the present one and I see no reason why these observations cannot be applied to the present case.
15. It was also submitted by Mr. Chogle that 23 posts (1 permanent and 22 temporary) in the cadre of Inspecting Officers and 14 posts (7 permanent and 7 temporary) in the cadre of Supply Inspectors have now been abolished. He relied upon the decision of the Supreme Court in the case of N. Ramanathan v. State of Kerela, and in the case of State of Haryana v. Shri Des Raj Sangar, , in support of his submission that creation pua abolition of posts was a matter of Government policy. This proposition cannot be faulted. Abolition of these posts, however, is not he subject matter of the present writ petition. The petitioners have challenged their reversion which was on the basis that they were occupying posts which were temporary and in an officiating capacity. The petitioners (i.e. 31 persons ) were justified in so challenging their reversion. The petition, therefore, succeeds.
16. Rule is made absolute in terms of prayers (a) and (b) in respect of the said 31 persons. Orders dated 24-7-1986 and 25-7-1986 at Exhibits H and I are accordingly set aside qua 31 persons. All 32 persons shall be treated for all purposes on the same footing as persons holding permanent posts in a substantive capacity.
17. Respondents to pay to the petitioners costs of the petition.