Rajasthan High Court - Jaipur
Khem Singh Deora vs State Of Rajasthan And Ors. on 6 August, 2002
Equivalent citations: RLW2004(1)RAJ565, 2002(5)WLC1, 2002(5)WLN251
JUDGMENT Garg, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 18.7.2002 against the respondents with the prayer that by an appropriate writ, order or direction, the impugned order dated 10.7.2002 (Annex.3) passed by the respondent No. 1 Transport Commissioner, Transport Department, Jaipur by which the petitioner was reverted from the post of Sub-Inspector to the post of LDC, be quashed and set aside.
2. The case of the petitioner as put forward by him in this writ petition is as follows:-
The petitioner was appointed as Lower Division Clerk in the year 1976 and he was substantively working on the said post.
It was submitted by the petitioner that in the Rajasthan Transport Subordinate Service Rules, 1963 (hereinafter referred to as "the Rules of 1963"), there is aprovision for promotion from the post of LDC to the post of Sub-Inspector and since the petitioner was possessing all the qualifications and was within zone of consideration, therefore, he was granted promotion to the post of Sub-Inspector on adhoc basis vide order dated 4.5.1998, a copy of which is marked as Annex. 1.
It may be stated here that through order Annex. 1 dated 4.5.1998, the promotion of the petitioner to the post of Sub-Inspector was made purely on ad hoc basis for a period of six months or till duly selected candidates were made available by the DPC, whichever was earlier.
Thereafter, vide order dated 7.5.1998 (Annex.2),. the petitioner was posted as Sub-Inspector at Jaipur.
The petitioner has also placed reliance on Rule 27 of the Rules of 1963 in which there is a provision that in the event of availability of the post and if the urgency exists, then urgent temporary promotion can be made by way of giving promotion on adhoc basis to the eligible incumbent. Thus, the petitioner was promoted from the post of LDC to Sub-Inspector on adhoc basis as stated above, in accordance with the Rule 27 of the Rules of 1963.
It may be stated here that there is a proviso to Rule 27 of the Rules of 1963 that such an appointment will not be continued beyond a period of one year without referring the case to the Commission for concurrence, where such concurrence is necessary, and shall be terminated immediately on its refusal to concur.
All of a sudden, the petitioner received the impugned order Annex.3 dated 10.7.2002 passed by the respondent No. 1 Transport Commissioner, Transport Department, Jaipur by which the petitioner was reverted to the post of LDC from the post of Sub- Inspector and the ground of reversion as mentioned in the said reversion order Annex.3 was that the case of the petitioner was considered against the vacancies of the year 2002-2003 in the meeting of the DPC, but the case of the petitioner has been kept in a sealed cover because of charge-sheet under Rule 16 and, therefore, he was reverted back to the post of LDC from the post of Sub-Inspector.
Aggrieved from the said reversion order Annex.3 dated 10.7.2002 passed by the respondent No. l Transport Commissioner, Transport Department, Jaipur, the petitioner has preferred this writ petition with the prayer as stated above and the impugned reversion order Annex.3 has been challenged on the following grounds:-
(1) That the impugned reversion order Annex.3 is per se illegal, arbitrary, unreasonable and against the principles of natural justice and it is also violative of Articles 14, 16, 21 & 311 of the Constitution of India and, therefore, it should be quashed and set aside.
(2) That once the promotion was made even on urgent temporary basis according to Rule 27 of the Rules of 1963 and vacancies were in existence in the year 1998 and the Department was not in a position to make regular promotion, therefore, without giving notice, the petitioner should have not been reverted to the post of LDC from the post of Sub-Inspector and from this point of view also, the impugned reversion order Annex.3 is wholly illegal and thus, it should be quashed and set aside.
(3) That since 1998 no DPC meeting was held and in the year 2002, the DPC meeting was held and in that meeting, vacancies for the year 2002-2003 were considered, but the case of the petitioner has been kept in a sealed cover and the charge sheet was issued to the petitioner in the year 2002, but consideration of the case of the petitioner for the vacancies arising in the year 2002-2003 is per se illegal because he was promoted in the year 1998 and the said charge sheet issued against the petitioner should have not affected the case of the petitioner and on this ground also the reversion of the petitioner from the post of Sub- Inspector to LDC is bad in law and should be set aside.
3. A reply to the writ petition was filed by the respondents and the preliminary objection of the respondents is that the petitioner should have gone in appeal before the Rajasthan Civil Services Appellate Tribunal under the provisions of the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976.
4. The other grounds taken by the respondents are that a charge sheet under Rule 16 of the Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as "the CCA Rules") was given to the petitioner on 19.1.2002 and enquiry was going on and, therefore, on account of pendency of departmental enquiry against the petitioner, sealed cover procedure has been adopted and apart from this, the urgent temporary promotion of the petitioner was made vide order dated 4.5.1998 (Annex. 1) was not against the regular post and that promotion was made only on adhoc basis for six months or till duly selected persons were made available, whichever was earlier. Furthermore, by notification dated 6.1.1998, an amendment was made in the Schedule-I appended to the Rules of 1963 and the existing Column No. 5 against Serial No. 2 and the amended Column No. 5 against Serial No. 2 are quoted hereinbelow:-
Existing Amended Confirmed LDC possessing Diploma or certificate in Automobile Engg. recognised by the Govt.
of Rajasthan or who have passed a Departmental Examination in Automobile Engineering prescribed by the Transport Department of the Government of Rajasthan.
(1) Secondary of. a recognised Board and confirmed LDC possessing Diploma in Automobile Engineering (3 years' Course) or a diploma in Mechanical Engineering awarded by the State Board of Technical Education (3 years' Course) or qualifications in their of the above disciplines declared equivalent thereto by the Central Government or State Government.Provided that for persons appointed as LDC in the Transport Department on or before coming into force of this amendment/provision, the minimum qualification shall be passing of departmental examination in Automobile Engineering prescribed by the Transport Department of the Government of Rajasthan.
(2) Must hold a driving license authorising him to drive Motor Cycle, Heavy Goods vehicles and Heavy Passenger Vehicle.
Thus, it was submitted by the respondents that according to the above amendment, a person must hold a driving license authorising him to drive Motor Cycle, Heavy Goods Vehicles and Heavy Passenger Vehicle before he could be appointed for the post of Sub-Inspector and since the petitioner obtained such license on 15.1.2002, therefore, his case was rightly considered in the DPC for the vacancies of the year 2002-03 and since at that time, an enquiry under Rule 16 of the CCA Rules was pending against the petitioner, therefore, his case was rightly considered and kept in a sealed cover. Thus, the impugned reversion order Annex.3 is perfect in law and the writ petition filed by the petitioner be dismissed.
5. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record.
6. There is no dispute on the point that in the beginning through order Annex. 1 dated 4.5.1998, the petitioner was promoted to the post of Sub-Inspector on temporary adhoc basis for a period of six months or till duly selected persons were made available, whichever was earlier and that promotion of the petitioner should be treated as it would have been given under Rule 27 of the Rules of 1963, which deals with urgent temporary appointment.
7. As already stated above, such appointment made under Rule 27 of the Rules of 1963 will not be continued beyond a period of one year and there is no dispute on that point.
Legal aspect on adhoc appointment
8. The appointment being purely adhoc or contractual basis for a limited period, right to remain in post come to an end by expiry of the period.
9. In the present case, no doubt vide order Annex.1 dated 4.5.1998, the petitioner was given adhoc appointment/promotion to the post of Sub-Inspector for a period of six months and after six months he remained continued on the same post, but by continuation he did not acquire any legal right for regularisation and after expiry of period of six months, that appointment/promotion has become irregular one. This is one of the aspects of the matter.
10. There is no dispute on the point that when the promotion to the petitioner was given from the post of LDC to Sub-Inspector through order Annex. 1 dated 4.5.1998, the amended Rules of 1963, as already stated above, had come into existence through Notification dated 6.1.1998, which has been quoted above.
11. As per the amended Rules of 1963, for holding a post of Sub-Inspector, a person must hold a driving license authorising him to drive Motor cycle, Heavy Goods vehicles and Heavy Passengers vehicles and as per the reply of the respondents, it is very much clear that the petitioner obtained such license on 15.1.2002 meaning thereby before 15.1.2002, the petitioner was not having the requisite qualifications of the post of Sub- Inspector.
12. In Union of India and Anr. v. Yogendra Singh (1), the Hon'ble Supreme Court has held that a candidate not possessing the currently prescribed qualifications although possessing the pre-amendment qualifications is not entitled to appointment even against any unfilled vacancy that had arisen prior to the amendment.
13. In the present case, no doubt through order Annex.1 dated 4.5.1998, the petitioner was given promotion to the post of Sub- Inspector and on that day, the amendment in the Rules of 1963 had already come into existence and as per that amendment, the petitioner was required to possess a driving license authorising him to drive Motor Cycle, Heavy Goods vehicles and Heavy Passenger vehicles, but he was not possessing such license and therefore, from this point of view, the petitioner had no claim to that post as amendment was already in existence when he was given promotion to the post of Sub-Inspector vide order dated 4.5.1998 (Annex.1). A person is not entitled to the benefit of promotion if he does not fulfil qualifications prescribed under the amended Rules even though prior to amended Rules, he had been given promotion.
14. Thus, since the petitioner was not having the requisite qualification for the post of Sub-Inspector upto 15.1.2002, therefore, prior to that, he had no claim to be posted on the post of Sub-Inspector meaning thereby upto 15.1.2002, the petitioner had no claim for the post of Sub-Inspector. This is another aspect of the matter.
15. The third aspect is that a charge sheet under Rule 16 of the CCA Rules has been given to the petitioner on 19.1.2002 and that charge-sheet pertained to the amount of Government revenue to the tune of Rs. 1,35,428, which the petitioner received and did not deposit in time though it was deposited later on and that embezzlement was committed by the petitioner between the period from 1.1.2001 to 7.1.2001.
16. As already stated above, the promotion of the petitioner to the pot of Sub-Inspector had become irregular after expiry of period of six months from his promotion and furthermore, on the date of his promotion till 15.1.2002, the petitioner was not having requisite qualifications for the post of Sub-Inspector and on 19.1.2002, a charge sheet under Rule 16 of the CCA Rules was issued against the petitioner. Therefore, in these circumstances, if the case of the petitioner was considered for the vacancies occurring in the year 2002-03, nothing wrong was committed by the respondents and since when the case of the petitioner was considered for the vacancies of 2002-03, a departmental enquiry under Rule 16 of the CCA Rules was pending against him, therefore, in such circumstances, if the case of the petitioner was considered and kept in a sealed cover, no illegality or irregularity has been committed by the respondents in doing so.
17. The Hon'ble Supreme Court in Union of India and Ors. v. K.V. Jankiraman and Ors. (2) has laid down guidelines as to when sealed cover procedure should be adopted and in that case, the Hon'ble Supreme Court has observed that sealed cover procedure can be adopted only after the date of issuance of charge memo/charge sheet, that being the date from which disciplinary/criminal proceedings can be taken to have been initiated and the sealed cover procedure can also be adopted where the employee is placed under suspension.
18. Since in this case, the sealed cover procedure was adopted by the respondents after the date of issuance of charge-sheet against the petitioner, therefore, the respondents have not committed any illegality in adopting the sealed cover procedure and the case of the petitioner is squarely covered by the decision of the Hon'ble Supreme Court in the case of K.V. Jankiraman (supra). From this point of view also, the petitioner is not entitled to any relief.
On Reversions
19. Apart from this, reversions are of two types; (i) reversion simpliciter and (ii) reversion by way of punishment.
20. The reversion which is a natural consequence of application of the relevant rules and is not penal would be a reversion simpliciter and is to be considered as an incident of public service. Hence, reversion of adhoc promotees to their substantives posts or of a probationer during the probationary period if his work is found unsatisfactory or of a temporary appointee from a temporary post or of an officiating appointee to his substantive rank after being found unsuitable by the Public Service Commission for being absorbed substantively are all instances of simpliciter reversion. In this respect, the decision of the Hon'ble Supreme Court in Ramaswami v. I.G. of Police (3) may be referred to.
21. The reversion which amounts to punishment or is inflicted by way of punishment, would be void. Such an order of reversion can be set aside on the principle that an order of punishment against a public servant can only be made after complying with the principles of natural justice and the rules relating to departmental proceedings. It would depend upon the facts and circumstances of each case as to whether the reversion was inflicted by way of punishment.
22. Since in the present case, the promotion of the petitioner on the post of Sub-Inspector was purely on adhoc basis for a period of six months and after expiry of that period, he had no right to continue on that post and apart from this, he was not having requisite qualifications for the post of Sub-Inspector when he was promoted on that post vide order Annex. 1 dated 4.5.1988 till 15.1.2002 and a charge sheet under Rule 16 of the CCA rules has also been given to the petitioner, therefore, in these circumstances, the reversion of the petitioner from the post of Sub-Inspector to LDC can be termed as reversion simpliciter and not reversion by way of punishment. From this point of view also, the petitioner is not entitled to any relief.
23. Furthermore, since the reversion of the petitioner from the post of Sub-Inspector to LDC was a reversion simpliciter, therefore, in such circumstances, the question of hearing prior to reversion does not arise. Thus, principles of natural justice have not been violated in the present case. Hence, it is held that in the case of reversion simpliciter, the principles of natural justice have no role to play.
24. For the reasons stated above, all the submissions raised by the learned counsel for the petitioner fail and the same stand rejected and the ruling relied upon by the learned counsel for the petitioner in Union of India and Ors. v. N.R. Banerjee and Ors. (4), would not be helpful to the petitioner in view of the discussion made above.
In the result, there is no merit in this writ petition and the same is hereby dismissed. No order as to costs.