Kerala High Court
Sasidharan vs Reserve Bank Of India on 23 June, 1990
Equivalent citations: (1992)ILLJ349KER
JUDGMENT Viswanatha Iyer, J.
1. Petitioners challenge the proceedings Ext.P3 by which they were reverted from the posts of Statistical Assistants to their substantive post of Clerk, Grade I. They had been appointed as Statistical Assistants on a purely temporary ad hoc basis, in connection with the All India Debt and Investment Survey 1981- 82 organised at the instance of the first respondent, Reserve Bank of India. The basis on which selection to the post was made is set forth in Ext.R1(b) communication dated 24th August, 1981, which shows that the survey work, for which purpose the petitioners were selected, was expected to continue for 10-12 months, that all the appointments were purely on temporary and ad hoc basis and that those appointed will be reverted to their original status immediately on completion of the survey work. The relevant portions of Ext. R1(b) read:
"2. The field work of the survey will commence in January, 1982 and the Regional Cells will have to he set up by about the first week of March, 1982. The work will continue for about 10 to 12 months. It has been decided to prepare a panel list by inviting applications from the employees of Trivandrum/Cochin office who satisfy the following eligibility criteria and by holding interviews.
XX XX XX It may be noted that the appointment from the captioned panel list will be purely on a temporary basis without prejudice to the claims of their seniors, if any, and those so appointed would be reverted back to their original status immediately on completion of survey work."
It is thus indisputable from Ext.R 1(b) that the appointments were without reference to seniority, temporarily and on ad hoc basis, liable for reversion to the original posts on completion of the survey work.
2. Subsequently, and by an inadvertant mistake, the petitioners were confirmed in their posts as Statistical Assistants. There could be no doubt that this was a mistake, as the petitioners had no right to be confirmed in the post, having regard to the very terms and nature of their appointment. In fact, their seniors were still working in lower categories. Similar confirmation had taken place all over India in relation to such appointments of Statistical Assistants. When the mistake was discovered, the respondents rectified it. The petitioners were accordingly reverted to their substantive post, as mentioned earlier, by the proceedings Ext.P3. It is this reversion that is challenged on the ground that the respondents had no right to revert an officer to the lower grade, when once he is confirmed in the higher grade. It is the further case of the petitioners that Ext.P3 is void as a proceeding passed in violation of the principles of natural justice.
3. The respondents however, point out that the staff regulations governing the petitioners arc not statutory in nature, as held by the Supreme Court in V.T. Khanzode v. Reserve Bank of India (1982-I-LLJ-465). They constitute only a contract between the parties. Regulation 29 states that all appointments and promotions are in the discretion of the first respondent Bank, and notwithstanding an employee's seniority, in a grade, he has no right to be appointed, or promoted, to any particular post or grade. In any event, the confirmation of the petitioners in the cadre of Statistical Assistants was due to mistake on the part of the respondents, when they inadvertently overlooked the nature of the appointment, and the rights of seniors all over India. The mistake was rectified, and the injustice done to the seniors remedied by reverting the petitioners under Ext.P3.
4. The fact that the respondents had committed a mistake in confirming the petitioners as Statistical Assistants, when they had been appointed on purely temporary and ad hoc basis, with liability for reversion on completion of the survey work, is not very much in dispute. The contention, however, is that when once the petitioners have been confirmed in a higher post, they cannot be reverted to the lower post under any circumstance, whether the confirmation be by mistake or otherwise. The fact that rights of seniors have been ignored, albeit mistakenly, is irrelevant, say the petitioners.
5. I am afraid I cannot agree with this tall claim. It is unsustainable in law, apart from the very injustice of it.
6. The mistaken confirmation, if allowed to stand, will confer seniority on the petitioners, in the grade of Statistical Assistants, over their admitted seniors, even though their appointment itself was purely temporary, with liability for reversion as soon as the survey work was completed. The appointments were made only for a specific purpose, and for meeting a particular situation, namely the ongoing survey work- The rights of the petitioners' seniors in the substantive category or grade were not intended to be affected by the appointment. The petitioners cannot therefore take advantage of a mistake committed by the employer Bank and seek perpetuation of the mistake to the detriment of their seniors. Such a mistake of the first respondent should not be visited on the senior employees so as to confer an undue and unmerited advantage on the petitioners by way of seniority or otherwise.
7. The power is inherent in any administrative authority to correct accidental mistakes committed by it, in ignorance of, or overlooking the facts. Indeed such power should be exercised, where rights of third parties have been affected by the mistaken proceedings, without their knowledge, and without their being heard, resulting in miscarriage of justice. If the power to correct inadvertant mistakes is not recognised and accepted, it may lead to perpetuation of injustice and to undesirable consequences. A person whose rights are so affected by an illegal order passed behind his back need not be compelled to rush to court to get it set aside, on pain of its being held binding otherwise. The authority concerned can itself remedy the mischief, on its being apprised of its mistake and the injustice flowing therefrom. (See in this connection Karunakaran Nambiar v. Director of Public Instruction 1966 KLT 290). Such an order does not affect any rights of the party benefitting by the mistake, as no rights legally inhered in him by virtue of the mistaken order. Wade in his Administrative Law (Fifth Edition, page 26) points out that even where such powers are not (expressly) conferred, statutory tribunals would have power to correct accidental mistakes, and to review a decision when facts subsequently discovered have revealed a miscarriage of justice. The same rules must apply to non-statutory action by administrative authorities as well.
8. The Supreme Court was concerned with a similar matter in State of Punjab v. Jagdip Singh (1966-I-LLJ-749). The respondents in that case, who were officiating Tahsildars in the State of Pepsu were confirmed in the posts with immediate effect by an order of the Financial Commissioner dated October 23, 1956. No posts were, however, available at that time, in which they could be confirmed. The matter was-reconsidered by the State of Punjab on October 31. 1957, after the State of Pepsu merged in it on November 1, 1956, and a notification "deconfirming" the respondents was issued. Respondents successfully challenged the "deconfirmation" in the High Court, inter alia as a reduction in rank which could not be effected without complying with the requirements of Article 311(2) of the Constitution. On appeal by the State, the Supreme Court ruled that the order of confirmation passed by the Financial Commissioner on October 23, 1956 had no legal foundation, and was wholly void, as there were "no vacancies in which the confirmations could take place". The court then posed the following questions as arising for consideration. (page 753):
"Now, where the Government itself realises that an order made by an authority under the Government is void, is it powerless to do anything in the matter? Is it bound to give effect to a void order and treat as confirmed Tahsildars persons who have no legal right to be treated as confirmed Tahsildars? Is it not open to the Government to treat the confirmation as void and notify the persons affected and the public in general of the fact of its having done so by issuing a notification of the kind it made on October 31, 1957?"
The questions were answered in the affirmative with the following observations:
"In our opinion where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status. No doubt, the Government has used the expression "deconfirming" in its notification which may be susceptible of the meaning that it purported to undo an act which was therefore valid. We must, however, interpret the expression in the light of actual facts which led up to the notification. Those facts clearly show that the so called confirmation by the Financial Commissioner of Pepsu was no confirmation at all and was thus invalid. In view of this, the notification of October 31,1957 could be interpreted to mean that the Government did not accept the validity of the confirmation of the respondents and other persons who were confirmed as Tahsildars by the Financial Commissioner, Pepsu."
9. Similar is the ratio in K.B. Sharma v. Transport Commissioner, (AIR) 1968 All. 276. The learned single judge of the High Court of Allahabad was dealing with a case where a junior officiating Head Clerk was mistakenly confirmed in that post while senior officiating Head Clerks remained to be confirmed. These latter, though confirmed subsequently, were treated as senior in the seniority list. The question was if they could be treated as senior, despite their confirmation being subsequent. It was the State's case that the earlier confirmation of the junior was by mistake. The court upheld the Government's power to correct the mistake, observing "an order of confirmation if passed under some mistake can certainly be revised with a view to correct the mistake, such an order being an administrative order."
10. In passing the order Ext.P3, what the first respondent has done is only to rectify a patent error on their part, in overlooking the terms of the petitioners' appointment and the rights of the senior employees working in the lower categories. An employer is not entitled to act arbitrarily, or to confer an undue and unfair advantage on some employees to the detriment of their seniors, without any reason whatsoever. In fact, the confirmation of the petitioners as Statistical Assistants was unreasonable, and plainly violative of the fundamental rights of the seniors in service, guaranteed under Articles 14 and 16 of the Constitution. The respondents had acted by mistake, and affected the rights of other senior employees without reason and without hearing them. The respondents were therefore, entitled, and indeed were bound, to undo the mischief caused by their mistaken action. That is what they did by Ext.P3. Petitioners cannot take advantage of the mistake and contend that the mistake should be perpetuated to the prejudice of the affected seniors.
11. The petitioners were themselves well aware at the time of their appointment as Statistical Assistants that it was purely provisional and that it conferred no rights on them. This is reiterated in regulation 29, which confirms the position that no employee of the first respondent Bank has any right to be appointed or promoted to any particular post or grade. In the light of this regulation, the circumstances of the case, and the nature of the appointment of the petitioners, I have no hesitation in holding that there was no illegality in Ext.P3, cancelling the mistaken confirmation of the petitioners in the post of Statistical Assistant.
12. No question of violation of the principles of natural justice arises in this case. The petitioners had no right to cling on to the post of Statistical Assistant once the survey was over. They were liable for reversion thereafter. When no rights of theirs are affected the question of affording any opportunity of being heard does not arise. In any case, and in view of the undisputed fact that the petitioners were confirmed as Statistical Assistants only by mistake, a further opportunity of being heard is not going to be of any avail to the petitioners. Therefore, and even assuming that there was a technical violation of the principles of natural justice, there is no scope for exercising the discretion under Article 226 of the Constitution in favour of the petitioners (see in this connection, District Collector v. Bhaskara Kurup, ILR 1987 (2) Kerala 296 paragraphs 5 and 6).
13. The original petition is accordingly dismissed. There will be no order as to costs.