Punjab-Haryana High Court
Bahadur Singh vs State Of Haryana on 20 February, 2001
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. Petitioners Bahadur Singh and others seek a writ in the nature of ceritorari to quash the order dated 9.11.1999 by virtue of which the petitioners have been reverted to their substantive post of Beldar.
2. The facts alleged are that the petitioners were appointed on daily wages in the 1988. Thereafter, the services of petitioner No. 1 were regularised by the Executive Engineer w.e.f. 31.1.1996. The services of petitioners No. 2 and 3 were regularised w.e.f. 31.3.1993 and that of petitioner No. 4 w.e.f. 31.1.1996. The post of Work Supervisor/Work Inspector is filled up by way of promotion from Class IV employees i.e. Mortar Mates/Mates and Beldars who possess the qualification of matriculation. Seniormost are considered for promotion. These promotions were being made in the Division only. Their seniority list is also prepared at the Divisional level. Petitioner No. 1 belongs to Provincial Division, Charkhi Dadri, while petitioners No. 2 to 4 belong to Provincial Division, Bhiwani. Some posts were available to Provincial Division, Bhiwani, for promotion as Work Supervisor/Work Inspectors. On the basis of Divisional level seniority list, promotions have been made. Petitioner No. 2 to 4 were seniormost Mate/Baldars in their Division. The Superintending Engineer sought information from the Executive Engineer and it was certified that there was no person senior to petitioners No. 2 to 4 in the Division. After verifying this position, petitioners No. 2 to 4 were promoted as Work Supervisor/Work Inspectors and they have been so working since March, 1998. Similarly, petitioner No. 1 who is stated to be the seniormost in his Division was promoted on 9.2.1998 as Work Supervisor.
3. In July, 1999, it was decided that promotion to the post of Work Supervisor/Work Inspector shall be made on the basis of seniority framed at Circle level. In compliance of the said decision, tentative seniority list of Mortar Mates/Baldars was prepared at Circle level. Thereafter, a tentative seniority list at Circle level was circulated. The petitioners have filed objections but final seniority list has not been drawn. The grievance of the petitioners is that they have been ordered to be reverted on the ground that in the Circle level seniority list the petitioners are junior to others and that the said order is illegal. Alleging that they have already been working on the promotion post and that they are senior to the others, the present writ petition referred to above has been filed.
4. In the written statement filed, petition as such has been contested. It has been pointed out that seniority list prepared at the Provincial Division level was not according to Rules. The appointing authority is the Superintending Engineer. There was no justification to make promotion of the petitioners on the basis of Division Level seniority list. It is also asserted that the petitioners cannot claim seniority on the basis of Division level seniority as a matter of right.
5. Some of the admitted facts are that the petitioners had been working in different Circles. The seniority was maintained at Division level. When the question of promotion to the post of Work Inspector/Work Mis-try arose, the Superintending Engineer, Bhiwani Circle, had written to the Executive Engineer, Provincial Division, PWD B&R Branch, Bhiwani, a letter dated 17.3.1998, copy of which is Annexure P-3. It reads as under :-
"Sub :- Application for promotion for the post of Beldar to Work Supervisor/Work Mistry etc. Ref:- Your Office Memo No. 522 dated 24.2.98.
In this connection, you are directed to certify that there are no other applicant/candidate for promotion to the post of Work Supervisor/Work Inspector etc., senior to the officials working in your division as already recommended by you so that further action in the matter is taken in the absence of knowledge about the names of Ex-officials and nature of the vacant posts.
DA/All Superintending Engineer, Bhiwani Circle PWD B&R Br.
Bhiwani."
6. Executive Engineer, Provincial Division, PWD B&R Branch, Bhiwani, had replied on 18.3.1998 that there is no other applicant fit for promotion who is senior to the officials referred to above. Similar is the position with Charkhi Dadri. Keeping in view the Said certificate, an order date 18.3.1998 was passed promoting Dinesh Kumar Beldar, Bhim Singh Beldar, Umed Singh Beldar and Pardeep Kumar Beldar, provisionally on ad hoc basis as Work Inspector/Work Supervisor. The said order, Annexure P-5 reads as un-der-
"Officer order No. 40 dated 18.3.98 The following officials presently working in Provincial Division PWD (B&R), Bhiwani, are hereby, provisionally promoted on ad hoc basis as Work Inspector/Work Supervisor against the vacancies in the said Division, in the pay scale of Rs. 3050-4590 :-
Sr. No. Name of Officials promoted as & place of posting
1.
Sh. Dinesh Kumar Beldar W. 1. in Provi Divn , Bhiwani.
2. Sh. Bhim Singh Beldar
-do-
-do-
3. Sh. Umed Singh Beldar W.S.
-do-
4. Sh. Pardeep Kumar Beldar
-do-
-do-
Sd/-
Superintending Engineer, Bhiwani Circle, PWD (B&R), Bhiwani.
Endst. No. 2504 Dated : 20.3.98 Copy forwarded to the Executive Engineer, Provincial Division, PWD (B&R), Bhiwani for information and necessary action with reference to his memo No. 3290 dated 7.1.97, 3717 dated 8.12.97, 3741 dated 19.12.97 and 715 dated 18.3.1998.
DA. NIL Superintending Engineer, Bhiwani Circle, PWD (B&R), Bhiwani."
7. A similar order dated 9.2.1998 was passed with respect to petitioner No. 1, copy at Annexure P-6. Subsequently, it is a common case that a fresh seniority list was drawn as per Circle rather than Division level. According to the respondents, in pursuance to the same, the petitioners were taken to be junior to others and, therefore, they had to be reverted.
8. Learned counsel for the petitioners urged that (a) the decision will only be prospective and will not affect the promotions already made; and (b) before reverting the petitioners, no show cause notice had been served. On both these grounds we find that the contention of the learned counsel is without merit and must fail. The promotion order of the petitioners clearly shows that the petitioners had been promoted provisionally on ad hoc basis. Once the petitioners had been promoted provisionally on ad hoc basis, they cannot claim any right to the post. It is further to be noted that they had not continued on the said post for such a long time that it could be taken care of. No such substantive right in such a short period, as in the case of the petitioners, could have accrued to them.
9. On behalf of the petitioners, reliance was placed on the Division Bench decision of this Court in the case of DalJit Singh Narula and others v. The Slate of Haryana and others, 1979(1) Services Law Reporter 420. In the cited case, it was held that the conditions of service can not be altered by executive order retrospectively to the prejudice of civil servant. In paragraph 9 of the judgment, the Court observed as under :-
"Passing on the third contention, I am of the opinion that the same must succeed on the short ground that a condition of service determined by an executive order cannot be subsequently altered retrospectively to the prejudice of a civil servant. This was so held in the cases of K.D. Vasudeva v. Union of India, 1971(2) SLR 487; Suresh Kumar v. Union of India, AIR 1969 Punjab 257 and Ex-major N.C. Singhal v. Director General, Armed Forces, Medical Services, AIR 1972 S. C. 628, The impugned order cancelling the sanction to the revised scale of pay would, therefore, operate prospectively with the result that the petitioners would be entitled to the benefit of the revised scale from the date of the sanction till the date of its cancellation."
10. Indeed, the proposition of law is true and correct but a person can only avail of the same provided he has a right to the post. Casually making provisional appointment, even if on the basis of merit list, will not confer any such right. As soon as seniority is drawn on Circle basis, necessarily, the rights have to be determined as per the seniority. If the petitioners have been appointed on substantive basis and the seniority was redrawn on Circle level, things would have been different. Accrued right cannot be taken but not herein.
11. Our attention was further drawn to the decision of the Supreme Court in the case of Ex-Capt. K.C. Arora and another v. State of Haryana and others, 1984(2) Services Law Reporter 97. In the cited ease, a similar argument had been advanced and it was held that the accrued right could not be withdrawn by the State. The conclusions were in paragraph 23 of the judgment to the following effect :-
"In view of this latest pronouncement by the Constitution Bench of this Court, the law appears to be well settled and the Haryana Government cannot take away the accrued rights of the petitioners and the appellants by making amendment of the rule with retrospective effect."
As referred to above, it is the accrued right which cannot be withdrawn but in the present case once the appointment were made on ad hoc basis, there was no accrued right and, therefore, the first argument so much thought of by the learned counsel will be of little avail.
12. The second plea that a notice to show cause must be served before withdrawing such a right, in our opinion, is also without any substance. If there was any accrued right and it had civil consequence, such a principle of natural justice can be put into service. To the same effect is the Division Bench judgment of this Court in the case of Balwant Sinsh Kataria v. State of Haryana, 1998(1) Recent Services Judgement 597. But can one take advantage of that principle in the facts of the present case ? In our view, the answer has to be in the negative. The reasons are not far to fetch. This is for the same reason, which has already been recorded, that there was no accrued fight. The petitioners have simply been promoted on provisional basis/ad hoc basis. Sometimes, the promotions have to be made provisionally and even if they were seniormost it will not confer the right as such. Once it had not matured cannot be availed of by stating that notice to show cause is mandatory.
13. For these reasons, the writ petition being without merit must fail and is dismissed.
14. Petition dismissed.