LexUNION OF INDIA AND ANOTHER versus GAJENDRA SINGH, ETC., ETC.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
660
UMON OF INDIA AND ANOTHER
v.
GAJENDRA SINGH, ETC., ETC.
March 1, 1972
[K. S. HEGDE AND K. K. MATHEW, JJ.]
('onstitution oJ India-Arts. 14, 16 and 311(2)-whether
version
amounted to reduction in rank to attract Art. 311(2)-J/ retention of
junior in officiating capacity was violative of Arts. 14 and 16 of the
('onstitution of India.
The facts of the apP'.als are similar -and the facts of C.A. No. 314
al c as follows :
·
The respondent was a permanent Kanungo who was promoted to offi.
ciate as Naib Tehsildar under paragraph 37(ii) of the S!:lnding Order
No. 12, passed by the second appellant. He was reverted from the offi-
ciating post for the r~a:on that he did not pass the departmental examin'J. ..
lion o! Naib Tehsildar within the period prescribed by the Standing Order.
The respondent contended in the writ petition that he was entitled
to continue in the post of Naib Tehsildar until a qualified person became
av-ailable, that since he was promoted under para 37(ii) of the Standing
Order, passing of departmental examination was not necessary to officiite
in the post of Naib Tehsildar. that junior Kanungos were retained in the
posts of Naib Tehsildar by which ~
respondent had lost his seniority ih
the subst'3ntive rank of Kanunt,v and hence the reversion amounted to a
reduction in rank within the meaning of Art. 311(2) of the Constitution
and retention of juniors h the post of Naib Tehsildaf' was violative of
Arts. 14 and 16 of the Constitution.
The Judicial COmmhsioner, decided the case ln favour of the 1espon-
dent and held that· the reversion of the respondent was attended with
penal consequences and since he was not given a reasonable opPortunity
of making representation agaist the order, the order W1lS bad
and
the
order was accordingly quashed.
Allowing the appeal,
HELD : (i) Appointment t., a· post on an officiating basis, is, ftom
the nature of employment, its.elf of a transitory character and in the ab-
sence of any contract or spe6ific rule regarding the cc>ndition of service
to the contrary, the implied term of such an appointment is that it is
terminable at any time.
'fhe Government servant so appointed acquires
no right to the post. But if the order entails or provides folr forfeiture
of his pay or allowance etc. or stoppage or postponement of his future
chances of promotion, then that circumstance would indicate that
in
form the Government had purported to exercise its undoubted right to
terminate 'the employment, but in ,truth and reaUty, the termination was
by way of penalty. f,863Dl
Parshotam fol Dhingra v. Union of India, [1958] S.C.R. 828, referred
to.
Further, by the mere fact that some Of the juniors w.ire allowed to
continue in the post. of N aib Tehsildar on an officiating basis, it could
ll
c
D
E
F
G
H
UNION v. GAJENDRA SINGH (Mathew, ].)
661
A
'
not be said that the respondent lost his seniority in his substantive l'3.D.t
of Kanungo. [863 HJ
(ii) Articles 14 and 16 of the Constitution are also not violated in
the present case because the junior ·persons were retained in their ~
ciating capacities either because they had passed the departmental. ex~·
nation or because they had been exempted from passing that exanunatlon.
B
In any case, the respondent was not similarly situated with his juniors and
therefore, there was no discrimination to attract the Articles. t864-C]
CIVIL APPELLATE JURISDICTION : C.A. No. 314 to 320 of
1967.
Appeals by special leave from the judgment and order dated
c July 23, 1966 of the Judicial Commissioner's Court at Simla in
Writ-Petitions Nos. 18, 19, 20, 21, 23, 24 and 25 oi 1965.
D
R. N. Sachthey, for the appellants (in all the appeals).
Rameshwar Nath, for the respondents (in C.As. Nos. 314, 315
and 318 of 1967).
The Judgment of the court was delivered by
Mathew, J. These appeals, by special leave, by the Union of
India and the Financial Commissioner of Himachal Pradesh, are
from a judgment of the Judicial Commissioner, Himachal Pradesh,
E allowing Civil Writ petitions Nos. 18, 19,-20, 21, 23, 44 and 25
of 1965, filed by the respondents and quashing the orders passed by
the financial Commissioner 2nd appellant reverting the respo.n.d'ents
to the posts of Kanungos. As the facts in all the appeals are similar,
we will deal with Civil Appeal No. 314.
The respondent was a permanent Kanungo in the Revenue
F
Department. He was promoted on March 26, 1962; to offici11_te
as Naib TeExcerpt shown. Read the full judgment & AI analysis in Lexace.