VIDYA SAGAR Vs. BOARD OF REVENUE

JUDGEMENT

(1.) The Petitioner in this Writ Petition Vidya Sagar was confirmed on the post of Supervisor Kanungo from the 1st of April, 1952. On the 24th of October, 1958, he was appointed as an officiating Naib Tahsildar. On the 12th of December, 1962, the Board of Revenue which is the opposite party in this writ petition issused a list of 81 officiating Naib Tahsildars who were reverted to their substantive post of Supervisor Kanungos, and, in their place, appointed 82 Supervisor Kaungos who were declared eligible for appointment as officiating Naib Tahsildars. The petitioner was one of the persons who was reverted to the substantive post of Supervisor Kanumgo, and was not put in the list of those Supervisor Kanungos who were declared eligible for appointment as officiating Naib Tahsidars. A copy of the said order is Annexure 1. On the 13th of December, 1962, the opposite party Issued another order giving a list of 54 Supervisor Kanungos who were declared as permanent Naib Tahsildars. The petitioner's name was absent from this list also. A copy of this order is filed as Annexure 2 to the writ petition. Thereafter the petitioner filed the present writ petition for the Issue of a writ of certiorari to quash the orders contained in Annexures 1 and 2, and the issue of a writ of mandamus or other writ, order or direction directing the opposite party to act in accordance with Rules 17 (1) and (2) and 31 (i) (iii) and other rules of the Subordinate Revenue Executive Service (Naib Tahsildars) Rules framed by the Government of Uttar Pradesh In exercise of the powers conferred on him under the proviso to Art. 309 of the Constitution of India.

(2.) The first contention of the learned counsel for the petitioner is that the lists were not prepared in accordance with Rule 17 (1) (a) and (b) of the Subordinate Revenue Executive Service (Naib Tahsildars) Rules as they existed on the 12th and 13th of December, 1962, the dates of the issue of orders contained in Annexures 1 and 2. Under Rule 17 (1) (a) as it existed on the said dates only a permanent Supervisor Kanungo who had put in not less than seven years service- could be promoted to the post of Naib Tahsildar. It is a fact that the lists prepared according to Annexures 1 and, 2 did include the names of certain persons who did not fulfill the above condition. The case of the opposite party, however is that the said rule was amended1 on the 8th of January, 1963. Ac-carding to the amended rule in order to entitle one to hold the post of Naib Tahsildar, it was enough if he had put in not less than seven years service either as a Supervisor Kanungo or "in an equivalent or higher post in a subordinate or officiating capacity on the first day of January of the year in which the selection is made." This rule was given retrospective effect, from the 15th of March, 1962. All the persons whose names are contained in Annexures 1 and 2 were either Supervisor Kanungos or had held an equivalent or higher post in a substantive or officiating capacity on the first day of January, 1962, the year in which the selection was made. On behalf of the petitioner it is argued that the rule could not be thus amended with retrospective effect Reliance on behalf of the opposite party is, however, placed on the majority view in the. decision of the Full! Bench case of Ram Autar Pandey v. State of Uttar Pradesh, 1962 All U 31 : (AIR 1962 All 328). According to the view taken by Srivastava and Dwivedi, JJ. in the; said Full Bench case, a retrospective amendment of rules framed under Art. 309 of the Constitution of India can be made. In view of this decision the contention of the learned counsel for the petitioner in this regard must fail.

(3.) Learned counsel for the petitioner then argued that two of the selected candidates viz, those whose names appeared at Nos. 23 and 76 had not been confirmed as Supervisors Kanungos on the 1st January, 1952, and therefore, even the amended rule was not complied with. This fact has not been stated by the petitioner in his writ petition or the affidavit accompanying it, nor has this plea been taken in them. For the first time it is stated in the rejoinder affidavit. The petitioner has to be confined to the pleas taken by him in the writ petition. The opposite party filed a counter-affidavit in| reply to the allegations contained in the affidavit filed with the writ petition or the supplementary affidavit filed with the amended writ petition. No amendment of the writ petition was applied for in the present case nor was any supplementary affidavit filed on this point. The opposite party, therefore, had no opportunity to meet this case. In fact the opposite party has stated in its counter-affidavit that all the selected candidates have complied with the condition imposed by the amended rule. The petitioner has not tried to summon any papers or to file any document to substantiate his allegation in the rejoinder affidavit that persons whose names appear at Nos. 23 and 76 of the list had not been confirmed as Supervisor Kanungos on the 1st of January, 1962. This part of his rejoinder affidavit is verified as true merely to his belief and information. Thus there is also not enough material provided even by the petitioner to prove the truth of this allegation. Under the circumstances this point must also fait.