D P BUDHARAJA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has filed this petition under Article 226 of the Constitution praying for quashing of the order dated 29-9-1973 contained in Annexure 3, and further praying for issue of a writ, direction or order in the nature of mandamus, commanding the opposite parties to refrain from acting in furtherance of the notice contained in Annexure 3.

(2.) The case of the petitioner is that he initially entered into Railway service on 4th April, 1954 and was appointed as Commercial Clerk in the Northern Railway. He was selected as an Apprentice Block Maintainor by the Railway Service Commission in December, 1956. He had appeared at the said selection as a departmental candidate. The services of the petitioner thereafter were , transferred to Signal and Telecommunication Department of the Northern Railway. The petitioner was sent for training and he obtained the same from December 1961 to January 1964 as an Apprentice Block Maintainor. After successfully completing the training on 5-2-1964 he was posted as an Electrical Signal Maintainer Grade I in the scale of Rupees 175-240. He was thereafter promoted to officiate as Assistant Block Inspector in the grade of Rs. 205-280 by a notice dated 29-4-1968 a copy of this is Annexure 1. The petitioner took charge on 30th April, 1968 and continued till 3-3-1970 when he was reverted to the post of Electrical Signal Maintainer. He was subsequently promoted vide notice dated 30-12-1972 to officiate as Assistant Signal Inspector in the grade of Rs. 205-280 and was posted as A. S. I. (Relieving) under Signal Inspector II Northern Railway, Luck- now. It is stated that this posting was made against a vacancy caused as a consequence of the transfer of Sri Baldeo Singh as A. S. T. Janghai. The assertion is that the post of Assistant Signal Inspector against which the petitioner was promoted was a clear and a permanent one. It is further stated that the orders contained in Annexure 2 dated 30-12-1972 were passed after approval of opposite party No. 2 Divisional Superintendent, Northern Railway, Hazratganj, Lucknow. The petitioner was sought to be reverted to the post of Electrical Signal Maintainer Grade I from the post of Assistant Signal Inspector vide notice dated 29-9-1973 contained in Annexure 3 on the plea that the promotion orders were passed erroneously by means of a notice dated 30-12-1972. The petitioner has filed the present writ petition challenging this order of reversion and he has asserted in the writ petition that the petitioner had passed his Intermediate Examination in Science with Physics, Chemistry and Mathematics and had read upto B. A. Final at the Government College Lyallpur and on account of partition of the country he had to discontinue his studies. It is further stated that Electrical Signal Maintainers were required to possess academic qualifications of not less than matriculation who alone could be deemed eligible for promotion as Assistant Signal Inspectors. He further asserts that he was seniormost among such eligible candidate in the Lucknow Division at the time of his promotion made by notice dated 30-12-1972. It is stated the petition that persons who weresite qualificulates and did not fulfilte senior were by- cations even those persons who had passed matriculate exmination were entitled to hold the said post. The petitioner further states that on receiving knowledge that he was likely to be reverted he preferred an appeal on 2-10-1973 to the opposite party No. 2 Divisional Superintendent and a copy of the same was also forwarded to the opposite party No. 3. The copy of the appeal was handed over to the clerk of Sri Doodnath in the office of the Signal Inspector II Lucknow on 3-10-1973 and a receipt had also been obtained by the petitioner. There was no response to the appeal made by the petitioner. He filed the present writ petition for protection of his rights. It is in these circumstances that the matter has been agitated in this Court through the present petition.

(3.) The petition has been resisted on behalf of opposite parties. The facts in general leading to the promotion of the petitioner on 29-4-1964 and his having worked on the said post till 30-3-1970 have not been disputed. It is also admitted that on 30-12-1972 the petitioner was promoted in the grade of Rs. 205-280 but it is asserted that this promotion was purely temporary and was made as a measure of local arrangement. It is said that no claim or legal right to hold that promotion post accrued to the petitioner merely because the said officiating promotion had the approval of the Divisional Superintendent. It is stated that when the order of reversion was served upon the petitioner he refused to receive it and proceeded on sick leave. During the period of leave on the ground of sickness he filed the present writ petition and after obtaining the stay order he again joined as Assistant Signal Inspector (Relieving). It is admitted that the post of Assistant Signal Inspector is a non-selection post in the grade of Rs. 205-280 and it is denied that the petitioner was posted to officiate in the said post on the basis of seniority. It is stated that the petitioner was not the seniormost Electrical Singnal Maintainer Grade I who was eligible for promotion as Assistant Signal Inspector. It is asserted that there is no condition that an Electrical Signal Maintainer Grade I should possess academic qualification of matriculate for being eligible to be promoted as Assistant Signal Inspector. It has been further mentioned that there are Electrical Signal Maintainers senior to the petitioner who ought to have been promoted first but the petitioner got his promotion erroneously and" the mistake was subsequently corrected by the approval of Divisional Superintendent when it was noticed. It is in these circumstances that the reversion orders were passed to rectify the error. In short, the submission made in the counter-affidavit is that the petitioner being junior was not entitled to promotion and on detection of the mistake he was reverted to the post of Electrical Signal Maintainer to give place to other senior employees. It has been denied that any appeal submitted by the petitioner was available on the records of the opposite parties. It is further asserted that the orders of reversion had the approval of the Divisional Superintendent and it was thereafter the reversion orders were passed. The notice dated 10-12-1973 reverting the petitioner has been filed as Annexure A-1.