SHARMA K B Vs. TRANSPORT COMMISSIONER UTTAR PRADESH

JUDGEMENT

(1.) THIS is a petition under Art. 226 of the Constitution. The petitioner was a stenographer in the office of the Transport Commissioner. By an order dated 31 March 1953, he was allowed to officiate as head clerk superseding some of his seniors. Uma Prasad Saxena, H. C. Pande II and D. D. Joshi were already then officiating as head clerks. In the year 1961, there fell as permanent vacancy in the office of the head clerk. Then arose the question as to which of the officiating head clerks was to be confirmed. After taking into consideration the relative merits of all the four, namely, the petitioner and the abovenamed three officiating head clerks, it was decided on 15 April 1961 that the petitioner be allowed to be confirmed with effect from 9 May 1960 superseding his abovenamed three seniors, Uma Prasad Saxena, H. C. Pande II and D. D. Joshi. It has been stated by the learned counsel for the petitioner that subsequent to the confirmation of the petitioner his abovenamed three seniors were also confirmed as head clerks. It appears that sometime subsequent to their confirmation they moved a representation seeking the restoration of their respective seniority. That representation was ultimately allowed by an order dated 11 September 1964, refixing the seniority of all the four. A copy of that order is annexure 10 to the petition. According to this order, Uma prasad Saxena is to be deemed to have been confirmed with effect from 9 May 1960, H. C. Pande II with effect form 1 January 1962, D. D. Joshi with effect from 1 April 1962 and the petitioner with effect form 11 June 1962. The present petition is filed for the quashing of the aforesaid order dated 11 September 1964, annexure 10 mainly on the ground that it virtually amounts to reduction of rank so far as the petitioner is concerned and as such, it having been passed without affording any opportunity to the petitioner, is in contravention of requirement of Art. 311 of the Constitution and deserves to be struck down. Thus the prayer in the petition is that the order, annexure 10, be quashed.

(2.) THE petition is opposed by the opposite parties, namely, the Transport Commissioner and the State of Uttar Pradesh. A counter affidavit has been filed on their behalf wherein it is stated in Para. 7 that the petitioner was the juniormost but still the Deputy Transport Commissioner (Administration) ordered his confirmation superseding the seniors on grounds of comparative merits without declaring the other senior head clerks unfit. Annexure A to the counter-affidavit is relied upon to show the criteria to be followed in making promotions. Clauses (i) of para. 3 of annexure A runs as below:

(3.) THE case made out in the counter-affidavit appears to be that since the earlier order confirming the petitioner superseding his seniors did not specifically say that his seniors were unfit for confirmation and deserved to be rejected, it was open to the competent authority to restore their seniority subsequent to their confirmation. I have heard learned counsel for the parties. The main contention raised by the learned counsel for the petitioner is that in view of the order dated 20 April 1961, annexure 4, confirming the petitioner the petitioner as a head clerk with effect from 9 May 1960 he acquired "lien" to that post within the meaning of that expression as defined in rule 9(13) of the Fundamental Rules. He has drawn my attention to rule 12A of the Fundamental Rules which provides that a Government servant, on substantive appointment to a permanent post, acquires a lien on that post and ceases to hold any lien previously acquired on any other post. He thus maintains that as a result of the confirmation order passed in the year 1961 the petitioner ceased to have lien over any other post and acquired permanent lien on the post of the head clerk. He further places reliance on Cl. (a) of rule 14A of the Fundamental Rules for the contention that the lien acquired by the petitioner on the permanent post of head clerk as a result of the order, annexure 4, can in on circumstances be terminated. Lastly he places reliance on the observation made at pp. 552 and 561 of the case of Parshotam Lal Dhingra v. Union of India [1958 - II L.L.J. 544]. The argument is that as a result of his confirmation the petitioner acquired a permanent lien on the post of the head clerk and as such he could not be deconfirmed subsequently, so as to result in a variation of the date of his confirmation otherwise than by following the procedure laid down under Art. 311 of the Constitution.