SHIV PRASAD SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) This Rule is directed against an order of reversion dated 9.6.76 passed by the Workshop Personnel Officer, Kanchrapara by which the petitioner who was previously absorbed as typist-Gr. II in the scale of Rs.260-400/- was reverted to the post of B.T. Electric Fitter in the scale of Rs.210-290/-.

(2.) The petitioner was appointed as "Khalasi" in the Kancharapara Workshop in the Eastern Railway on the 11th of March, 1965. Being confirmed in the said post with effect from 1st May, 1969 the petitioner became eligible for promotion to class-III cadre comprising 25% of the posts such as typist, clerk, commercial clerk and ticket collector. The qualification that was prescribed for promotion as typist gr. II was that, the candidate should have a minimum typing speed of 40 w.p.m. the petitioner had acquired his prescribed typing speed. He had to undergo a series of tests beginning from the speed test on 25th of January, 1971 and ending with the oral test on 9th September, 1971 before finally declared selected and promoted by establishment order dated 14.9.72 issued by the Workshop Personnel Officer, Eastern Railway, Kancharapara. On and from 16th September, 1971, the petitioner joined the said post of typist Gr. II. After having rendered non-fortuitous service starting from 16.9.71, the petitioner was absorbed permanently against the working post of typist gr. II in the office of the Superintendent, Workshop with effect from 10th of April, 1974. He was posted vice one Shri S. K. Halder promoted as typist gr. I from his post of typist gr.II. It is alleged that the Superintendent, Workshop recruited locally between January 1975 and April 1975 three lady typists in gr. II who were junior to the petitioner. Thereafter the impugned order was passed by which the petitioner was reverted to the post of Electric Fitter. It is stated in the petition that from the date of the petitioner's joining to the post of typist on and from 16th September, 1971 he has been given five increments during the last five years and his present increments during the last five years and his present basic pay is Rs.295/- in the scale of Rs.260-400/-. The petitioner being aggrieved by the said order of reversion moved this court under Art. 226 of the Constitution and obtained the present rule on 6.9.76. An interim injunction was also granted by which the operation of the impugned order was stayed. An affidavit-in-opposition has been filed on behalf of the respondent No.1 wherein it is stated that the petitioner who was appointed to officiate as typist gr. II with effect from 10.4.72 on ad hoc basis and on the terms and conditions mentioned above, was first posted as leave Reserve typist gr. II against a Leave Reserve post of typist and subsequently absorbed against a working post of typist gr. II vide estt. Order dated 10.4.74 according to his turn. This did not confer upon him any claim of his being absorbed against 25% vacancies reserved for class IV staff as his turn for absorption against 25% quota did not come, no office order treating him as absorbed against 25% vacancies of the typist gr. II was issued.

(3.) Mr. Mukherjee, appearing on behalf of the petitioner contended that by an order dated 14.9.71 the petitioner was promoted as L. r. typist against an existing vacancy. In the order it is stated that the promotion of the petitioner to the post of typist gr. II is made temporarily as stop gap arrangement subject to the replacement when Railway service commission candidate or approved typist from other division become available or absorption in future vacancies against 25% quota for class IV staff whichever is earlier. By an order dated 10th April, 1974 which is annexure H to the petition, it is stated that S. P.Sharma, L. R. typist gr. II in the scale of Rs.260-400/- attached to S. W. S. Office/K.P.A. is absorbed against a working post of typist gr. II at his present pay and grade and posted vice Shri S. K. Halder who was promoted to officiate as typist gr. I on a pay of Rs.380/- per month in the scale of Rs.330-560/-. According to Mr. Mukherjee when the petitioner was absorbed in terms of the previous order against a permanent vacancy, he could not be reverted without following the procedure laid down under Art. 311(2) of the Constitution. Reliance was placed upon an unreported decision of this court dated 31.1.73 passed in C. R. 1990 (W) of 1970. In that decision the word "absorption" has been construed. It has been held that it would mean the petitioner's existence as an officer in T.R. A. C. lost its existence when it was the appointment in terms of the said circular". By an order dated 10th April, 1974 when the petitioner was absorbed against the working post of typist gr. II his previous post of Khalasi came to an end. It is true that his previous appointment by an order dated 14.9.71 was a stop gap arrangement and it did not confer upon him a right to hold that post but after he was absorbed by an order dated 10.4.74 against a permanent vacancy it could not be said that this absorption was not against 25% quota reserved for class IV staff. The order dated 10th October, 1974 is an unconditional order and nowhere it is stated that the petitioner's absorption was on ad hoc measure as made out in the affidavit-in-opposition.