RSA No.2869 of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2869 of 1997 Date of Decision: 24.9.2008 Om Parkash Sharma .....Appellant Vs. State of Haryana and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. R.S. Tacoria, Advocate with Mr.V.D. Sharma,Advocate for the appellant. Mr.Lekh Raj Nandal, AAG, Haryana for respondent no.1. ... RAJIVE BHALLA, J (Oral) The appellant, challenges the judgement and decree dated 23.11.1996, passed by the Additional District Judge, Rohtak, accepting the appeal filed by the respondents and reversing the judgement and decree dated 30.4.1994, passed by the Additional Senior Sub Judge, Rohtak. The appellant joined service as a Clerk in the Tax Branch of Municipal Committee, Rohtak, on 12.12.1973. He was promoted to the post of House Tax Inspector on adhoc basis with effect from 29.7.1988, as a stop gap arrangement, so as to ensure the smooth functioning of the Municipal Committee. Vide order dated 21.9.1992, he was reverted to the post of Perokar, while his juniors, who were promoted with him to the post of House Tax Inspectors were allowed to work as such. The appellant filed a suit, challenging the order dated 21.9.1992, praying that as he had completed two years of adhoc service, his RSA No.2869 of 1997 2 services be regularised on the post of House Tax Inspector. In addition, the appellant pleaded that though, he was reverted to the post of Perokar, his juniors with lesser qualifications and no practical experience had been retained on the post of House Tax Inspectors. The respondents opposed this suit by asserting that as the promotion was adhoc/officiating, the appellant could be reverted at any time. As regards the appellant's assertion that his juniors were allowed to function on the post of House Tax Inspectors, the written statement is silent. On the basis of the pleadings, the learned trial Court framed the following issues :- “1. Whether impugned orders dated 21.9.1982 passed by defendants are illegal, unconstitutional and not binding upon the rights of the plaintiff as alleged ? OPP. 2. Whether plaintiff is entitled to a decree for declaration with consequential relief of permanent injunction, as alleged ? OPP. 3. Whether suit is not maintainable in the present form ? OPD. 4. Whether civil court has no jurisdiction to try the suit ? OPD. 5. Whether suit has not been properly valued for the purpose of court fee and jurisdiction ? OPD. 6. Whether suit is bad for want of notice under Section 80 CPC ? OPD. 7. Whether suit is liable to be dismissed for non- joinder of necessary parties / OPD. 8. Relief.” RSA No.2869 of 1997 3 After considering the pleadings, the evidence adduced and the arguments addressed, the learned trial Court decreed the suit by holding that the order reverting the appellant was illegal, as his juniors were allowed to continue as House Tax Inspectors. In addition,the learned trial Court held that the appellant was entitled to be promoted to the post of House Tax Inspector. Aggrieved by this judgement and decree, the Municipal Committee, Rohtak, filed an appeal. The Additional District Judge, Rohtak, accepted the appeal, reversed the judgement and decree passed by the trial Court and dismissed the suit by holding that as the appellant was granted a stop gap promotion, he was not entitled to regularisation and could, therefore, be reverted at any time. The first appellate Court, however, failed to record any opinion, with respect to the finding returned by the trial Court that juniors promoted alongwith the appellant as House Tax Inspectors were retained, though the appellant was reverted. Counsel for the appellant submits that though, the appellant was promoted to the post of a House Tax Inspector on adhoc basis, he could only be reverted,upon availability of a regular House Tax Inspector. The order of reversion was passed without adhering to the inter-se seniority amongst the Tax Inspectors, as while reverting him, his juniors who were promoted alongwith him were allowed to work as House Tax Inspectors. The respondents by adopting a policy of pick and choose reverted the appellant but allowed his juniors to continue, thus, violated Articles 14 and 16 of the Constitution. The first appellate Court, however, disregarded this crucial aspect and accepted the appeal merely on the ground that as the appellant's promotion was adhoc he could be reverted at any time. RSA No.2869 of 1997 4 Counsel for the appellant has framed the following question of law :- “Whether the first appellate Court committed an error of jurisdiction in failing to decide the appellant's primary submission that the order of reversion was violative of Articles 14 and 16 of the Constitution of India, as while reverting the appellant from the post of House Tax Inspector, similarly situated juniors were allowed to work as House Tax Inspectors ?” No one has put in appearance on behalf of the Municipal Committee, Rohtak. I have heard learned counsel for the appellant and perused the impugned judgement. The first appellate Court rightly held that the appellant was not entitled to regularisation, as his promotion to the post of House Tax Inspector was a stop gap arrangement. The first appellate Court, however, failed to adjudicate a significant aspect of the controversy, namely; that while proceeding to revert the appellant, the Municipal Committee did not adhere to the principle of seniority i.e. while reverting the appellant, his juniors were retained on the post of House Tax Inspectors. A perusal of the impugned judgement makes it abundantly clear that the first appellate Court did not advert to or decide this issue. The fact that the appellant's juniors were retained on the post of House Tax Inspectors, while the appellant was reverted is not denied by the RSA No.2869 of 1997 5 respondents. This fact is apparent from their pleadings in the written statement filed before the trial Court. Paragraph 4 of the plaint reads as follows :- “4. That the Executive Officer, Municipal Committee defendant no.3 in order to frustrate the claim of the plaintiff for regularisation in Tax Inspector's cadre issued transfer/adjustment orders vide his impugned Memo No.2052/E.O. Dated 21.9.1982 (copy enclosed as Annexure-5), vide which the plaintiff has been ordered to be posted against the post of PEROKAR which is a lower scale post (950-1500) whereas persons much junior in service and with much less qualifications and with no practical experience have been retained in Tax Inspector grade in the scale of (1200-2040).” The corresponding paragraph of the written statement reads as under :- “That para 4 of the plaint does not relates to answering defendants. It is, however, submitted that orders for adjustment of Tax Inspectors to adjust the senior employees was issued by the answering defendant to run the work of Municipal Committee properly and to adjust the plaintiff on a vacant post.” A perusal of paragraphs four of the plaint and the written statement, leaves no manner of doubt that the appellant's averment, in his RSA No.2869 of 1997 6 plaint, that while he was reverted his juniors were retained on the post of House Tax Inspectors, was not traversed by a plea of denial. Failure to traverse the plea raised in paragraph four of the plaint, is an admission, that though the appellant was reverted on the ground that his promotion was merely officiating, his juniors who had been similarly promoted were allowed to continue to work on the posts of House Tax Inspectors. This admission is fortified by the deposition of DW-1, a witness, who appeared on behalf of the Municipal Committee. While deposing, before the trial Court, DW-1 accepted that though the appellant was reverted, his juniors were retained as House Tax Inspectors. It is, therefore, clear that while reverting the appellant, similarly situated juniors were not relieved and were allowed to officiate as adhoc House Tax Inspectors. The question that now requires adjudication is, whether an employee occupying a post on an adhoc/stop gap or officiating basis can complain that his reversion violates Article 14 of the Constitution. Reversion from an adhoc or an officiating or a stop gap arrangement is not immune from challenge on the ground that it violates Article 14 of the Constitution. In this regard, a reference would necessarily have to be made to a Division Bench judgement of this Court reported as State of Punjab V. Amar Singh 1998(1) RSJ 687, where after considering the import of Article 14 of the Constitution, a Division Bench of this Court, held as follows :- “29. The propositions of law which emerge from the above discussion are :- (i) Article 14 is the genus while Article 16 is the species. It gives effect to the doctrine of equality in all matters relating to public employment. RSA No.2869 of 1997 7 (ii) The wide sweep of Articles 14, 15 and 16 takes within its fold not only the legislative instruments and all executive/administrative actions of the State and its agencies/instrumentalities but also contractual matters. (iii) Every State action must be informed by reasons. It must be fair, reasonable and in public interest and must be free from arbitrariness. (iv) The basic requirement of Article 14 is fairness in State action irrespective of the nature of power exercised by the State. The State cannot act arbitrarily by way of giving jobs or entering into contracts or issuing quota or licence. Its every action must be confined and structured by rational, relevant and non-discriminatory standard and if the government departs from such standards or norms, its action is liable to be struck down on the touch stone of Article 14 of the Constitution. (v) Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid and relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations. (vi) The ambit and reach of Articles 14 and 16 are not limited to cases where the public servant in fact has a right to a post. Even if a public servant is an officiating position, he can complain of violation of Articles 14 and RSA No.2869 of 1997 8 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machinery and it is no answer to the charge of infringement of Articles 14 and 16 to say that the petitioner has no right to the post. (vii) The government cannot justify its arbitrary action in matters involving public employment by relying upon the terms and conditions contained in the letter of appointment or the contract of service or service rules. (viii) The decisions of the State and public authorities involving termination of services of permanent and temporary or officiating or adhoc employees must satisfy the test of reasonableness. In other words the termination of service even of a temporary employee must be made on valid reasons and such reasons must be disclosed to the Court as and when such action is challenged by the aggrieved person and it is no answer to the charge of arbitrariness, unfairness or discrimination that the action has been taken in accordance with the terms of employment. (ix) The expression “matters relating to employment” used in Article 16(1) are not confined to the initial matters prior to the act of employment, but also comprehend all matters after employment, which are incidental to the employment and form part of the terms and conditions of the employees, such as salary, RSA No.2869 of 1997 9 increments, leave, gratuity, pension, age of superannuation, promotion and even termination of employment. (x) The termination of service of an employee without the existence of any cogent reason would be arbitrary and against public policy. (xi) The decision of the Full Bench in Y.K. Bhatia's case (supra) cannot be regarded as laying down correct law on the issue of applicability of Articles 14 and 16 in the matters involving termination of services of temporary employee or reversion of an adhoc and officiating promotee in view of the law laid down by the Supreme Court in E.P. Royappa V. State of Tamil Nadu, AIR 1974 SCC 555; The Manager, Government Branch Press V. D.B. Belliappa, AIR 1979 SC 429; Managing Director, U.P. Warehousing Corporation V. Vijay Narayan Vajpayee, AIR 1980 SC 840; Sukhdev Singh V. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331; Central Inland Water Transport Corporation Limited V. Brojo Nath Ganguly, AIR 1986 SC 1571 and Delhi Transport Corporation V. D.T.C. Mazdoor Congress and others, AIR 1991 SC 101. (xii) The judgement of the Division Bench in Krishan Chand Goyal V. Punjab State (supra) is based on incorrect reading of the judgement of the Supreme Court in The Manager, Government Branch Press V. D.B. RSA No.2869 of 1997 10 Belliappa (supra) and first of the two propositions laid down by the Division Bench do not represent the correct law.” As held above, rights flowing from Article 14 of the Constitution are not limited to cases, where a public servant has a right to the post. A public servant working in an officiating capacity is as much entitled to the protection of Article 14 and, therefore, may, if treated unfairly or arbitrarily, complain of violation of Articles 14 and 16 of the Constitution. Article 14 of the Constitution is all encompassing in its scope and every action by the State must adhere to the principles enshrined therein. As is apparent from the facts noticed herein before, while the appellant was reverted from the post of House Tax Inspector, on the ground that it was a mere officiating promotion, the Municipal Committee retained similarly situated juniors and allowed them to work on the post of House Tax Inspectors. The action of the respondents in reverting the appellant, while retaining his juniors on the post of House Tax Inspectors is, therefore, arbitrary and violates the provisions of Article 14 of the Constitution. The substantial question of law, is therefore, answered by holding that the first appellate Court committed an error of jurisdiction by failing to decide the appellant's primary submission that the order of reversion was arbitrary and violative of Article 14 of the Constitution, as while reverting the appellant, similarly situated juniors were allowed to work on the post of House Tax Inspectors. It is also held that the order of reversion is arbitrary and violative of Article 14 of the Constitution, as RSA No.2869 of 1997 11 while reverting the appellant, similarly situated juniors were retained on the post of House Tax Inspectors. In view of what has been stated herein above, as the order dated 21.9.1992 reverting the appellant is illegal and arbitrary, being violative of Article 14 of the Constitution, the first appellate Court could not have accepted the appeal and reversed the judgement and decree of the trial Court in its entirety. As a result, the appeal is allowed, the judgement and decree dated 23.11.1996 passed by the first appellate Court is set aside and that of the trial Court dated 30.4.1994 is restored with a modification that though the order reverting the appellant is arbitrary as it violates Articles 14 and 16 of the Constitution, the appellant's officiating appointment as a House Tax Inspector would not entitle him to regularisation The appellant shall, however, be entitled to all consequential benefits/reliefs, flowing from the setting aside of the order of reversion dated 21.9.1992. No order as to costs. 24.9.2008 (RAJIVE BHALLA) GS JUDGE