IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 53 of 2010 Virendra Pratap Singh ……….. Petitioner Versus State of Uttarakhand and others ....……… Respondents Coram:- Hon’ble J.S. Khehar, Chief Justice Hon’ble Sudhanshu Dhulia, Judge Present: Mr. S.S. Yadav, Advocates for the petitioner. Mr. P.C. Bisht, Advocate for respondent Nos. 1 to 3. Date of Decision: 09.04.2010 J.S. Khehar, C.J. The petitioner was inducted into the employment of the department as a Senior Instructor (Agriculture Engineering) on the recommendation of the Uttar Pradesh Public Service Commission. In due course of time, he was confirmed against the post of Senior Instructor by an order dated 22.12.1986. 2. On the reorganization of the composite State of Uttar Pradesh, options were invited. The petitioner submitted his option for allocation to the successor State of Uttarakhand. He was, accordingly, allocated to the successor State of Uttarakhand. 3. Six posts of Extension Training Officer (Agriculture) were sanctioned in the pay scale of Rs.8000-13,500. The post of Senior Instructor is the feeding cadre for promotion to the aforesaid post of Extension Training Officer. The petitioner claims, that he was promoted as Extension Training Officer by an order dated 30.06.2006 with the approval of the Chief Minister of the State of Uttarakhand. He was, however, reverted back to the post of Senior Instructor, vide an order dated 05.09.2006, according to the petitioner, without the approval of the Chief Minister of the State of Uttarakhand. 4. In order to assail the order of his reversion from the post of Extension Training Officer to the post of Senior Instructor dated 05.09.2006, the petitioner approached this Court by filing Writ Petition (S/B) No. 20 of 2006. The aforesaid writ petition was dismissed on 2 18.05.2007. Through the order dated 18.05.2007, the petitioner was relegated to avail of his alternative remedy before the Public Services Tribunal Uttarakhand, Dehradun. 5. In furtherance of the directions issued by this Court in Writ Petition (S/B) No. 20 of 2006, the petitioner filed Claim Petition No. 30 / N.B./2007 before the Public Services Tribunal Uttarakhand. The aforesaid claim petition was, however, dismissed by an order dated 29.01.2010. Through the instant writ petition, the petitioner has assailed the order passed by the Public Services Tribunal Uttarakhand, Dehradun dated 29.01.2010. 6. Since, in sum and substance, the instant writ petition is directed against the order of the petitioner’s reversion from the post of Extension Training Officer to the post of Senior Instructor dated 05.09.2006, it is relevant to notice the adverse annual confidential reports communicated to him, while he was serving as Senior Instructor since the post of post of Senior Instructor is the feeding cadre for promotion to the post of Extension Training Officer. Accordingly, the adverse annual confidential reports, recorded during the period the petitioner discharged duties against the post of Senior Instructor, are being summarised hereunder:- (i) Annual Confidential Report for the year 1991-92: In the instant report it was recorded that he does not take interest in his work. The progress in the laboratory under his charge was stated to have decreased substantially. His relationship with his inferiors was found to be unsatisfactory. So far as his superiors are concerned, it was recorded that he makes frivolous complaints, so as to create groupism. The recording officer was of the view that this behaviour of the petitioner was for avoiding work entrusted to him. His nature was depicted as destructive. As such, his work was assessed as unsatisfactory and his behaviour as objectionable. (ii) Annual Confidential Report for the year 1992-93: In the instant report it was recorded that he takes less interest in his work. It was emphasized that he was neither hard working nor devoted to his work. It was pointed out, that he was habitual in sending frivolous complaints, to lower the position of the institute, as also its image. It was informed, that his intention in making complaints was that his superiors remain engaged in defending themselves, and to avoid his own work and responsibilities. It was recommended that he needed to be controlled with a strong hand. 3 (iii) Annual Confidential Report for the year 1994-95: In the instant report it was recorded that the petitioner had the habit of avoiding his work. His nature was described as destructive. It was asserted that he did not take the responsibility of the work entrusted to him. During the period under reference, it was mentioned that he did not give a single lecture on any of the national programmes. His performance even at the zonal level was nil. He did not carry out any inspection in the area under his charge. He was a complete failure as an incharge. He did not demonstrate any interest in achieving the prescribed targets. He did not show any improvement inspite of his having been informed in writing. He was habitually uncooperative with his superiors and did not obey directions issued to him. (iv) Annual Confidential Report for the year 1995-96: In the instant report it was recorded that in order to avoid work, he was accustomed of making one or the other excuse. His destructive nature had become a part of his habit. He was lazy and did not take interest in the work entrusted to him. He was an undisciplined instructor. He did not show any interest in the activities of the national programme. His performance at the zonal level was nil. His public relations were also nil. He did not cooperate with his superiors, so to avoid work. He had the nature of disobeying the directions. Inspite of the responsibility entrusted in him, he avoids the same. He is habitually disinclined to discharge the work entrusted to him. He had no interest in achieving targets. (v) Annual Confidential Report for the year 2002-03: In the instant report it was recorded that despite the fact that he was made incharge of the training programme for District- Rudraprayag, he neither toured the area, nor carried out the responsibility entrusted to him. This action of the petitioner amounted to gross disobedience and indiscipline. Additionally, inspite of the fact that he was deputed to the training programme at the National Rural Development Institute, Hyderabad, he avoided to attend the same by proceeding on medical leave. In another incident, where he was required by the Director to prepare a project on Agriculture Laboratories, instead of preparing the said project he submitted a one page note. He did not attend the Independence Day function inspite of directions to do so. He has been proceeding on leave without prior intimation. His instant behaviour had an adverse effect in the office as it initiated a bad practice. He desired to be paid salary without doing any work. His relations with the public were almost nil. He kept a distance from his superiors and subordinates. He was indisciplined, insincere and a habitual lier. To avoid work, he proceeded on leave without prior permission. He was used to making complaints against his superiors and his subordinates under fictitious names, to the government and to the press, to lower the prestige of the institute. He was not fit to be retained in service. (vi) Annual Confidential Report for the year 2003-04: In the instant report it was recorded that he did not perform his duties 4 as are expected of a government officer. It was pointed out that he had been in direct correspondence with the government, despite being warned, and inspite of there being an earlier adverse entry in this behalf in his record. He had addressed communications to the District Magistrate in violation of the Employees Conduct Rules. His behaviour demonstrates that he is indisciplined. Such an officer did not deserve to be retained in service. He had no interest in his work. He never toured the area under his control depicting his lack of commitment. (vii) Annual Confidential Report for the year 2004-05: In the instant report it was recorded that he was censured for directly corresponding with the government in violation of Para 27 of the Employees Conduct Rules, as also, for disobeying the orders of the Principal, Regional Rural Development, Pauri, and for, not carrying out the responsibilities entrusted to him sincerely. In the report, it was highlighted that he had submitted his option for allocation to the successor State of Uttar Pradesh under the signatures of someone else, although he was required to submit his option under the signatures of the Principal of the Institute. It was pointed out that he was an undisciplined employee, and that, he was not useful to the department. The recording officer also noticed that during the period under reference he did not notice any public relations work rendered by the petitioner. (viii) Annual Confidential Report for the year 2005-06: In the instant report it was recorded that he was an irresponsible and indisciplined employee. He lacked courtesy. He was habitual in disobeying orders. After he joined service, frivolous letters were being received in the institute, for which he was in the zone of suspicion. Despite his being incharge of the training programme, he neither prepared the programme, nor submitted the evaluation report thereof. He never submits the daily attendance register for the perusal of his superiors. He keeps the attendance register with himself, so that his superiors cannot mark him absent. He works on his whims and fancies. He is a burden on the department. His integrity was adjudged as doubtful. 7. The first contention advanced by the learned counsel for the petitioner in order to assail the impugned order of reversion dated 05.09.2006 was, that having been promoted to the post of Extension Training Officer, vide order dated 30.06.2006 certain civil rights came to be vested in him. Before divesting him of the aforesaid civil rights, it was imperative for the authorities to follow the rules of natural justice. It is pointed out, that neither any notice was issued to the petitioner, nor he was given any opportunity to explain his position prior to the impugned order of reversion dated 05.09.2006. It is, therefore, submitted that the impugned order dated 05.09.2006, having been passed in violation of the principles of natural justice, is liable to be set aside. 5 We have considered the first contention advanced by the learned counsel for the petitioner. Before examining, whether or not, it was essential for the authorities to follow the rules of natural justice, it is necessary for us to examine whether the order of petitioner’s promotion from the post of Senior Instructor to the post of Extension Training Officer dated 30.06.2006 vested any civil rights in him. During the course of hearing, learned counsel for the petitioner did not dispute the fact that, the order dated 30.06.2006, by which he was promoted to the post of Extension Training Officer, clearly recorded that the same had been issued in the interest of government work as a stopgap arrangement. It is, therefore, apparent that the order dated 30.06.2006 was not a regular order of promotion, whereby any civil rights could be deemed to be vested in the petitioner. It is imperative to follow the rules of natural justice only when any individual is being deprived of civil rights vested in him. Since we have concluded hereinabove, that the order of the petitioner’s promotion dated 30.06.2006 was as a matter of stopgap arrangement, we are satisfied that no civil rights came to be vested in the petitioner thereby. As such, we are of the view that it was not essential for the authorities to follow the rules of natural justice before the impugned order dated 05.09.2006 was passed reverting the petitioner to the substantive post held by him. In view of the above, we find no merit in the first contention advanced by the learned counsel for the petitioner. 8. The second contention advanced by the learned counsel for the petitioner was, that the petitioner being a civil servant, his reversion from the post of Extension Training Officer to the post of Senior Instructor, vide order dated 05.09.2006 was liable to be set aside on account of the protection vested in the petitioner under Article 311(2) of the Constitution of India. It is the vehement contention of the learned counsel for the petitioner, that a reasonable opportunity should have been afforded to the petitioner, as has been envisaged under Article 311(2) of the Constitution of India before the petitioner could be reverted from the post of Extension Training Officer to the post of Senior Instructor. It is submitted that since the mandatory procedure envisaged under Article 311 (2) had not been followed before reverting 6 the petitioner, the order of his reversion dated 05.09.2006 was liable to be set aside. We have considered the second submission advanced by the learned counsel for the petitioner. As already noticed by us hereinabove, the petitioner was not promoted to the post of Extension Training Officer on a substantive basis. His promotion order dated 30.06.2006 reavels, that the same was merely on a stopgap arrangement basis. As such, we are satisfied that it was not imperative for the respondents to comply with the provisions of Article 311(2) of the Constitution of India before ordering the reversion of the petitioner. In fact, for the same reasons as have been recorded by us, while examining the plea raised by the petitioner on non-compliance of rules of natural justice, we are satisfied that the instant submission based on Article 311(2) of the Constitution of India is also liable to be rejected. In view of the above, we find no merit in the instant contention advanced by the learned counsel for the petitioner. 9. The third contention advanced by the learned counsel for the petitioner was, that before promoting the petitioner to the post of Extension Training Officer vide order dated 30.06.2006, the approval of the Chief Minister of the State of Uttarakhand had been sought. It is, therefore, contended that the order of the reversion of the petitioner dated 05.09.2006 could not have been issued without the approval of the Chief Minister. It is, therefore, the vehement contention of the learned counsel for the petitioner, that the impugned order dated 05.09.2006 is liable to be set aside. We have given our thoughtful consideration to the third contention advanced by the learned counsel for the petitioner. Learned counsel for the petitioner did not invite our attention to any statutory provision, rule, regulation or executive/administrative order postulating that, the reversion of an employee holding a post on stopgap arrangement basis needed prior approval of the Chief Minister, as such, we are satisfied that the approval of the Chief Minister was not a mandatory requirement before an individual holding a post on stopgap arrangement basis can be reverted. It is, however, pertinent to mention that it is apparent from the factual position depicted in paragraph 11 of 7 the impugned order passed by the Public Services Tribunal, Uttarakhand, that the order of reversion dated 05.09.2006 had the express prior approval of the Chief Minister. In fact, during the course of hearing when the attention of the learned counsel for the petitioner was invited to the observations recorded by the Public Services Tribunal, Uttarakhand, in paragraph 11 of the impugned order dated 29.01.2010, learned counsel for the petitioner, acknowledged that a document to the effect was produced by the authorities before the Public Services Tribunal Uttarakhand during the course of hearing. As such, we are satisfied that the approval of the Chief Minister of the State of Uttarakhand had been obtained (though not required) prior to the issuance of the impugned order of reversion dated 05.09.2006. Accordingly, we are satisfied that there is no merit even in the third contention advanced by the learned counsel for the petitioner. 10. The fourth contention advanced by the learned counsel for the petitioner was, that the action of the respondents in reverting the petitioner from the post of Extension Training Officer to the post of Senior Instructor, vide order dated 05.09.2006, was biased and motivated on account of certain writ petitions filed by the petitioner in this Court. It is the vehement contention of the learned counsel for the petitioner, that the process of reversion of the petitioner was initiated only after the petitioner had approached this Court. It is, therefore, submitted that the impugned order is liable to be set aside on account of the fact, that it was not passed on any valid consideration, but on account of mala fides entertained by the authorities against the petitioner. We have considered the fourth contention advanced by the learned counsel for the petitioner. The service record (limited to the adverse entries communicated to the petitioner) while he was discharging the duties of the post of Senior Instructor, which is feeding cadre to the post of Extension Training Officer, have been summarized in paragraph 6 above. A perusal of the annual confidential reports communicated to the petitioner depicts, that his record was almost consistently bad from the years 1991-92 to the years 2005-06. It is apparent from the aforesaid entries, that the work and conduct of the petitioner was unsatisfactory, objectionable, uncooperative, insincere, 8 disobedient, indisciplined and he was habitually defiant destructive and shirked work. A host of other deficiencies were also depicted in his annual confidential reports. He was also described as a burden on the establishment. The reports under reference were recorded for a period of about 15 years, by different reporting officers. In sum and substance, the petitioner had been able to establish that he was a worthless employee who did not even deserve promotion as a matter of stopgap arrangement. The pleadings reveal, that at the time when he was allowed promotion on 30.06.2006, his record had not been taken into consideration. After his record was taken into consideration, the promotion granted to him was found to be unjustified. It is, therefore, that the order of reversion dated 05.09.2006 was passed. Having perused adverse reports communicated to the petitioner, we are satisfied that the determination rendered by the authorities in reverting the petitioner, vide order dated 05.09.2006 was fully justified. In view of the above, we find no merit even in the fourth contention advanced by the learned counsel for the petitioner. 11. The fifth contention advanced by the learned counsel for the petitioner was, that when the petitioner was promoted to the post of Extension Training Officer, some others junior to him in the cadre of Senior Instructors were also promoted alongwith him on 30.06.2006. It is submitted that although his juniors have been permitted to continue against the higher posts of Extension Training Officer, the petitioner has been reverted by the impugned order dated 05.09.2006. It is the contention of the learned counsel for the petitioner, that the instant action at the hands of the authorities is not only arbitrary but is also discriminatory, and as such, is liable to be set aside being violative of the provisions of Articles 14 and 16 of the Constitution of India. We have considered the fifth contention advanced by the learned counsel for the petitioner. As has been noticed in the foregoing paragraphs, yet again we find no merit in the instant contention advanced by the learned counsel for the petitioner. While adjudicating upon the fourth submission advanced on behalf of the learned counsel for the petitioner in paragraph 10 above, we have expressly recorded, that the service record of the petitioner was the basis of his reversion. As a matter of ready reference the service record of the petitioner has been 9 summarised in paragraph 6 (supra). Before the petitioner can raise a plea of arbitrariness or discrimination, it is imperative for the petitioner to establish that the service record of his juniors (in the cadre of Senior Instructors), who have been permitted to continue on the higher post of Extension Training Officer, was similar to the nature of the service record of the petitioner. Inspite of our requiring, the learned counsel for the petitioner to invite our attention to any averment of the pleadings, he failed to bring to our notice pleadings to the effect that the service record of his juniors, who had been retained on the higher post of Extension Training Officer, was adverse or unsatisfactory. Thus viewed, it is not possible for us to accept the plea of arbitrariness or discrimination raised by the petitioner by invoking the provisions of Articles 14 and 16 of the Constitution of India. As such, we find no merit in the instant contention of the learned counsel for the petitioner. 12. The last contention advanced by the learned counsel for the petitioner was twin pronged. Firstly, it was submitted that one of the adverse confidential reports, which has been mentioned in the counter affidavit filed on behalf of the authorities, had not been communicated to him, whereas as against another of the said reports a representation of the petitioner was pending. Based on the said factual position it is submitted, that the same could not be taken into consideration. Secondly, it was submitted, that the petitioner was released selection grade on completion of 19 years of satisfactory service in 2001, though he was informed in 2006 that on completion of 24 years of service, he was not entitled to the second promotional pay scale. According to the petitioner, the latter conclusion was incorrect as due to the adverse remarks for the years 2003-04 and 2004-05 he could not be denied the second promotional pay scale. It is submitted that after crossing of efficiency bar/higher promotional pay scale, all adverse entries recorded on dates prior thereto loose their sting and can not be taken into consideration. As such, it is submitted that the adverse reports communicated to the petitioner could not have been the basis of the passing of the impugned reversion order dated 05.09.2006. We have given our thoughtful consideration to the last submission advanced by the petitioner. First and foremost it needs to be 10 noticed, that the parameters for crossing of efficiency bar and grant of higher promotional pay scales are separate and distinct from the parameters for promotion. Merely because the claim of the petitioner was approved for crossing of efficiency bar can not be the basis of grant of promotion to a higher post. Secondly, the consideration at the present juncture is only whether the petitioner could be reverted from the post of Extension Training Officer, which he was holding merely on an stopgap arrangement basis. Even though one or the other reports had not been communicated to the petitioner or a representation thereof was pending, yet having perused the adverse annual confidential reports consistently communicated to the petitioner from the years 1991-92 almost uninterruptedly upto 2005-06 reveal, that the petitioner is an incorrigible officer. His superiors have opined that his retention in government service was, not in a government interest. His work and conduct has been described as uncooperative, disobedient, insincere, objectionable, indisciplined, and he was habitually defiant destructive and shirked work. Many other deficiencies were also pointed out in his annual confidential reports. Even if one or more the aforesaid reports have to be excluded and even if the sting in the annual confidential reports communicated to the petitioner have to be diluted, we are satisfied that by no stretch of imagination the petitioner can be treated as meriting promotion even on a stopgap arrangement basis. We are, therefore, satisfied that the authorities were fully justified in depriving the petitioner even of his promotion as on stopgap arrangement basis to the post of Extension Training Officer on the basis of his service record (summarized in paragraph 6 above ). One can only express surprise and bewilderment why such an employee has been retained in service. We, therefore, find no merit even in the last contention advanced on behalf of the petitioner. 13. No other submission was advanced by the learned counsel for the petitioner. 14. For the reasons recorded hereinabove, we find no merit in this petition