Akhil Chandra Sarma vs State of Assam and Others

T.N. Singh, J.—The pivotal point to be decided in this case is, whether the Constitutional mandate of Article 311(2) has been infringed, as claimed by the Petitioner. What should be the scope of our inquiry in the lis before us as the contention was rejected by the Administrative Tribunal? This question must indeed be answered first. Before the Tribunal the contention was raised with reference to the scope and application of Regulations 3(f) and 4(d) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951 for short the Regulation. Indeed, the complexion of lis in this Court remains the same as the vires of the said Regulations have not been challenged before us. Submissions have been made though on the lateral aspects of the case raising few subsidiary questions which touch merely fringe issues. Detraction on that count is obviously impermissible.

The facts giving rise to this writ petition in so far as they are necessary to deal with the main contention raised in this case may be briefly stated. In 1958 the Petitioner joined Cotton College at Gauhati as a Lecturer in the Deptt. of Chemistry and in due course his appointment was regularised on 9.12.59 on the recommendation of the Assam Public Service Commission. On 12.7.71 he was appointed "temporarily and until further orders" under Regulation 3(f) as a Professor of Chemistry and was "posted to Science College, Jorhat. On (sic).5.54 he was given "proforma promotion as Professor in A.E.S. Class I on a regular basis in the scale of pay of Rs. 550-40-831-EB-45-1100/- P.M. and was allowed to continue in the Science College until further orders". On 4.8.83 he was appointed "temporarily for a period of 4 months" under Regulation 3(f) as Special Officer, Science College, Jorhat, in the scale of pay of Rs. 750-50-950-EB-50-1200/- P.M. but the appointment was explicitly mode "subject to reversion without notice and without assigning any reason". On 3.9.75 the post of Special Officer, Science College, Jorhat, was redesignated as Principal, Science College, Jorhat, and by notification dated 13.9.75 the Petitioner "consequent upon redesignation of the post" was allowed "to continue to act as Principal, Science College, Jorhat, with effect from 3.9.75 till the date of his release by Shri Hoque". The fact that he was serving under Regulation 3(f) was explicitly mentioned in the notification dated 13.9.75. The notification issued on 13.2.76, however, referred to Regulation 4(d) and provided that "subject to reversion without notice and without assigning any reason" be was "promoted temporarily for a period of 1(one) year as Principal, Science College, Jorhat". Two more similar notifications were issued on 15.6.77 and 18.3.77 and in each case the term of promotion was "extended for a further period of one year". By notification dt. 26.2.79 a further extension came though, also for one year, it was made subject to "or until further orders." While on the earlier occasions the same one year''s extension was subjected to a different contingency, namely, "or till his promotion is regularised". The impugned order came to be published by the notification dated 24.7.79. By this notification Respondent No. 6 (Dr. Jyotidhar Rajkhowa, Vice Principal, Cotton College) was appointed "temporarily and until further orders for a period of 4 months" as Principal, Science College, Jorhat, under Regulation 3(f) and the Petitioner was "reverted." It was stated that on "relief" he was "reverted and posted" as Professor of Chemistry, Cotton College, Gauhati, "in the interest of public service".

Against his reversion the Petitioner preferred an appeal to the State Govt. but the latter rejected the same. He then took the matter to the Assam Administrative Tribunal. On 8.4.81 the Tribunal disposed, of the matter after hearing the parties by its order passed in case No. 10/ATA/80. In disposing of the Petitioner''s, appeal the Tribunal held that the appointment of Respondent No. 6 was illegal and accordingly set aside the same. The Tribunal took the view that the post of Principal, Science College, Jorhat, was "selection post" according to the Assam Services (Revision of Pay) Rules, 1975, shortly ROP Rules, framed under Article 309 of the Constitution. As such appointment to the said post could be made only by promotion on the basis of merit-cum-seniority. This position could not be altered or superseded by an executive order which was in the nature of a addendum dated 17.7.79 to a Govt. resolution dated 3.12.76. The "addendum" contemplated that the post of Principal, Science College, would be filled by direct recruitment after open advertisement through Assam Public Service Commission. On 14.10.80, the appointment of Respondent No. 6 was "regularised w.e.f. 25.8.80''. The Tribunal held that the Govt. resolution had no statutory force and it could not override the statutory rules; regularisation of the appointment made under Regulation 3(f) was, therefore, illegal.

In dealing with the Petitioner''s grievance the Tribunal came to the finding that his appointment was also a purely temporary one under Regulation 3(f). Though the post to which he was appointed was not, originally, a selection post it became so later under the ROP Rules. The Petitioner could not, therefore, be "promoted" following the provisions of Regulation 4(d). According to the Tribunal no right was conferred on the Petitioner to hold the post by his promotion under the said Regulations. The Tribunal was of the view that the consideration which weighed with the Govt. in promoting him under Regulation 4(d) was that he was allowed to continue in that post under Regulation 3(f) for quite some time. The finding of the Tribunal is that the Petitioner''s promotion was opposed by Assam Public Service Commission as the Commission was of the view that the Petitioner be temporarily allowed to continue as Principal under Regulation 3(f) instead of Regulation 4(d) "pending selection of Principal by direct recruitment". Accordingly the Tribunal held that the promotion of the Petitioner being made without approval of the Commission and being made on year to year basis could not be termed as regular promotion. The temporary promotion conferred no legal right on the Petitioner to continue to Gold the post till regular selection was made. Reversion of the Petitioner to the post of Professor of Chemistry in the Cotton College on which he held lien was not punitive in character and did not, therefore, attract the provisions of Article 311 of the Constitution. The claim of the Petitioner for re-instatement in the post of Principal, Science College, Jorhat, was accordingly rejected.

The provisions of Article 320 of the Constitution mandate that in the case of services of the State, the State Public Service Commission shall be consulted on, among others, all matters relating to methods of recruitment and the principle to be followed in making appointment and in making promotion. Pursuant to this mandate the aforesaid Regulations have been framed by the Govt. of Assam. We may read the two relevant Regulations:

It shall not be necessary for the Commission to be consulted in matters relating to methods of recruitment to civil services and posts or the suitability of the candidates for such appointments, in the following cases, namely:

(f) When an appointment is to be made by direct recruitment to a temporary post created in a service, if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay; provided that if the post has been sanctioned for, or is likely to last for more than four months, the Commission shall, as soon as possible, be consulted in all matters mentioned in Sub-clause (3) of Article 320 of the Constitution.

Promotion� It shall not be necessary to consult the Commission on the principles to be followed in making promotions or on the suitability of candidates for promotion in the following cases:

(d) Officiating promotion for a period which is not likely to last for more that one year.

Provided that if the period of officiating promotion is extended beyond the term for which it was originally sanctioned, the period of promotion shall, for purposes of this regulation, be reckoned from the date when the promotion originally took effect and not from the date of the extension of the period.

We have taken pains to trace in detail the genesis of the lis and we have also indicated above the material findings arrived at by the tribunal. It appears clear to us that the finding of the Tribunal that the Petitioner had no statutory right to hold the post of Principal, Science College, Jorhat, is unassailable. The Petitioner was first appointed as Special Officer. Science College, Jorhat, and latter as Principal, Science College, Jorhat, both under Regulation 3(f). It is not disputed that both posts were "temporary posts" within the meaning of Regulation 3(f). Indeed, it appears from the counter affidavit filed on behalf of Respondents 1-4 that not only the post of Principal, Science College, Jorhat, is a temporary post, the institution itself has still not attained a permanent character. Its existence is being annually renewed and though the College is affiliated to Dibragarh University it has got merely temporary affiliation. It is no doubt true that on 13.2.76 the Petitioner was "promoted temporarily" under Regulation 4(d). We agree with the Tribunal that this promotion conferred no right on the Petitioner to hold the post Firstly, because, as the Tribunal has held, statutory rules, namely, Assam (R.O.P.) Rules could not be superseded by an executive order of the Govt. Therefore, the post of Principal, Science College, Jorhat, being "selection post on 13.2.76 the Petitioner could not be given "an officiating promotion" under Regulation 4(d). Indeed, as the Tribunal has pointed out, Assam Public Service Commission rightly objected to giving Petitioner the benefit of Regulation 4(d). If the Petitioner was to be ''promoted'' to the said post it could be done in accordance with the statutory rules which required cases of other suitable candidates also to be considered in making the selection on the basis of merit-cum-seniority. The Petitioner having been appointed under Regulation 3(f), the State Govt. could not give a go bye to the provisions of the said Regulation. In our opinion rights which accrued to the Petitioner during the period he held the post were only those rights which were available to him under Regulation 3(f). Thus, all subsequent notifications by which the provisions of Regulation 4(d) were sought to be applied to the Petitioner must be read as made subject to his rights under Regulation 3(f). Indeed, care was taken to make this position clear by explicit statement made in the notification dated 13.2.76 to the effect that the promotion was "subject to reversion without notice and without assigning any reason". The later notification did not and could not enlarge the scope of the rights which were available to the Petitioner wider this notification inasmuch as those were explicitly made to make a mere extension of the same "term of promotion". The post in question despite his purported "promotion" under Regulation 4(d) and the later notifications did not, and could not, improve the position. His original appointment under Regulation 3(f) obligated the Govt. to make appointment to the said post on 13.2.76 according to R.O.P. Rules which excluded the operation of Regulation 4(d). Because, on that date it ceased to be a pout to be filled by "direct recruitment" within the meaning of Regulation 3 (f) having been declared as a "selection post".

The position discussed above appears clearly as the admitted position on the face of Annexure VIII, the notification dated 13.2.76. It cannot be said that either the State Govt. or the Petitioner were in any doubt about the inapplicability of Regulation 4(d) to the Petitioner''s case. In the note appended to the copy meant for Assam Public Service Commission, later''s approval was sought in terms of Regulation 3(f) in order to overcome the difficulty faced by the Govt. to continue the appointment of the Petitioner in the said post in view of the provisions of the R.O.P. Rules. The fact that "officiating promotions" under Regulation 4(d), in virtue of the proviso, could only be for one year, was known to the Govt. Therefore, the Commission was requested to "approve the arrangement within a period of one year". We are of the opinion that even if the "officiating promotion" of the Petitioner under Regulation 4(d) be treated valid its total life could only be one year. The language of the proviso is clear. It is stated that "the period of promotion shall, for the purpose of this Regulation, be reckoned from the date when the promotion originally took effect and not from the date of the extension of the period". Therefore, Petitioner''s right to continue as the Principal, Science College, jorhat, ceased on 12.2.77 and he cannot complain if was asked to vacate the post after that date. Learned Counsel for the Petitioner, Mr. S.N. Medhi, draws our attention to page 69 of Hand Book of General Circulars, Supplement No. 1, issued by the State Govt. These have apparently no statutory force. Besides, the passage relied on does not support the Petitioner''s case. It is stated that Govt. had accepted Pay Committee''s reports that those "employees who have been in service for more than 5 years should be made permanent except when they are appointed against posts created for experimental schemes" etc.

The next question is, whether "reversion" from a post to which the Petitioner had no legal right could attract Article 311(2) Mr. Medhi submits that as a result of the reversion the Petitioner has suffered a financial loss. The post of Principal, Science College, Jorhat, carried a higher pay scale. This, in our opinion, cannot be treated as a conclusive test to determine the applicability of Article 311(2). Neither the fact that, which is also under scored by Mr. Medhi, that the reversion order mentioned "public interest" but this could not be substantiated by the Govt. Law is well settled that unless the Petitioner is able to show that be is stigmatised by such reversion he cannot invoke Article 311(2). This is projected candidly in the following passages in the judgment of their Lordships of the Supreme Court in State of Maharashtra v. V.R. Saboji AIR 1980 SC 42.

(a) Ordinarily and generally the rule would be that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant....(per Untwalia, J).

(b) In such a case, if the Govt. servant is able to establish by material on record that the order is in fact passed by way of punishment, the innocence of the language in which the order is framed will not protect it.... On a sufficient case being made out on the merits before the Court by the Government servant it is open to the Court to resort to scrutiny of the official records for the purpose of verifying the truth. (per Pathak, J.)

It is not necessary to multiply authorities to establish this position as their Lordships in this case traced the trend set in the earlier decisions since Parshotam Lal Dhingra Vs. Union of India (UOI), Indeed, the same view is reiterated in a still later decision of their Lordships in AIR 1981 SC 957 G.S. Ramaswamy and Others Vs. Inspector-general of Police, Mysore, establishes that by reversion of temporary promotees to the is parent posts, they are not reduced in rank, Petitioner''s grievance about financial loss in the instant case also as "temporary promotee" is untenable because he had no right to the post and for that matter no right to the salary attached to the said post.

In the instant case, although Mr. Medhi did his best to make out a case of malafide, we are unable to accept his submission. The official files, from which certain notings are tailed out to support the claim, were admittedly before the Tribunal. But, on a perusal of records and hearing the Counsel, the Tribunal recorded the finding, as alluded, that the Petitioner''s appointment was not approved by the Assam Public Service Commission which was insisting on a proper and regular selection. The allegation of malafide, therefore, fulls to the ground inasmuch as it was the Petitioner who was favoured by the Govt. having been allowed to continue in the post by an unauthorised promotion in violation of the Commissioner''s advice. We would not however like to dilate further on this point as, in our opinion, the finding of the learned Tribunal is binding on us. It is well settled that unless there is an error apparent on the face of records, there can be no case for interference in certiorari proceedings with the findings of the Tribunal which is invested with jurisdiction to adjudicate the lis provided in arriving at the finding it acts within its jurisdiction. In this case we cannot, further shut our eyes to the provisions of Section 9(1)(a) of the Assam Administrative Tribunals Act, 1977 which provide that "the order of the Tribunal passed in any appeal under the provisions of the Act shall be final", This embodies what is popularly called a no certiorari" clause (see, Wade, Administrative Law, 5th edn. p. 274). In the Indian constitutional context, this has, however, a special significance inasmuch as the Assam Act is obviously inspired by the provisions of Part XIVA of the Constitution which was inserted in 1976 by the 42nd Amendment. The legislature intended to make the Tribunal the final arbiter of facts in adjudicating disputes relating to service matters. The plea of malafide was not raised before it. To entertain the plea now and to base our decision thereon will amount to denying the Tribunal its legitimate jurisdiction which we are not permitted to do.

There is no material, therefore, before us to hold that the impugned order was punitive in nature or that it cast any stigma on the Petitioner in any way. Mr. Medhi tried to impress as submitting that use of the words "public interest" in the impugned order was suggestive of a punitive action inasmuch as the requirement was neither justified nor spelled out. He has cited before us a host of decisions which, in our opinion, have on application to the facts of this case. The term "public interest" occurs in Fundamental Rules, Rule 56(g)(i), which provide that the appropriate authority shall, if it is of the opinion that it is in the public interest to do so have the absolute right to retire any Govt. servant "etc." In Baldev Raj Chadha Vs. Union of India (UOI) and Others, it was held that the State must disclose the material to support the decision that it was in "public interest" so that the Court is enabled to examine the material "to see whether a rational mind may conceivably he satisfied that the compulsory retirement of the officer concerned is necessary in public interest". Learned Counsel for Respondent No. 6, Mr. G.K. Talukdar. rightly contends that this, as well as other decisions cited, dealing with F.R. 56(J)(i), can have no application to the facts of the instant case inasmuch as the impugned order was not passed under any statutory rule which provided like F.R. 56(J)(i), as a condition precedent, under a satisfaction of the requirement of "public interest". Therefore, according to us, mere use of the words "public interest" in the impugned order did not inject into it any lethal virus.

The only point that servises for consideration is whether this Court will take into account the subsequent events in adjudging the validity of the impugned order. We do not consider it necessary to deal with this point as we have decided to uphold the validity of the order for the foregoing reasons. Mr. Medhi has submitted that the R.O.P. Rules were amended on 7.5.81 retrospectively w.e.f. 3.12.76 to Petitioner''s prejudice. To this contention there are two answers. First, as Mr. Talukdar rightly submits, relying on B.S. Vadera Vs. Union of India (UOI) and Others, power to legislate retrospectively not being burred under Article 309, the objection is meritless. Second, it did not affect or afflict Petitioner''s vested rights, as he bad none. Consequent upon the amendment, direct recruitment could be made by the State Public Service Commission by advertisement to which it was open to the Petitioner also to respond. If be did not do so, he has only to blame himself. Respondent 6 and many others responded to the advertisement made by the Commission for the post in question. As Respondent 6 got the first nomination be was appointed to the post by the State Govt.

In the result, the application fails and is dismissed. The rule is discharged but in the facts and circumstances of the case we make no order as to costs.