Ali Mohd Shah vs State and others

Syed BashirudDin, J.—Petitioner is a Post Graduate Teacher in the Education Department. He alongwith 12 other teachers came to be

adjusted as Incharge Lecturers (Statistics) in their own pay and grade with benefit of charge allowance as admissible under rules for a period of six

months or till the post is filled up by the Public Service Commission/D.P.C. whichever is earlier.

Petitioner as follow up to this Government order No. 949Edu of 1999 dated 10.7.1999 (AnnexureA) joined the institution to which he was

posted and presently is under transfer to Leh. However, vide Government Order No. 1318 Edu of 2001 dated 28.9.2001 (AnnexureD),

petitioner was reverted on the ground that being juniormost Post Graduate Teacher, has to make way for a Senior Post Graduate Teacher. This

order is under challenge in this petition.

It needs to be taken note of that adjustment of the petitioner as Incharge Lecturer Statistics, in his own pay and grade with the benefit of charge

allowance for a period of six months or till the post is filled up by th PSC/DPC, whichever earlier, is no promotion. At the most, it is an ad

hoc/stopgap arrangement to provide manpower to work against the posts of Lecturers created in Statistics in the School Education Department of

the Government. It is not a reversion from a higher post to lower post.

In reply affidavit on behalf of Respondents, deponent Respondent No. 2 has clearly stated that out of the total 320 posts of +2 Lecturers in

Statistics created during the year 199899 and 19992000 50% were to be filled by the direct recruits and remaining 50% by inservice promotees.

This quota was required to be operated by the Recruitment Rules governing the subject. At the time when petitioner with other 12 candidates as

also subsequently three more candidates were made Incharge Lecturers (Statistics) in their own pay and grade, one Ghulam Mohiuddin Sheikh,

senior to petitioner (Proforma respondent) was missing from the list. Besides respondents 2 and 3, who were senior to petitioner faced some

inquiry. However, subsequently, when error was detected in respect of Ghulam Mohiuddin Proforma respondent No. 1 and the other two

proforma respondents, were cleared in the enquiry, all three were considered and were adjusted as Incharge Lecturers in their own pay and grade.

In all there were 16 posts available. Therefore, the last man teacher made incharge Lecturer vide the order in question (petitioner) had to make

way for his senior the last proforma respondent. Seen thus, no right, in any, of petitioner is violated by ordering adjustment as incharge Lecturer in

Statistics in his own pay and grade with charge allowance to the person subsequently so adjusted. Additionally, it also merits to be taken note of

that the 16 posts of available Lecturers in Statistics in the grade of 650010700, to be filled in from inservice quota as promotees, are yet to be

filled on substantive or regular basis in accordance with rules through PSC/DPC. Therefore, making other(s) as Incharge Lecturer(s) does not per

se defeat any right of petitioner for claim to Lecturer post on merits on proper selection as per Recruitment Rules.

Petitioner's counsel refers to State of U.P. & Ors. v. Sughar Singh, AIR 1974 SC : 423, for his submission that it is a revision and amounts to

punishment (in a sense) as reduction. However, the fact and circumstances of the case, have no parallel and bearing on the outcome of this case.

Though petitioner is reverted as Post Graduate Teacher but in the facts and circumstances of this case, it does not amount to reduction in rank. As

already observed that petitioner did not get any right to the post/rank of a Senior Lecturer, in as much as, he was designated only as Incharge

Lecturer in his own pay and grade with charge allowance. Petitioner not having a right to the post, cannot be said to have been punished so as to

attract the compliance with the provisions of Article 311 of the Constitution. Even, while so reverting him, there is nothing on record to show that

the intention was to punish him. The reasons are given, it does not foreclose right of petitioner to consideration for promotion to the post on regular

selection in terms of the rules nor the impugned order operates as stigma in this case.

Another case cited Niranjan Prasad Sinha and another v. Union of India and others, 2001(2) SCT 1055 (SC) (AIR 2001 SC : 2269) reiterates

the well settled principles of law, that in absence of rules operating in a field, seniority in a particular grade/post is governed by length of continuous

officiation/service in that grade/post. In the case at hand, it is not denied that proforma respondents are senior to petitioner as Post Graduate

Teachers, Butt what the petitioner's counsel stresses is that as Incharge Lecturer in his own pay and grade with benefit of change allowance, he has

become senior to the other three teachers adjusted, as such Incharge Lecturers also in their own pay and grade with benefit of charge allowance.

This contention is malicious, in as much as, the Incharge Lecturer order dated 10.7.1999 (AnnexureA) is no order of promotion so as to count

seniority of petitioner and proforma respondents in the grade/rank of a Lecturer (Statistics) in promotional post in School Education Department.

In fact, neither petitioner nor the respondents have been given the higher grade or rank of Lecturers (Statistics). Ad hoc or stop gap arrangement

without promotion to the higher grade cannot confer benefit of seniority in the higher grade to which promotion is yet to be given as per the Rules,

no matter promotion may be sought or claimed. Seen thus, the cited case law, is not to hold the field in this case.

Dismissed.