Mohar Singh vs Joint Commissioner (S.I.B.), Trade Tax Headquarters and Others

Anjani Kumar, J.—By means of this writ petition under Article 226 of the Constitution of India, the Petitioner, Mohar Singh, has challenged the order dated 22nd November, 2002, passed by the Respondent No. 1, a copy whereof has been annexed as Annexure - 5 to the writ petition, whereby the Petitioner has been repatriated to his parent department from Trade Tax Department where he was working on deputation.

Heard learned Counsel for the Petitioner and perused the impugned order dated 22nd November, 2002.

Learned Counsel for the Petitioner has stated that recital in the order that after consideration, the Joint Commissioner Trade Tax, Lucknow has decided to repatriate the aforesaid two employees, including the Petitioner from the Trade Tax Department. Learned Counsel for the Petitioner has relied upon the decision in K.H. Phadnis Vs. State of Maharashtra, , wherein the Apex Court has held that reversion from temporary officiating post without compliance of provisions of Article 311(2) of the Constitution of India even in the case of reversion from temporary post to substantive post, amounts to violation of Article 311(2) of the Constitution of India and in that case in the absence of regular enquiry having been done, as in the present case, the impugned order deserves to be set aside. The facts of the case narrated above and the facts of the present case are different though, the learned Counsel for the Petitioner referring to paragraph 3 of the aforesaid judgment has stated that since the Petitioner was not selected to the post on which he was sent on deputation and was working on deputation which was higher post, i.e., substantive post, therefor, the impugned order repatriating the Petitioner to his parent department to his substantive post has been held by the Apex Court in the facts and circumstances of the case to be a case of reversion which could not have been done except after compliance of provisions of Article 311(2) of the Constitution of India. In the present case, in the narration of facts, as stated in the writ petition, the Petitioner who was working on the same post to which he was appointed in his parent department in substantive capacity. Thus, the present case cannot be said to be a case of reversion. It is a case of repatriating simplicitor and, therefore, the law laid down by the Apex Court relied upon by the learned Counsel for the Petitioner do not apply to the present case.

In view of what has been stated above, since the Petitioner was admittedly on deputation in Trade Tax Department and no punishment has been awarded to the Petitioner, the Petitioner has been simply repatriated to his parent department, the same order does not cast stigma on the Petitioner or is an order of punitive in nature. Therefore, the contention of the learned Counsel for the Petitioner, that the Respondents who are constitutionally mandated to comply with the provisions of Article 311(2) of the Constitution of India which, admittedly, has not been complied with in the present case, is not applicable. Therefore, the argument advanced on behalf of learned Counsel for the Petitioner deserves to be rejected and is hereby rejected.

In view of what has been said above, this writ petition deserves to be dismissed and is hereby dismissed. However, there shall be no order as to costs.