Pancham Singh vs Health Services and Others

On the basis of order dated: 5.1.1993 by which the petitioner was promoted as Junior Health Inspector in the Payscale of Rs. 475850 in his own

pay and grade, the petitioner has successfully availed of the benefits of the order despite the impugned order Annexure p3 On the basis of the

aforesaid order he filed the present petition, obtained a stay and is continuously holding the post with all the consequential benefits. According to

the petitioner the order (Annexure p3) impugned in the petition, amounted to punishment resulting in reduction of rank which was not warranted in

law. It is submitted that the impugned order was in violation of the provisions of Art. 311 of the Constitution. It is contended that the so called

order of promotion was issued by the competent authority and could not have been kept in abeyance without affording the petitioner an

opportunity of being heard.

In the reply affidavit filed in the case, Shri J. K. Sharma, Director of Health Services, has stated that the Chief Medical Officer was not competent

to pass the order in favour of the petitioner which was alleged to be irregular promotion without considering the seniority of others which was

maintained at the divisional level. It is submitted that the promotions are made at the divisional level and not at the district level as was done in the

case of the petitioner. The order of promotion was not confirmed and was kept in abeyance. It is further submitted that there were some basic

health workers who were far senior to the petitioner as per the seniority list of the category of service as well as in the district Doda to which the

petitioner belongs, such aggrieved health workers had filed appeals before the Director, Health Services, against the order passed in favour of the

petitioner. The Director, Health Services has claimed that he was competent to revoke the irregular promotion made by the CMO There was no

criterion fixed while passing the order in favour of the petitioner. Which resulted in injustice to the persons who were senior than the petitioner.

In his rejoinder the petitioner has submitted that the post of junior health inspector was a district cadre post as defined in SRO588 of 1969 .dated

21101969 as amended from time to time. It is submitted that seniority was no criteria for making promotions and as the petitioner possessed

superior merit, the CMC was justified in promoting him without considering the cases of others who were referred to be as senior than the

petitioner.

I have heard learned counsel for the parties and perused the record.

Under Art. 311 of the Constitution of India, no person who is a member of a civil service of the Union or of State can be dismissed or removed by

an authority subordinate to that by which he w is appointed. Such person can be dismissed or removed or reduced in rank only after an inquiry in

which he was to be informed of he charges against him and given reasonable opportunity of being heard in respect of the charges. In order to

attract the provisions of Cl (2) of Art. 311 of the Constitution it has to be shown that the Govt. servant, whose services have been terminated or

who has been reduced in rank had a right to the post or rank and whether he has been visited with evil consequences is forfeiture of the benefits

already earned by him. It was held by the Supreme Court in Shri. Singh v. State of Punjab (AIR 1974 SC 2192) that the discharge of a

probationer at any time before he is confirmed without any imputation or without any penal consequences would not attract Art. 311 (?) as

appointment to a post on probation gives to the person so appointment no right 10 the post. The petitioner in the instant case was not substantively

promoted by respondent No. 2 but only directed to be promoted as junior health inspector in his own pay and grade and that too without

prejudice to the seniority of others and subject to the clearance by the Divisional/Deptt. Promotion Committee, Jammu. It was presumed that the

petitioner was not senior and it is admitted that no clearance has been sanctioned by the Divisional/Deptt. Promotional Committee, It does not lie in

the mouth of the petitioner to urge that he belonged to a district cadre when the order of so called promotion itself mentions that he was to be

cleared by the Divisional/Deptt. Promotion Committee impliedly holding that he belonged to the Divisional cadre as has been stated by the

respondents in the instant case. Reduction in rank within the meaning of Article 311 means 'the degradation id rank or status, directed by way of

penalty"". It involves two elements viz: (i) a reduction in the physical sense; and (ii) such reduction or demotion must be by way of penalty. It was

held by the Supreme Court in State of Mysore V. Narayan Appa1966 (SC) (CA) 1420 the where a person is appointed to a higher post in an

officiating capacity he does not acquire any legal right to hold that post and there will be no reduction in rank within the meaning of Article 311, if

he is merely reverted to his substantive post. Such view was also taken by the apex Court in AIR 1958 SC 36 and AIR 1966 SC 175. It was

further held by the Supreme Court that mere deprivation of higher emoluments of the officiating post was not a penal consequence for the purposes

of attracting the provisions of Art 311 of the federal Constitution.

In the instant case the petitioner was admittedly directed to be promoted in his own pay and grade and without prejudice to the seniority of others

with a further rider of clearance by the Divisional/Deptt. Promotion Committee by the order passed by the Chief Medical Officer on 5.8.1983. The

copy of the order was sent to the Director. Health Services, for information and necessary action. The director, Health Services, without loosing

time vide his order dated 11.8.1983 did not confirm the action of the CMO and directed his order to be kept in abeyance. The petitioner did not

suffer any penal consequences on account of the order impugned in this petitioner. The petitioner has failed to make out a case for the issuance of

directions as prayed for in the petition.

There is no merit in this petition which is dismissed. Interim stay granted by the Court vacated. The post of junior health inspector which was

occupied hereto by the petitioner shall be filled up by promotion by the respondents in accordance with the rules applicable in the case and in that

event the petitioner may also be considered alongwith other eligible basic health workers, if found eligible. There shall be no order as to costs.

C.M.Ps. No. 1434 of 1983 and No. 1129/92 shall stand disposed of accordingly.