Shri Krishna Singh and Others vs Union of India (UOI) and Others

Special leave is granted. Heard learned Counsel for both the parties.

The Appellants were promoted to the post of Statistical Assistants along with others on March 1, 1971. They were also made quasi-permanent with effect from June, 1973. The Appellants were promoted on the recommendations of the Departmental Promotion Committee (for short "DPC") constituted following the usual procedure. Suddenly, after about' five years another DPC was constituted and the said DPC did not recommend the Appellants for the posts of Statistical Assistants. As a result, by the impugned order the Appellants were reverted to their original posts of Computers. Being aggrieved by the order of reversion, they filed a writ petition before the High Court which was however, withdrawn by them inasmuch as they had already availed themselves of another remedy by preferring an appeal to the Appellate Authority. The Appellate Authority however dismissed the appeal. Thereafter, the Appellants filed another writ petition. This was eventually was sferred to the Central Administrative Tribunal.

The Tribunal took the view that as the DPC did not recommend the Appellants for promotion to the posts of Statistical Assistants, they were rightly reverted to the posts of Computers. The Tribunal also held that as the previous Writ Petition was withdrawn by the Appellants, a subsequent Writ Petition was not maintainable on the same cause of action. Accordingly, the Tribunal dismissed the Writ Petition. Being aggrieved by the order of the Tribunal, dismissing the Writ Petition, the present appeal has been preferred.

Mr. Ganguli, learned Counsel appearing on behalf of the Appellants submits that the Appellants having been promoted to the posts of Statistical Assistants on the recommendations of the DPC constituted by following the usual procedure and the Appellants having possessed the requisite qualifications for the posts of Statistical Assistants, the Respondents were not justified in constituting another DPC for the purpose of reviewing the cases of the Appellants for their continuation in the promotional posts of Statistical Assistants.

On the other hand, it is submitted by Mr. Subba Rao, learned Counsel appearing on behalf of the Respondents that the promotion of the Appellants to the said posts of Statistical Assistants was purely temporary, and that the subsequent DPC had been constituted for the purpose of filling up the promotional posts on regular basis.

We are unable to accept this contention. When a person is promoted to a post on a regular basis, may be temporarily, his promotion cannot again be subjected to scrutiny by another Departmental Promotion Committee. It may be that at the time the promotion was given to the Appellants there were no recruiment rules, but it hardly matters, for the promotion of the Appellants were not made subject to the framing of any rules.

This question was considered in a decision of the Andhra Pradesh High Court in Mohd. Jamalullah and Ors. v. Registrar, General Census, Operation India (1978) 2 SLR 623. Similar contentions were advanced before the Andhra Pradesh High Court and the High Court rightly overruled the same. In that case, the Petitioner and the Respondents had been promoted long before the rules under Article 309 of the Constitution were made. It was observed by the High Court that they were neither directly appointed nor promoted under the rules made under Article 309 and that, accordingly, there was no question of regularisation of their service in accordance with the rules under Article 309 of the Constitution.

In the instant case also, as the Appellants were not appointed on the basis of any rules framed by the Respondents under Article 309 of the Constitution and there having been no rules that in such circumstances the Appellants can be revetted back to their original posts, we are of the view that the Respondents were not justified in reverting the Appellants to the posts of Computers. The Tribunal was not right in dismissing the Writ Petition of the Appellants.

We may now deal with the other ground which commended to the Tribunal for holding that the Writ Petition was not maintainable on the same cause of action in view of the Order 23 rule 1(4) of the Code of Civil Procedure. The Tribunal has, however, completely overlooked that the subsequent writ petition was filed by the Appellants not on the same cause of action, but on a fresh cause of action that arose after the appeals filed by the Appellants were dismissed by the Appellate Authority. In the circumstances the Tribunal was not also justified in dismissing the writ petition on the ground that the previous writ petition having been withdrawn, the subsequent writ petition was not maintainable on the same cause of action.

For the reasons aforesaid, we set aside the judgment of the Tribunal and quash the' impugned order of reversion, and direct the Respondents to reinstate the Appellants to the posts of Statistical Assistants with continuity of service and back wages.

The appeal is allowed. There will however, be no order as to costs.