Superintending Engineer, U.P.E. Board vs B.B.Singh

Gopi nath, J.

I agree with my learned brother that the appeal should be allowed. However, on the question of the applicability of Articles 14 and 16 of the Constitution I express my separate opinion.

Articles 14 and 16 apply to persons similarly situate and strike at arbitrary actions. See E. P. Royappa v. State of Tamil Nadu and another, A.I.R. 1974 S.C., p. 555 and Mohd. Shujat All and others v. Union of India and others, A.I.R, 1974 S.C., p. 1631. According to Sughar Singh''s case (supra), when a person is reverted, or his services are terminated, without any reason or basis, while persons junior to him are retained Article 14 or 16 may apply. But these Articles do not apply where a senior is found unfit while his juniors are not so found. It cannot be laid down as a general rule that mere retention of a junior as against the reversion of a senior by itself attracts Articles 14 or 16. If they are dissimilarly situate Articles 14 or 16 will have no application. See Union of India v. Uajinder Singh, AIR 1972 S C 1329 Champakalal Chimanlal Shah v. Union of India, '' 1964(8) F.L.R. 421= (195067) 2 S.C.L.J. 797=A.I.R. 1964 S.C. 1854 and Union of India v. Pandurang Kashi Nath More, A.I.R. 1962 S.C. 630 Normally the principle of ''last come first go'' is applicable where reversioner termination is made on grounds of departmental exigencies. In other cases also where the senior and junior are similarly situate the junior will have to go first. But where the services of a senior are terminated or he is reverted from a higher officiating rank to a lower substantive rank for reasons of misconduct, inefficiency or unsuitability while his juniors who do not suffer from such defects are retained Article 16 will have no application. See Gopal Prasad Singh v. The Deputy Director of Medical and Health Services, U.P., 1968 A.L.J. 735. 21. In such a case the juniors do not fall in the same class as the senior. The respondent''s allegation in the instant case only is that the officers junior to him have been retained. There is no allegation that they also fall in the same class as the respondent. The Government''s case on the other hand is that the respondent was found unsuitable while the juniors were not so found. This is apparent from the allegations made in the counteraffidavit. The respondent has not been able to establish any thing to the contrary. There is no allegation that the juniors were either of the same standard or inferior to him. Thus, if from the material supplied or the data furnished the senior and the junior cannot be placed in the same class Article 16 can have no application. In Sughar Singh''s case the Supreme Court found on facts that there was nothing to distinguish the case of Sughar Singh from his juniors. It was in this factual background that the Supreme Court observed that Sughar Singh was singled out of many similarly situate officers without any reason or basis and so Article 16 of the Constitution was attracted. This decision is distinguishable on facts.

In the present case the facts found distinguish the case of the respondent from his juniors. Article 16 thus has no application.

In the result the appeal succeeds and is allowed. The judgment of the learned Single Judge is set aside, and the writ petition is dismissed with costs.

*Editor''s NoteThe judgment of Hon''ble Satish Chandra, J. and the Head note of the above Division Bench case has been reported at page 127 of the A.L.R. The concurring judgment of Hon''ble Gopi Nath, J. is to be read in continuation of the judgment of Hon''ble Satish Chandra, J.