Suresh Chandra Gupta vs District Magistrate, Tilhar, Shahjahanpur and another

D.K. Seth, J.—The petitioner has been reverted from the post of Daftari to the post of peon by an order dated 11.5.1999 contained in Annexure-3 to the writ petition. This order has since been challenged by the learned counsel for the petitioner Shri Subodh Kumar. He contends that the Impugned order has been passed without affording any opportunity and that opportunity is mandatory in view of Rule 5 (1) of the U. P. Municipal Boards Service (Inquiry. Punishment and Termination of Service) Rules. He further contends that the ground mentioned in the order of reversion is wholly mala fide and non est and that no order has been passed in the case of Sri Jan Mohammad by which the petitioner could be reverted. On these grounds, he prays that the impugned order should be quashed.

I have heard learned counsel for the petitioner Shri Subodh Kumar at length.

Rule 5 (1) of the U. P. Municipal Boards Service (Inquiry. Punishment and Termination of Service] Rules are applicable in respect of disciplinary proceedings drawn up against a person and when such reversion is effected by way of inflicting, punishment on account of misconduct of charges levelled against such person. Unless it is inflicted by way of punishment pursuant to disciplinary proceeding on account of certain charges of misconduct, such reversion cannot be subject-matter of the service rule relating to misconduct. In the present case, it is apparent that the order of reversion was not passed by way of punishment on account of any misconduct levelled against the petitioner. Neither it was a reversion by way of inflicting any punishment in pursuance of a disciplinary proceedings. Therefore, Rule 5 (1) cannot be attracted in the present case.

I am unable to agree with the contention of Shri Subodh Kumar, learned counsel for the petitioner In view of the present facts and circumstances of the case where the order of reversion was passed purely on administrative ground on account of unsuitability. The ground that has been mentioned In the order was that the petitioner was junior most employee in the grade from which the promotion was given and that there are 8 persons senior to him In the same grade who were eligible for promotion in the post, therefore the petitioner was unsuitable for promotion so long as the case of his seniors are not considered. Thus, this order of reversion is wholly on administrative reason which cannot be subject-matter of the said service rules within the meaning of Rules 5 (1) thereof.

The promotion was given against a vacancy created on account of termination of service of one Shri Jan Mohd. who has challenged the order of termination before the labour court which is still pending and, therefore, the said post was subject-matter of the decision In the labour court. Thus, the promotion cannot be made absolute on the said post until the decision in the case of said Jan Mohd. pending in the labour court is arrived at. That is one of the reason for which he was reverted. This is also an administrative reason.

Even if any opportunity is given to the petitioner, he could not establish his case since the petitioner has not contended that he Is seniormost employee and is eligible for promotion and those 8 persons are not senior to him. It is contended that no adverse order has yet been passed In the proceeding pending before the labour court In respect of the case of Shri Jan Mohd. Thus, there is nothing on record to show that the petitioner Is eligible to the said post so that If such an opportunity was given, he could have resisted the order of reversion. In the facts and circumstances of the case. even if any opportunity was given to the petitioner, the same will not improve his case beyond what has been stated above.

In such circumstances, I do not find any reason to Interfere with the order contained In Annexure-6 to the writ petition.

The writ petition fails and is accordingly dismissed. However, there will be no order as to cost.