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IN THE HIGH COURT OF ALLAHABAD
R. A. Sharma and Kundan Singh, JJ.
VISHWAMITRA YADAV - Appellant
Versus
U.P.STATE PUBLIC SERVICE TRIBUNAL - Respondents
Civil Misc. Writ Petition 26119 Of 1997
Decided On : 10/29/1997
SERVICE LAW - PROMOTION - CANCELLATION - OPPORTUNITY OF HEARING - TEMPORARY/AD HOC PROMOTION - TERMINATION OF SERVICE - REVERSION - PRINCIPLES OF NATURAL JUSTICE - POWER OF DISTRICT MAGISTRATE - ELIGIBILITY - REINSTATEMENT.
Fact of the Case:
The petitioner, a play organizer in an observation home, was promoted to the post of Assistant Superintendent on a temporary/ad hoc basis by the District Magistrate. The promotion was later canceled by the Director of Women Welfare on the grounds that the post was within the purview of the Subordinate Service Commission and that the petitioner was ineligible for promotion. The petitioner challenged the cancellation order before the U.P. Public Service Tribunal, which dismissed his claim petition on the grounds that he was not entitled to an opportunity of hearing before reversion, that he had no claim to the post after the appointment of another person, and that the District Magistrate had no authority to promote him.
Finding of the Court:
The court held that the impugned order canceling the petitioner's promotion was passed in violation of the principles of natural justice as the petitioner was not given an opportunity of being heard before the cancellation. The court also found that the Tribunal erred in treating the order of cancellation as an order of reversion simpliciter of a temporary employee and in not noticing the difference between the two types of orders. The court further held that the Tribunal's finding that the District Magistrate had no authority to promote the petitioner was not sustainable in light of the statement of the learned Standing Counsel that the District Magistrate had the power to make ad hoc/temporary promotions to the post in question by way of local arrangement.
Issues: 1. Whether the petitioner was entitled to an opportunity of being heard before the cancellation of his promotion. 2. Whether the District Magistrate had the authority to promote the petitioner to the post of Assistant Superintendent. 3. Whether the petitioner was eligible for promotion to the post of Assistant Superintendent.
Ratio Decidendi: 1. A temporary government servant has no right to the post to which he is appointed temporarily and his service can be terminated without giving him any opportunity of being heard. However, if the order of appointment/promotion is canceled, the very appointment/promotion is rendered illegal causing adverse effect on the employee concerned. In such a case, if the order of cancellation of appointment/promotion is on a ground which is capable of being explained, it is mandatory that the employee concerned is given an opportunity of being heard before canceling his appointment/promotion. 2. The District Magistrate has the power to make ad hoc/temporary promotions to the post of Assistant Superintendent by way of local arrangement.
Final Decision: The court allowed the writ petition, quashed the orders of the Director and the Tribunal, and remanded the matter to the Director to decide afresh in accordance with law after giving an opportunity of being heard to the petitioner. The court also held that the petitioner was not entitled to be reinstated in service until the Director passed a fresh order.
( 1 ) THE petitioner, who was working as play organiser in observation Home at Basti, was promoted vide order dated June 28, 1994 by the District Magistrate to the post of Assistant superintendent observation Home (hereinafter referred to as Assistant Superintendent) at Basti on temporary/ad hoc basis till a candidate duly selected by the Director Women Welfare, U. P. Lucknow (hereinafter referred to as the Director) is appointed. By an order dated May 15, 1996 the petitioners promotion was cancelled by the Director. Against the said order the petitioner filed writ petition which was dismissed by this Court on the ground of alternative remedy of a claim petition before U. P. Public Service Tribunal, Lucknow (hereinafter referred to as the tribunal ). The petitioner thereafter filed claim petition before the Tribunal which has been dismissed vide order dated May 29, 1997. Being aggrieved , he has filed this writ petition.
( 2 ) ON August 8, 1997 learned Standing Counsel, who represents respondents, was granted four weeks time to file counter-affidavit. As no counter-affidavit was filed by the respondents, on 19. 9. 1997 the learned Standing Counsel was granted a month and no more time to file counter-affidavit. Inspite of stop order the counter-affidavit has not been filed till date. The result is that the averments made in the writ petition are liable to be taken as correct.
( 3 ) WE have heard the learned Counsel for the petitioner and the learned Standing Counsel.
( 4 ) THE learned Counsel for the petitioner has challenged the impugned order on three grounds, viz. (i) No opportunity of being heard was given to the petitioner by the Director before cancelling the order of his promotion, (ii) The District Magistrate is fully empowered to make temporary/ad hoc promotion to the post of Assistant Superintendent, and (iii) The petitioner has been discriminated against in as much as Sri S. S. Husain, who was also promoted on temporary basis to the post of Assistant Superintendent by the District Magistrate, has been allowed to continue whereas the petitioners promotion has been cancelled.
( 5 ) THE petitioners promotion dated June 28, 1994 was cancelled by the Director vide order dated may 15, 1996 on two grounds, namely, (1) The post in question is within the purview of subordinate Service Commission and (2) the petitioner is not eligible for promotion to the said post. The Tribunal without considering the grounds on which the Director cancelled the order of promotion, has dismissed the claim petition on three grounds, viz. (i) As the petitioners promotion was purely on temporary/adhoc basis he was not entitled to any opportunity of being heard before reversion to the lower post, (ii) As the petitioners promotion was purely temporary till such time a person is appointed on the basis of regular selection he is left with no claim to the said post after appointment of another person, and (iii) The District Magistrate has no authority to promote the petitioner to the post in question. The Tribunal did not record any finding about eligibility of the petitioner for promotion to the post of Assistant Superintendent. It also did not hold that temporary/ad hoc promotion could not have been made to the post in question by appropriate authority without consultation with the Commission. Thus the grounds on which the director-cancelled the order of promotion of the petitioner were not the grounds on which the tribunal rejected the claim petition.
( 6 ) A temporary government servant has no right to the post to which he is appointed temporarily and his service can be terminated without giving him any opportunity of being heard. Similarly a temporary promote has no right to the post to which he is promoted on temporary/adhoc basis and he can be reverted to the lower post without giving him any opportunity of being heard. In such cases principles of natural justice are not attracted. But the order cancelling the order of appointm
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