Pandey Vs. State of Bihar & Ors  INSC 840 (14 December 1995)
K. Ramaswamy, K. Hansaria B.L. (J)
1996 AIR 888 1996 SCC (2) 282 JT 1995 (9) 566 1996 SCALE (1)7
O R D
appeal by special leave arises from the order of Patna High Court made in
C.W.J.C. No. 754/79 on 13.4.1979.
admitted facts are that the appellant was appointed as a Junior Statistical
Supervisor in the Department of Statistics. When a temporary post of Sr.Statistical
Assistant fell vacant in the Directorate of Special Employment and Planning
(for short 'S.E.P.'), it would appear that on an application made by him and
forwarded by the parent department, the appellant came to be appointed to the
temporary post as Senior Statistical Assistant by order dated 12.7.1973 and he
joined the post on 1.9.1973. It would appear that the post was made permanent
on 1.1.1978. On 16.8.1977, when the gradation list of the Senior Statistical
Assistants (for short, "S.S.As.") in the Directorate of S.E.P. was
prepared, the name of the appellant was not shown therein. The appellant
thereon made a representation dated 26.9.1977. By proceedings dated September 28, 1977, Arun Prasad Mandal, the fifth
respondent herein, came to be promoted initially as S.S.A. followed by further
promotion as Senior Research Assistant (for short, "S.R.A."). The
appellant was reverted to the parent Department by proceedings dated 23.2.1979.
The appellant challenged the reversion and the High Court dismissed the writ
petition as stated earlier. After reversion, he was promoted as S.S.A. in the
parent department. These facts are not in dispute.
L.R. Singh, the learned counsel appearing for the appellant, contended that
since the order of appointment shows that he was appointed by selection, in
other words, by consideration of comparative merits according to the procedure,
his appointment must be deemed to be on regular basis in the Directorate of
S.E.P. Though initially the post was temporary, once it was made permanent on
1.1.1978, he must be deemed to have been absorbed to the permanent post and
thereby he is entitled to be considered for the post of promotion as a S.S.A.
instead of considering his case, the fifth respondent came to be promoted twice
overlooking the claim of the appellant for S.R.A.; and, therefore, the
reversion is bad in law.
counter-affidavit dated 13.8.1979 filed by the State it was mentioned that the
appellant came to be appointed as a S.S.A. to a temporary post on deputation;
his lien as a Junior Statistical Supervisor in the parent department, namely,
Statistical Department, continued to exist; on his reversion to the parent
department he was promoted in his own right as S.S.A.; the fifth respondent had
his initial appointment in the Directorate of S.E.P. and as he is permanent
incumbent to the post, he came to be promoted in his own right. When the post
of S.S.A. fell vacant, he being the permanent incumbent of the department came
to be promoted to the said post. Since the appellant was only a deputationist,
he cannot claim his right to promotion in the Directorate of S.E.P. In his own
right he had his promotion as S.S.A. in his parent department.
there is no illegality in the action taken by the Government. The High Court,
therefore, was right in dismissing the writ petition.
question, therefore, is whether the promotion of the fifth respondent as S.S.A.
is valid in law. It is rather unfortunate that despite filing of the counter
affidavit as early as on 13.8.1979, no rejoinder-affidavit was filed nor any
unimpeachable documentary evidence has been placed on record to establish the
nature of his appointment as S.S.A. in the Directorate of S.E.P. In that state
of things, we are necessarily driven to accept the uncontroverted averments
made by the State in the counter affidavit. It gets corroboration from the
seniority list prepared and maintained by the parent department of the
appellant, namely, Statistical Department. Therein it was shown in item 9 that
the appellant was continuing in the Directorate of S.E.P. on deputation.
settled law that an employee on temporary promotion would continue to hold the
lien in his substantive post until it is duly terminated. He cannot hold two
substantive posts at the same time. Once it is concluded that the appellant is
a deputationist working in the Directorate of S.E.P., his name was rightly not
shown in the seniority list of that Department. Therefore, he continued to hold
his lien and seniority as Junior Statistical Supervisor in the parent
department. On reversion, he came back to his post as a Junior Statistical
Supervisor and in his own right he was promoted as S.S.A. Since the fifth
respondent happened to be a permanent incumbent in the Directorate of S.E.P.,
he was promoted as S.S.A. When further vacancy in the higher ladder, namely,
S.R.A., had fallen vacant, he was considered and promoted in that vacancy.
Under those circumstances, the High Court is well justified in refusing to
interfere with the matter and we do not find any justification warranting
informed that pursuant to the interim directions granted by the High Court and
also by this Court the appellant has continued to work in the Directorate of
he was continuing in the Department, he must be deemed to have continued to
hold his lien as a Senior Statistical Assistant in the parent department,
namely, Statistical Department and he will be entitled to all the rights and to
further promotion, if any, in that department according to rules.
appeal is accordingly disposed of with the above observations. No costs.