Decided on October 30,1969



RAINA J - (1.) THIS is a petition under Article 226 of the Constitution.
(2.) THE petitioner is a civil servant. He joined service in the former State of Gwalior on 8-7-1937 as a Compounder in the Public Health Department. On the formation of Madhya Bharat he was posted as Accountant and on integration he was placed in Group 'D' while S. P. Jain who was also an employee of the said Department, was placed in Group 'E'. He was appointed as a Head Clerk in the grade of 70-5-120 and thereafter on 22-2-55 he was appointed on the post of Steward in Civil Hospital, Barwani and was confirmed in the said post w.e. f. 1-4-1955 vide Memorandum No. 43079-107 dated 19-10-55 (Annex- ure 'A'). S. P. Jain was also confirmed by the same order but he was placed below the petitioner as shown in the said memorandum. On 2-9-54 S. P. Jain was promoted as Superintendent, Mercy Home, Morar. Subsequently, on 23-1-58 the petitioner was promoted to the post of Superintendent, Mercy Home consequent to reversion of S. P. Jain at his request vide order dated 23-1-58 (Annexure 'B'). The petitioner continued to hold the post of Superintendent, Mercy Home, until 31-7-63 when he was reverted as S. P. Jain was again appointed to the said post by the impugned order dated 20-7-63 vide Annexure 'C The contention of the petitioner is that S. P. Jain having been reverted to the post of Steward at his own request by order dated 19-10-1955 (Annexure 'B') had lost all claims to the post of Superintendent, Mercy Home, and in any case he being junior to the petitioner, the petitioner could not be reverted in order to provide S.P. Jain on the said post. The petitioner submitted a representation and a number of reminders as indicated in Annexure 'D' but he did not receive any reply. Ultimately by a letter dated 2-2-68 he was informed that his representation was rejected as S, P. Jain was permanently absorbed on the post of Superintendent and the petitioner was holding the post in an officiating capacity vide Annexure 'E'. After S. P. Jain retired from the post on 21-4-66 D.K. Sharma, a junior to the petitioner, was promoted to this post and the petitioner was again superseded. The contention of the petitioner is that his reversion to the post of Steward is discriminatory and involves penal consequences and as such offends Articles 14, 16 and 311 of the Constitution.
(3.) THE petitioner, therefore, seeks a writ that the order dated 20-7-63 reverting the petitioner may be quashed, and it may be declared that the petitioner is entitled to hold the post of Superintendent as from 20-7-63 and to all other benefits accruing therefrom. The main contention of the respondents i.e. the State of M. P. and the Director of Health Services is that S. P. Jain was permanently absorbed on the post of Superintendent in Mercy Home in the new Madhya Pradesh vide order dated 25-1-68. He was the only permanent incumbent on that post while the petitioner was holding the said post in an officiating capacity. As he had no right to hold that post he could be reverted at any time, and, therefore, his reversion. was perfectly lawful. As regards the appointment of D. K. Sharma as Superintendent, Mercy Home, it has been submitted that it does not amount to supersession as at the material time the petitioner was holding the substantive rank of Steward in the scale of Rs. 110-190 while D K. Sharma was working as Accountant on a higher pay scale in the grade of Rs. 130-240. The other grounds urged in the return are that the petition is liable to be dismissed as the petitioner failed to avail of an alternative remedy and has not joined S.P. Jain and D.K. Sharma who are necessary parties to this petition.;

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