M. Wahajuddin, J. - (1.) THIS is plaintiff's second appeal. The plaintiff brought a suit for a declaration that he is entitled to the pay scale of Rs. 150-240 per month on his substantive post and also claimed Rs. 1200 as a difference of his salary withheld by the defendant Union of India. The Additional Munsif decreed the suit for a declaration that the plaintiff is entitled to continue in the substantive post of the Claims Tracer in the scale of 140-240 but the claim for recovery of arrears was dismissed. The first appellate court on appeal, set aside the aforesaid decree in favour of the plaintiff and dismissed the suit with costs.
(2.) THE plaintiff's stand is that he was selected as Booking Clerk by the Railway Service Commsission, Allahabad, in the grade 60-150 P.S. in 1956, and was posted as temporary Ticket Collector at Samastipur with effect from 30.10. 1956. Subsequently he held the post of Commercial Clerk at Gorakhpur till 29.10. 1958 and the plaintiff's stand is that he was then promoted to the post of Claims Tracer on 30.10. 1958 and he was posted at Gorakhpur and worked in N.P. Cell to the satisfaction of the authorities and was transferred to Railway Training School, Muzaffarpur N.E.R. to work as Commercial Instructor in the same grade and he worked there, from 12.3.1959 to 26.10. 1961 and he then proceeded on earned leave for a month and reported for duty on 26.11.1961 but received an order of his transfer and posting as Coaching clerk in Varanasi district in the scale of 110-200 in lower grade on 8.12.1961, which amounted to reduction in rank and punishment without notice and enquiry, and the provisions of Article 311(2) of the Constitution have been infringed and this reduction in rank is illegal and void. It was also maintained that the order contravened the standing orders of the Railway Board on this aspect. THE stand as per argument here is that after officiating for 12 months he was to be confirmed in that grade unless it was deferred for further six months further on ground of any inefficiency or warning to improve which is not the case. In the light of the arguments urged before me, the first point that may arise for consideration is as to whether the appellant is governed by any standing order of the Railway Board and by which the order he would ordinarily be governed. It is noteworthy that the Railway Board modifying its earlier Circular letter issued on 1.2. 1960 provided that there is no need to prescribe any period during which a final assessment must necessarily be made of the performance of each railway servant officiating in higher grade and accordingly the instructions contained in Railway Board's D. O. Letter dated 21.5.1956 and 7.6.1958 may be treated as modified. It would further appear that this D. O. letter was superseded by a subsequent letter dated 30th June 1965 and the position in D. O. letter as prevailing on 21.5.56 was restored. The first appellate court rightly held that the Munsif has wrongly applied this D. O. letter of 1965 when it was not in existence at the time of plaintiff's reversion to his substantive post. It is noteworthy that the impugned order was served upon the plaintiff on 8.12.1961. Learned counsel for the appellant urged that even in such situation the case will not be governed by D. O. letter dated 1.2. 1960 because the plaintiff started, as officiating on the post of Claim Tracer in higher grade from 30.10.1958 and before 1.2.1960 when the aforesaid D. O. letter was issued. His one year's period was complete and when neither the confirmation was deferred on any inefficiency or warning for further six months under the earlier D. O. letter of 1956 he would be treated as confirmed on the post of higher grade. The crux of the matter is whether under that D. O. (Circular) letter the case of the plaintiff is covered and he will be taken to be confirmed in the higher grade. The D. O. in question is to the effect that the performance of every railway servant officiating in a higher grade should be adjudged by the competent officer before expiry of 12 months of the total officiating service and if the performance is not satisfactory, either the Railway servant may be reverted on the grounds of unsuirability, or he be warned that his work is not quite satisfactory, but that he is being permitted to draw his increment in the expectation that his performance will improve during the next six months for which he will continue to be under observation and at the end of the extended period of six months i. e. of a total officiating service of 18 months either the person should be declared suitable for retention in the grade or should be reverted because he is unsuitable. It further provides that any person who is permitted to officiate beyond 18 months cannot in future be reverted tor unsatisfactory working without following the procedure prescribed in the Discipline an d Appeal Rules. It is noteworthy that so far as the directions concerning the position of completion of 18 months service is concerned it would not be attracted because before the expiry of such period D. O. of 1st February 1960 has been circulated and will operate and there is no time limit prescribed as such. The stand of the learned counsel for the appellant, however, is that as on completing 12 months period the plaintiff was neither reverted nor given any warning to improve within six months. In his case after the expiry of very 12 months-before the D. O. of 1st February 1960 came into force the plaintiff became entitled to retention in the higher grade as confirmed and will be deemed to have been confirmed.
(3.) THE stand of the learned counsel for the respondent is that so far as D. O. letter of 1956 or any circular is concerned it does not apply to persons who are appointed purely on adhoc basis and on an express condition that the order is just interim one and for local arrangement. In support of such argument the learned counsel for the respondent has relied upon a number of pronouncements. Reliance was placed on the case of Pashupati Narain Sinha v. Union of India, AIR 1971 Patna 18. This case also related to the Railways. It has been held that where the petitioner is temporarily put to officiate in higher grade as a stop-gap measure, no right granted to claim in future over seniors and for higher grade unless selected. Reversion to substantive scale without stigma would not amount to reduction in rank by way of punishment and Article 311(2) would not apply. In this case the principles laid down in AIR 1959 SC 986 and AIR 1958 SC 86 were followed by the Patna High Court. THE very High Court in another Division Bench case, Baijnath v. Union of India reported in 1976 (Part II) SLR 425 held that the Circular issued in this connection and 18 months prohibiting reversion are not applicable to employees appointed temporarily and on ad hoc basis and the provisions of Article 311 of the Constitution are also not attracted and the Circular does not have any statutory character. This was also the view of the Calcutta High Court in the case of Divisional Personnel Officer v. M.P. Ranga, 1978 (2) SLR 346. It has been held that eighteen months rule contained in Railway Board Circular of 1956 are required to be adopted and followed only when basis of order of reversion is unsuitability or unsatisfactory performance of work and not otherwise. . In Writ Petition no. 7323 of 1971, Nawal Kishore Bhatnagar v. Principal Shiv Kumar, decided by this Court on 3.5. 1976 again it was held that 18 months rule contained in the Circular letter of the Railway Board will apply only to the cases of reversion for unsatisfactory work but if a Railway Servant officiating on a higher post is reverted not due to the unsatisfactory work but for other reasons the circular will not apply I am simply quoting the ratio of the rulings relevant for the purposes of this case. There is also another decision of this Court in Writ Petition No. 5103 of 1974 as per order dated 2.11.1974 and further continued on 3.12. 1975 in which also similar proposition of law has been laid down and the writ was rejected. There is again one more judgment of Division Bench in Special Appeal No. 164 of 1976 connected with Special Appeal No. 294 of 1976 of this Court in which the implication of the Railway Board Circular of 1956 concerning officiation for 18 months was considered and it was held that this circular applies only to those employees who had been promoted to the higher post as a result of proper selection or empanelment or being declared suitable for the post by the competent authority. In his pronouncement a number of other cases are also cited. It was held in that case that as the employees had neither been selected or empanelled for the post concerned nor were they declared suitable for that post by the competent authourity, notwithstanding of their officiating for 18 months or more they would not be entilted to benefit of the Railway Board's Circular of 1956 nor authorities are required to give them opportunity of being heard before reverting them. This is also the view taken in the case of a Division Bench of Lucknow Bench in Special Appeal No. 100 of 1971, The General Manager N.E.R. and another v. 0. P. Saxena, decided on 16.10. 1974. In this case reliance was placed upon the case of Pashupati (supra). The entire implications were considered and it had been laid down that if any person is allowed to act on temporary capacity as a stop-gap arrangement and has not been appointed to officiate as a result of selection to that post, his reversion neither amounts to reduction in rank so as to attract Article 311 (2) of the Constitution nor it attracts the applicability of the Circulars concerning continuous officiation.;