- (1.) THESE are petitions under Art. 226 of the Constitution. They seek to quash an order dated 28 March, 1966, passed by the State Government. The petitioners were working as marketing inspectors in the marketing section of the Food and Civil Supplies Department of the State Government. By a notification dated 21 September, 1964, the State Government promoted 31 marketing inspectors to the posts of senior marketing inspectors. The petitioners, excepting S. B. Dutta (who is the petitioner in Civil Miscellaneous Writ No. 2222 of 1966), were included among these 31. On 28 March, 1966 the State Government passed another order reverting the petitioners to the post of marketing inspectors. By the same order eleven other marketing inspectors were promoted as senior marketing inspectors. This order is challenged on the ground that by the earlier order of promotion the petitioners had secured a right to the post of senior marketing inspectors. The impugned order is penal in nature because it makes the petitioners subordinate and junior to a large number of persons who were till then their subordinates and juniors and that because of other rules of the department, the order of reversion has the effect of depriving the petitioners from promotion to the post of senior marketing inspectors in future. It is alleged that since the order was passed without affording any opportunity to the petitioners to show cause, the order violates the provision of Art. 311 of the Constitution.
(2.) THE respondents had contested the case. They had given in detail the reasons for the reversion of the petitioners. It is stated that in April 1964, 151 temporary posts of senior marketing inspectors were sanctioned by the Governor. He decided to fill 100 posts by direct recruitment and the remaining 51 by promotion from amongst the marketing inspectors. A list of marketing inspectors, who were entitled to be promoted, was drawn up on the basis of seniority subject to rejection of unfit and subject to educational qualification being not below high school. Some marketing inspectors, though fairly senior, were not considered qualification for promotion because they possessed two years' Diploma in Agriculture, but had not passed the high school examinations. These inspectors made a representation that the two years' Diploma in Agriculture was equivalent to high School. The department investigated and ultimately upheld the representation. It then became necessary to reshuffle the promotions of the marketing inspectors. The marketing inspectors holding two years' Diploma in Agriculture were promoted in accordance with their place in the seniority list, and, consequently eleven marketing inspectors. who were junior to these ones, had to be reverted back. The impugned order was passed in order to do justice to the valid claims of the other inspectors. It is stated that all the eleven concerned persons have not been reverted as a measure of punishment. It is further stated that three posts of senior marketing inspectors were abolished by the Government order dated 2 December, 1965. Because of this, three senior marketing inspectors had to be reverted to their original posts of marketing inspectors. Two regional marketing officers and two Assistant Food Controllers were reverted as senior marketing inspectors on 30 January 1966. Because of this, four senior marketing inspectors again had to reverted as marketing inspectors.
(3.) FOR these reasons, seven marketing inspectors had to be reverted. Before orders could be finalized, two senior marketing inspectors were promoted as Area Rationing Officers with the result that only five senior marketing inspectors were reverted as marketing inspectors. These five persons were P. D. Seth, A. A. K. Afridi, Pratap Singh, Gyan Chandra Sharma and Baijnath Dubey. These five gentlemen were senior to the other eleven persons who were reverted on account of the promotion of eleven persons holding the two years' Diploma in Agriculture. It is urged for the respondents that the petitioners have not suffered in their seniority at all. Persons who were junior to the petitioners have not been given any precedence. The order was not impelled with any motive to take away any right or privilege to which they were lawfully entitled. It is submitted that the post of senior marketing inspector is temporary and otherwise also the petitioners had no right to that post. For all these reasons Art. 311 of the Constitution is not attracted. In Writ Petitions Nos. 2083 and 2084 of 1966, one Sukhbir Singh applied for and has been impleaded as a respondent. He was one of the persons who held the Diploma in Agriculture and who had been promoted by the impugned order dated 28 March, 1966. He has filed a counter-affidavit stating that after this Court had passed the interim stay order in the present petitions the State Government by a general order dated 12 August, 1966 suspended the operation of the order promoting him. Thereupon the Regional Food Controller, respondent 2, passed an order on 2 September, 1966 reverting Sukhbir Singh to the post of marketing inspector. He states that he will be adversely affected by the success of the present writ petitions and hence he was a necessary party to the writ petitions. He not having been impleaded, the writ petition is liable to fail in his absence. All those eleven persons who were promoted by the impugned order are in the same position. The petitioners have not seriously challenged the reason which impelled the respondents to pass the impugned order promoting eleven other marketing inspectors and reverting the petitioners. It is abundantly clear that the impugned order has been passed in order to regularize the position which had arisen on the acceptance of the appeal or the representation filed by those eleven inspectors. Those eleven inspectors were senior to the various petitioners here. They were entitled to be promoted in preference to the petitioners (there being no allegation that they were thought unfit). The number of posts of senior marketing inspectors which can be filled by promotion is limited. If the order reverting the present petitioners is set aside, the eleven inspectors who have been promoted will have to be reverted because they are now occupying the posts which the petitioners claim. The petitioners cannot be promoted in vacuum. They cannot get the posts of senior marketing inspectors unless such posts are available and vacant. At present they are all filled by those eleven inspectors. It is, therefore, clear that the eleven inspectors were necessary parties to the present petitions. The dispute cannot In their absence, the petitions cannot succeed. The dispute cannot be effectively decided in the absence of those eleven persons. One of the grievances expressed by the petitioners is that the representation of those eleven was accepted by the respondents without affording any opportunity to the petitioner to show cause. Success of this point will adversely affect them. For all these reasons, theses petitions cannot succeed in the absence of those eleven persons.;