# High Court Judicature at Allahabad & others v. Manglesh Singh& others

- **Citation:** (2000) 3 ILRA 284
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1997-03-12
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/high-court-judicature-at-allahabad-others-v-manglesh-singh-others-39502
- **Pages:** 7

## Text

3All] High Court Judicature at Allahabad & others V. Manglesh Singh& others 284
been argued that Jai Bharat Mani
Acharya Dixit had died before making of
the purported application A-25 (which
was made on 19.7.1988). The sheet
anchor of the application A-80 is that
Rani Reoti Devi claimed half share in the
entire property of Padrauna Raj by filing
suit no 88 of 1945 in the court of Civil
Judge, Deoria and the property is custodia
legis
since
2.1.1946
under
the
management of Receiver appointed from
time to time by the order of the court of
Civil Judge, Deoria and presently, Sri
Ram Autar Kesriwal is the Receiver. He
alone and none else has the right to
manage the property of Rani Reoti Devi
also which is included in the properties of
Padrauna Raj.

16. Prayer made in application A-80
too
has
been
opposed
by
the
Administrator General. I have held above
while deciding Application A-96 that the
Administrator
General
could
be
substituted in place of Jai Bharat Mani
Acharya Dixit who had renounced the
executor ship by making application A-25
on 19.7.1988. It is not disputed that Jai
Bharat Mani Acharya Dixit had actually
died. There is no evidence from the side
of the applicant of application A-80 to
back the contention that he died even
before making the application A-25. As a
matter of fact, the receiver appointed in
Suit No. 55 of 1945 by the court of Civil
Judge, Deoria has no business to object to
the appointment of Administrator General
as the custodian of the property at
Allahabad as an interim measure. He can
have no independent right in the matter to
assert. The law is well settled that when a
court puts the receiver in possession of
the property, it (property) comes under
court's custody, the receiver being merely
an officer or agent of the court. It is the
court which becomes custodia legis of the
property in respect of which the receiver
is appointed. Such de jure possession of
the court is through receiver. The
contention raised by the Receiver is
wholly untenable that a direction should
be made that the property of the deceased
situate at Allahabad shall be managed by
him. This application, therefore, also
does not have any merit and is to be
rejected.

17. In view of the above discussion,
the application A-96 and A-80 are hereby
rejected.

18. The office is directed to list
application A-97 for orders/hearing.
Application Rejected.

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By the Court

1. The appellants who were
Respondent Nos. 2,1 and 3 respectively in
Civil Misc. Writ Petition No. 13299 of
1997 assail validity of the Judgment dated
21.5.1997 quashing the order dated
1.9.1992 passed by Appellant No.3 the
Judge, Family Court, Allahabad and the
order
dated
12.3.1997,
passed
by
Appellant
No.2
the
then
Hon'ble
Inspecting Judge, Allahabad.

2. Vide order dated 1.9.1992 the writ
Petitioner who was appointed o Ad-hoc
basis as an Account Clerk in the scale of
Rs.1200-1560-EB-40-2040 was reverted
in public interest and for smooth running
of the office work as Copyist in the scale
of Rs.950-30-1150-EB-25-1500 as during
that period his work was not found to be
satisfactory and his writing was also very
poor.

Vide Order dated 12.3.1997, the then
Hon'ble Inspecting Judge, Allahabad held
that that the Appointing Authority has
powers to revert an employee from higher
scale to lower scale if his work and
conduct is not satisfactory.

3. The impugned judgement reads
thus:

"This writ petition has been filed
against
the
impugned
order
dated
1.9.1992 passed by the Family Court and
the impugned order of the Inspecting
Judge dated 12.3.1997 Annexure-3 to the
writ petition.

The petitioner was appointed as an
ad-hoc class II employee in the scale of
1200-2040 vide Annexure-2 to the writ
petition. By the impugned order dated
1.9.1992 true copy of which is Annexure3 to the writ petition he was reverted as
Copyist in the pay scale of 950-1500. He
filed an appeal on the administrative side
before the Inspecting Judge but that was
rejected hence this petition.

It was held by the Supreme Court in
Hussain Sasansaheb Kaladgi Vs. State of
Maharashtra 1987 (55) F.I.R. 304 that a
direct recruit cannot be reverted to a
lower post. On the same principle I am of
the opinion that a person appointed on
higher pay scale directly cannot be
reverted to a lower pay scale. In view of
3All] High Court Judicature at Allahabad & others V. Manglesh Singh& others 286
the above this petition is allowed. The
impugned order dated 1.9.1992 and
12.3.1997 are quashed. Nod order as to
costs.

M. Katju J"

The Original Pleadings:-

4. The case of the Respondent, who
was the Writ Petitioner, in short was to
this effect:-

He was appointed by the Judge,
Family Court, Allahabad with effect from
16th July till 30th September,1991 on
purely ad-hoc basis as Class III employee
whose service was liable to be terminated
at anytime without any notice; he was
allowed to work from 16.7.1991 itself on
the substantive vacant post of Account
Clerk and even after 30th September,1991
he has been continuously working in the
office of the Judge, Family Court at
Allahabad; even though his service record
has always been good and he was never
communicated of any adverse entry
against him, yet to his utter surprise the
impugned order dated 1.9.1992 was
passed casting stigma without giving him
an opportunity of hearing and thereby
there has been a gross violation of the
principles of natural justice and fair play;
he went up in appeal under Clause 6 of
Para 7 of Allahabad High Court Rules,
1956 on the administrative side of the
Court but it was dismissed vide order
dated 12.3.1992; to the best of his
knowledge under Rule 4(1)(f) of the U.P.
Subordinate Courts Staff (Punishment
And Appeals) Rules, 1976 punishment of
reduction to lower post, time scale or
grade, or to a lower stage in a time scale
or graded scale can be imposed but it falls
under the category of major punishment
and that under Rule 5 thereof no order of
reduction in rank can be passed unless a
person is informed in writing of the
ground on which is proposed to take such
action and had been afforded an adequate
opportunity of defending himself; that
sub-rules (2)(3) and (4) of Rule 5
aforementioned lays down the procedure
which is required to be followed in case
of major punishment, which were not at
all followed and thus the order dated
1.9.1992 is void-ab-initio and liable to be
set aside.

5. In the counter affidavit filed by
Appellant nos. 1 and 2, which was sworn
by O.S.D. (Litigation) of the Court, it has
been stated, interalia, that as per the
character roll entries recorded for the
years 1992-93 and 1993-94 his work was
not found satisfactory, his hand writing
was also not good; as he was appointed
purely on ad-hoc basis hence as per the
rule, there was no need to give him show
cause notice or opportunity of hearing
before passing the impugned order; under
Section 6 of the Family Courts Act, the
Judge, Family Court is the appointing
authority who has powers to revert an
employee from higher scale to lower post,
if his work and conduct is not found
satisfactory, after obtaining report from
the Judge, Family Court and the District
Judge, Allahabad and thereafter the
representation of the petitioner was
rejected on 12.3.1997 which was also
communicated
his
reversion
not
a
punishment but an order simplicitor; he
was simply deputed to work on a higher
scale and was reverted when his work and
conduct was not found satisfactory; the
U.P.
Subordinate
Courts
Staff
(Punishment And Appeal) Rules,1976
does not apply to his case and it would be
just and expedient in the interest of justice
to dismiss his writ petition.
287 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
6. In the counter affidavit filed on
behalf of Appellant no.3, it has been
asserted, interalia, that the establishment
of the Family Court, Allahabad itself is a
temporary establishment, which is being
extended year to year, as is evident from
the G.O. appended as Annexure C.A-1;
vide Notification dated 4th April 1995,
punished in the Official Gazette, the State
Government has framed rules known as
"Utter Pradesh Family Court Rules,
1995"; the writ petitioner had wrongly
approached Appellant no.1 for redressal
of his grievances, as proper authority was
the State Government, since the dispute
had arisen prior to the aforesaid Rules; the
writ petition is liable to be dismissed as
the person alleged to have been promoted
in his place has also not been made party
to the writ petition as even assuming
though not admitting that such a person
has been promoted in his place; his
appointment
was
made
without
completing legal formalities on temporary
and ad-hoc basis, though he worked till
1992 without any further extension during
which period his work was not found
satisfactory and was reverted to the post
of Copyist; there was a break I his service
on 1.7.1992 and at his own request he was
assigned the same work but till 30th
August,1992 he did not improve himself;
prior to passing of impugned order due to
unsatisfactory performance and work and
even thereafter he failed to improve his
work therefore his services were again
given break on 13.71993 he was warned
several times to improve his work but he
did not improve it is wrong to say that he
was neither given any warning nor was
communicated of any adverse entry and
the writ petition being devoid of any merit
is liable to be dismissed with costs.

7. The Respondent filed a Rejoinder
affidavit
to
the
aforesaid
Counter
Affidavit
stating,
interalia
that
the
services of none of the similarly placed
employee has not been terminated on the
ground of the temporary character of the
Family Court, since the placement was
purely temporary, therefore, he was
advised not to implead other person as
party to this writ petition but in case it is
desired that they be impleaded then he be
permitted to implead them as party so that
justice be done; the very act of promoting
the persons itself proves that the manner
of appointment made will be deemed to
have been made on permanent basis as all
of them.are continuously working since
the date of their appointment; even after
coming into force of the Rules one Sri
Abdul Rahman Zafri was appointed on
17.5.1995 in the scale of Rs.1200-2040 on
a Class III post in similar fashion as that
of the petitioner and other employees by
calling applications only and not I
accordance with the rules; the entries of
the year 1993-94 pertains to the year
subsequent to the year of his reversion
about which he was never communicated
and ,thus, no reliance can be placed on the
same; it is denied that there was break in
his service on 1.7.1992 due to his
unsatisfactory performance and work it is
also denied that since he failed to improve
his work his services were again given a
break on 13th July, 1993; the order of
break in service has been passed not only
in his case but in cases of another
employees; he was never issued any
warning to improve his work; his hand
writing is important at the place where he
has been reverted and not as Account
Clerk.
3All] High Court Judicature at Allahabad & others V. Manglesh Singh& others 288
8. In his Rejoinder affidavit to the
counter affidavit of Appellant nos. 1 and
2, similar facts have been asserted.

The Submissions:-

9. Sri S.M.A. Kazmi and following
him Sri Sudhir Agarwal, learned counsel
appearing in support of this Special
Appeal, had contended as follows:-

(i) The Judgement is cryptic and
has not even stated what was the precise
case of the appellants and issues raised by
them.

(ii) Since
undisputedly,
the
Respondent was not appointed even on
ad-hoc basis, after 30.9.1991 and on
1.9.1992, on Class III post even on ad-hoc
basis, therefore, he had no right to hold
the post Class III and this significant
aspect of the matter was completely lost
sight of by the learned single Judge, who
had
proceeded
t
presume
that
the
petitioner's appointment as an ad-hoc
employee had continued till 1.9.1992
when he was reverted back as Copyist
and, thus, the impugned judgement is
vitiated.

(iii) The learned Single Judge has
committed as apparent error in applying
the ratio laid down by the Apex Court in
Hussain Sasansaheb Kaladgi V. State of
Maharashtra,
1987(55)
F.L.R.
30=
(A.I.R.1987 SC 1627) which was case of
a temporary employee and not of an adhoc employee for a fixed term period.

(iv) The Respondent was deemed to
discharge functions of a Class IV
employee though as Class III employee in
the scale of Rs. 950-1500 and the order
impugned had changed his assignment
and not reduced his rank.

In support of his submissions on
merit, Sri Agarwal placed reliance on
following decisions:-

(i) Director, Institute of Management
and Development, U.P. V. Smt. Pushpa
Srivastava 1992 (4) S.C.C.,33;

(ii) S.P. Vasudeva V. State of Haryana &
others A.I.R.1975 S.C. 2292, and

(iii) State of Haryana V. Shri S.M.
Sharma and others J.T. (SC) 1993 (3) 740
= A.I.R., 193 SC 2273

10. Sri Ranjit Saxena followed by
Sri Satish Chaturvedi, learned counsel
appearing on behalf of the Respondent, on
the other hand, had contended as follows:-

(i) As pointed out by the Supreme
Court in Jarnail Singh & Ors. Vs State of
Punjab & Ors. 1986(2) U.J.(S.C.)235
(=A.I.R. 1986 SC 1626) the provisions
prescribed under Article 311 of the
Constitution are squarely applicable to adhoc employees also, the writ petitioner
who was an ad-hoc employee and even
though his services were not renewed
after 30th September, 1991, but having
regard to the fact that his appointing
authority had proceeded to take work
from him continuously and on the same
salary and thus he was an ad-hoc
employees and impugned order had cast a
stigma against him by stating that his
work has not been found to be
satisfactory and writing is also very poor
and thus he is being reverted and posted
as Copyist at lower salary, it was illegally
passed and was rightly quashed by the
learned Single Judge. The use of the word
289 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
'reversion' in the order impugned cannot
be dubbed as mere placement of the
Respondent as suggested to by Sri
Agarwal.

(ii) Bad handwriting was not
relevant for holding the post of accounts
Clerk but may be relevant for the post of a
Copyist, which shows that the order has
been passed on an irrelevant ground.

(iii) The Respondent was never
communicated of any adverse entry at all
and the entries relied upon in the Counter
Affidavit are of a subsequent period.

(iv) The decisions relied upon by Sri
Agarwal do not apply to facts of the
instant case.

Our Findings:-

11. The moot question for our
adjudication is:-

Whether a fixed term ad-hoc employee,
who was continued to discharge his
functions even after expiry of his term,
can be reverted to a post with a lesser
salary with a stigma in regard to non
satisfaction of his work without giving
any opportunity to have his say?

12.

What
should
contain
a
Judgement is well known to every one of
us. Unfortunately the judgement of the
learned Judge does not disclose what was
the precise case of both parties and what
were the submissions made before him.
As an appeal lay against the judgement it
is expected that the judgement should
contain even briefly the respective case of
the parties, the issues raised and pressed
by them which requires adjudication.

However, in the peculiar facts and
circumstances of the instant case we do
not wish to set a side the judgement on
this ground and remand the case. We have
ourselves taken pain to peruse the case of
the respective parties and proceeded to
state them earlier and heard the learned
counsel for the parties at length.

13. Now we are proceed to consider
the cases cited at the Bar.

In S.P. Vasudeva V. State of
Harayana and others, supra, the Apex
Court held as follows:-

".....It may not be a correct use of the
phrase 'ad-hoc' because he was not
appointed for any special or particular
purpose, so that it could be said that till
that purpose was over he could not be
discharged. The phrase seems to have
been used in the sense of 'temporary'.
X

X

X

X
We may in this connection point out that
where an order of reversion as in the
present case, of person who had no right
to the post, does not show ex facie that he
was being reverted as a measure of
punishment or does not cast any stigma
on him, the Courts will not normally go
behind that order to see if there were any
motivating
factors
behind
that
order..........."

In Director, Institute of Management
& Development, U.P. V. Smt. Pushpa
Srivastava, supra when the post itself was
ultimately sought to be abolished, the
Apex Court held that the appointment
being contractual and ad-hoc which came
to an end by efflux of time, the employee
had no right to continue on the post and
claim regularisation in service in absence
of
any
rule.
3All] Smt. Kamala SharmaV. D.D.E., Agra Division Agra & others 290

In State of Haryana V. S.M. Sharma,
supra, what the Apex Court held was that
entrustment or withdrawal of current
duties charge in one's own pay scale did
not amount to either promotion or
reversion.

The Apex Court in Jarnail Singh &
Ors. V. State of Punjab & Ors. Supra had
laid down that the provisions as contained
in Article 311 of the Constitution are
applicable even in case of an ad-hoc
employee and that it is open for such an
employee to show that while terminating
his services on the ground that he was no
longer required, it was open for such an
employee to show that persons who are
junior to him have been retained and thus
Articles 14 and 16 of the Constitution will
come into play.

14. Now the facts of the instant case.
The impugned order dated 1.9.1992
clearly shows that the Respondent was
reverted to the post of Copyist at a lower
salary from the post which he was
continuing to hold on the ground that his
work was not satisfactory. Thus clearly
stigma was attached. The order of
Respondent No.3 was thus in teeth of the
ratio laid down in S.P. Vasudeva cited by
Sri Agrawal himself and Jarnail Singh
cited by Sri Saxena. In this backdrop
alone we are constrained to hold that as
stigma was attached while passing the
impugned order dated 1.9.1992 thereby an
opportunity to have his say to the
Respondent was must before its passing.

15. The other decisions relied upon
by Sri Agarwal do not apply the facts and
circumstances of the instant case, who
also failed to show us any rule of the
relevant time vesting such powers in
Appellant No.3 as stated in the order of
then Hon'ble Inspecting Judge.

The Result:-

16. For the reasons aforementioned.
We hold that this appeal is without any
merit, It is dismissed accordingly, but
without there being any order as to cost.

17. The office is directed to handover a copy of this Judgement within two
weeks to Sri Sudhir Agarwal the Special
Counsel of the Court.
Appeal Dismissed.

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