Shri Jai Chand Kaushal and Another vs The State of H.P. and Others

Chet Ram Thakur, J.—This petition under Articles 226 and 227 of the Constitution of India has been filed by Sarvshri Jai Chand Kaushal and Roop Chand in the nature of mandamus, directing the Respondents to treat the Petitioners as regular employees in the Election Department and not to take any steps to revert them from their present appointments as Superintendent and Head Assistant respectively in the office of Respondent No. 2. They also prayed for a writ in the nature of certiorari, quashing the order of Respondent No. 2 reverting the Petitioners if they had already been passed, and also prayed for any appropriate writ, order or direction.

The Petitioners before September 23, 1966, were Senior Clerks in the Himachal Pradesh Secretariat. The Election Department of Himachal Pradesh found that the work had increased and made a request to the Chief Secretary to make available the services of two experienced persons from the Secretariat, working in the general election branch of the Himachal Pradesh Secretariat for appointment as Assistants. Consequently, by an office order, dated September 23, 1966, the services of the Petitioners were transferred and they joined as Assistants with the Election Department from the aforesaid date. Subsequently, Petitioner No. 1 was promoted to officiate as Head Assistant in the Election Department with effect from December 27, 1969, on ad hoc basis by an office order, dated January 30, 1970. Later on his appointment was regularized on the recommendation of the Departmental Promotion Committee (hereinafter called the D.P.C.), and it was notified by an office order, dated March 9, 1971. He was further promoted as Superintendent with effect from May 6, 1971, on the recommendation of the D.P.C. Petitioner No. 2 was promoted as Head Assistant to the vacancy caused by the promotion of Petitioner No. 2. As the appointments of the Petitioners in the office of the Respondent No. 2 were considered to be on regular basis, a seniority list was issued on May 27, 1970, wherein the Petitioners were shown amongst the Assistants. According to the Petitioners they were not sent on deputation, rather, they were sent on transfer to the said department for appointment and absorption on the strength of the statutory rules. The Petitioners contended that the Respondent No. 2 is about to issue an order reverting them from its department to the Secretariat as Senior Clerks. The order was in the process of being delivered and it was intended by the Respondents that the Petitioners be compelled to hand over the charge without any delay so that they may not have any time to seek relief. It was alleged that the action of the Respondent No. 2 to revert them was motivated by a desire to give benefit to certain other employees who were legally or otherwise not entitled or eligible to hold the posts presently held by the Petitioners under the rules. The contemplated order was mala fide, illegal, unjust and contrary to the principles of natural justice and fair play.

The Respondents 1 and 2 pleaded that the petition was premature. It was averred that the services of the Petitioners were placed temporarily at the disposal of the Election Department as Assistants upto February 28, 1967. The Election Department had no legal right to confer any permanent promotion on the Petitioners until their liens in the parent department had been terminated or the consent of the Chief Secretary''s administration had been obtained for their absorption in the Election Department. About reversion, it was pleaded that the matter was under consideration of the Government. The other averments of the Petitioners were all refuted. The other Respondents, who were impleaded subsequently on an application made by them, opposed the writ and pleaded that the Petitioners have no right to the posts. They were given promotions against the rules and in flagrant disregard to the constitutional rights of the Respondents and other incumbents in the Election Department. The Petitioners are much junior to the Respondents and have less experience than them. They were temporarily sent to the Election Department to work as Assistants purely on stop-gap or ad hoc appointment till February 28, 1967. There was no mode of selection even out of the people of the Secretariat where the Petitioners were just officiating as Senior Clerks. The entry in the Election Department, usurping the rights of other candidates, was illegal. They had their liens in their parent department and could be sent back, so long as they were not confirmed in the Election Department. The names of the Petitioners continue to be shown on deputation with the Election Department and undue favour was being shown to them by promoting them without considering the cases of the other incumbents. They also repudiated the other averments made by the Petitioners.

The Respondents 1 and 2 have taken up a preliminary objection that the writ is premature, but the learned Advocate-General has not argued the point how the writ is premature. It is evident from the record placed before the Court during the hearing that an office order to the following effect has been prepared for issue:

GOVERNMENT OF HIMACHAL PRADESH ELECTION DEPARTMENT

No. 5-27/71-Elec.

Dated Simla-2, the

OFFICE ORDER

Sarvshri Jai Chand Kaushal and Rup Chand Kapoor of Himachal Pradesh Secretariat whose services were placed temporarily at the disposal of the Elections Department during 1966, are reverted back to their parent department as their services are no longer required on deputation in the Election Department. They are directed to report for duty to the Deputy Secretary, Secretariat Administration Department on the F.N. of 1st November, 1972. They will stand relieved on the afternoon of 31st October, 1972.

B.O. Sd/- (L. Hmingliana Tochhawng), Chief Electoral Officer.

This order, therefore, would show that the writ is not premature. The office order is already prepared and has been signed by the Chief Electoral Officer. Once the order is issued and the Petitioners are relieved the writ itself would become infructuous. Therefore, in view of this order the writ cannot be said to be premature.

Learned Counsel for the Respondents 3 to 6 has raised a preliminary objection that for issue of a writ of prohibition the petition did not disclose any cause of action. There is no usurpation of jurisdiction by the authorities, rather, the authorities are competent to pass orders of reversion. Therefore, this writ of prohibition is not competent and reliance is placed on Hongkong and Shanghai Banking Corporation v. Bhaidas Pranjivandas and Anr. AIR (38) 1951 Bom 158, wherein it had been held "A writ of prohibition can issue for the purpose of forbidding a Court, which is inferior to the High Court, from continuing proceedings which are pending in that Court, if the Court has no jurisdiction to entertain or deal with the proceedings. It is directed against a tribunal and not against a private party.

This authority is not helpful to the Respondents inasmuch as the order is already signed. The Petitioners, in fact, have not prayed for a writ of prohibition. They have only prayed for a direction to the Respondents that they may be treated as regular employees of the Election Department and that they could not be reverted. The Respondents 3 to 6 have also admitted in their reply that they are being reverted as they are only ad hoc and temporary employees. Therefore, this objection has got no force.

The submission of the Petitioners is that thev are regular employees, whereas the Respondents submit that they are temporary employees recruited on ad hoc basis, they have got no right to continue in the posts and they can be reverted to their parent department for exigencies of service. In order to decide this question whether they are regular or on ad hoc basis I have to refer to the various documents which have got bearing on the point.

Annexure ''A'', dated September 23, 1966 is an Office Order of the Government of Himachal Pradesh Secretariat Administration Department. By this order the services of the two Petitioners were placed at the disposal of Election Department for appointment as Assistants. From this, it appears that the services were temporarily placed at the disposal of the Election Department. The note No. 27, dated January 31, 1966, on file No. 6-18/65-Election, titled "Additional Staff for General Elections of 1967" shows that a proposal was made for the creation of additional ministerial posts for one year, viz., March 1, 1966 to February 28, 1967 in the first instance in connection with the general elections. It is also apparent from the record that these posts were sanctioned by the Government of India. Subsequently these two persons were placed at the disposal of the Election Department by this order, Annexure ''A''. Further, it is also obvious from the note No. 71, dated August 16, 1966 that this proposal for the filling up of the posts as also for the transfer of these two persons from the Himachal Pradesh Secretariat received approval of the cabinet. Annexure ''B'', which is also an office order, dated October 18, 1966, was issued by the Election Department appointing the Petitioners as Assistants with effect from September 23, 1966 (forenoon). Annexure ''C is another office order, dated January 30, 1970 issued by the Election Department whereby Shri Kaushal was promoted to officiate as Head Assistant on ad hoc basis. Annexure ''D'' which is an office order, dated March 9, 1971, reads as under:

No. 5-5/66-Elec. GOVERNMENT OF HIMACHAL PRADESH ELECTION DEPARTMENT Simla-2, the 9th March, 1971 OFFICE ORDER

On the recommendation of the Departmental Promotion Committee, the ad hoc promotion of Shri Jai Chand Kaushal, as Head Assistant ordered vide office order No. 5-13/69-Elec, dated the 30th January, 1970 is hereby regularised with effect from the 27th December, 1969.

Sd/- Chief Electoral Officer, Himachal Pradesh.

This would further go to show that the appointment of Shri Kaushal, who had previously been promoted to officiate as Head Assistant on ad hoc basis, was regularised by this order, Annexure ''D''. Therefore, after March 9, 1971, he was no longer on ad hoc employment but he was holding the post on regular basis. Annexure ''E'' is an office order, dated May 6, 1971, whereby Shri Kaushal was promoted on the recommendation of the D.P.C. to officiate as Superintendent (Elections) in the scale of Rs. 400-25-500/30-650 with immediate effect on ad hoc basis. However, this appointment is not a regular appointment and is purely ad hoc. But this also has got the approval of the D.P.C. Annexure ''F'' is another office order of the same date, whereby Shri Kapur, Petitioner No. 2 on the recommendation of the D.P.C. was promoted to officiate as Head Assistant (Elections) with immediate effect against the resultant vacancy caused due to the promotion of Shri Kaushal to the post of Superintendent. Anncxure ''G'', dated May 27, 1970 is a covering letter, whereby the seniority list, Annexure''G-I'', was conveyed to the Petitioners for their information. This seniority list, in fact, gives the details of their service and both of them are shown as officiating since September 23, 1966. Against the name of Shri Kapur it is mentioned "lien-holder of H.P. Secretariat". Against Shri Kaushal it is shown "confirmed as junior clerk in H.P. Secretariat".

From the aforesaid documents it is plain that the services of the Petitioners were temporarily placed at the disposal of the Election Department against the posts sanctioned by the Government of India in the first instance for one year. Shri Kaushal, as stated earlier, was promoted to officiate as Head Assistant on the recommendation of the D.P.C. and his previous assignment was regularised. It would, therefore, follow that the Petitioners were not lent to the Election Department on temporary bash or that they were to be reverted after one year. Nor is there anything in these annexures to indicate if the Petitioners were sent on deputation. If it were the intention to send the Petitioners on deputation then there was no question of the promotions of the Petitioners from one post to the other in the office of the Election Department. According to Annexure ''L,'' which is a copy of the Government of India, Ministry of States'' letter, No. F. 4(36)-S/52, dated May 13, 1954, the period of deputation will ordinarily be sanctioned for a period of one year at a time. But here there was no question of one year. The Petitioners continue to serve the Election Department since 1966 till 1972 when the order was about to be issued for their reversion. There is nothing to indicate if after the expiry of one year the parent department extended the period of their deputation in the Election Department. Therefore, the only conclusion that can logically be drawn is that they were not lent nor were they sent on deputation. |Their services were transferred to the Election Department for appointment as Assistant in the first instance for one year against the temporary posts created by the Govern -ment. Thereafter they were never reverted, rather, they were given promotions and their ad hoc appointments were subsequently regularised.

There were no rules providing for the appointment of Assistants in the Election Department. The rules Annexure ''H,'' known as the Himachal Pradesh Election Department Subordinate Class III Services (Recruitment, Promotion and certain conditions of Service) Rules, 1966 (hereinafter called the Rules of 1966) were notified on September 22, 1966. Before that there were no posts of Assistants in the department. For the first time a provision for the posts of Assistants was made by a notification, Annexure ''J,'' dated March 24, 1970, by way of addendum. According to Rule 1(ii) of this addendum the incumbent for the post of Assistant should have at least five years'' service as Election Clerk, irrespective of the fact-whether permanent or temporary. According to Rule 2(b) the incumbents for the posts of Assistants were to be promoted from amongst the Election Clerks on seniority basis subject to rejection of unfit, with at least five years service. However, a proviso has been added, which says:

Provided that this provision shall not have any effect on the appointments already made against this category of posts.

Therefore, this proviso governs the Petitioners, who had been appointed to the posts of Assistants prior to this notification, Annexure ''J.''

Annexure ''K'' is another notification, dated May 8, 1970, whereby amendments were effected in the Rules of 1966. One of the amendments is to Rule 6, providing for the conditions of service of Head Assistant. It has been laid down that he should have at least three years service as Assistant in the department. Therefore, it follows that a Head Assistant is to be appointed by selection from amongst the Assistants of the Election Department on merit-cum-seniority basis. Shri Kaushal had been appointed as an Assistant on October 18, 1966. He was promoted as Head Assistant, vide Annexure ''C, on ad hoc basis on January 30, 1970 and this appointment was regularised vide Annexure ''D'', dated March 9, 1971. Therefore, from this it would appear that he fulfilled the conditions for appointment to the post of Head Assistant. These promotions are quite in accordance with the rules and regulations framed from time to time and the Petitioners cannot be deemed to be on deputation. No doubt the Petitioners have their liens in the Secretariat but that would not mean that they |are not the regular employees of the Election Department. The liens of the Petitioners have not been terminated in the Secretariat because so far they have not been confirmed against any one of the posts in the Election Department ever since their services were transferred to the Election Deartment.

It may also be mentioned here that eversince the appointments of the Petitioners the Respondents 3 to 6 did not raise any objection with regard to the transfer of the Petitioners or their promotions whether on ad hoc basis or on regular basis. They represented only in the year 1971 and till then they had no objection. Excepting Shri Devinder Singh (Respondent No. 3), the other Respondents were the employees of the Election Department of the State of Punjab before November 1, 1966. Shri Devinder Singh was an employee of the Election Department but he was on deputation as Secretary, Soldiers,'' Sailors'' and Airmen''s Board at Chamba. He did not raise any objection when the services of the Petitioners were placed at the disposal of the Election Department for appointment as Assistants in the scale of Rs. 150-10-200/10-300. At that time Shri Devinder Singh while on deputation was getting pay in the scale of Rs. 130-200, which was admittedly a lower scale. Therefore, it is not now open for him to come forward and challenge these appointments of the Petitioners as Assistants made in the year 1966. The other Respondents had no right at that time because, as already stated, they were employees of the State of Punjab. If there was any violation of the directive of the Central Government not to make any regular appointment because of the impending re-organisation of the State of Punjab, then in that case also after their allocation to the State of Himachal Pradesh they should have made representation, which they failed to do. They made their representations only in the year 1971, which were much belated. Therefore, the Respondents have got no right to challenge the promotions or the appointments of the Petitioners on regular basis in the Election Department.

The next contention of the learned Counsel for the Petitioners is that the order, which is to be issued to them, is mala fide, inasmuch as there is nothing against the Petitioners. This contemplated order is about to be made in order to give benefit to some other persons, who have got political backing.

I have gone through the record placed by the Respondents 1 and 2 before the Court. I find that when the representations of the Respondents had been rejected in 1972 they sought intervention of one M.L.A., Shri Bishan Lakhanpal, who wrote the following lines in his own hand on a typed paper, giving the service particulars of Shri Branma Nand (Respondent No. 4):

The Hon''ble P.W.D. Minister may kindly examine the case himself and call for the concerned file from Sectt. concerned and get the same screened from the Law Department. The opinion of Law Department shall be much meaningful in this controversial case.

Therefore, it is obvious that the case was re-opened on the intervention of a political leader. There does not appear to be anything which may smack of mala fides. !However, it is clear from the record that the reversion of the Petitioners is sought to be made on some exterior grounds, that is, with the object of benefiting the Respondents. Such an action on the part of the Respondents 1 and 2, when the exigencies of service do not justify and the Petitioners have not been found inefficient in the performance of their duties, is invalid, because it amounts to a penalty under Article 311(2) of the Constitution. The reply of the Respondents is only that they are temporary employees and they can be reverted to their original posts against which they are holding liens. But, I have already stated that their appointments are not on ad hoc basis but they are regular employees.

Learned Counsel for the Petitioners has cited a number of authorities to support the view that if the order of reduction is made on grounds other than non-suitability to the post or inefficiency, then such an order amounts to a penalty.

The first authority relied upon by the Petitioners'' learned Counsel is Shri Madhav Laxman Vaikunthe Vs. The State of Mysore, In this case one M was holding the rank of a Mamlatdar in the First Grade and was officiating as a District Deputy Collector. Consequently a departmental enquiry was held against him, for misconduct as a result of which he was reverted to his original rank as Mamlatdar, for a period of three years. Ultimately, he was promoted to the Selection Grade but even so the order of reversion passed against him remained effective and affected his place in the Selection Grade. Consequently it was held by the Supreme Court:

Hence, mere deprivation of higher emoluments as a consequence of reversion cannot amount to the "evil consequences" referred to in the second test, Parshotam Lal Dhingra Vs. Union of India (UOI), But as a result of the order of reversion M lost his seniority as a Mamlatdar, which was his substantive post. That being so, it was not a simple case of reversion with no evil consequences; it had such consequences as, would come within the test of punishment as laid down in Parshotam Lal Dhingra Vs. Union of India (UOI),

Without assigning any reasons the Petitioners cannot be reverted, no matter, they are holding their liens. They have completely been assimilated in the Election Department, Any reversion without any sufficient cause would be in contravention of Article 311 of the Constitution.

The second authority is Union of India and Ors. v. R.S. Dhaba(= 1969 S.L.R. 442. It says:

Reversion of a Government servant from officiating post finding him unsuitable after trial, in such a case Article 311 is not attracted as there is no reduction in rank.

From this it would follow that a person cannot be reverted from an officiating post unless he is found unsuitable after trial. It is only in case he is found unsuitable after trial that Article 311 will not be attracted. In the instant case there is nothing against the Petitioners to show that they were inefficient or were not found suitable to the posts. The reversions are contemplated only on the ground that they have got their liens in their parent department. In view of my finding that they are the regular employees of the Election Department, and they are not on deputation, they had completely been absorbed as they had been granted promotions from one post to the other in the Election Department, they cannot be reverted.

The third authority is K.H. Phadnis v. State of Maharashtra 1971 S.L.R. 345. In this case the Appellant was reverted neither because the temporary post was abolished nor because he was found unsuitable to continue. The parent department of the Appellant did not want him back. In view of these circumstances, it was held:

Therefore though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and are relevant factors to be considered in ascertaining whether the order is genuine one of ''accident of service'' in which a person sent from the substantive post to a temporary post has to go back to the parent post without any aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not ''a pure accident of service'' but an order in the nature of punishment, Article 311 will be attracted.

As already stated, the order sought to be made is not ''a pure accident of service''. Neither the parent department wanted the Petitioners back nor is there anything against them whereby they do not deserve to continue in the present posts. The reversion is made, as it appears, wholly on extraneous considerations. Therefore, such a reduction will be in contravention of Article 311 of the Constitution.

The fourth authority is Appar Apar Singh v. The State of Punjab and Ors. 1971 S.L.R. 71, which says:

It is well settled that officiating and temporary Government servants are also entitled to the protection of Article 311(2) in the same manner as permanent Government servants, if the Government takes action against them by meating out one of the punishments, i.e. dismissal, removal or reduction in rank.

It further held:

In order to find out whether an impugned order is one passed by way of punishment, the form in which the order is expressed is not decisive and the circumstances preceding or attendant on the order have to be examined in each case. It is also clear that the motive behind the passing of the order is of no consequence. Whether penal consequences flow from the order will have also to be investigated.

In the instant case reversion is ordered to be made only on the sole ground that Respondents 3 to 6 had made representations and the Respondents 1 and 2 also wanted to give benefit to those persons ignoring the fact that the Petitioners are regular and substantive incumbents of the posts, which they are holding since long. The order, therefore, is unsustainable as it amounts to clear reduction in rank.

The fifth authority is State of Mysore v. R.R. Kulkarni and Ors. 1972 S.L.R. 795. In this case it was held:

Misuse of Power'' or ''misapplication of power'' or a "Detournement depuvoir" are terms correctly employed to describe the use of a power in this illegal fashion. It was not necessary for the Respondents to go so far as to establish that such misuses took place with the deliberate object of benefiting others at the expense of the others. It was enough to prove, as the Respondents succeeded in doing, that the power of reversion was used for a collateral or legally extraneous purpose.

In the case before me it is quite clear that this power of reversion is being exercised for a collateral or legally extraneous purpose, i.e. in order to accommodate the Respondents who have been sleeping over their rights since 1966 till 1971, when for the first time they filed their representations.

The sixth authority is Surjit Singh, Superintendent, Public Relations Department, Punjab v Shri Som Dutt and Ors. (Punjab) 1973 S.L.R. 452, wherein it has been held:

If due to the mistake of the department technically correct orders had not been passed which should have been made in consonance with the relevant provisions in the Punjab Civil Services Rules, the Government servant cannot be made to suffer on that account.

This authority has been relied upon to show that they were regularly appointed and if any mistake was there in the order for that they were not to be penalised. But, in my opinion, there is no mistake. The appointments of the Petitioners are quite regular.

On the contrary, the first authority cited by the Respondents is State of Haryana and Ors. v. Ranindra Sareen 1972 -S.L.R. 112 to show that the reduction of the Petitioners is valid. In this authority it was held:

Chief Minister or Head of Department have jurisdiction to express views regarding performance of an officer. No inference of mala fide can be drawn.

This authority does not apply to the facts of the present case, inasmuch as it is not because of any expression of views regarding the performance of the officials that this step for the reversion of the Petitioners is being taken. It is entirely on collateral and extraneous consideration that they are to be reverted.

The further authority relied upon by the learned Counsel for the Respondents is Labh Singh Waryam Singh v. Union of India through the Labh Singh Waryam Singh Vs. Union of India, wherein it had been held:

Reduction resulting from a normal administrative decision to correct a mistake does not involve any penalty and, therefore, does not attract Article 311(2) of the Constitution.

This authority also does not apply. The Petitioners had been appointed after seeking approval of the Ministers. At that time the Petitioners were working in the Secretariat in the Election Branch and because of their experience they were considered fit and were appointed against the newly created posts for manning the posts of Assistants because of the heavy load of work due to general elections of 1967. At that time one of the Respondents was already on deputation and the other Sresponsents had not been allocated to Himachal Pradesh. There were no rules providing for the posts of Assistants. The Government did rightly appoint the Petitioners to man the posts and it cannot be said that there was any mistake which the Government could rectify at this stage.

The further authority is Gopal Prasad Dubey v. Registrar, High Court of Gopal Prasad Dubey Vs. Registrar, High Court of Madhya Pradesh and Others, In this case there were two claimants to the post and one of them was confirmed on that post. The other made an appeal against the confirmation and for setting it aside. Under the rules the confirmation of the former was subject to an administrative appeal and on appeal the confirmation was set aside and it was in view of these circumstances that it was held that there was no question of punishment so as to attract Article 311 of the Constitution. The facts, therefore, are quite dissimilar.

Further reliance is placed on T.S. Gurusiddiah v. State of Mysore AIR 1963 Mys 109. This authority also has got no application to the facts of the present case, inasmuch as in that case the reduction of the civil servant who was promoted to officiate on higher post purely on ad hoc basis was on the ground of mistake due to over-looking of pending disciplinary proceedings against such servant which rendered him unfit for promotion according to the departmental instructions.

The further authority is K. Ramavataram Vs. The State of Orissa, This authority also will not help the Respondents, inasmuch as the reversion of the Government servant was made upon an administrative order made after an enquiry into the irregularities of promotions. In fact the promotions of the Petitioners were made in that case in contravention of the rules and in supersession of the claim of many senior clerks eligible for promotion to those posts.

The further authority is Parshotam Lal Dhingra Vs. Union of India (UOI), It lays down a test for termination of service or reduction in rank amounting to punishment. Hence it is not applicable.

Champaklal Chimanlal Shah Vs. The Union of India (UOI), is also not of any help to the Respondents because it deals with the procedure to be followed in connection with the disciplinary proceedings of temporary servants.

Union of India and Anr. v. Gajendra Singh, etc.1972 S.L.R. 537 also does not help the Respondents because it says that if the termination from officiating post entails or provides for any forfeiture of pay and allowances, loss of seniority in substantive rank or postponement of furture chances of promotion, termination would be by way of penalty. In the instant case the Petitioners undoubtedly were senior clerks in the Secretariat but after September 1966, they were appointed as Assistants in the Election Department and there was no question of any deputation.

N. Srinath, M.A. Somashokar, Assistant Director Industries v. The State of Mysore and Ors. (Mysore) 1972 S.L.R. 449 also has got no application because in that case the selection for promotion had been made long before the vacancies had actually arisen and it was with the object to deprive the constitutional rights of persons who subsequently became eligible and, therefore, it was held that the case for promotion be considered in relation to vacancies which actually existed or were expected to arise within a short period.

In order to substantiate his argument that rules cannot regularise illegal appointments he has relied upon State of Mysore v. R.R. Kulkarni and Ors. (supra). This authority has already been discussed above. It was a reversion from an officiating post, which could not be made when the same is done on collateral or extraneous purposes. The learned Counsel submits that the appointments were illegal. But he has not been able to show how the appointments were illegal. His only grouse was that they (the Respondents) were not considered. But, it may be stated that at the time when the Petitioners were promoted there were no rules nor the Respondents, except one person, were in the service of State of Himachal Pradesh. So, there was no contravention of any rules. The rules were made only subsequently providing for the posts of Assistants and Head Assistant and the appointments of the Petitioners were not to be in any way affected by the rules subsequently made.

R.N. Nanjundappa v. T. Thimmiah and Anr. 1972 S.L.R. 94 also does not help the Respondents because in that case the appointments were made in infraction of the rules and, therefore, it was held that such appointments cannot be regularised subsequently.

Fateh Singh Chugha Vs. State of Punjab and Others, Punjab and Haryana 315 says that the Government has got the power to transfer and to retrans-fer to the post on which he held a lien. In the instant case the Petitioners had been holding regular appointments. They had been completely and permanently absorbed in the Election Department at a time when there were no rules governing the conditions of service of Assistants to which posts they had initially been appointed by the Government in September, 1966.

Further, in support of the fact that the Government has inherent right to transfer one person from one post to the other, reliance is placed on G.K. Tandon v. Judicial Commissioner State of Ajmer AIR 1957 Raj 230 and also on the Fundamental Rules 11 to 15. This proposition cannot be disputed that the Government has inherent right to transfer a Government servant from one post to another and also to transfer a lien of one post to another. But what is disputed is the question of reduction in rank. In the case cited above there was no reduction in the emoluments by the transfer and in that transfer order it had specifically been stated that Shri Tandon is to remain in the same grade Rs. 80-200. In view of that it was held that there had been no reduction in rank and certainly the transfer does not appear to have been made as a punishment. The case in hand is entirely different.

The result, therefore, is that the petition is allowed and a direction is issued to the Respondents 1 and 2 to the effect that they shall treat the Petitioners as regular employees of the Election Department and that they cannot be reverted. In the circumstances of the case the parties are left to bear their own costs.