BALKRISHNA PANDEYversusSTATE OF BIHAR AND ORS.

                        BALKRISHNA PANDEY                                      A
                                     v.
                     STATE OF BIHAR AND ORS.

                          DECEMBER 14, 1995

            [K. RAMASWAMY AND B.L. HANSARIA, JJ.]                              B

      Se1Vice La..-Right to promotion-Deputationist-Not entitled even
though the post held by him is made pennanent-Promotion of pennane/lf
incumbent-Held valid-Difference between pemwnent post and pennanent
incunibent.                                                                    c
      Appellant was a Junior Statistical Supervisor in the Department of
Statistics and he was appointed to the temporary post of Senior Statistical
Assistant in the Directorate of Special Employment and Planning. First
respondent was promoted and appointed to the said post when it was made
permanent. Appellant was reverted to his parent Department.                    D
     Appellant challenged the reversion by filing a Writ Petition, which
was dismissed by the High Court and the appellant has preferred the
present appeal. However after reversion, appellant was promoted as
Senior Statistical Assistant in his parent Department.
                                                                               E
      It was contended on behalf of the appellant that appointment of the
appellant was by selection and therefore his appointment must be deemed
to be on regular basis in the Directorate of Special Employment and
Planning. And once the post was made permanent, the appellant must be
deemed to have been absorbed to the permanent post and he was entitled
                                                                               F
to be considered for promotion. It was fnrther contended that the fifth
respondent was promoted twice overlooking the claim of the appellant, and
therefore appellant's reversion was bad in law.

      Disposing of the appeal, this Court
                                                                               G
      HELD : 1. An employee on temporary promotion would continue to
hold the lien in his substantial post until it is duly terminated. He cannot
hold two substantive posts simultaneously. [672·CJ

     2. Appellant was appointed to a temporary post on deputation in the
Department of Special Employment and Planning and his name was                 H
                                    669
    670                    SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A rightly not shown in the seniority list of that Department. He continued to
    hold his lien and seniority as Junior Statistical Supervisor in the parent
    department. On reversion, he came back to his post of Junior Statistical
    Supervisor and in his own right he was promoted as Senior Statistical
    Assistant. [672-D)

B         3. There is no illegality in the promotion of the fifth respondent by
    the State, since the fifth respondent happened to be permanent incumbent
    in the Directorate of Special Employment and Planning his promotion as
    Senior Statistical Assistant was not bad in law. [671-G]

C          4. Although the appellant continued in Directorate of Special
    Employment and Planning due to interim direction granted by both the
    High Court and this Court, he must be deemed to have continued to hold
    his lien as a Senior Statistical Assistant in the parent Department and he
    would be entitled to all the rights and to further promotion if any, in that
    department according to rules. [672-F-G]
D
             CIVIL APPELLATE .JURISDICTION : Civil Appeal No. 2927 of
     1979.

         From the .Judgment and Order dated 13.4.79 of the Patna High Court
    in C.W.J.C. No. 754 of 1979.
E
             L.R. Singh for the Appellant.

             D. Goburdhan for the Respondents.

             The following Order of the Court was delivered :
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        This appeal by special leave arises from the order of Patna High
  Court made in C.W.J.C. No. 754fi9 on 13.4.1979. The admitted facts are
  that the appellant was appointed as a Junior Statistical Supervisor in the
  Department of Statistics. When a temporary post of Sr. Statistical Assistant
  fell vacant in the Directorate of Special Employment and Planning (for
G short 'S.E.P.'), it would appear that on an application made by him and
  forwarded by the parent department, the appellant came to be appointed
  to the temporary post a< Senior Statistical Assistant by order dated
  12.7.1973 and he joined the post on 1.9.1973. It would appear that the post
  was made permanent on 1.1.1978. On 16.8.1977, when the gradation list of
H the Senior Statistical Assistants (for short, "S.S.As.") in the Directorate of
                     BALKRISHNAPANDEYv. STATE                              671

S.E.P. was prepared, the name of the appellant was not shown therein. The         A
appellant thereon made a representation dated 26.9.1977. By proceedings
dated September 28, 1977, Arun Prasad Manda!, the fifth respondent
herein, came to be promoted initially as S.S.A. followed by further promo-
tion as Senior Research Assistant (for short, "S.R.A."). The appellant was
reverted to the parent Department by proceedings dated 23.2.1979. The             B
appellant challenged the reversion and the High Couri dismissed the writ
petition as stated earlier. After reversion, he was promoted as S.S.A. in the
parent department. These facts are not in dispute.

      Shri L.R. Singh, the learned counsel appearing for the appellant,
contended that since the order of appointment shows that he was ap-               C
pointed by selection, in other words, by consideration of comparative
merits according to the procedure, his appointment must be deemed to be
on regular basis in the Directorate of S.E.P. Though initially the post was
temporary, once it was made permanent on 1.1.1978, he must be deemed
to have been absorbed to the permanent post and thereby he is entitled to
be considered for the post of promotion as a S.S.A. Instead of considering        D
his case, the fifth respondent came to be promoted twice overlooking the
claim of the appellant for S.R.A.; and, therefore, the reversion is bad in
law.

      In the counter-affidavit dated 13.8.1979 filed by the State it was          E
mentioned that the appellant came to be appointed as a S.S.A. to a
temporary post on deputation; his lien as a Junior Statistical Supervisor in
the parent department, namely, statistical Department, continued to exist;
on his reversion to the parent department he was promoted in his own right
as S.S.A.; the fifth respondent had his initial appointment in the Direc-
torate of S.E.P. and as he is a permanent incumbent to the post, he came          F
to be promoted in his own right. When the post of S.S.A. fell vacant, he
being the permanent incumbent of the department came to be promoted
to the said post. Since the appellant was only a deputationist, he cannot
claim his right to promotion in the Directorate of S.E.P. In his own right
he had his promotion as S.S.A. in his parent department. Therefore, there
is no illegality in the action taken by the Government. The High Court,           G
therefore, was right in dismissing the writ petition.

      The question, therefore, is whether the promotion of the fifth respon-
dent as S.S.A. is valid in law. It is rather unfortunate that despite filing of
the counter affidavit as early as on 13.8.1979, no rejoinder-affidavit was        H
    672                   SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A filed nor any unimpeachable documentary evidence has been placed on
    record to establish the nature of his appointment as S.S.A. in the Direc-
    torate of S.E.P. In that state of things, we are necessarily driven to accept
    the uncontroverted averments made by the State in the counter affidavit.
    It gets corroboration from the seniority list prepared and maintained by
    the parent department of the appellant, namely, Statistical Department.
B   Therein it was shown in item 9 that the appellant was continuing in the
    Directorate of S.E.P. on deputation.

           It is settled l.iw that an employee on temporary promotion would
    continue to hold the lien in his substantive post until it is duly terminated.
C   He cannot hold two substantive posts at the same time. Once it is con-
    cluded that the appellant is a deputationist working in the Directorate of
    S.E.P., his name was rightly not shown in the seniority list of that Depart-
    ment. Therefore, he continued to hold his lien and seniority as Junior
    Statistical Supervisor in the parent department. On reversion, he came
D   back to his post as a J uniur Statistical Supervisor and in his own right he
    was promoted as S.S.A. Since the fifth respondent happened lo be a
    pern1ancnt inctunbcnt in the Diret.:torate of S.E.P., he was promoted as
    S.S.A. When further vacancy in the higher ladder, namely, S.R.A., had
    fallen vacant, he was considered and promoted in that vacancy. Under
    those circumstances, the High Court is well justified in refusing to interfere
E   with the matter and we do not find any justification warranting inter-
    fercnce.


          We are informed that pursuant to the interim directions granted by
    the High Court and also by this Court the appellant has continued to work
F
    in the Directorate of S.E.P. Though he was continuing in the Department,
    he must be deemed to have continued to hold his lien as a Senior Statistical
    Assistant in the parent department, namely, Statistical Department and he
    will be entitled to all the rights and to further promotion, if any, in that
    department according to rules.
G
          The appeal is accordingl) disposed of with the above observations.
     No costs.


     M.K                                                     Appeal disposed of.