Per Somnath Ayyar, J.
1. The petitioner Gadgoli who was a permanent clerk in the district of Dharwar was officiating as an aval karkun in that district. On 3 September, 1956 when that district was in the State of Bombay he was reverted as a clerk by the then Collector of Dharwar. It is undisputed that the reversion was made on the ground 'that Gadgoli's record was not good and that his performance was found to be much below the average for an aval karkun.'
2. Gadgoli preferred an appeal to the Divisional Commissioner who made an order on 1 August, 1959 directing his promotion as an aval karkun temporarily for a period of one year and that his work might be watched during that period. There was a further direction that his confirmation as aval karkun should depend upon the reports of his superiors of his performance as aval karkun. The Divisional Commissioner was persuaded to make this order for the reason that his scrutiny of the confidential sheets of the petitioner disclosed considerable improvement in the work of the petitioner during a period of two years preceding the order.
3. The petitioner next made an application to the Divisional Commissioner for a reconsideration of the order, but on 23 June, 1962 the Divisional Commissioner directed the petitioner to appeal to Government under rule 19(b) of the Civil Services (Classification, Control and Appeal) Rules, 1957, if he felt aggrieved by the earlier order made by him. The petitioner did appeal under that provision, but on 2 December, 1963, the appeal was rejected by Government. Meanwhile, in Writ Petition No. 72 of 1964 presented to this Court another aval karkun who had been similarly reverted, this Court made a direction that the Divisional Commissioner who had dismissed the appeal of that petitioner should hear him and the others who had appealed from the order of the Collector. Gadgoli who is the petitioner in this writ petition was one of those persons who were heard by the Divisional Commissioner in obedience to the direction made by this Court, and, although the Divisional Commissioner did reach the conclusion that the supersession of at least thirteen persons was unjustified, he could make no order in the case of the petitioner and eleven others since there were other proceedings pending in regard to their representations such as appeals and departmental enquiries. This order was made by the Divisional Commissioner on 13 February, 1963. It is thereafter that the appeal preferred by the petitioner under rule 19(b) of the Mysore Civil Services (Classification, Control and Appeal) Rules was dismissed on 2 December, 1963.
4. In this writ petition which was presented thereafter on 16 March, 1964 the petitioner asks us to quash the orders made by the Collector who reverted him and by the Government of the new State of Mysore who dismissed the appeal. He has also asked that we should quash the order made by the Divisional Commissioner on 23 June, 1962 by which he was directed to appeal to the Government. It is not necessary to refer to the other prayers in this writ petition.
5. The short question which arises in this writ petition is whether, as contended by Sri Savanur, the reversion of the petitioner from the post of an officiating aval karkun to his substantive post as a clerk amounted to a reduction in rank falling within Art. 311 of the Constitution. If if does, since he was not afforded a reasonable opportunity of showing cause against such reversion, the order of reversion is liable to be set aside.
6. It is undisputed and it is clear from the proceedings to which we have referred, that what was responsible for the reversion of the petitioner was the fact that during the period he worked as an officiating aval karkun, 'his record was not good and that his performance was found to be much below the average for an aval karkun.' This is what is stated in the order of the Divisional Commissioner made on 1 August, 1959 in the appeal preferred by the petitioner to him, although in the order communicated to the petitioner by the Collector on 2 September, 1956 it was stated that the review of the petitioner's work and the examination of the confidential sheet revealed that his work as an aval karkun was unsatisfactory.
7. It is now clear from the decision of the Supreme Court in Parshotam Lal Dhingra v. Union of India [1958 - I L.L.J. 544] and P. C. Wadhwa v. Union of India [1964 - I L.L.J. 395] that even in the case of a civil servant who is officiating in a higher post, reversion to a substantives post which involves a stigma and a penal consequence amounts to reduction in rank within the meaning of Art. 311 of the Constitution. In Wadhwa case [1964 - I L.L.J. 395] (vide supra) an officiating Superintendent of Police whose substantive rank was that of an Assistant Superintendent of Police was reverted for unsatisfactory conduct. Although he was served with a chargesheet, no details of the unsatisfactory conduct were specified and the person who was reverted was not asked for an explanation. The Supreme Court was of the view that the reversion which imperiled future chances of promotion entailed penal consequences, and, on the basis of the elucidation made in Dhingra case [1958 - I L.L.J. 544] (vide supra) that there was an undoubted reduction in rank even in the case of a person who was holding an officiating post, if the reversion involved a stigma, the order of reversion made without adherence to the provisions of Art. 311 of the Constitution was quashed.
8. In the case before us, the imputation made against the petitioner that his work was unsatisfactory and that his record was not good is also a clear stigma on his work as an aval karkun and entails penal consequences since his future chances of promotions undoubtedly stand imperilled.
9. Sri Vasudeva Reddi, the learned Government Pleader, urged that the petitioner is not entitled as of right to be confirmed in the post of an aval karkun, and that so long as there was no right to be confirmed, when he is ineligible for such confirmation, a reversion even if it is made on the ground that the petitioner's record was not good and that his work was not satisfactory, does not amount to a reduction in rank.
10. We do not accede to the proposition so stated. If the petitioner was not yet found eligible for confirmation, it might have been possible for the confirming authority to desist from making the confirmation, and the postponement of confirmation in that way would not have of course amounted to a reduction in rank. But, if the confirming authority did not stop with the postponement of the confirmation, but reverted the petitioner to his substantive post on the ground that he had not given a good account of himself as an aval karkun and that his record in that post was not good, the reversion is a punishment, and so a reduction in rank. Since that was not made after affording a reasonable opportunity to the petitioner before the imposition of such punishment, the impugned orders cannot be sustained.
11. It is on this short ground that this writ petition has to succeed, and we set aside the order made by the Collector on 3 September, 1956 reverting the petitioner to the post of a clerk. The order made by the Divisional Commissioner in appeal on 1 August, 1959 and the further order made by him on 23 June, 1962 and the order made by Government in the appeal under rule 19(b) of the Mysore Civil Services (Classification, Control and Appeal) Rules on 2 December, 1963 are also set aside. We also set aside the order made by the Divisional Commissioner on 22 March, 1963 and the order of Government rejecting the appeal petition for restoration of seniority.
12. The consequence of the order that we have made in this writ petition is that the petitioner continues as an officiating aval karkun without the interruption caused by the order of reversion made by the Collector on 3 September, 1956, and so, he would be entitled to all the consequential benefits emanating therefrom.
13. Sri Vasudava Reddi, the learned Government Pleader, submitted to us that we should make an observation that the position assigned on the basis of the order of reversion which has now disappeared, in the inter-State seniority list, cannot be altered without hearing those who are likely to be affected by such alteration. On that matter we should not say anything in this writ petition since it is obvious that every person who is likely to be affected by such alteration has of course to be heard before any such alteration is made.