M. Sadasivayya, J.
(1) The point which is involved in this writ petition is, a short one. The petitioner was one of seven persons who, by the Government Order, dated 27-10-1959 (as per Annexure 'H') had been appointed to officiate as Assistant Statisticians (Gazetted), until further orders. Prior to this order, these seven persons were promoted against seven vacant posts. In the list of seven persons who were so promoted as per Annexure 'H', the petitioner was the third; that is, there were four others who were his juniors, who also were promoted as per Annexure 'H'. Thereafter, by the Government Order, dated 5-3-1960 (as per Annexure J), the petitioner was reverted to his substantive post as Senior Statistical Assistant. It is to be noticed that no reason was given in the order as per Annexure 'J', for the reversion of the petitioner from his officiating post of an Assistant Statistician (Gazetted), to his substantive post as Senior Statistical Assistant. Subsequently, the petitioner was furnished with an extract of a confidential report; that extract has been marked as Annexure 'K' and is dated 6th March 1960. Annexure 'K' runs as follows:
'GOVERNMENT OF MYSORE
(Department of Statistics)
N P. C. 127-29
Sri M.A. Wali, M.A., B.Sc., Office of the State Statistician. State Statistician for Mysore, Vidhana SoudhaBangalore, Dated 16th March 1960 CONFIDENTIAL
An extract from Notification No. P and D. 80 PST 59, dated 5th March 1960, from the Planning and Development, Government of Mysore, intimating the following decision of the Government is noted below for your information.
* * * *
(ii) As the latest confidential reports of Sarva Shri............M. Ramaiah................... are not favourable, their claims may be passed over for the present and their work may be watched for one year and their fitness assessed after the end of that period.
* * * *
Sd/ (M. A. WALI)
Shri M. Ramiah,
Central Statistical Organisation,
'B' Barracks, Janapath,
It is seen from what is stated in Annexure 'K' that the reason for the reversion of the petitioner was that the latest confidential reports in respect of the petitioner were not favourable. It is unnecessary to refer, in detail, to the representations made by him to the higher authorities, proved to be of no avail. Then, the petitioner filed a writ petition, in W.P. 42 of 1962 on the file of this Court, complaining against the order of his reversion and praying for the restoration of his seniority in accordance with the order of his promotion as per Annexure 'H'. During the pendency of that writ petition, the petitioner was appointed as an Assistant Statistician (Gazetted). Consequent on that appointment, that writ petition was dismissed, however, with the observation that in regard to the question of his seniority, the petitioner may make representations to the Government and that in the event of his representations to Government not being successful, he may again approach this Court.
(2) The representations made by the petitioner not having proved successful, he has now approached this Court, by means of the present writ petition. The petitioner seeks for the quashing of the order of reversion as per Annexure 'J'. He has also prayed for the restoration of his seniority on the basis of the Government Order as per Annexure 'H'. Sri Rangaswami Iyengar has appeared for the petitioner and Sri Mahendra, the High Court Government Pleader for the State.
(3) In so far as the restoration of the seniority of the petitioner is concerned, we may mention at this stage alone, that we do not propose to enter into that question; because, the other persons who are likely to be affected by the decision of that question, have not been impleaded in this writ petition. But, that will not be an impediment for our considering the legal validity of the Government Order as per Annexure 'J'.
(4) The fact that the petitioner was reverted from his officiating post as Assistant Statistician (Gazetted), has not been denied on behalf of the State. The fact that the reason for such reversion is the one furnished in Annexure 'K' has also not been denied by the learned High Court Government Pleader. Nor has it been denied that the requirements of Art. 311 of the Constitution have not been complied with in the present case. But what has been sought to be contended by Sri Mahendra is, that this reversion of the petitioner was not by way of punishment and as such, it would not attract the provisions of Art. 311 of the Constitution. From what has been stated by learned High Court Government Pleader, it would appear that the Public Service Commission had been constituted about the proposal to promote the petitioner and certain others, to the posts of Assistant Statisticians and that pending the receipt of the opinion of the Public Service Commission, the petitioner had been promoted. It is further stated by the learned High Court Government Pleader that the Public Service Commission, taking into consideration the fact that the latest confidential reports in respect of the petitioner were not favourable to him, was of the opinion that the petitioner's claim for promotion may be overlooked and that his case might be considered again after the lapse of one year. It is stated on behalf of the State, that it was in consequence of having received this opinion of the Public Service Commission, that the Government passed the order as per Annexure 'J'.
(5) Mr. Government Pleader tried to persuade as to take the view that the reversion of the petitioner as per Annexure 'J', was not a punishment and that, therefore, there was no necessity to comply with the provisions of Art. 311 of the Constitution, in the matter of giving an opportunity to the petitioner to show cause against his being reverted to the post of Senior Statistical Assistant. It was also sought to be contended on behalf of the State, that the said reversion of the petitioner did not amount to a reduction in rank for the purpose of Art. 311. We are unable to agree with these contentions, having regard to the relevant circumstances in the case. Undoubtedly, the reversion of the petitioner was not due to any administrative reason, like the return of a senior officer in whose absence the petitioner had been officiating, or the abolition of posts necessitating the reversion from a higher officiating post to a lower substantive post. In the present case, as has been made clear in Annexure 'K', the reversion of the petitioner is due to the fact that 'the latest confidential reports..... are not favourable.' It is therefore, clear that even though there was a vacancy in which the petitioner could have continued to officiate, he was reverted on the ground that the latest confidential report was no favourable while his juniors continued to officiate in the higher posts.
Mr. Government Pleader put his contentions, in the following manner. If the report of the Public Service Commission had been received by the time the case of the petitioner for promotion was being considered, the petitioner would not at all have been promoted, in view of the adverse opinion of the Public Service Commission. The petitioner would have had no right to complain against his non-promotion. As that report was received subsequent to the promotion given to the petitioner on an officiating basis, all that the State has done, is merely to have acted as if that promotion had not been made. We do not think that this is a sound contention. Because, even though it may have been open to the State not to have promoted the petitioner whatever good reason, the fact remains that by the time the report of the Public Service Commission was received, the petitioner had factually been promoted on an officiating basis. Therefore, it was not open to the State to ignore the fact of the petitioner having been promoted and proceeded to act as if there was no promotion at all. In other words, when the petitioner had already been promoted, any action by way of reversion resulting in reduction of his rank, could have been only in accordance with the provisions of Art. 311 of the Constitution.
The argument of Mr. Government Pleader is that compliance with Art. 311(2) was unnecessary as this reversion was not intended to be a punishment. We are unable to agree with this contention, having regard to the fact that the reversion has actually resulted in the reduction of the rank of the petitioner. As already stated above, the reversion was not necessitated by any administrative necessity. In this connection, Sri Rangaswami Iyengar the learned Advocate for the petitioner stated in the course of his arguments, that the said unfavourable reports, had not at all been brought to the attention of the petitioner, as required under the petitioner did not at all have any opportunity to show cause against his reversion from the higher post of an Assistant Statistician to his substantive lower post of Senior Statistical Assistant. The argument of Mr. Government Pleader is that in every case of reversion from a higher officiating post to a lower substantive post, the Government servant concerned will necessarily be losing emoluments of the higher officiating post and that, therefore, the loss of such emoluments cannot be considered to be a penal or evil consequence. It is argued by him that in order to view the reversion as amounting to punishment, the Government servant concerned must be shown to have suffered some detriment in the substantive cadre to which he reverted.
In this connection, reference may be made to the Supreme Court decision in Parshotam Lal Dhingra v. Union of India, reported in : (1958)ILLJ544SC S.R. Das, C.J. has stated as follows:
'If the Government servant has right to a particular rank, then the very reduction from that rank will operate as a penalty for he will then lose the emoluments and privileges of that rank. if, however, he has no right to particular rank his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression 'terminate' or 'discharge' is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which give protection to Government servants have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.'
From what has been stated by the Supreme Court in the above passage, it is clear that if the order of reversion entails the postponement of the Government servant's future chances of promotion, then, such reversion must be only after compliance with the provisions of Art. 311 of the Constitution. Again, in the case of P.C. Wadhwa v. Union of India, reported in : (1964)ILLJ395SC . it is stated at pp. 430-431 as follows:
' In the case before us the appellant has not merely suffered a loss of pay which was inevitable on reduction in rank but he has also suffered loss of seniority as also postponement of future chances of promotion of the senior scale. A matter of this kind has to be looked at from the point of view of substance rather than of form. It is indeed true, as was pointed in Parshotam Lal Dhingra's case, : (1958)ILLJ544SC that the motive operating on the mind of the Government may be irrelevant; but it must also be remembered that in case where Government has by contract or under the rules the right to reduce an officer in rank, Government may nevertheless choose to punish the officer by such reduction. Therefore, what is to be considered in a case of this nature is the effect of all the relevant factors present therein. If on a consideration of those factors the conclusion is that the reduction is by way of punishment involving penal consequences to the officer, even though Government has a right to pass the order of reduction, the provisions of Art. 311 of the Constitution are attracted and the officer must be given a reasonable opportunity of showing cause against the action proposed to be taken against him. Our conclusion is that in the present case the appellant was reverted by way of punishment, but he was given no opportunity of showing cause against the action proposed to be taken against him. Therefore, the order of reversion, dated November 3, 1958 was in violation of the provisions of Art. 311 of the Constitution.'
Therefore, all the relevant factors have got to be considered, for finding out as to whether even in the case of a Government servant who is holding an officiating post, an order of reversion to his lower substantive post, does or does not amount to reduction in rank. In the present case, there was no indication in the order of promotion that it was subject to the concurrence or opinion of the Public Service Commission; in the order of reversion itself, there was no mention of the fact that it was due to the opinion of the Public Service Commission, that the Government passed the order of reversion; as a matter of fact, we do not find from the records made available to us by Mr. Government Pleader, that the Public Service Commission had been consulted at all, by the Government on the specific question as to whether the petitioner who had already been promoted, should be reverted; the advice of the Public Service Commission was not, in fact, to the effect that the petitioner should be reverted; it was not in consequence of any finding by any appropriate authority to the effect that the petitioner was not fit to continue in his officiating post, that the order of reversion was made; the order of reversion resulted in a detriment to the petitioner, beyond the mere deprivation of the higher emoluments in his officiating post; because, from Annexure 'K' it is seen that for a period of one year during which his work would be assessed, the petitioner could not have any promotion; thus, there was postponement of his promotion from his substantive post; further, serial Nos. 4, 5, 6 and 7 shown in Annexure 'H' who were undisputedly juniors to the petitioner, became his seniors in consequence of this reversion.
The cumulative effect of all these circumstances must be taken into consideration for determining whether this order of reversion amounts to a reduction in rank for purposes of Art. 311 of the Constitution. Having regard to the penal consequences involved and on a consideration of the above factors, we are satisfied that the reversion of the petitioner amounts to a reduction in rank for purposes of Art. 311 of the Constitution. The petitioner not having been given a reasonable opportunity to show cause against such reduction in rank, the order of reversion as per Annexure 'J' is illegal and is liable to be struck down. We accordingly quash that order, in so far as it adversely affects the petitioner.
At the request of Mr. Rangaswami Iyengar the learned Advocate for the petitioner, we make it clear that the question of the relative seniority as between the petitioner and his juniors who have been promoted in the order as per Annexure 'H' is left open, the petitioner being at liberty to make such representations as he may consider necessary to the Government, or to pursue such further course of action as may be available to him in law.
(6) In the circumstances of the case, we make no order as to cots.
(7) Order accordingly.