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V. Sivakamayya Vs. Secretary to Government of India, Department of Communications (Posts and Telegraph Board), New Delhi and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 717 of 1965
Judge
Reported inAIR1968AP283; (1969)IILLJ485AP
ActsConstitution of India - Articles 226, 311 and 311(2); Posts and Telegraphs Manual - Rules 26 and 153A; Prevention of Corruption Act - Sections 5
AppellantV. Sivakamayya
RespondentSecretary to Government of India, Department of Communications (Posts and Telegraph Board), New Delh
Appellant AdvocateS.V. Kondapi, Adv.
Respondent AdvocateE. Monohar, Adv. for ;K. Ramachandra Rao, Standing Counsel and ;3rd Govt Pleader
DispositionPetition dismissed
Excerpt:
.....service will give no claim to any one to such promotion. rule 26 of the general rules relating to promotion to higher posts including the promotion from postal superintendents, service class ii to class i is to the effect that selection should be from the best officers in the department, seniority being regarded only where other qualifications are practically equal. it is not in dispute that the petitioner was promoted to officiate in indian postal service class i having regard to the reservation of 25% of the vacancies for the best officers of class ii service and rule 26 of the general rules of service was also taken into consideration for his promotion. 'further he also suggested that before the petitioner was reverted to the post of the inspector of income tax he should be given a..........taken as the postal union hyderabad branch was prejudicially disposed against the then director of postal services, one rahimuddin ahmed, who is said to be a friend of srimati lal and that rahimuddin ahmed had taken credit for getting his friend a pass in the test and that he is not responsible for whatever claims rahimuddin ahmed made regarding the valuation of the papers of srimati lal.3. the respondents filed a counter admitting that the statement made by the petitioner regarding the valuation of the answer books of the lady clerk was substantially correct and that the statement of the petitioner that the postal union was waiting for an opportunity to scandalise rahimuddin ahmed is not true and not also relevant for the purpose of this petition, but it was a fact that there was.....
Judgment:
ORDER

1. The petitioner, a Postal Superintendent filed this writ petition under Article 226 of the Constitution for the issue of a writ of certiorari or any other appropriate writ or direction calling for the records connected with the proceeding No. 3/22/63-SPA dt. 1-1-1965 of the Secretary to Government of India. Department of Communications. (Posts and Telegraph Board). New Delhi, and quash the proceedings.

2. The petitioner joined the Postal department as a clerk in Class III Service in 1937 and was promoted to Class II in 1952 and posted as Postal Superintendent. Class II Cadres. In July, 1962 he was promoted to officiate as Senior Superintendent of Post Offices in Class I and posted to Visakhapatnam. In 1963. he was appointed as examiner to value certain answer books pertaining to Savings Bank Incentive Test and after correcting the answer books he returned them to the Deputy Director (Staff) of the Office of the Post Master General, Hyderabad. The valuation of the answer books was done uniformly without any discrimination but the second respondent the Post Master General. Andhra Pradesh however issued a memo dated 17-4-64 alleging that the petitioner was unduly Liberal in valuing the answer books of one Srimathi Lal and went out of the way in giving more marks than her answers deserved. A re-valuation of her answer paper was ordered and that revealed that she deserved only 43% as against 62 per cent given by the petitioner. The Post Master General remarked that 'such a wide disparity' casts reflection on the integrity of the Officer and he is considered unsuitable to hold a Class I post.

Aggrieved by the communication sent by the Post Master General, the petitioner submitted an appeal to the Director General of Posts and Telegraphs New Delhi These remarks it is alleged were made without affording any opportunity to the petitioner to explain himself. There is no provision to the departmental rules for revaluation of the answer papers and that so far as his valuation was concerned it was done fairly as he was impressed with the answers in the answer books and he had not gone out of the way to give the concerned lady more marks than she deserved. Subsequent to the memo served on him the petitioner was reverted by the impugned proceedings and posted to his substantive post as Postal Superintendent in Class II Service Assam Circle. It is this reversion to his substantive post that is challenged by the petitioner on the ground that it operates as a punishment depriving him of the emoluments and other benefits of class I Service and that he has not been given an opportunity as required under Article 311 of the Constitution before ordering this reversion. According to him the action was taken as the Postal Union Hyderabad Branch was prejudicially disposed against the then Director of Postal Services, one Rahimuddin Ahmed, who is said to be a friend of Srimati Lal and that Rahimuddin Ahmed had taken credit for getting his friend a pass in the test and that he is not responsible for whatever claims Rahimuddin Ahmed made regarding the valuation of the papers of Srimati Lal.

3. The respondents filed a counter admitting that the statement made by the petitioner regarding the valuation of the answer books of the lady clerk was substantially correct and that the statement of the petitioner that the Postal Union was waiting for an opportunity to scandalise Rahimuddin Ahmed is not true and not also relevant for the purpose of this petition, but it was a fact that there was correspondence between the Director of Postal Services and the lady clerk regarding the test and that photostat copies of the correspondence had appeared in the Employees Union Journal 'Andhra Post' in its issue in May 1963. It is the Union that brought the matter to the notice of the authorities and the answer papers of the four candidates from Kurnool Centre and the answer papers of the candidates from other centres were revalued by the Director (Savings Bank) P. & T. Directorate New Delhi, who had set the paper and on re-valuation he found that the lady in question deserved only 43% while the qualifying mark for pass in that test was 50% and therefore it is evident that but for the fact the petitioner was over-liberal the candidate could not have secured 62%. The department in order to find out the truth or otherwise of the allegations made by the Postal Union ordered re-valuation The department took into consideration all relevant factors and after the Director General scrutinising the case of the petitioner reverted him on account of his adverse confidential remark and bad work. There is no provision in the departmental instructions that an officer should be given an opportunity before an entry if made in the confidential reports. After an adverse entry was made under the departmental instructions the entry was communicated to the petitioner and the petitioner made representation relating to the adverse remarks made against him.

The remarks were based on an overall assessment of the work of the petitioner and the Post Master General and the Director General P. & T. were fully satisfied that the remarks were justified and the procedure prescribed under the departmental instructions was followed. The petitioner Was found unsuitable to hold Class I post and therefore he was posted to his substantive post in Class II and the reversion was based upon the recommendation of a duly constituted departmental promotion Committee which considered the suitability or otherwise of the petitioner to hold Class I post and he was found unfit to hold Class I post not only for the reason that he favoured an examinee but also because of the over all assessment of his work and efficiency. The Committee consisted of a Member of Union Public Service Commission the Director General, P. & T. and Member of the P. & T. Board and it came to the conclusion that 'the petitioner was unsuitable to be retained in Class I service and the reversion is purely an administrative act within the competence of the respondent and the departmental promotion committee and is not liable to be challenged in these writ proceedings. It is further adverted that when the petitioner was appointed to a higher post in an officiating capacity he did not acquire any legal right to hold that post for any period whatsoever and the reversion to his substantive post does not amount to reduction in rank. No change in his rank or seniority in the substantive post has been made as is evident from the impugned order and there is no stigma attached to the petitioner on account of his reversion. The provisions of Article 311 of the Constitution are not applicable to the facts of the case. He had adequate opportunity to represent against the adverse remarks to the appropriate authorities.

4. Mr. Kondapi, the learned counsel appearing for the petitioner argued that the reversion of the petitioner to his substantive post in Class II service has deprived him of his emoluments and other benefits of Class I service, which have a penal effect and the competent authority has violated the mandatory provisions of Article 311(2) of the Constitution by not affording him an opportunity to explain in defence before he was reduced in rank. It is also contended by Mr. Kondapi that this reversion has permanently debarred the petitioner from being considered for future promotion and thus operated as a punishment with stigma attached to it.

5. The learned Central Government Advocate pointed out that the petitions had no right as such to a Class I post that the order of reversion is an administrative act and that mere reduction in rank to his substantive post maintaining his seniority in the substantive rank is not a punishment and the reduction has not visited the petitioner with any penal or evil consequence.

6. Therefore the questions that arise for consideration in this petition are whether the petitioner is entitled to be continued in Class I service with the privileges and emoluments attached to that rank and whether his reversion or reduction to his substantive post in Class II service operates as a punishment with all penal consequences and whether he is entitled to protection under Article 311(2) of the Constitution. Admittedly the petitioner was holding a substantive post in Class II service from 1954 onwards till he was promoted on 1-7-62 to a Class I post to officiate as Senior Superintendent of Post Office and posted to Visakhapatnam. Recruitment and appointments to Indian Postal Service, Class I are governed by Special rules and rule 153-A of the Posts and Telegraphs Manual reads:

Sources of Recruitment: 'Recruitment to the Indian Postal Service, Class I will be made in the following proportion:

(i) Seventy five per cent of the vacancies will be filled by direct recruitment in India by a Competitive Examination held by the Union Public Service Commission.

(ii) Twenty five per cent of the vacancies will be filled by the Government of India by selection of the best officers from the Postal Superintendents Service Class II on the recommendations of the Union Public Service Commission seniority in that service will give no claim to any one to such promotion.

Rule 26 of the General Rules relating to promotion to higher posts including the promotion from Postal Superintendents, Service Class II to Class I is to the effect that selection should be from the best officers in the Department, Seniority being regarded only where other qualifications are practically equal. It is not in dispute that the petitioner was promoted to officiate in Indian Postal Service Class I having regard to the reservation of 25% of the vacancies for the best officers of Class II service and Rule 26 of the General Rules of Service was also taken into consideration for his promotion. He officiated in Class I service and drew increments till he was reverted by the Government of India by the impugned order dt. 1-1-1965 The order reads.

'The President is pleased to decide that Shri V Sivakamaiah an officer officiating in the Time Scale of the Indian Postal Service, Class I (Rs. 400/1250) and now working as Sr. Superintendent R. M S 'C' Division Gaya, should be reverted to his substantive post in the P S. S. Class II. The Postmaster-General Patna should make arrangements to relieve Shri Sivakamaiah immediately without waiting for a substitute. On reversion. Shri Sivakamaiah has been posted to Assam Circle in Postal Superintendents' Service. Class II.

Mr. Kondapi does not question the jurisdiction or competence of the Government of India to revert or reduce an officer to a substantive post of a lower rank but he challenges the reduction in rank without affording a reasonable opportunity to the petitioner to defend himself as in reversion according to him is in the nature of a punishment. In support of his contention Mr. Kondapi invited my attention to a judgment of the Supreme Court in Madhav v. State of Mysore, : [1962]1SCR886 . In that case one M was holding the rank of a Mamlatdar in the First Grade and was officiating as a District Deputy Collector. Subsequently 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 in force thus affecting his place in the Selection Grade. Their Lordships of the Supreme Court held that mere deprivation of higher emoluments as a consequence of reversion cannot amount to the 'evil consequences' referred to in the second test in Parshotam Lal Dhingra v. Union of India, : (1958)ILLJ544SC but as a result of the order of reversion M lost his seniority as a Mamlatdar in his substantive post. Therefore the Supreme Court held '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 : (1958)ILLJ544SC . The present case differs from the case which came up for consideration before the Supreme Court as the reversion of the petitioner to Class II Service has not visited him with any evil consequences which made him lose his seniority or his original rank in his substantive post in the Indian Postal Service, Class II.

7. The next decision called in aid by Mr. Kondapi is the case of Jagdish Mitter v. Union of India, : (1964)ILLJ418SC . Gajendragadkar, J. as he then was speaking for the court held that when the order referred to the fact that the servant was found undesirable to be retained in Government Service, it expressly cast a stigma on the servant and in that sense must be held to be an order of dismissal and not a mere order of discharge, that is to say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him that in the first case a stigma attaches to the servant while in the second case termination of service is due to the consideration that a temporary servant need not be continued and in that sense no stigma attaches to him that anyone who reads the order in a reasonable wav would naturally conclude that the servant was found to be undesirable and that must necessarily import an element of punishment which was the basis of the order and was its integral part that when an authority wants to terminate the services of a temporary servant it can pass a single order of discharge without casting an aspersion against the temporary servant or attaching any stigma to his character. Their lordships in that case were dealing with an order of discharge of a temporary servant in the office of the Post Master General at Ambala wherein it was stated that 'Shri Jagdish Mitter a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a month's notice of discharge with effect from November, 1, 1949,' This case cannot also help the petitioner as no aspersions were cast against the conduct of the petitioner in the impugned order nor is there anything to suggest from a reading of the order that the Government of India intended to cast any aspersion against the petitioner and all that it stated in the order is that the petitioner should be reverted to his substantive post in Class II.

8. The next case cited by Mr. Kondapi is the case of Ved Parkash v. State of Punjab, AIR 1965 Punj 28. That is a case where the services of a Government servant were terminated when a charge against him under Section 5 of the Prevention of Corruption Act was pending determination in a Criminal Court. It was therefore held that the stigma resulting in termination of his services on account of criminal prosecution remained and fairness required that it should be removed and that the order of discharge in substance and in effect amounted to an order of dismissal and there was no compliance with the mandatory provisions of Article 311(2) of the Constitution. The nature and character of that case is different from the case of the petitioner in this case as it is not a case of dismissal nor is it due to any prosecution of the petitioner in any criminal proceeding.

9. Mr. Kondapi also relied upon another decision of the Punjab High Court in Dhaba v. Union of India, where a Government servant was reduced from an officiating rank and in that case it was held that the reduction operated as a penalty as reduction visited with penal consequences. Sharma J. held on the facts of that case that the Commissioner of Income-tax was largely influenced by the complaints received against the petitioner about his honesty while coming to the conclusion that he was not suitable for the post of Income Tax Officer. 'Further he also suggested that before the petitioner was reverted to the post of the Inspector of Income Tax he should be given a notice also mentioned in his letter that the Chairman of the Departmental Promotion Committee had recommended a similar action. These facts showed that the Commissioner, Income Tax, the controlling authority had in his mind to revert the petitioner by way of punishment and therefore desired to serve him with a notice. That the petitioner was allowed to work as Income Tax Officer for more than four years showed that his suitability for the higher post had been adequately determined. The petitioner's reduction in rank was not innocuous and was by way of punishment and therefore the provisions of Article 311 of the Constitution were attracted.' It should not be forgotten that so far as that case is concerned the learned Judge was of the view that the controlling authority had prejudged the case and that he wanted to revert the petitioner by way of punishment and therefore caused a notice to be served.

10. Whether the reduction in rank was innocuous or by way of punishment has to be gathered from the material placed in each case and this decision will not avail the petitioner as there is no allegation that the authorities when they communicated the adverse remarks to the petitioner had already made up their mind to revert him to permanent rank. Under Rule 153-A, appointments to Class 1 are made on the recommendation of the Union Public Service Commission and in this case it is not the Post Master General that ordered the reversion but the reversion is made by the Government of India in the name of the President. The petitioner offered his explanation when adverse remarks made against him were communicated to him and made representations to the Director General of Post and Telegraph and thereafter the President of India and his representations were turned down by them. The reversion of the petitioner to Class II post was based on the recommendations of the duly constituted Departmental Promotion Committee consisting of a Member of the Union Public Service Commission as Chairman, Director General Posts and Telegraphs and Member of P&T; Board. This Committee had come to the unanimous conclusion that the petitioner was unsuitable to be retained in Class I post. Therefore the question of attributing any motive to the Departmental Promotion Committee that it had already in its mind to revert the petitioner does not arise.

11. It may be relevant to bear in mind the tests laid down by their Lordships of the Supreme Court in the off-quoted Dhingra's case, : (1958)ILLJ544SC Das, C. J. speaking for the majority laid down the tests when termination of service or reduction in rank amounts to punishment.

'Shortly put the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment express or implied or under the rules governing the conditions of his service the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post as where he is appointed to a post permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot therefore by itself be a punishment.

In other words and broadly speaking Article 311(2) will apply to those cases where the Government servant had been employed by a private employer will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way if the Government has by contract, express or implied or under the rules the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is prima facie and per se not a punishment and does not attract the provision of Article 311.

A reduction in rank likewise may beby way of punishment or it may be an innocuous thing. If the Government servanthas a right to a particular rank, then thevery reduction from that rank will operateas a penalty for he will then lose theemoluments and privileges of that rank. Ithowever he has no right to the particularrank, his reduction from an officiatinghigher rank to his substantive lower rank willnot ordinarily be a punishment. The realtest for determining whether the reductionin such cases is or is not by way of punishment is to find out if the order for thereduction also visits the servant with penalconsequences. '

It was further observed.

'Thus in each case the court has to apply the two tests (1) Whether the servant had a right to the post or 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 Article 311 which give protection to Government servant have not been complied with termination of service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant'

12. In the case which came up for consideration before their Lordships, the petitioner Dhingra was appointed to a higher post on an officiating basis having been selected for appointment to Class II Service. Subsequent to that some adverse remarks against him were made in the confidential reports by his superiors and those remarks were placed before the General Manager. The General Manager wrote: 'I am disappointed to read these reports. He should revert as a subordinate till he makes good the short comings noticed in this chance of his as an officer. Portions underlined red to be communicated.' Their Lordships held on the facts of that case that the petitioner was appointed to a higher post on an officiating basis and that he had no right to continue in that post and therefore his reduction did not operate as a forfeiture of any right and could not be described as reduction in rank by way of punishment and that the provisions of Article 311(2) were not therefore attracted to the case. The facts in the instant case are strikingly similar to the facts referred to by their Lordships in Dhingra's case, : (1958)ILLJ544SC .

The Supreme Court again in State of Bombay v. F. A. Abraham, : (1963)IILLJ422SC held that a person officiating in a post has no right to hold it for all times that he may have been given the officiating post because the permanent incumbent was not available having gone on leave or being away for some other reasons that when the permanent incumbent comes back the person officiating is naturally reverted to his original post that this is no reduction in rank for it was the very term on which he had been given the officiating post that again sometimes a person is given an officiating post to test his suitability to be made permanent in it later that there again it is an implied term of the officiating appointment that if he is found unsuitable he would have to so back that if therefore the appropriate authorities find him unsuitable for the higher rank and then revert him back to his original lower rank the action taken is in accordance with the terms on which the officiating post had been given that it is in no way a punishment and is not therefore a reduction in rank when the reversion has not in any way affected him so far as his condition and prospect of services are concerned and that he of course loses the benefit of the appointment to the higher rank but that by itself cannot indicate that the reversion was by way of punishment because he had no right to continue in the higher post or to the benefits arising from it. It is on the strength of this decision that the learned Central Government Advocate argued that the suitability of the petitioner was decided during the period he was officiating in a Class I post and when it was found that he was unsuitable to that post during the period of probation he was reverted back to his substantive post and his reduction has not operated as a punishment as his seniority or emoluments were not in any way affected.

13. Mr. Kondapi next argued that this reduction has resulted in his being permanently overlooked or considered suitable for promotions in future and therefore it is in the nature of a punishment. There is nothing in the impugned order to suggest that the petitioner has been permanently debarred for ever or that the Committee had decided not to consider the case for future promotions. Promotions are made by a Committee presided over by a Member Union Public Service Commission and each case is decided on its merits having regard to Rule 153-A of the special rules and Rule 26 of the General Rules of the Manual. Satyanarayana Raju J. in Divisional Personnel Officer v. S. Raghavendrachar, : (1967)ILLJ401SC who spoke for the Constitution Bench of the Supreme Court after considering Abraham's case, : (1963)IILLJ422SC , Dhingra's case, : (1958)ILLJ544SC and Vaikunthe's case, : [1962]1SCR886 and also some decisions of the High Courts held that it may be taken to be settled by the decisions of the Supreme Court that since Article 311 of the Constitution of India makes no distinction between permanent and temporary posts, its protection must be held to extend to all Government servants holding permanent or temporary posts of officiating in any of them but that protection is limited to the imposition of the three major penalties contemplated by the service rules, viz., dismissal or removal or reduction in rank, that one test for determining whether the termination of service was by way of punishment or otherwise is to ascertain whether under the service rules but for such termination the servant has the right to hold the post and that the reversion of the respondent to his substantive post notwithstanding that his junior was retained in the higher post did no1 amount to a reduction in rank and the provisions of Article 311 were not attracted that the respondent's rank in the substantive post i.e., in the lower grade was in no way affected by the reversion that in the substantive grade the respondent retained his rank and he was visited with no penal consequences and that once it was accepted that the respondent had no right to the post to which he was provisionally promoted there can be no doubt that his reversion did not amount to a reduction in rank.

14. Therefore, the petitioner has no right as such to hold the post in Class I service and his promotion to officiate in Class I service was only to test his suitability or otherwise for being retained in Class I service and the promotion committee on a review or consideration of his work came to the conclusion that he was not suitable for being continued in Class I service and reverted him to his substantive post in Class II retaining his seniority of rank with no penal consequences as his emoluments and other benefits in Class II were not touched and it is not his case that they are in any way affected. Therefore the reduction of the petitioner to Class II, Indian Postal Service is not a punishment and he was not visited with any penal consequences and therefore the provisions of Article 311 are not attracted.

15. In the result the writ petition isdismissed with costs. Advocate's fee Rupees100/-.


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