1. This la a petition under Article 226 of the Constitution of India for the issue of a writ of certiorari or any other appropriate writ or direction to quash the order of the respondent 1 made in G.O. Ms. No. 2315, Education, dated 4 October 1056, confirming the order of the respondent 2, dated 9 November 1955, and to give a consequential direction to reinstate the petitioner in grade I.
2. The petitioner is a Hindi pandit in Board High School, Kovvali, West Godavari, and, therefore, an employee of the respondent 3, the District Board of West Godavari represented by the Special Officer. He states that he was appointed as a teacher on 9 February 1937, that in 1939 be obtained a diploma in Rashtra Bhasha Examination of Dakshina Bharat Hindi Prachar Sabha and that by an order dated 9 December 1941 his services were confirmed as a Hindi pandit with effect from 26 September 1940. By proceedings dated 2 October 1949 the Special Officer of the District Board, West Godavari, acting in pursuance of G.O. No. 996, Education, dated 6 April 1949, placed the petitioner along with four others in grade I of the Hindi teachers with effect from 1 January 1949 on the scale of Rs. 60-4-120. So it transpires that with effect from 1 January 1949 the petitioner was placed in grade I. From the language of that order there is nothing to indicate that the placing of the five teachers therein mentioned was on a temporary or an officiating basis.
3. On 27 February 1953 the President of the District Board, West Godavari, passed the following order:
Under Sub-rule 2(b) of Rule 8 of the rules issued in G.O. No. 2342, L.S.G., dated 2 June 1936, as subsequently amended, Sri G. Narasimha Rao, grade I Hindi pandit, Board High School, Kovvur, is hereby declared to have satisfactorily completed his period of two years' probation within a continuous period of three years by the end of 31 December 1950.
Sri G. Narasimha Rao is also granted the periodical increments earned by him on 1 January 1951 and 1 January 1952 raising his pay from Rs. 64 to 68 and 72 per month respectively in the scale of Rs. 60-4-120.
4. It is not in dispute that the petitioner was drawing the increment. Some of his colleagues would appear to have felt aggrieved by the orders of the President of the District Board of West Godavari above referred to and made representations to the conoerned authorities. It is not clearly indicated in the proceedings of the Director of Public Instruction, dated 9 November 1955, that the said order was made as a result of any appeal filed by any of the aggrieved parties. I am, however, prepared to assume that that order was made because of the appeals or representations by the petitioner's colleagues. That order ex facie shows it was made consequent upon a communication dated 2 April 1954 by the Special Officer, District Board, West Godavari. The Director of Public Instruction in that order states:
With reference to the statement of particulars furnished by you, and with reference to the dates of first appointment, the position of the Hindi pandits referred to in your letter quoted above will be as follows and their ranks may be fixed accordingly.
As a result of that direction the petitioner who was No. 3 in the list in grade I was demoted to the rank No. 8. The Director of Public Instruction further ordered that the petitioner may be reverted immediately from his present grade I post to grade II post and in his place Sri G. Manyam may be promoted to grade I. It was further ordered that the service put in by the petitioner till the date of his reversion will not be counted for the purpose of probation, seniority, etc., in grade I. This direction was communicated to the petitioner on 13 December 1950. At that time he was drawing a salary of Rs. 84 in the grade I on the scale of Rs. 60-4-120. As a result of his demotion to rank 8 and reversion to grade II, his salary was reduced to Rs. 59 thus causing the petitioner a loss of Rs. 25 per mensem.
5. The petitioner filed an appeal to the Government which was dismissed on 4 October 1956. The order of the Government is laconic and brief in the extreme. It merely states:
The appeal is rejected.
In cases of this kind where appeals are filed, it is desirable that the orders of the appellate authority should show that the appellate authority had at least applied its mind to the real points of complaint. I do not say that the Government did not actually apply its mind. But it must also be apparent that it did so. It is an aphorism which does not lose its validity by constant repetition that justice should not only be done bat seen to be done. Further, on the dismissal of his appeal, the petitioner would appear to have filed an application for review, which is stated to be still undisposed of. The petitioner's main complaint is that the order passed by the Director of Public Instruction on 9 November 1955 and which was implemented by the Special Officer constitues a reduction of his rank in the service which is wholly illegal and uncalled for, and that it had been done in contravention of the rules of procedure relating to the disciplinary enquiries of the district board and municipal employees.
6. On the contrary, the case of the Government is that the placing of the petitioner in grade I by the Special Officer in his order dated 24 October 1949 was in violation of the rules and irregular. It is stated that the petitioner though appointed as Hindi pandit on 9 February 1937 was not then fully qualified and he was given a period of one year to qualify himself, and that after he passed the Visarad examination in December 1939, he was reappointed in the district board on 4 March 1940. It is therefore suggested that the petitioner's service in the district board prior to 4 March 1940 was irregular and could not be taken into account for fixing the seniority. It is suggested in the counter-affidavit that the order placing the petitioner in grade I was an error and the rectification thereof does not amount in law to a reduction ill rank or a punitive act.
7. The short question in this case is whether the order of the Director of Public Instruction dated 9 November 1955 reverting the petitioner from grade I to grade II is a redaction in rank.
8. Under Section 70(2) of the Madras District Boards Act, the executive authority of a district board has the power to censure, fine, withhold promotion from, reduce, suspend, remove or dismiss any officer or servant of the district board except the District Engineer or the District Health Officer for any breach of departmental rules or discipline, or for carelessness, unfitness, neglect of duty or other misconduct. It is not the case of the respondents that the order impugned was passed for any one of the reasons mentioned in Section 72 of the Madras District Boards Act.
9. The learned Government Pleader contends that the order passed on 9 November 1955 by the Director of Public Instruction is nothing more than an administrative order correcting an error made earlier and refixing the seniority of the teachers with reference to the period of service. It is argued that no employee has a vested right in a promotion and if by refixing of rank of the employees in a particular grade he loses a seniority, that is certainly not justiciable in a Court of law. In support of the above contention he placed strong reliance on the decision of the Madras High Court in Devasahayam v. State of Madras by Secretary, Home Department (1958) II M.L.J. 379. The learned Chief Justice sitting with Mr. Justice Ramachandra Ayyar held that the reduction in rank referred to in Article 311(2) of the Constitution has application only when it is made by way of punishment and that a mere loss of seniority which results from the readjustment and refixation of seniority inter se between certain officers would not mean the reduction in rank, so as to attract the application of Article 311(2). With the proposition so stated I am in respectful agreement.
10. But the question in this case is whether the order dated 9 November 1955 is refixing of seniority of officers in a particular grade. If the seniority of the petitioner was refixed in grade I, I certainly would not have had any hesitation in accepting the contention of the learned Government Pleader based on the decision in Devasahayam case (supra). But this is not such a case. The petitioner was placed under grade I by an order dated 24 October 1949, with effect from 1 January 1949 in the scale of Rs. 60-4-120. His probation was declared to have been completed satisfactorily on 27 February 1953 and he was also given certain increments, The effect of what is now alleged to be the refixation of seniority is undoubtedly demotion of the petitioner from grade I to grade II, which of course carries lesser pay, and as a matter of fact the demotion has resulted in the petitioner losing about Rs. 25 per mensem in his salary. I am unable to perceive how the demotion of the petitioner consequent upon the order dated 9 November 1955 will not operate as reduction in rank.
11. In Parshotam Lal Dhingra v. Union of India 1958 I L.L.J. 544 at 562, his lordship the Chief Justice of the Supreme Court of India in a pronouncement, which I may with respect say is a locus classicus, has held as follows :
A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a 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 the 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 servant has no title to the post or the rank and 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 for the forfeiture of his pay or allowances or the 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.
12. The petitioner was not placed in grade I on an acting or an officiating basis. He had finished his probation in grade I satisfactorily, and it was so declared by the competent authority by order dated 27 February 1953. It must therefore, in the circumstances, be held that the post he was holding as a teacher in grade I was a substantive post.
13. The learned Government Pleader contends that the order dated 24 October 1949 giving grade I to the petitioner was under a misapprehension and error and that being so, the petitioner must be deemed to hold a substantive pmt only in grade II. I am unable to accept this contention. It is not clear to me how an order which was implemented for nearly six years was suddenly discovered to, be wrong. If, therefore, the petitioner is holding a substantive post in grade I, which is neither officiating nor acting, then the so-called refixing of the seniority has certainly resulted in penal consequences to the petitioner entailing the diminution of pay and the forfeiture of other rights. The learned Government Pleader placed very strong reliance on the observation of the Chief Justice of the Madras High Court in Devasahayam case already referred to above, and in particular to a passage in the judgment of the learned Chief Justice to this effect:
If, however, he has no right to a particular rank, his reduction from an officiating higher rank to substantive lower rank will not ordinarily be a punishment.
In the view I have taken, there is nothing to indicate that the petitioner was acting in an officiating capacity in grade I and that his substantive post was only in grade II. I am unable to see the applicability of the citation.
14. In my view, the order of the Director of Public Instruction as affirmed by the Government in G.O. No. 2315, dated 4 October 1956, is an order that cannot stand. It is a reduction in rank of the petitioner and it has been made in contravention of the procedure prescribed. It is an error of law apparent on the face of the record. Therefore, a writ of certiorari shall issue to quash the order of the Director of Public Instruction dated 9 November 1955 as affirmed by the Government in G.O. No. 2315, dated 4 October 1956, Implemented by the respondent 3. The petitioner is entitled to his costs. Advocate's fee Rs. 100.