R. N. Gurtu, J.
1. This is a petition under Article 226 of the Con-stitution of India, by Radhey Raman Saxena.
2. The petitioner by this petition as was explained to us orally by counsel in effect seeks the following reliefs :
'1. that a writ of certiorari be issued to quash the order of reversion dated 9-2-1956, passed against the petitioner whereby he was reverted from the post of officiating Secretary, Legislative Assembly to his substantive post of Superintendent, Legislative Assembly.
2. that a writ in the nature of certiorari be issued quashing the recommendations made by the Public Services Commission for filling up the post of Secretary Legislative Assembly permanently and a direction to be issued preventing the implementation of the said recommendation by the Government and directing them to implement the Speaker's recommendation regarding petitioner's confirmation to the post of Secretary, Legislative Assembly made before petitioner's reversion.'
2a. The admitted facts are that the petitioner entered Government service on 1-3-1932, when he eas appointed to the post of Assistant Librarian in the Council Library. In 1946 he was permanently appointed to the post of Superintendent of the Legislative Assembly, which is a gazetted post. In 1952 the petitioner was appointed to the temporary post of officer on special duty in the Legislative Assembly.
Thereafter in 1953, he was appointed to officiate in the post of Assistant Secretary, Legislative Assembly, in which post he had also previously officiated from time to time. He was then appointed an officiating Secretary of the Legislative Assembly with effect from 1-4-1955, as: will appear from letter No. 374 (I) XVII-135/55, dated 7-5-1955, which is annexure 6 to the affidavit filed along with the petition. Since this letter has formed the basis of one of Chaudhari Niamatulla's important points, it is necessary to quote it in extenso. It is as follows :
'From Sri J. K. Tandon, B.A., LL.B.,Secretary to Government, Uttar Pradesh.To
The Secretary to the U. P. Legislature, Assembly Department, Lucknow. Legislative Department. Dated Lucknow 7-5-1955.Subject : Appointment on the post of SecretaryLegislative Assembly.Sir,
With reference to the correspondence resting with your confidential D. O. letter dated 3-2-1955, on the above subject and in partial modification of G. O. No. 110/XVII-112/55, dated 12-3-1955, I am directed to say that Sri Rajyapal in consultation with Sri Speaker has been pleased to appoint Sri Aadhey Raman Saxena, temporary assistant Secretary to U. P. Legislative Assembly, to officiate with effect from 1-4-1955, as Secretary to U. P. Legislative Assembly and to allow him pay as may be admissible in the revised scale of pay of Rs. 475-40/675 plus a special pay of Rs. 200/- p.m.' sanctioned in the said G. O. of 12-3-1955 until the present incumbent of the post, Sri. K. G. Bhatnagar who is at present on deputation with the Government of India, retires from the post.
Even after the retirement of Sri Bhatnagar, Sri Saxena will continue to hold the post of Secretary to the Legislative Assembly in an officiating capacity until regular recruitment is made to fill up the vacancy permanently in consultation with the Public Service Commission, Yours faithfully, Sd. J. K. Tondan.'
3. On 23-7-1955, a recommendation was made by the Secretary, Legislature, to the Secretary to the Government, U. P. that the petitioner should be confirmed as Assistant Secretary, but if there was difficulty in his confirmation as Assistant Secretary, he should be confirmed as Secretary, Legislative Assembly with effect from 1-5-1955, the date of retirement of Sri K. C. Bhatnagar, This letter, which is anne-xure 2 to the affidavit filed along with the petition, is important and needs to be quoted wholly :
'FromSri Mithan Lal, B. J. S.Secy. to the Legislature, Uttar Pradesh.To
The Secretary to Government, Uttar Pradesh, Legislative Department, Dated Lucknow July 23, 1955.Sir,
I am directed to address you on the subject of confirmation of Sri R. R. Saksena as Assistant Secretary, Legislative Assembly, with effect from 8-11-1953. Sri Saksena has been working continuously on this post since 24-12-1952 under notification No. 234/XVII-234/1952, dated 29-1-1953, when the services of Sri K. B. Saksena the then permanent Assistant Secretary, were placed at the disposal of the Legislative Council Secretariat. Sri K. B. Saksena was confirmed as secretary, Legislative Council vide Government notification No 2939/ XVII-354-52 dated 29-10-1954, with effect from 3-11-1953.
The post of Assistant Secretary, Legislative Assembly, therefore, permanently fell vacant from 3-11-1953, and it is proposed to confirm Sri R. R. Saksena from that date. Sri R. R. Saksena has however been promoted as Secretary, Legislative Assembly, from April, 1955, and the post of Assistant Secretary has since been vacant; but a proposal has already beensent to Government for the continuance of the post of Assistant Secretary and appointment thereto.
'2. As regards the merits of Sri R. R. Saksena, the Legislative Department has already been informed of them in the proposal for his appointment as Secretary, Legislative Assembly. The same need not be reiterated except for observing that Sri R. R. Saksena is a capable officer. He is the seniormost and very well deserves his confirmation as Assistant Secretary.
3. However if there is any difficulty in his confirmation as Assistant Secretary, Legislative Assembly, my further proposal is that he may be confirmed as Secretary, Legislative Assembly, with effect from 1-5-1955, the date of the retirement of Sri K. C. Bhatnagar. It may be added that Sri Saksena has working knowledge of Hindi of the standard required in the Legislature Secretariat besides all other qualities expected of a Secretary, Legislative Assembly. After the confirmation of Sri R. R. Saksena, action will be taken to confirm his successor Sri D. N. Mithal in the Superintendent's cadre and also to confirm others in the chain of this arrangement.
4. I am therefore to request that Government orders on the subject may kindly be obtained at an early date and communicated to this Secretariat
Yours faithfully Sd/- Mithan Lal Secretary, Legislative.'
4. Then on 6-12-1955, a note was put up by the petitioner to the Hon'ble Speaker of the Legis-lative Assembly who made an endorsement on that date that an expeditious decision should be taken about the confirmation of the petitioner. The note, which is annexure 5 to the counter affidavit of Sri Sripati Sahai, runs as follows :
'Hon'ble Speaker made a recommendation to Government in July last about my confirmation on the post of Assistant Secretary, Legislative Assembly, with effect from the date that post was permanently vacant (Viz. 24-12-1952); but no orders have yet been issued in spite of reminders, There is an apprehension that this post which still exists in the budget (Vol. IV, page 64) may this year be omitted front permanent list, and if revived at all, may be created on a temporary basis which may naturally create complications in my confirmation.
Irrespective of all this, my confirmation is long overdue as I was continuously working as Assistant Secretary since 24-12-1952, throughout on the maximum of its scale of Rs. 925/- and had prior to it also-officiated on that post about half a dozen times. The delay in taking up the question of my confirmation. was obviously due to late issue of Government noti-fication regarding Sri K. B. Saksena's confirmation as Secretary; Legislative Council, who then permanently held this post.
2. I have since been promoted as Secretary, Legislative Assembly from 1-4-1955 on that very pay of Rs. 925/- and Hon'ble Speaker has also recommended my confirmation as Secretary. But I am equally anxious of my confirmation as Assistant Secretary as in that case I will have the advantage of 3 years permanent service on Rs, 925/- for purposes of pension in case of voluntary or premature retirement which cannot be ruled out in the present circumstances particularly because of the serious head injury due to sudden fall while on official duty at Naini-Tal some years back which revives sometimes.
3. I, therefore, beg respectfully to voice my feelings of frustration and despair that in spite of my exceptionally good service history of 24 years, and extraordinary outstanding contributions, such as saving to Government of over a lakh of rupees (certified by Finance Minister and Speaker) another similar contribution in Blitz case (certified by Chairman) even my confirmation on the vacant Assistant Secretary's post (which is a lower post than which I am now holding) could not be arranged during the long 3 years, even when it is Government's declared policy on para 26 of the Report of the Disciplinary Proceedings Enquiry Committee that cases of Exceptional and outstanding work may be deserving of special consideration even otherwise than at the time of promotion and repeated Government assurances to the Legislature that all possible efforts will be made to make Government servants permanent as far as possible.
4. A long period of about 5 months has now passed without any orders regarding my confirmation as Assistant Secretary. I, therefore, pray that Hon'ble Chief Minister's attention may kindly be drawn to this and orders regarding my confirmation on the post of Assistant Secretary from 24-12-1952, may kindly be passed without further delay.
Sd/- R. R. Saksena. H. C. M.
May kindly look into this and expedite decision about confirmation.
Sd/- A. G. Kher 6-12-55 SECY.
This is the note sent to H C. M. on 6-12-55 about which I spoke to Secretary yesterday. This may be kept in the relevant file.
Sd/- R. R. Saksena. 9-12-55
Seen Sd/- Mithan Lal 9-12-55
5. The petitioner's confirmation as recommended however, did not take place as Government decided to make direct recruitment to the -post of Secretary, Legislative Assembly in consultation with the Public Service Commission. This will appear from the letter dated 19-12-1955. It is necessary to quote this letter because it contains a recommendation to the Commission to approve the continued appointment of Sri R. R. Saksena in the officiating post. The letter runs thus :
'No. 3534/XVIII-135/55 Dated 19/12/1955. To The Secretary, U. P. Public Service Commission, Allahabad Subject: Recruitment to the post of Secy., Legislative Assembly and Council, U. P.
I am directed to say that on Sri K. C. Bhat-nagar proceeding on deputation to the Government of India, Sri Radhey Raman Saksena, Assistant Secy., Legislative Assembly was appointed to officiate as Secy., Legislative Assembly, with effect from 1-4-1955 in the above arrangement. Subsequently, while al-readv on deputation, Sri Bhatnagar was retired on 1-9-1955, and Sri Saksena who was then officiating on the said post of Secy., Legislative Assembly was continued to officiate even after Sri Bhatnagar's retirement and is still holding the said post.
Similarly on the retirement of Sri K. B. Saksena, Secy., Legislative Council, Sri P. S. Pachauri, temporary Superintendent, was appointed to officiate as Secretary, Legislative Council, with effect from 15-7-1955 and he is still holding the said post. Since these persons are continuing in an officiating capacity it is considered that a regular appointment to these posts should now be made in consultation with the P. S. C.
2. The service rules relating to the officers and the staff of the Legislative Secretariat are yet underconsideration of Government, but in the matter of appointment of Secretary, Legislative Assembly/ Council the following 'ad hoc' principles have been ultimately decided by the Government in consultation with the Chairman and the Speaker, Legislative Council/Assembly.
(a) The scale of the post of Secy., Legislative Assembly/Council will be Rs. 475-40-675 plus a special pay of Rs. 250/- p.m.
(b) A candidate for appointment to the post must be a law graduate.
(c) He should have at least 7 years standing as-a lawyer or should have at least worked in any legal department of Government or in the Sescretariat of a Legislature for an equal number of years.
Preference, however, shall be given to those who have practical experience of Parliamentary affairs and Legislative Procedure.
(d) He should be between the age of 40 and 50 years, relaxable by Government in appropriate cases.
3. I am therefore to request that the Commission may take action accordingly to make regular appointment to the said posts at a very early date. A draft of the advertisement may also please be sent to Government for approval.
4. In the meantime, pending regular appointment, I am to request that the Commission's appro-val may be accorded to the continued appointment of Sri Radhey Raman Saksena and Sri P. S. Pachauri on the respective posts in an officiating capacity. The character rolls of Sarvasri B. R. Saksena and P. S. Pachauri along with the character rolls of the other two senior officers of the legislature Sectt. viz., Sarvasri Ram Prakash and D. N. Mittal are herewith sent for the perusal of the Commission and early return.
5. A statement showing the qualifications, experience age, etc. of these officers is also enclosed.
Yours etc. Sd/- J. K. Tandem, Secretary.'
6. It appears that at this stage the tide turned against the petitioner arid that the Speaker on 4-2-1956, sent a note to the Chief Minister making a recommendation that the petitioner should be reverted which recommendation was accepted by the Chief Minister who directed that Sri Saksena be reverted as desired bv the Speaker. The note of the Speaker and the Chief Minister run as follows :
'C. M. may kindly see the letter of Secy., Legislative and instances shown by him. This is the second time during the last few years that Sri P. R. Saksena has shown grievous lack of discipline and insubordination. I don't think that ho lacks the capacity to be efficient but I have found that when in the pursuit of his schemes for promotions, he comes across some hurdles, ho is prone to lose balance of mind and is apt to devote most of his energies against those of his colleagues or supporters whom he considers to be against his interests. This results in less devotion and attention to regular work and consequently inefficiency.
At the time of extension of service of Sri Bhat-nagar he tried to raise a storm against him so that the term may not be extended and I had to bring about mutual understanding between them with great difficulty.
Since, the appointment of the Secy. of the Legislature I found him willing to co-operate wholeheartedly with him only for a few months but as soon as he found that his boss is an unsparing and exacting task master, he instead of improving the quality of his work has started the old type of game.
During this period he has not even once seriously approached me to bring his troubles or difficulties to my notice. Now the situation has grown to be intolerable and if discipline in my office is to be maintained I don't find any way but to consent to the step suggested by Sri Mithan Lal. I have however noted on my file that alter reverting Sri Saksena to his substantive post, if he chooses to make any representation and wishes to explain the matters, I shall give him an opportunity to do so. I have however, felt that some strong immediate action is proper at this stage to put a stop to the attempts or some office employees who are prone to make approaches outside office undermining discipline.
Sd/- A. G. Kher, 4-2-56 C. S.Sri Saksena may be reverted as desired by S. S.Sd/- Sampurnanand,5/2. Sd/- Sampurnanand,
7. Then on 9-2-1956, the Secretary to Government wrote to the Secretary, U. P. Legislative Assembly to the following effect (annexure VI).
Sri J. K. Tandon, B.A.,LL.B.Secretary to Government, U. P.Luckuow.
The Secretary,U.P. Legislature. Legislative AssemblySectt. Lucknow. Dated Lucknow 9-2-1936. Legislative Department.
I am directed to say that the Governor has been pleased to order, with effect from the date of relief the reversion of Sri. R. B. Saksena, Officiating Secretary, U. P. Legislative Assembly to his substantive post of Superintendent, Legislative Assembly Secretariat.
Yours faithfully, Sd/- J. K. Tandon Secretary.'
The petitioner received the Governor's order of reversion on the same date. Pursuant to this order the petitioner was relieved on 9-2-1G56, by Sri D. N. Mithal.
8. The petitioner made a representation to the Speaker on 11-2-1956, as permitted by the Speaker (the permission is referred to in the Speaker's note to the Chief Minister). In reply to the representation the Secretary, Legislature, sent a letter dated 13-4-1956, which runs as follows :
'Memo No. L-A 155, Dated Lucknow April 13, 1956.
In continuation of this office memo No. L-A 50 dated 14-2-1956, in reply to your representation dated 11-2-1956, against the Government order dated 6-2-1956, relating to your reversion to your substantive post of a Superintendent, Legislative Assembly Secretariat, U. P. and your interviews with Sri Speaker thereafter, I am desired to inform you that your reversion to your substantive post was done in public interest as an administrative measure as disclosed to you by Sri Speaker at the time of your interview within the last two months.
The question of framing of charges or of calling for any explanation does not arise.
Sd/- Whan Lal Secretary, Legislature, U. P.
Sri R. R. Saksena,Superintendent (Legislative AssemblySectt.) (on Leave) U. P. Lucknow.''
9. Thereafter Sri Mithal was appointed to officiate as Secretary vice the petitioner, on the recommendation made by the Speaker. It appears that the speaker considered Sri Mithal to be the most meritorious candidate for appointment to this post. It also appears that another per on was likewise appointed as officiating Assistant Secretary.
10. The Public Service Commission then invited application for the nost of Secretary, Legislative Assembly and Legislative Council. The petitioner also made an application on 10-10-1956. There were other applicants also. The commission met on 10-12-1956 and on 17-1-1957, to interview candidates. Sri Mithan Lal, Secretary Legislature, assisted the Commission as technical adviser. Forty candidates had applied for the post out of which 14 had been called for interview, including the petitioner.
The Commission recommended Shri Devaki Nandan Mithal and Sri Parmatma Saran Pachauri for the two posts of Secretary, Legislative Assembly and Secretary, Legislative Council. They also recommended as reserve the name of Sri Parmatma Saran Dwivedi. The petitioner was not recommended. Sri Mithal is now holding the post of Secretary, but he has not yet been permanently appointed thereto because of the stay order passed by this Court.
11. It is admitted that the reversion of the petitioner to his substantive post of Superintendent was made without the petitioner having been given any such opportunity as is contemplated by Article 311 of the Constitution. The petitioner claims that he was entitled to the protection provided by Article 311 of the Constitution, and inasmuch as no such opportunity was afforded to him, as is contemplated by this Article, the petitioner contends that the order of reversion passed against him should be set aside and he should get the ancillary reliefs prayed for.
12. The contention of Chaudhari Niamatullah counsel for the petitioner is that having regard to the terms of the petitioner's appointment contained in letter No. 574 (1)/XVII-135/55 dated 7-5-1955 referred to above, the petitioner had the right to continue as Secretary, Legislative Assembly up to the time when a permanent appointment was made to the post of secretary by Government on the recommendation of the Public Service Commission after a consideration by the latter of the claims of the petitioner and of others who had applied to the Commission.
13. Chaudhari Niamatullah contends that by the order of reversion which was passed against the petitioner ho was deprived of the benefit of a very good record of service on the basis of which he had been given the officiating appointment of Secretary with the added right of continuing in the post of officiating secretary even after the retirement of Sri Bhatnagar and up to the date when this post of Secretary was filled up by regular recruitment.
According to Chaudhari Niamatullah the right to hold the post in an officiating capacity until the regular recruitment took place was assured to the petitioner by the letter dated 7-5-1955 and that by his reversion to his permanent post of Superintendent the petitioner has suffered the loss of the said right.
14. Chaudhari Niamatullah also argued that because of the reversion the petitioner was deprived of salary which he would have received as officiating secretary from the date of his reversion to the date when the permanent appointment would have been made by the Government after consulting the Public Service Commission, to the post of secretary, Legislative Assembly.
15. Chaudhari Niamatullah contends that inasmuch as a recommendation had already been made by the Speaker for the confirmation of the petitioner to the post of Secretary, and even though Government had not accepted the Speaker's recommendation because it decided that the post should be filled up by regular recruitment nonetheless the re-commendation placed the petitioner in a very advantageous position and he would have been recommended also by the Public Service Commission for the permanent post if the reversion order had not destroyed the effect of the Speaker's recommendation so made.
16. Chaudhari, Niamatullah also agrees that even if the reversion which he says amounts to a reduction in rank be not a punishment per so, even then having regard to the consequences of the reversion, it was in fact a punishment and the punishment has been carried out in that not only has the petitioner lost the chance of holding in an officiating capacity either the post of Assistant Secretary or the post of Secretary since the date of his reversion (it has already been mentioned that officiating appointment to both these posts were made after petitioner's reversion) but he has lost the chance of being recommended for permanent appointment to the post of secretary by the Public Service Commission.
17. On the other hand the contention of the learned Advocate General for the State is that the substantive rank of the petitioner was that of Superintendent, Legislative Assembly, that he had no right to hold the post of Secretary in which post he was officiating and that his reversion to the post of Superintendent does not amount to any reduction in rank for he has not been reduced from his substantive rank of Superintendent, and he had no right to hold the post of Secretary or Assistant Secretary in an officiating capacity.
The learned Advocate General contends that the mere holding of an officiating appointment even in terms of the letter of 7-5-1955, did not create any rights in the officiating appointment and that the reversion to the post of Superintendent did not deprive the petitioner of any right and does not amount to a reduction in rank.
18. The learned Advocate General moreover contends that inasmuch as the holding of a post in an officiating capacity for a period of more than one year requires the sanction of the Public Service Commissioner, therefore the Government could not confer in any case any right for an indefinite period by the letter of 7-5-1955 on the petitioner to hold the post of Secretary in an officiating capacity until a regular recruitment was made to fill up the vacancy permanently in consultation with the Public Service Commission.
19. The learned Advocate General contends that neither the record of the petitioner, assuming that it was meritorious, nor the recommendation by the Speaker that the petitioner should be permanently appointed to the post of Secretary nor the fact that he was officiating in the post when he was reverted, created any right in him to hold the officiating post until the appointment was made by Government in consultation with the Public Service Commission or created any right in him to obtain the recommendation of the Public Service Commission.
20. The learned Advocate General also contends as indicated that the order of reversion does not amount to any reduction in rank and is not a punishment either per se or otherwise. The only effect of the order of reversion according to him is that the petitioner is reverted to his substantive post and has ceased to officiate.
21. Both Chaudhari Niamatulla and the learned Advocate General have really based there respective contentions reported in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 (A), which is now undoubtedly the supreme authority on the subject in hand. Other cases were referred to but in view of Dhingra's case (A), a discussion of these cases seems superfluous.
22. In this instant case there is no dispute that the substantive rank of the petitioner was that of Superintendent, Legislative Assembly. There is no dispute either that when he was reverted he was officiating as Secretary and that this post was permanent in the cadre. Whereas the petitioner contends that he had some sort of a right to the post of Secretary, which he was holding temporarily, the contention of the learned Counsel for the State is that he had no such right.
It was not contended by Chaudhri Niamatullah that the petitioner had acquired any quasi-permanent status in the Secretary's post by virtue of the fact that he was officiating as Secretary which entitled him to continue to officiate in that capacity until a permanent appointment in consultation with the Public Service Commission should be made, but it seems to be contended that the right which the petitioner had acquired, to hold the temporary post untill the contingency occurred, approximated to a quasi-permanent status.
It has not been shown to us by Chaudhari Niamatullah that under any special contract of service applicable to the petitioner or under any rules applicable to the petitioner, the petitioner had acquired any right approximating to a right of a quasi permanent character to continue to hold the officiating post. The other right which, Chaudhri NiamatuIIah seems to contend that the petitioner had, was the right to have his record left unblemished and without the stigma of a reversion order so that on the basis of his alleged unblemished previous record he could claim the officiating appointment so long as it was not filled up permanently and further claim the right to be recommended by the Public Service Commission for appointment to the permanent post on the basis of the unblemished record.
No term of any contract or any service rules have been shown to us to suggest that he has any such rights. I agree with the learned Advocate General that the letter dated 7-5-1955 does not confer any such light. No definite period is fixed by that letter and there was nothing to prevent reversion, so long as the post was temporarily held by the petitioner.
23. The so-called rights so asserted by Chaudhari Niamatullah are in any case not the sort of rights which can lay the foundation for attracting Article 311 of the Constitution.
The right which straightway attracts Article 311 of the Constitution is the right to hold a substantive post and not to be dismissed or removed or reduced from that substantive post without being afforded the protection guaranteed by Article 311 of the Constitution of India.
A person who holds an officiating post is also entitled to the protection of Article 311 of the Constitution of India, only if the order of reversion visits' the servant with any penal consequences. The penal or other consequences which attract Article 311, according to the majority view of their Lordships of the Supreme Court in Dhingra's case (A), are conse-quences which entail or provide for the forfeiture of the pay of the servant or his allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion.
Article 311 is attracted when the Government, while reverting the servant from an officiating post to his substantive post, has passed some order which would affect the rights which the servant has in his substantive rank, thus not only reverting him but at the same time punishing him, for instance the stoppage or postponement of his future chances of promotion from his substantive rank to a higher rank,
Thus, the person may be reverted from his temporary rank to his substantive rank and at the same time the order may affect even the past and future rights attached to his substantive rank. For instance while reverting a servant from an officiating post to his substantive post, an order may be also passed which involves forfeiture of his pay or allowance or the loss of seniority in his substantive rank or the stoppage or postponement of his future chances of promotion; but the reversion by itself to the substantive post is not a reduction in rank and it does not involve any punishment.
As the servant has no right to continue to hold an officiating post his tenure, by its very nature, is temporary and at the will of the Government, Reversion back from his officiating post cannot be a reduction in rank and unless penalties are also expressly imposed does not attract Article 311 of the Constitution.
24. No doubt when a revers-ion takes plane from an officiating post to a substantive post, the servant, when so reverted, may be in some difficulty when an occasion for promotion again arises, for the reversion from the higher post held if the reason for it as known to the authority concerned be that the servant did not give satisfaction while holding the officating post, may stand in the way of his being given another officiating promotion.
The case of such a servant would naturally be considered by the promotion authority from a somewhat different angle than that of a servant who has to be promoted for the first time or the case of a servant whose previous reversion was not because of dissatisfaction with his work during the period of his holding of the officiating appointment, for the knowledge of the reasons of the servant's previous reversion might mean a more careful assessment of his suitability.
But this evil consequence could not be attributed directly to the terms of the order of reversion, if the order of reversion does not penalise the servant in terms and of its own force and injuriously affects the rights which the servant has as a holder of a substantive post in one of the several ways indicated in Dhingra's case (A). In Dhingra's case (A) the majority view was that :
'In the case of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his services are terminated at any time.'
25. The latter position does not exist here because the officiating appointment was not for a definite period. The letter of 7-5-1955, does not assure the petitioner any definite period for the holding of the officiating post. Consultation with the Public Service Commission for the appointment by Government could take place at early or late date. It was entirely in the hands of the Public Service Commission or the Government whether the period during which the post remained vacant and open to being held in an officiating capacity, would be short or long.
Moreover, as pointed out by the learned Advocate General, the Public Service Commission could always refuse its sanction to the holding or the post by the petitioner in an officiating capacity once that officiating capacity had exceeded or was likely to exceed one year. There it cannot be said that the petitioner was holding the permanent post of Secretary in an officiating capacity for a definite period; in other words no definite period for officiating in the post was guaranteed to the petitioner so as to create a right in him,
26. In regard to cases where a Government servant has no right to his post, termination of such service does not amount to dismissal or removal by way of punishment and such removal will not ordinarily and by itself be a punishment. Their Lord-ships in Dhingra's case (A) have expressed the view that :
'If the servant is appointed to officiate in a permanent post or to hold a temporary post other than one for a fixed term, whether substantively or on probation or on an officiating basis, under the general law, the implied term of his employment is that his service may be terminated on reasonable notice and the termination of the service of suchu a servant will not per se amount to dismissal or removal from service.'
Their Lordships of the Supreme Court have again put the matter shortly as follows :
'The principle is that when a servant has right to a post or to a rank either under the terms of the contract or 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. One fact for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post.
If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311. In other words and broadly speaking Article 311(2) will apply to those cases where the Government servant, had he 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 wav, 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 docs not attract the provisions of Article 311'.
It has not been shown that there is anything in the nature of a special contract governing this petitioner or in the rules of service which prevents the State Government from terminating his officiating appointment at any time and reverting him to his substantive post. Therefore, per se, the reversion does not attract Article 311(2)
27. The question is whether there is anything in the order of reversion which indicates that the reversion was by way of punishment. The character of the petitioner's appointment to the temporarypost was of a transitory character. The reason or motive for reverting him is immaterial.
28. As observed by their Lordships of the Supreme Court in Dhingra's case (A) :
'If a servant has the right to continue in a post, then termination must be a punisjiment because it puts an indelible stigma on the officer and it would amount to removal or dismissal. A reduction in rank likewise, if the servant has the right to a particular rank, may create as a penalty, for he will then lose the emoluments and privileges of the rank.
If, however, he has no right to the particular rank, his reduction from an officiating higher post to his substantive lower rank, will ordinarily not be a punishment. But where such a reduction visits the servant with penal consequences, that is, 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 the postponement of his future chances of promotion, then the circumstances may indicate that in truth and reality the Government has punished the servant.'
29. In this instant case, whatever the indirect consequences of the reversion order may be, the reversion order, even if read with the Speaker's note to the Hon. Chief Minister (and the learned Advocate General contends that that note being the order of dismissal cannot be looked at) does not visit the petitioner with any penal consequences.
His reversion by itself to his substantive post is not penal; there is nothing in the order to show that any earned right to pay and other emoluments relating even to the officiating period have been forfeited or that there is any order of forfeiture in respect of his pay or allowance or the loss of his seniority in his substantive rank; nor does the order show that there is any stoppage by the terms of the order of his future chances of promotion even after reading the Speaker's note as a part of the order.
30. In these circumstances there is no escape from the conclusion that the petitioner was not reverted by way of punishment and therefore the provisions of Article 311(2) do not come into play.
31. It is true that the order of reversion can have indirect effect on the future chances of promotion of the petitioner. He has already not been given the chance to officiate after his reversion either as Assistant Secretary or as Secretary after his reversion, (if he was on leave he could have been recalled and appointed) and the examination of his application for the post of Secretary by the Public Service Commission has probably been affected by the reversion.
But the order of reversion by itself or along with the Speaker's note does not in terms order the stoppage of officiating promotion or order that the Public Service Commission should not make a recommendation (assuming such an order would be binding on the Commission).
32. The documents filed no doubt show that the Public Service Commission must have had knowledge of the reasons of the reversion. Although the recommendation of the Public Service Commission has, it is said, been made on the basis of the personal record of the applicant alone and it is also said that the Speaker's note to the Chief Minister was not on the record, nonetheless there must have been awareness in the mind of the Commission of the reasons for the reversion because it had called for the Speaker's note in another connection, and particularly because Sri Mithan Lal, who was associated with the Commission, had full knowledge of the reasons for the reversion.
But this evil consequence can only be said to be the indirect result of the order of reversion. The order of reversion does not of itself and by its language, (even taken with the Speaker's note) impose any penalty on the petitioner whether by way of affecting his chances of future promotion or otherwise.
33. It was then contended that one should have regard to the indirect consequences even though in terms no penalty had been directly imposed by the order of reversion. It is difficult to accept this contention in view of Dhingra's case (A). It is not opera to put an interpretation different to the interpretation put in the majority judgment in Dhingra's case (A).
34. It is true that in this case some material has been brought on the record to at least indicate prima facie that the petitioner had he been in law entitled to such an opportunity as is provided by Article 311(2) of the Constitution would have been able to place before the authority concerned material for examination in support of his defence in regard to his alleged acts of insubordination that those acts were nothing more than his inability to conform to the views of the Secretary Legislature in regard to the matter of the re-appearance of a resolution regarding reduction in irrigation rates on the agenda and would have been able to place material to support his defence that the said Secretary had for personal reasons taken a dislike to him, and all such material along with other material could then have been considered and a decision taken thereupon.
But we cannot in law provide that opportunity. It is not to be taken that in saying so any opinion is expressed one way or the other in regard to the merits of the allegations and counter-allegations; but what one wishes to express is that the petitioner has not been able so far to get his defence examined at a methodical enquiry.
Much as one may regret this and much as one may feel that there have been certain indirect effects of the reversion it cannot be said that the order of reversion by its terms was 'penal' in its consequences or that the petitioner was by that order visited with evil consequences within the meaning attached to these phrases by their Lordships of the Supreme Court in Dhingra's case (A).
35. One other contention which was advanced and then was given up by Chaudhari Niamatulla was that the order of reversion was not communicated as required by law.
36. In all the circumstances, but with some feeling of regret that it is not possible to grant the petitioner the relief which would enable him to properly represent his case and to avoid the indirecteffect of the present order of reversion, this application has to be and is dismissed in the circumstances without any orders as to costs.