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R.S. Sial Vs. the State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 1073 of 1968
Judge
Reported inAIR1971All375; (1971)IILLJ432All
ActsConstitution of India - Articles 226 and 311
AppellantR.S. Sial
RespondentThe State of U.P. and ors.
Appellant AdvocateD.N. Jha and ;R.N. Trivedi, Advs.
Respondent AdvocateCf. Standing Counsel
DispositionPetition dismissed
Excerpt:
.....non-speaking order operates as res-judicata for subsequent petition on same facts. (ii) service - reversion - officiating post to substantive post not by way of punishment but under terms of officiating employment - not reduction in rank to attract sub-article (2) of article 311of constitution of india. - - it is well settled that all public and judicial orders are to be read objectively on the basis of the language used and extraneous help in the shape of evidence to show as to what was intended cannot be taken. but even if it were not so the writ petition would still fail on merits which i have discussed a little later. 4 and 5 who were officers on special duty and had been constituted into an intelligence and evaluation cell after inquiry into the work of the petitioner recommended..........not have a lien on that post. if an officiating arrangement is terminated, the person holding the post in an officiating capacity has no actionable right. it is well settled that the motive operating on the mind of the authority passing an order of reversion is irrelevant. see champaklal chimanlal shah v. the union of india, air 1964 sc 1854- learned counsel for the petitioner placed reliance on parshotam lal dhingra v. union of india. air 1958 sc 36. in my opinion the facts of that case are distinguishable. merely because there has been some complaint against an officer who is sent back to his substantive rank from the post on which he was officiating would not render the order of reversion an order of reduction in rank within the meaning of article 311 of the constitution of india......
Judgment:

Jagdish Sahai, J.

1. R. S. Sial hereinafter referred to as the petitioner has filed this writ petition under Article 226 of the Constitution of India and hag prayed for the issue of a writ of certior-ari quashing the order of the Transport Commissioner dated September 7, 1967 (Annexure 6) and the communication dated 7th October, 1968 (Annexure 16) informing the petitioner that the Government had rejected his representation.

2. The petitioner was in the employment of the Transport Department of the Government of Uttar Pradesh and was confirmed as Assistant General Manager on 1st December, 1955 with effect from 1st April, 1955. On 30th March. 1963 the petitioner was asked to appear before the Public Service Commission which was considering the selection of officiating General Managers. The petitioner appeared before the Public Service Commission and, according to him, he was one of the ten persons selected, his name being placed at serial No. 3. On 15th April. 1967 he was transferred as officiating General Manager, Aligharh. The petitioner was, however, reverted to his substantive post and appointed as Assistant General Manager (Rural) in place of Sri V. P. Gupta who was transferred. (See annexure 6.)

3. The petitioner filed a writ petition in this court at Allahabad. That petition was dismissed on 12th September 1967 by a single word order 'dismissed' by S. N. Dwivedi and M. Chandra, JJ. Thereafter the petitioner filed the instant writ petition in this Court which came up for hearing before Lakshmi Prasad. J. who referred the case to a larger Bench. The matter was then placed before a Division Bench which referred the case to a Full Bench.

4. The first question that arises for consideration in the present case is whether this petition is barred by principles of res judicata and by the rule of finality on the ground that a writ petition on the same facts was dismissed by a Bench of this Court on 12th September. 1967. (See annexure 7.)

5. Whereas Mr. R. N. Trivedi who has appeared for the petitioner has contended that the earlier writ petition was dismissed on the ground that the petitioner had not exhausted his departmental remedies, the case taken by the State is that it was a case of dismissal on merits. It is well settled that all public and judicial orders are to be read objectively on the basis of the language used and extraneous help in the shape of evidence to show as to what was intended cannot be taken. See Commr. of Police Bombay v. Gordhandas Bhanji. AIR 1952 SC 16. It is true that the order dismissing the earlier writ petition is not a speaking order in the sense that reasons for dismissal have not been recorded and the only word used is 'dismissed'. In my opinion the word 'dismissed' is comprehensive enough to include dismissal on merits and cannot be read to mean dismissal on the preliminary ground that the petitioner had not exhausted his departmental remedies. In the absence of any qualifying words the word 'dismissed' must be read in its widest amplitude. The earlier writ petition was dismissed at the time of hearing for admission. The learned Judges were not required to pass any detailed order. The order of the Division Bench of this Court dated 12th September, 1967 (annexure 6) is a final order or a judgment within the meaning of Article 133 of the Constitution of India. It is true that if a writ petition is dismissed on a preliminary ground, the order dismissing it would not operate as res iudicata. But that is not the question before us. The question before us is whether on the basis of averments now made by the petitioner in the petition which are controverted on behalf of the respondents it can be held that the earlier writ petition was dismissed on a preliminary ground. In my opinion it is not possible to do so. As said earlier, the word 'dismissed' must be read in its widest amplitude so as to include dismissal on merits also.

6. On behalf of the petitioner reliance is placed on Daryao v. State of U. P., AIR 1961 SC 1457. In my opinion this decision does not lay down a hard and fast rule that if a writ petition is dismissed in limine by a single word order 'dismissed', the judgment would not operate as res judicata. There is nothing to show that the earlier writ petition was dismissed on the ground of laches or that of an alternative remedy. If a petition is rejected on the ground of laches or alternative remedy or existence of departmental remedy it is a case where the petition is not entertained and consequently there can be no bar of res judicata. But if a petition is entertained and not found fit for admission on merits, the judgment dismissing it would create the bar of res iudicata. When the judgment of this Court dated 12th September, 1967 said 'dismissed', it cannot mean rejected in the sense of not entertained on the basis of some preliminary defect. The normal connotation of the word 'dismissed' is rejection of a claim by a judicial order. Merely because an order is non-speaking it cannot be held that the dismissal is on preliminary grounds and not on merits. To hold it so would be to add some words to the word 'dismissed' and to destroy the comprehensiveness of that word. In my opinion the instant writ petition is barred bv res iudicata. But even if it were not so the writ petition would still fail on merits which I have discussed a little later.

7. Admittedly the petitioner did not file an appeal in the Supreme Court nor did he make an application for a certificate in this Court. The order dated 12th September, 1967, therefore became final and the instant writ petition is liable to be dismissed also on the basis of the rule of finality which governs all judicial proceedings. Rule 7 of Chapter XXII of of the Rules of Court reads:--

'Where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts.'

It is not in dispute that the instant petition is on the same facts. What is contended is that this rule would not bar a subsequent writ petition if the earlier one was dismissed on a preliminary ground. I have already held above that there is nothing to indicate that the earlier writ petition was dismissed on a preliminary ground and not on merits. I am, therefore, of the opinion that the instant petition is barred by this rule also.

8. Coming to the merits, the petitioner's case is that even though the order contained in annexure 6 is innocuous, it amounts to a punishment in view of the surrounding circumstances of the case and for that reason amounts to reduction in rank within the meaning of Article 311 of the Constitution of India. Alternatively it is submitted that principles of natural justice required that before the petitioner was reverted to his substantive rank, he should have been given an opportunity of being heard. In order to show that the petitioner was reverted for a fault and therefore in the instant case he has been reduced in rank within the meaning of Article 311 of the Constitution of India, it has been pointed out that respondents Nos. 4 and 5 who were officers on special duty and had been constituted into an Intelligence and Evaluation Cell after inquiry into the work of the petitioner recommended a probe by the Vigilance Directorate in respect of all purchases made by him in Agra and Lucknow regions and in pursuance of their report the petitioner was called upon to submit an explanation which he did. It is also submitted that the matter was referred to the Vigilance Department which made an inquiry against the petitioner and it was because of a suggestion made by that department that the petitioner has been reverted to his substantive post. The vigilance enquiry was not followed by a regular departmental enquiry or trial nor were any charges framed and investigated against the petitioner.

It is admitted by the petitioner himself that he was only officiating as General Manager and that he did not have a lien on that post. If an officiating arrangement is terminated, the person holding the post in an officiating capacity has no actionable right. It is well settled that the motive operating on the mind of the authority passing an order of reversion is irrelevant. See Champaklal Chimanlal Shah v. The Union of India, AIR 1964 SC 1854- Learned counsel for the petitioner placed reliance on Parshotam Lal Dhingra v. Union of India. AIR 1958 SC 36. In my opinion the facts of that case are distinguishable. Merely because there has been some complaint against an officer who is sent back to his substantive rank from the post on which he was officiating would not render the order of reversion an order of reduction in rank within the meaning of Article 311 of the Constitution of India. The question to be seen is whether the Government has reverted the Public SERVANT concerned to his substantive rank in exercise of a right which the Government has under the terms of officiating employment or it is a case where the reversion has been made by way of punishment. If it has not been made by way of punishment but in exercise of the power of the employer under the terms of the officiating employment as has been done in the present case it would not be a case of reduction in rank so as to attract the provisions of Article 311 of the Constitution of India.

I find support for my view from State of Bombay v. F. A. Abraham, AIR 1962 SC 794 and the Divisional Personnel Officer, Southern Rly. Mysore S. Raghavendrachar. AIR 1966 SC 1529. Learned counsel for the petitioner placed reliance upon Madhav Laxman Vaikunthe v. State of Mysore, AIR 1962 SC 8. That case was considered in AIR 19G6 SC 1529 (supra) where it was pointed out that it stood on its own facts. I am unable to agree that the petitioner has been reduced in rank within the meaning of Article 311 of the Constitution of India.

9. The only other question that requires consideration is whether in the instant case the petitioner was entitled to a show cause notice on the basis of principles of natural justice before the order of reversion was passed. Learned counsel for the petitioner has placed reliance upon State of U. P. v. Virendra Nath Srivastava, 1969 All LJ 1039. With great respect to the learned Judges who decided that case I am unable to agree with their conclusions. Merely because a person has been reverted to his substantive post from his officiating appointment by means of an innocuous order it cannot necessarily be inferred that a stigma has been cast on his professional ability or his previous record. A person who only officiates on a post and has no lien on it cannot claim any right in respect of that post. He has a right only in respect of the post over which he holds a lien or which he holds in a substantive capacity. Inasmuch as his reversion to his substantive post from an officiating one does not affect his rights or divest him of any vested interest but only places him on the position which belongs to him, it cannot be said that he is being prejudiced in any manner or is being condemned. That being the position, there can be no question of an opportunity to show cause being given to him. If he is not prejudiced or has not been condemned, the rule of natural iustice that no one can be condemned without being heard would not be applicable in his case.

It is trite that the posting of a person to a Post in an officiating capacity is an administrative act. Inasmuch as the Government servant concerned has no right to continue on a post held by him in an officiating capacity the Government can unilaterally terminate his officiating chance at any time in public interest or to suit administrative exigencies or convenience. I may also point out that Lakshmi Prasad, J. had in Writ Pertn. No. 973 of 1968 (All) Shanti Swarup v. The State of Uttar Pradesh taken a contrary view to the decision in Virendra Nath Srivastava's case, 1969 All LJ 1039 and that decision has now been affirmed in appeal by a Division Bench of this Court.

10. For the reasons mentioned above, I am satisfied that principles of natural justice have not been infringed in the present case and the petitioner was not entitled to be heard before he was reverted to his substantive post.

11. No other submission was made before us.

12. I, therefore, dismiss the petition. There is no order as to costs.

U.S. Srivastava, J.

13. I agree and have nothing to add.

O.P. Trivedi, J.

14. I have seen the judgment of my learned brother Jagdish Sahai and I am in respectful agreement with his conclusions: By the conditions of his service the petitioner had admittedly no legal right to continue on the post of the General Manager. He could therefore be reverted to his substantive post of Assistant General Manager without attracting Article 311(2) of the Constitution unless the order of reversion was by way of punishment in which case alone it could amount to reduction in rank. It is well settled now by a chain of authorities of the Supreme Court that an order of reversion amounts to punishment only if it casts a stigma or visits the employee with evil consequences in the sense of causing a deprivation of benefits already accrued to him. The order impugned in this case does not contain any reflection on the work or character of the petitioner. During the course of an officiating appointment the incumbent is, so to say, on trial with regard to his suitability to continue to officiate and throughout officiating tenure in the very nature of things therefore he is subject to a constant scrutiny of the employer for assessing his suitability to continue to officiate. For this purpose the employer is free to hold a preliminary inquiry at any stage to satisfy himself regarding his work and conduct and if as the result of such inquiry or otherwise the employer finds that the incumbent does not measure up to the standard required to fill the higher officiating post then there is nothing to prevent him in a case like that of the petitioner (where the conditions of service did not confer upon him a right to continue to officiate) from passing an order of reversion.

The reputation of such an employee cannot be deemed to have been besmirched by an order of reversion which by itself is innocent and neutral as in the present case merely because during an inquiry in the course of his officiating term his conduct or competence was found wanting as such an inquiry is incidental to an officiating chance. In the case of Union of India v. R. S. Dhaba. Civil Appeal No. 882 of 1066, D/- 7-4-1969 = 1969 SC Notes (Vol. 11) 299 = (AIR 1969 NSC 21) the respondent was promoted as an Inspector of Income-tax in an officiating capacity. Thereafter he was promoted to officiate until further orders as Income-tax Officer, Class II, Grade III. He was later reverted from the post of Income-tax Officer. Class II, as his work was not considered satisfactory. In deciding the case Ramaswami. J. speaking for the Court delivered himself of the following observations:

'It is well established that a Government Servant who is officiating in a post has no right to hold it for all time and the Government servant who is given an. officiating post holds it on the implied term that he will have to be reverted if his work was found unsuitable. In a case of this description a reversion on the ground of unsuitability is an action in accordance with the terms of which the officiating post is held and not a reduction in rank by way of punishment to which Article 311(2) of the Constitution could be attracted.'

15. In the case of State of Assam v. Biraja Mohan Deb, Civil Appeal No. 1227 of 1966, D/- 16-9-1969 (SC) Supreme Court Encyclopaedia, Vol 11, p. 27 it was observed by the Supreme Court that--

'reversion from an officiating higher post to an original lower post to which a person has been appointed does not in anyway amount to punishment and cannot be regarded as a reduction in rank so as to attract Article 311(2) of the Constitution. Again sometimes a person is given an officiating post to test his suitability to be made permanent later. It is an implied term of the officiating appointment that if a person is found unsuitable he will have to go back. In the present case respondent No. 1 was not originally appointed to a permanent post and when he was asked to act or officiate in a higher post he did not acquire the right to hold that post for all times. He could, at any time, be asked to revert to his original post and that is what happened in the case of respondent No. 1.'

16. I, therefore, agree that the petition should be dismissed and that there be no order as to costs.


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