H. Swarup, J.
1. Sri M. C. Goel has filed this petition against the notified order dated 8th January, 1971 issued under the hand of the Registrar by order of the High Court which runs as follows:
'Sri M. C. Goel. Civil and Sessions Judge. Orai to be Civil Judge, Hardoi, vice Fri S. D. M. Shahi.'
According to the petitioner this order amounts to an order of reduction in rank within the meaning of Article 311 of the Constitution and since it was passed without giving him an opportunity to show cause the order was illegal and void.
2. The petitioner was working on the substantive post of Civil Judge in the U. P. Civil Service (Judicial Branch). In December, 1961 he was appointed on an officiating post of temporary Civil and Sessions Judge. Subsequently the names of certain persons working as Civil and Sessions Judges were recommended by the High Court for promotion to the post of Additional District Judges/District Judges. The name of the petitioner was not included. The State Government agreed with the recommendations and further feeling that the petitioner was not suitable to continue even as a Civil and Sessions Judge consulted the High Court about' the suitability of the petitioner to continue in that capacity. The High. Court, through the Registrar, communicated to the petitioner certain notices regarding the petitioner's working as Civil and Sessions Judge during the period 1961-69 and the petitioner was asked to explain the same. After the explanation was received from the petitioner, a recommendation was sent by the High Court to the State Government to the effect that the petitioner was not suitable for continuing as Civil and Sessions Judge but should be reverted to his substantive post of Civil Judge. The State Government after, considering the recommendation, decided that the petitioner should be reverted to his substantive post and the impugned notification was issued transferring him as Civil Judge, Hardoi.
3. Although the petitioner had alleged that he had been selected to the cadre of Higher Judicial Service, he admitted in the rejoinder affidavit that every person is appointed a Sessions Judge originally in officiating capacity. The assertion of the opposite parties in the counter affidavit thus stands established that the petitioner was holding the post of Civil and Sessions Judge only in officiating capacity. As such his transfer to his substantive post of Civil Judge cannot, without anything else be held to be an order of reduction in rank within the meaning of Article 311.
4. The contention of the petitioner is that this order was passed by way of penalty and is not an order of transfer simpliciter to the substantive post of Civil Judge. Reliance has been placed by learned counsel for the petitioner on Appar Apar Singh v. State of Punjab, (1971 Ser LR 71) (SC) and Sughar Singh v. State of U. P., (1970 All LJ 1083). In the case, the Supreme Court reasserted the five propositions laid down by the Court in State of Punjab v. Sukhraj Bahadur, ((1968) 3 SCR 234) = (AIR 1968 SC 1089). The relevant propositions are as follows:--
(3) If the order visits the public servant with any evil consequences or casts an aspersion against the character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
(4) An order of termination of service in unexceptionable form preceded -by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service does not attract the operation of Article 311 of the Constitution.
(5) If there be a full scale departmental enquiry envisaged by Article 311 that is, an enquiry officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service may thereafter will attract the operation of the said Article.
It was further held in this case that the circumstances preceding or attending on the impugned order have to be examined in each case. The motive behind it being immaterial and if the order visits the public servant with any evil consequence, it must be considered to be one by way of punishment whether he was a mere probationer or a temporary servant. These propositions will apply with equal force to a case of reduction in rank. The question to be considered, therefore, would he whether the order visits the petitioner with any evil consequence or casts an aspersion against his character or integrity. As the order on the face of it is an innocuous order and obviously casts no aspersions, the answer to the question will in the present case depend on the answer to the question whether the enquiry was only an enquiry to ascertain whether the public servant should be retained in the post or not.
5. The case of the petitioner is that the explanation which had been called by the High Court before giving its opinion was in the nature of an enquiry mentioned in proposition No. 5 and not one mentioned in proposition No. 4. This contention is based on a misconception of the nature of the enquiry held by the High Court. By virtue of Article 233 read with Article 236 of the Constitution, the Governor of the State has to consult the High Court in matters of appointments, postings and promotions of Sessions Judges. High Court could give its opinion only on the basis of the record maintained by it about the working of officers. The notices communicated to the petitioner were, as is clear from the records produced by respondents, based on and were with reference to the entries existing in the Court's record concerning the petitioner. High Court could have given its opinion to the Government on a consideration of those entries even, without calling upon the petitioner to explain them and if the High Court gave an opportunity to the officer to explain those entries it cannot be said that any enquiry was made into any charges against the officer.
As was pointed out in the case of 1971 Ser LR 71 (SC) (Supra), purpose and object of enquiry should be the guiding factor. The enquiry by the High Court in the circumstances proved in the case could be, only to ascertain whether the petitioner should be retained in the post of Civil and Sessions Judge or not. The enquiry conducted by the High Court in this case would, therefore, be governed by proposition No. 4 and not by proposition No. 5 as laid down by the Supreme Court and it will not attract the operation of Article 311. According to the affidavits, filed in the case, High Court did not record any finding against the petitioner beyond forming the opinion that the petitioner was not suitable for the job and should be reverted to his substantive post of Civil Judge. No enquiry officer was appointed, no charge sheet was submitted and no findings were arrived at by the High Court about the proof of any charge against the petitioner. The enquiry conducted by the High Court must thus be deemed to be merely to ascertain the suitability of the petitioner for the job and not to investigate into any allegations against him. The State Government also did not arrive at any finding adverse to the petitioner but only accepted the recommendation that the petitioner be not allowed to hold the office of Sessions Judge and be reverted to his substantive post of Civil Judge.
The case of Ramgopal v. State of Madhya Pradesh, (AIR 1970 SC 158) is almost parallel to the present case. Chief Justice of Madhya Pradesh in that case had made enquiries into a certain matter against a Temporary Civil Judge of that State and admonished him for his disreputable conduct. The Chief Justice thereafter dictated a note in regard to the enquiry which he had made against the officer and the Madhya Pradesh High Court passed a resolution, recommending termination of the Officer's services. Having regard to this resolution the State Government passed an order terminating the services of the officer. The recommendation was not preceded by any charge sheet or departmental enquiry. It was held by the Supreme Court that as the order did not cast a stigma on the petitioner's character or integrity it could not be held to be passed by way of punishment so as to attract the provisions of Article 311. Similarly Article 311 cannot be attracted to the present case.
6. In the case of State of U. P. v. V.N. Srivastava, (1969 All LJ 1039) relied upon by the petitioner it was found that selection of persons to the post of permanent Superintending Engineer was made only out of those who were officiating as Superintending Engineers and similarly permanent Executive Engineers could be appointed only out of those who were working as officiating Executive Engineers and that selection could not be made to these higher posts out of persons who were holding the lower substantive post. In the present case, however, in paragraph 19 of the counter affidavit it was asserted that the petitioner 'can be considered for appointment as Civil and Sessions Judge if his work in future shows improvement'. The order of reversion made by the State Government does not disentitle him from consideration of the promotional post in future. The case of 1969 All LJ 1039 (supra) is thus not applicable to the present case as here no evil consequence visits the petitioner by his being reverted to his substantive post as he can still be selected for substantive post of Civil and Sessions Judge in the Higher Judicial Service of the State.
7. In the case of 1970 All LJ 1083 (supra) Pathak, J. held that the petitioner as a temporary Sub-Inspector enjoyed no right of holding the post and consequently no question arose of contravention of Article 311 of the Constitution. Mukerji, J. held otherwise and a reference was made to Verma, J. who agreed with Mukherji, J. It would be seen that both the learned Judges took into consideration the antecedent events and on that basis in the particular circumstances of that case, arrived at the conclusion that the order in the context of past events was passed as a measure of punishment. Mukherji, J. observed in his judgment:
'There can be no doubt that In the present case the order of reversion was passed against the appellant as a penal measure by the Deputy Inspector General of Police who was not satisfied with the. punishment of severe warning and the stoppage of increment given by the Senior Superintendent of Police.'
Verma, J. observed as follows:--
'The sequence of events in the present case leaves no room for doubt that the appellant's reversion can be described as nothing else but punishment by reduction in rank. He was first accused of making alterations in the entries in his character roll. He was thereafter warned. His increment was stopped in April, 1968, and in August he was reverted. I asked the learned counsel appearing for the State whether he could give any other reason for the appellant's reversion. He stated that the order of reversion was the result of the adverse entry given to the appellant in his character roll. He could give no other reason why the appellant, whose record had been excellent throughout and who worked as a Sub-Inspector of Police for eight years, should be reverted to the post of Head Constable. I am, therefore, of the view that the appellant was entitled to the protection of Article 311 of the Constitution of India and that the order sought to be impugned must be quashed.'
The order in that case was thus held to attract Article 311 as on the facts preceding the order it appeared that the order was in the nature of punishment. In the present case, there have been no infructuous prior punishments or warnings which may provide basis for holding the simple order of reversion to the substantive post as an order of reduction in rank.
8. As the petitioner was only officiating at the post of Civil and Sessions Judge and was reverted to his substantive post on the basis of his un-suitability to hold that post by an authority which had power and jurisdiction to do so there could also be no question of Article 16 of the Constitution being attracted to his case.
9. As regards the plea of mala fides, neither the point has been pressed nor is there any material on record to justify the finding that the order of the State Government directing the reversion which was followed up by the consequential order of transfer was passed mala fide.
10. In the result, the petition fails and is dismissed. There will be no order as to costs.