1. This petition under Articles 226 and 227 of the Constitution is directed against-
(i) the High Court's administrative order No. 2209/111-18-126/63 dated 12 March 1964 whereby an appeal preferred by one T.P. Shrivastava (respondent 3) was allowed and he was restored to the post of stenographer to the District and Sessions Judge, Jabalpur, with effect from the date of his taking over charge o( the post;
(ii) an order dated 13 March 1964 by which, in implementing the aforesaid order of the High Court, the District and Sessions Judge, Jabalpur (respondent 2), cancelled the confirmation of the petitioner on the post of stenographer to the District and Sessions Judge, Jabalpur. reverted him to a lower post of clerk-stenographer and stopped his special allowance of Rs. 25/-.
2. The facts giving rise to this petition arc simple and may be shortly stated. The petitioner and the respondent 3 were working as clerk-stenographers in the office of the District and Sessions Judge, Jabalpur, from 23 December 1946 and 5 June 1947 respectively and they were subsequently confirmed on those posts. In the year 1957, the services of one R.G. Bhatt, the permanent stenographer to the District and Sessions Judge, Jabalpur, were transferred to the Registry of this Court. It was decided to fill up that post by selection. A competitive examination, in which all clerk-stenographers were allowed to participate, was then held and the respondent 3. who secured the highest marks, was selected. He was duly appointed to the post in which he worked in an ofiiciating capacity from 23 December 1957 to 6 July 1960. It transpired that the services of the respondent 3 too had to be placed at the disposal of the Registry of this Court for two years.
During this period, the petitioner was appointed to work as stenographer to the District and Sessions Judge. Jabalpur, on a temporary basis Even so. on return from the Registry, the respondent 3 was posted as clerk-stenographer to the First Additional District Judge, Jabalpur. Being aggrieved by that order dated 29 June 1962, the respondent 3 represented against it. By an order dated 19 Angust 1963 the District and Sessions Judge, Jabalpur. rejected that representation and confirmed the petitioner on the post of stenographer. Against this order, respondent 3 preferred an appeal to the High Court and then the two orders, which have been called in question in these proceedings, were passed.
3. The petitioner has challenged the orders dated 12 March 1964 and 13 March 1964 on the several grounds set out in para graph 8 of the petition. All these grounds have been controverted in the returns filed by the two sets of respondents Having heard the counsel, we have formed the opinion that there is no substance in the petitioner's grievances and that he is disentitled to the assistance of this Court. We would briefly indicate in the following paragraphs the reasons for our conclusion.
4. It is now firmly established, and is also not disputed, that Article 311(2) of the Constitution is not attracted unless the civil servant concerned is dismissed, removed or reduced in rank as a measure of punishment The main argument in support of this petition is that, since the petitioner had been confirmed on the post of the stenographer to the District and Sessions Judge, Jabalpur, he had a right to hold that post and his reversion to a lower post must per se be regarded as a punishment. For this contention, reliance is placed on the following observations of the Supreme Court in Parshotam Lal Dhingra v. Union of India, 1958 SCR 828 at. p. 860 :(AIR 1958 SC 36 at. p. 48):
'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 when 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 test 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 be 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 bv 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. bv 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 provisions of Article 311.'
It is clear even from these observations that the right to hold the post should flow either from the terms of contract of employment or from the rules governing the conditions of service. Now the service rules provide that when there are two claimants to a post and one of them is confirmed on that post, the other may appeal against the confirmation and have it set aside. It follows that, under those rules, the confirmation of the former is subject to an administrative appeal and, if it is set aside in appeal as contemplated by the rules, there is, or can be, no question of punishment. So, In the same case, the Supreme Court observed at page 844 (of SCR) : (at p. 43 of AIR) as follows:
'The cases cited before us also indicate that the preponderance of view is that only a dismissal or removal or reduction in rank by way of penalty attract the operation of Article 311(2), but that a termination of service brought about otherwise than by way of punishment, e.g., by the exercise of the right under the terms of employment or under the relevant rules regulating the conditions of service which form part of the terms of employment does not.'
A somewhat similar question arose in Gopal v. State of Madhya Pradesh, 1961 MPLJ 579. This is what one of us (Pandey, J.) stated in that case:
'Again, when there are rival claimants for confirmation to only one post which is available and the junior incumbent is confirmed, there can be no question of punishment if, upon a representation being made to the higher authorities, his confirmation is revoked and the senior incumbent is confirmed. It will be seen that these are normal incidents of service and in orders, such as these, there is no element of punishment because the revocation is not due to any fault or deficiency of the incumbent affected.'
6. Shri Dharmadhikari strongly relies on Omprakash v. State of Madhya Pradesh, Misc. Petn. No. 372 of 1964 D/-5-1-1965 :(AIR 1966 Madh Pra 208). In that case, the Sub-Inspector of police was confirmed by an order of the Deputy Inspector General of Police but when later he discovered that earlier the Inspector General of Police had made an order of issue of a notice to the petitioner for terminating his service, he cancelled the order of confirmation and a corrigendum was issued. It has been held.
'There can be no doubt that if the petitioner is taken as having been validly and legally confirmed as Sub-Inspector by the Gazette Order No. 819/64 dated the 16th March 1964, then he acquired a right to the post of Sub Inspector from the 1st January 1961 and consequently, as laid down by the Supreme Court in 1958 SCR 828: (AIR 1958 SC 36), the termination of his services would prima facie and per se be a punishment attracting the provisions of Article 311 of the Constitution.'
After referring to the relevant rules, it was found that the Deputy Inspector General of Police was a competent authority to confirm the petitioner. That being so, in spite of the fact that the confirming authority passed the order of confirmation in ignorance of the order of the Inspector General of Police,
'this mistake does not make the order of confirmation ab initio void or ultra vires any relevant rule .. .. .. It is only when the order of confirmation is void ab initio and ultra vires the relevant rules that the order can be cancelled and when this is done, Article 311(2) of the Constitution is not attracted'.
In pointing out this distinction, reference was made to the State of Punjab v. Jagdipsingh, AIR 1964 SC 521 where the order of confirmation was found to be beyond the competence of the authority and, therefore, void. It is thus clear that an order of confirmation passed by an authority beyond its competence is invalid and is no confirmation at all.
Similarly, where confirmation is ordered to a post which does not exist or which is not vacant is also an order ab initio void. In such cases, the appointee will not be deemed in law to have been validly appointed to the post or given the particular status. Therefore the so-called de-confirmation will not be bad. Neither Omprakash's case, (MP No. 372 of 64 D/. 51-65): (AIR 1965 MP 208) (supra) nor Jagdipsingh's case, AIR 1964 SC 521 (supra) has any application here. We are clearly of the view that where an order of confirmation, although passed by a competent authority in exercise of its power is reversed on appeal or representation by a superior authority which is competent to reverse it. de-confirming in implementation of the appellate order is good. Where it is not so, the remedy of appeal or representation will be otiose.
6. We agree that when an incumbent is confirmed on a post ordinarily he has a right to hold that post, but this cannot be accepted as an absolute rule without any qualifications. When an incumbent is given a quasi-permanent appointment which is itself irregular, unauthorised and invalid because the precedent condition of consulting the Union Public Service Commission had not been followed, the termination of his service on discovery of the mistake is not an act of punishment attracting Article 311(2) K.S. Srinivasan v. Union of India. 195S SCR 1295: (AIR 1958 SC 419) Similarly, de-confirmation of certain civil servants from posts, which did not exist and on which they were mistakenly confirmed, is merely a correction of an earlier error that does not attract Article 311(2): AIR 1964 SC 521. In our opinion, there is no element of punishment when a competing civil servant exercises his right of administrative appeal under the service rules and succeeds in having the order of confirmation of his rival set aside.
7. Another point made before us is that the respondent 1 did not follow the instructions relating to de-confirmation as contained in Memorandum No. 1375/766-I (iii) dated 4th July 1963. In the first place, these are merely administrative instructions which do not clothe the petitioner with any right: R. Abdulla Rowther v. The State Transport Appellate Tribunal, AIR 1959 SC 896. Secondly they are intended to apply to cases 'where the employees concerned were not qualified in all respects for such confirmation under the relevant statutory rules, executive order or administrative instructions'. They have no application to the present case.
8. The last point urged is that the petitioner was, contrary to the rules of natural justice, not given any opportunity to be heard against the appeal preferred by the respondent 3. Admittedly, this point has not been raised in the petition and the respondents have not had any opportunity of controverting it. That being so, we do not allow the petitioner to raise this new point involving a question of fact at the stage of arguments. We are also of opinion that, even if there be any substance in this grievance, we should decline to assist the petitioner because, in our view, there was, in this case, no failure of justice. We need hardly say that proceedings by way of certiorari are not of course and we should, in the exercise of our discretion, not interfere when the justice of the case does not require it; A.M. Allison v. B.L. Sen, 1957 SCR 359: (AIR 1957 SC 227).
9. The result is that this petition fails and is dismissed. The petitioner shall bear his own costs and pay out of the security amount those incurred by the respondents. There will be two sets of costs, one taxed for the respondents 1, 2 and 4 and the other for the respondent 3. The remaining amount of security shall be refunded. Hearing fee Rs. 75/-