1. This is a writ petition under Articles 226 and 227 of the Constitution of India.
2. The petitioner Shri Krishna Agrawal, aged about 42 years, is a Government employee. He was appointed as Computer on 20-9-1950 in the office of the Director of Land Records in the former State of Madhya Pradesh and he worked as a Crop Supervisor till 25-2-1961. On 25-2-1961 he was promoted as Assistant Statistician by an order of the State Government (vide Annexure 'A' to the petition) in the vacancy of Shri C. B. Lall who was promoted as Statistician on a vacant post. He worked as an Assistant Statistician till 31-7-1964 i.e., for about 3 years and 4 months. The case of the petitioner along with others was referred to the Public Service Commission for concurrence. The Public Service Commission did not concur in the promotion of the' petitioner on the ground that his record of service did not justify promotion (vide P.S.C. Confidential Letter dated 10-3-1964, Annexure 'B' to the Return). The petitioner was thereafter, reverted to the post of Crop Survey Supervisor by order dated 27-7-1964 (Annexure 'B' to the petition). The petitioner thereupon submitted a representation to the State Government against his reversion. The petitioner was, however, informed that his representation had been filed and his case will be considered on merits if and when there was an occasion for filling the post of the Assistant Statistician by promotion (vide letter dated 29th January 1966 of the Directorate of Land Records Annexure 'C' to the petition).
3. By an order dated 4-11-1966 thepetitioner was appointed as Assistant Statistician (vide Annexure 'D' to the petition). He was, however, again reverted to the post of Crop Survey Supervisor by an order dated 30-6-1968 passed by the Director of Land Records (vide Annexure 'E' to the petition). The petitioner thereupon submitted another representation to the State Government (vide Annexure 'F' to the petition). This representation was rejected by the order dated 6th September 1968 (vide Annexure 'H' to the petition). Being aggrieved thereby the petitioner has filed this writ petition.
4. The main contention of the petitioner is that the order of his reversion dated 27-7-1964 is illegal and void being not in accordance with the provisions of the Constitution. Before we deal with this contention on merits we must say that if the petitioner wanted to challenge his first reversion on 27-7-1964, he ought to have filed this petition much earlier soon after he was informed by a letter dated 29-1-1966 (vide Annexure 'C' to the petition) that his representation had been filed.
5. Dealing with the question of delay in filing the writ petition a Full Bench of the Nagpur High Court in KrishnaRajeshwar v. M. P. Govt., AIR 1954 Nag 151 held that the relief under Article 226 is discretionary and, invoking as it does extraordinary powers of the High Court, it must be sought as soon as an injury is caused or threatened. It was further held in that case that the question of delay has to be considered in each case on the basis of the facts and circumstances thereof and no hard and fast rules could be laid down. But where a party does not take any steps to seek the relief for a number of years without any justification whatsoever the delay is inexcusable and on this ground, alone the petition is liable to be dismissed. In Gajrajsingh v. State of M. P., AIR 1960 Madh Pra 299 it was held that any delay after the petitioner had exhausted the other remedies provided by the rules should be very satisfactorily explained, and if it has not been done the petition may be dismissed on that ground alone. The aforesaid decision was followed in Roopsingh v. Sanchalak Panchayat, AIR 1962 Madh Pra 50. It was observed therein that though there is no limitation for an application for relief under Article 226, the delay that is considerable and unexplained disqualifies the petitioner to any assistance. It was further held that the satisfactory way of explaining the delay 19 to show that the petitioner has been seeking relief elsewhere in a manner provided by law.
6. In Balkishan v. Chief Secretary to M. P. Government, 1963 Jab LJ 98=(AIR 1963 Madh Pra 216) an unexplained delay for about one year in filing a petition against the order of dismissal was considered to be sufficient to justify the dismissal of the petition irrespective of its merits.
7. In the State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006, it was observed by their Lordships of the Supreme Court that although the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226, the Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the relief.
8. Thus, where a party seeks to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution he must satisfy the Court that he has approached it without undue delay. In service matters the need for seeking a relief from the Court promptly is all the more necessary particularly when the petitioner has not been pursuing any administrative remedy because the relief claimed by him is likely to affect his colleagues in the Department and it is in the interests of administration that such matters should be decided promptly.
9. In this case it appears that the applicant did not file the petition becausehe was apparently satisfied with the assurance given by the Government while rejecting his representation that his case will be considered on merits if and when there was an occasion for filling the post of Assistant Statistician by promotion (vide Annexure 'C' to the petition). This assurance was fulfilled by the Government inasmuch as the petitioner was promoted to the post of Assistant Statistician in a future vacancy (vide order dated 4-11-1966 Annexure 'D' to the petition). It, therefore, appears that the petitioner would not have filed this petition if he had not been subsequently reverted (vide order dated 30-6-1968 Annexure 'E' to the petition). In these circumstances, the petitioner must be deemed to have waived his right to question his first reversion on 27-7-1964 and the petition in respect thereof is, in our view, liable to be dismissed on the ground of delay alone.
10. The petitioner has not questioned his second reversion dated 30-6-1968 which was consequent on the abolition of the post held by him. During arguments the learned counsel for the petitioner assailed the first reversion on a number of grounds. Although in our view the petition is liable to be dismissed on the ground of delay alone we propose to deal with the merits of the case, as the matter was argued before us at some length.
11. The learned counsel for the petitioner vehemently argued that the reversion of the petitioner must be adjudged illegal and unconstitutional because it amounted to reduction in rank within the meaning of Clause (2) of Article 311 of the Constitution and such reversion could not be made without due opportunity to the applicant to show cause against the said action. The learned counsel relied upon a number of rulings in support of his contention. He first referred to the well-known Dhingra's case P. L. Dhingra v, Union of India, AIR 1958 SC 36. The following observations in the said case which represent the majority view are pertinent:--
'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 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 test for determining whether the termination of the service of a government servant is by way of punishment is to ascretain 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 herein before mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311.'
12. Applying the aforesaid principles to the present case the position is as follows. The petitioner was appointed to officiate temporarily until further orders (vide order dated 25-2-1967 Annexure 'A'). From the very terms of the appointment it would appear that he had no right to hold the Dost and as such his reversion by a further order would be strictly governed by the terms of his appointment and could not be treated as by way of punishment. We may here point out that in this case nothing has been brought to our notice which may suggest that the reversion was by way of punishment.
13. The learned counsel for the petitioner merely pointed out that on account of the reversion the petitioner had lost his position in the gradation list for the post of Assistant Statistician. But it is obvious that he retained his position in a substantive rank i.e., the Crop Survey Supervisor. When a person is reverted to the substantive rank the question of penal consequences in the matter of forfeiture of pay or loss of seniority must be considered with reference to his substantive and not to his officiating rank for every reversion must necessarily mean that the pay will be reduced to the pay of substantive rank.
14. The learned counsel for the petitioner also relied on the decision of the Supreme Court in P. C. Wadhwa v. Union of India, AIR 1964 SC 423. In that case it was held that the reversion of the appellant was by way of punishment. But this decision was based on the rules relating to all India Services. Wadhwa's case (supra) was fully considered and explained in a later decision of the Supreme Court in The Divisional Personnel Officer, Southern Railway, Mysore v. S. Raghvendrachar, AIR 1966 SC 1529. In paragraph 20 their Lordships observed while referring to the decision in Wadhwa's case as follows:--
'On a consideration of the circumstances of that case, it is clear that the decision itself proceeded on the basic fact that for members of All India Services like the Indian Police Service promotion was a matter of right and special considerations would have to be applied to them.'
Thus Wadhwa's case is of no help because in that case the decision was based on special considerations which arose out of the rules relating to the All India Services which conferred right of promotion to the superior cadre as of right. The petitioner's case thus stands on a different footing.
15. In the present case it was not disputed before us that the Madhya Pradesh Civil Services (General Conditions of Service) Rules, 1961, are applicable to the petitioner. Rule No. 9 is in the following terms:--
Trial for suitability of officiating government servants.
(1) A person already in permanent Government service appointed to another service or post by direct recruitment, promotion or transfer shall ordinarily be appointed in an officiating capacity for such period as may be prescribed to ascertain his suitability for the service or post.
(2) If during or at the end of the period of trial he is found to be unsuitable for the service or post, he shall be reverted to his former substantive service or post.
(3) If at the end of the period of trial the officiating government servant is considered suitable for the service or post, he shall be confirmed in the service or post with effect from such date as may be specified in the order of confirmation. It is clear from the aforesaid Rule that an officiating government servant may be reverted after a period of trial if he is not found to be suitable.
16. In S. Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711, their Lordships while dealing with a case of a probationer after the expiry of the period of probation held that he still continues to be a probationer and can be reverted to his original post under the service rules even without assigning any reason, if his work is found to be unsatisfactory. Similarly in the State of Punjab v. Sukhraj Bahadur, AIR 1968 SC 1089 it was held that a civil servant cannot by virtue of the probationary period being over claim to have a substantive appointment and reversion by itself did not amount to punishment. We therefore hold that the reversion of the petitioner cannot be considered as a reduction in rank as a measure of punishment so as to attract Clause (2) of Article 311 of the Constitution.
17, In the present case no material has been placed on record to justify the contention that the reversion of the petitioner was by way of punishment, and no such inference can be drawn from the mere fact that the petitioner was reverted in pursuance of the recommendations of the Public Service Commission. In fact if the Government intended to revert the petitioner by way of punishmentno assurance would have been given that he would be considered in a future vacancy.
18. The learned counsel for the petitioner relied upon the decision of the Mysore High Court in M. Ramaiah V. State of Mysore, AIR 1965 Mys 164. In that case on the peculiar facts of the case it was held that the order of reversion amounted to reduction in rank within the meaning of Article 311 of the Constitution. As already pointed out the reversion of a probationer or a person appointed on a post temporarily may be either in the ordinary course for administrative reasons in accordance with the rules of service or it may be as a measure of punishment for some misconduct or otherwise. Where it is ordered as a measure of punishment Article 311 will be attracted and not otherwise. In the present case it is clear that the order of reversion was not as a measure of punishment and as such the order did not amount to reduction in rank within the meaning of Article 311 of the Constitution.
19. It was further contended that the petitioner was reverted on the recommendations of the Public Service Commission which were based on some adverse remarks given to the petitioner by Shri Aole, Director of Land Records, which were never communicated to the petitioner and were kept confidential and thus the petitioner was not given an opportunity to explain the same. In the first place the contention of the petitioner that the adverse remarks were not communicated to him does not appear to be correct because in his own representation (Annexure *F' to the petition) he stated that one adverse remark for the year ending 31-3-1962 was communicated to him and that he had protested against it. Apart from this the learned counsel for the petitioner was unable to show according to which particular rule of service the petitioner had a right to the adverse remarks being communicated to him. In the absence of any such rule the petitioner cannot contend that any of his right has been infringed, even though it may be the practice of the Government to communicate adverse remarks generally.
20. The next contention of the learned counsel for the petitioner was that the petitioner was reverted by the State Government solely on the opinion of the Public Service Commission and that as the State Government failed to apply its own mind to it the order of reversion must be set aside as mala fide.
21. In the return filed on behalf of the Government it has been stated that according to the Madhya Pradesh Public Service Commission (Limitation of Functions) Regulations, 1957, appointments to all Class II posts are to be concurred by the Public Service Commission and as the Public Service Commission did not concurin the appointment of the petitioner on the post of the Assistant Statistician he was reverted (vide paragraph (i) of the grounds at page 4 of the Return). Again in paragraph (4) of the Grounds it is stated as under:--
'His reversion for the first time in 1964 was due to non-concurrence of the Public Service Commission .....'
Further in paragraph (5) of the Grounds it is stated that the promotion from the post of the Crop Survey Supervisor could be made only on the concurrence of the Public Service Commission.
22. The aforesaid stand of the State Government appears to be based on a grave misconception of the functions of the Public Service Commission in regard to these matters. Clause (3) of Article 320 of the Constitution lays down that the Union Public Service Commission shall be consulted on the suitability of the candidate for appointments, promotions etc. and it shall be the duty of the Commission to advise on matters referred to it. The power to revert a Gazetted Government servant rests exclusively in the Government and not in the Public Service Commission which performs purely an advisory function. All that Article 320 of the Constitution contemplates is that the Government should seek advice of the Public Service Commission and give it due consideration before taking a final decision.
23. In Ramchandra Chaudhuri v. Secretary to Government of West Bengal, AIR 1964 Cal 265, the following observations were made regarding the advisory functions of the Public Service Commission:--
'When an authority is vested with a power but he is required to consult an advisory body before taking its decision, the responsibility for the decision or the final action that emerges is that of the authority who is entrusted with the power. If the authority concerned fails to apply its mind and to exercise its discretion, the order will be vitiated by mala fides.'
It was further observed that where the Government mechanically acted upon the advice given by the Public Service Commission and reverted the petitioner without applying its mind the order of reversion was invalid owing to mala fides.
24. The aforesaid decision of the Calcutta High Court was followed with approval by the Orissa High Court in Iswar Chandra Mohanty v. State of Orissa, AIR 1966 Orissa 173. It was held therein that where the Government passes an order of reversion exclusively on the basis of the opinion given by the Public Service Commission without applying its own independent mind to the merit of the case the order can be validly challenged as vitiated by mala fides and not binding in law.
25. The learned Deputy Government Advocate contended that an inference that the State Government acted mechanically on the advice of the Public Service Commission without applying its own mind should not be drawn merely because it acted on such advice, and he relied in that connection on a decision of the Punjab High Court in J. L. Mair v. State of Punjab, AIR 1968 Punj 324. In that case it was held that if considering the advice of the Public Service Commission and other relevant materials the State Government takes a decision it cannot be said that the decision is mala fide.
26. An inference that the Government acted mechanically on the advice of the Public Service Commission without applying its own mind to the case is not to be drawn too readily from the mere fact that it acted on such advice. Looking to the advisory functions assigned to the Commission under the Constitution it is obvious that the Government is not only expected to take into consideration such advice before taking a final decision but it is also expected to give due weight to it. In fact Article 323 requires that where the advice of the Commission is not accepted the reasons for such non-acceptance are to be laid before the Legislature. It is thus incumbent on the State Government to assign reasons where it does not choose to act on the advice of the Commission. But the Government is not expected to abdicate its functions in regard to the appointment and promotion in favour of the Public Service Commission. Here in this case the Return as pointed above indicates that the State Government considered the concurrence of the Public Service Commission indispensable or in other words sine qua npn for promotion of the petitioner. This was clearly a misconceived notion of the Government which must be dispelled. As pointed out above the Public Service Commission is merely to be consulted and has tendered its advice, it is for the Government to take a decision after due consideration of it.
27. We must, therefore, say that if the Government reverted the petitioner under erroneous impression that the concurrence of the Commission was necessary for petitioner's promotion and that he was bound to be reverted where no such concurrence was given the reversion was not justified. It, however, appears to us that the case on behalf of the Government has not been put up properly in the return. Moreover, the question whether this Court would interfere in a case where the reversion is not by way of punishment and as such does not offend Article 311 of the Constitution is not free from difficulty. We do not, however, consider it necessary to decide this question in this case as thepetition is liable to be thrown out on the ground of inordinate delay as already pointed out above.
28. No other point was pressed before us.
29. As pointed out above the second reversion of the petitioner by order dated 30-6-1968 (vide annexure E to the petition) was not challenged before us. Moreover, it was not disputed that if the first reversion stands, the second reversion cannot be assailed, it being consequent on the abolition of the post.
30. The petition, therefore, fails and is hereby dismissed. In the circumstances of this case we do not, however, make any order as to costs.