1. This is a petition under Article 226 of the Constitution of India for issuance of a writ of certiorari and of mandamus and such other directions, orders or writs as may be deemed just, and appropriate in the case by Rajaram Richharia, who was officiating District Excise Officer, at present working as temporary Sales Tax Officer at Jabalpur.
2. The petitioner was Excise Inspector at Raipur in the service of the State of Madhya Pradesh. The Excise Commissioner, Madhya Pradesh, Nagpur, recommended to the Joint Public Service Commission, Ranchi, the names of Shri N.L. Das and two other Excise Inspectors for promotion in supersession of the petitioner's claims. Those recommended officers were also asked to officiate as District Excise Officers, Shri N.L. Das was posted in the Nimar District as officiating District Excise Officer with effect from 16-7-1946 in anticipation of the concurrence of the Public Service Commission.
At the end of 1946, the Public Service Commission disapproved the aforesaid recommendations and selected the petitioner and two others in place of the recommended candidates. At that time, Shri V.N. Chandorkar, District Excise Officer, Raipur, proceeded on leave, and the petitioner was appointed to officiate as District Excise Officer at Raipur in his place with effect from 23-4-1947.
3. The Notification, dated Nagpur, 17-5-1947 (Annexure I, on page 26 of the paper-book) reads as follows :
'Separate Revenue Department.
No. 553-866-VIII. Mr. V.N. Chandorkar, District Excise Officer, Raipur, is granted earned leave for seventy days with effect from the elite of relief.
No. 554-866-VIII. Mr. R.R. Richharia, Excise Inspector and Asstt. District Excise Officer, Raipur is appointed to officiate as District Excise Officer, Raipur, with effect from the date of taking over charge vice Mr. V.N. Chandorkar, District Excise Officer, granted leave.
By order of the Governor,
Central Provinces and Berar,
Sd/- L.R.S. Singh,
The case of the petitioner, then, is that he was for the first time informed by the Excise Commissioner's Memorandum No. 6500, dated 27-12-1949 (Annexure V, Page 29), through the Deputy Commissioner, Raipur, that he was already working in a clear vacancy as District Excise Officer since his very appointment from 23-4-1947 for more than two years and should he fail to pass all the departmental examinations to be held in March 1950, action would be taken to revert him. The petitioner sent a reply on 20-1-1950 that no intimation was till then received previously by him of the date of his appointment in a clear vacancy for the purpose of computation of the prescribed period of two years for passing the examination. No reply to this letter to the Excise Commissioner was received by the petitioner. The petitioner could not pass the examination held in March, 1950.
A copy of the Memorandum No. F/4547, dated 21-8-1950, from the Excise Commissioner, Madhya Pradesh, Nagpur, to the Deputy Commissioner, Raipur, is on page 31 of the paper-book which states that the State Government had considered the petitioner's case and had given him one more chance for passing the departmental examination in accounts to be held in September-October, 1950. It was added that the Government had directed that if the petitioner failed in the ensuing examination he would be reverted to his substantive post. The petitioner could not pass this examination, and therefore, he was reverted to his substantive post of Excise Inspector. The relevant order appears on page 71.3 of the Madhya Pradesh, Gazette, dated 24-11-1950, and the notification says:
'Separate Revenue Department.
No. 1893-1878-VIII. On relief by Shri N.L. Das, Shri R.R. Richharia, officiating District Excise Officer, Kaipur, will revert to his substantive post of Excise Inspector.
By order of the Governor,
Sd/- R. R. Singh,
It was mentioned in the letter No. 319-I86-VII, dated 24-2-1951, (Annexure IX, page 32) that the ground for reversion was his failure to pass the prescribed departmental examination within the prescribed period. The petitioner, then, filed an appeal to His Excellency the Governor, Madhya Pradesh, Nagpur, but it was rejected. He, therefore, filed this petition under Article 226 alleging that the order of reversion violates Article 311, of the Constitution, and he prayed for the issuance of (1) a writ of certiorari quashing the first respondent's (State Government') order No. 1893-1878-VIII, dated Nagpur, 22-11-1950; (2) a writ of mandamus ordering the first respondent to restore the petitioner to his original place of seniority amongst the District Excise Officers from which he was reverted and to restore to him with due dates all benefits of pay, increments, confirmation and Promotion that would otherwise accrue to him as though' he was not reverted; and (3) such other directions, orders or writs as may be deemed appropriate in the circumstances of the case.
4. The State Government opposed the petition on the ground that his reversion did not amount to reduction in rank, and, therefore, did not attract the provisions of Article 311 of the Constitution. They conceded that the petitioner was reverted to his substantive post for his failure to pass the prescribed departmental examinations within the period of two years as required by paragraph 155-A (1) of the Central Provinces Excise Manual, Volume I, as the petitioner knew or ought to have known when he started officiating in a clear vacancy. They also contended that the petitioner was only officiating as District Excise Officer and so he could not be said to hold that post within the meaning of Article 311 of the Constitution.
5. The case originally came before a learned Single Judge of this Court (Naik J.) who referred it to a Division Bench under Rule 4 of the High Court Rules governing Miscellaneous Petitions under Article 226 of the Constitution. In his order of reference the learned Single Judge made the following observations :
'It is curious that the return of the State Government does not specify clearly the date from which the petitioner's officiation in a clear vacancy started, and in spite of repeated opportunities in this Court they have not given any satisfactory data from which it could definitely be ascertained when the petitioner's officiation in the post of the District Excise Officer in a clear vacancy started. In my opinion, it would be necessary to direct the State Government to state categorically the date from which the petitioner's officiation in a clear vacancy started and also to establish We may mention here, with regret, that the State Government did not care to clarify this matter, this fact to the satisfaction of this Court.'
6. The question turns upon the interpretation of the first rule of paragraph 155-A of the Central Provinces Excise Manual, Volume I, which provides that :
'Every district excise officer appointed on probation on direct recruitment and every officer of the subordinate Excise service 'appointed to officiate in a clear vacancy as District Excise Officer' is required to pass the departmental examinations in the following subjects 'within two years' from the date of joining his appointment :-
(a) Law and Procedure,
(b). Accounts, and
(c) Indian Languages, namely, Hindi and Marathi:
Provided that the Provincial Government may In special cases extend the period within which an officer is required to pass the examinations. '
(underlined by us : herein ' ')
It will be obvious from the above that when an officer of the subordinate Excise Service is appointed toofficiate in a clear vacancy, he has to pass the departmental examination in (accounts) within twoyears from the date of joining his appointment.
7. In the instant case, it is clear that the date of appointment (23-4-1947) mentioned against the name of the petitioner in the Memorandum No. E-6500, dated 27-12-1949 (Annexure V page 29) from the Excise Commissioner, C. P. and Berar, Nagpnr, is wrong. On that date, the petitioner was appointed to officiate as District Excise officer in place of Shri V.N. Chandorkar District Excise Officer, Raipur, who was granted leave. It cannot be easily determined, even with the help of the Civil Lists for various years, when Shri R.R. Richharia (the petitioner) was appointed to officiate in a clear vacancy, that is, in a vacancy on which no Excise Officer held an active or suspended lien.
8. A perusal of Rule 1 in para 155-A, according to its 'grammatical construction', makes it clear that an officer of Subordinate Excise Service is required to pass the examination within a period of two years from his joining the appointment if he is appointed to officiate in a clear vacancy, If the order of the Government is silent on the point whether the appointment 'is in a clear vacancy' or not, the rule cannot be held to apply. Where the grammatical construction of a rule is clear and manifest, that construction should prevail, unless there be some strong and obvious reason to the contrary. This construction of the rule, in the instant case, has not been shown to be contrary, to, or inconsistent with, any expressed intention or declared purposes of the rules and does not involve any absurdity, repugnance or inconsistency. Therefore, the grammatical and ordinary sense of the words is to be adhered to.
9. Rule 4 under paragraph 155-A lays down the penalties. It says that a District Excise Officer will not be confirmed till he has passed the prescribed departmental examinations. It, then adds :
'Persistent failure to pass the examinations involves removal from Government service of an officer appointed by direct recruitment and reversion to his permanent post of an officer of the subordinate service appointed to officiate as District Excise Officer.'
10. It is the latter portion of this rule that has been applied in the present case. It is obvious that the provision is analogous to a penal one; and in applying such rules, which entail consequences similar to penal ones, one has to take care that none is brought within it except by express language. The words of the rule cannot be strained unduly, and there can be no reversion of the officer concerned unless there has clearly been a disobedience of Rule 1. It has already been stated above that Rule 1 cannot be held to apply to a case, where the order of the Government is silent on the point whether the officer is officiating in a clear vacancy. It follows that the Government has to inform the officer concerned that from such and such date he would be officiating in a clear vacancy.
11. On behalf of the Government it was contended that the petitioner knew that he was in a clear vacancy as would be evident from the fact that he had appeared four times in the Departmental Examinations in 1948 and 1949. Shri Richharia's reply to this contention is twofold. First, he states that he never appeared in any Departmental Examination in 1948 and appeared only twice in 1949. He also contends that Excise Sub-Inspectors, Excise Inspectors and District Excise Officers (whether officiating in temporary or clear vacancies) are allowed to appear at the Departmental Examinations, and, therefore, he appeared in the 1949 Examinations. That does not, he contends, mean that he was to pass the Examination within two years, as he was not informed whether he had been appointed in a clear vacancy or not, No rule has been shown to us which states that only those persons are allowed to take the Departmental Examinations who are appointed in a clear vacancy. Under these circumstances, no knowledge can be imputed to Shri Richharia, merely by his appearing at the Examinations in 1949.
12. There is also some dispute about the permanent sanctioned strength of the District Excise officer. The petitioner stated that the permanent strength was 19, whereas Government maintains that the permanent sanctioned strength of the District Excise Officers till 31-10-1950 was 23, inclusive of two posts of Headquarter Assistant Commissioners and two training reserves, and not 19, as stated by the petitioner.
13. A perusal of the Quarterly Civil List corrected up to the 1st October 1947, No. CCLXXXVII, will make it clear that there were 21 District Excise Officers. In the New scale there are five names of permanent officers given. The first, Shri Gayasuddin Khan, was under suspension. Then the names of Shri Kashyap Deo Prasad, Shri V.N. Chandorkar, Shri H. N. Shrivastava and Shri Sao appear. After that there is Old Scale, in which only one name that of Shri Onkar Prasad Surajbali appears. Thereafter there is again New Scale in which the names of ten officers appear: but they are all officiating. It is difficult to say who was officiating in a clear vacancy.
From the History of Services of Gazetted Officers corrected up to 1st July 1950 it appears that several officers from time to time had been going on long leave. Shri V.N. Chandorkar had gone on 70 days leave from 23rd April 1947, when the petitioner Shri Richaria came in his place; but it appears that Shri Chandorkar was permitted to return to duty before the expiry of his leave. Then it cannot be ascertained in whose place the petitioner thereafter officiated. In 1948 several officers had gone on long leave. Shri U.C. Shrivastava, for example, went on leave for 105 days with effect from 22nd March 1948. Shri Onkar Prasad Surajbali went on a month's leave from 22nd June, 1948.
Shri Ramchandra Sharma went on 14 days leave from 2nd to 15th of March 1948, Shri P. D. Taksale went on a month's leave from 13-8-1948. In 1949 also Shri Abdul Hamid Khan went on three months leave from 19-6-1949 and reverted to his substantive post from 13-10-1949. Shri Mir Fazle Ali was on leave from 27-3-1949 to 26-4-1949 and then again took long leave from 26-10-1949 to 25-2-1950. Shri M. D. Kharkar went on two months' leave from 25-2-1949.
14. It will thus be seen that it is extremely difficult to say whether during the years 1948 and 1949 the petitioner officiated for the officer who went on leave or officiated in a clear vacancy. The Government has done nothing to clear this in spite of the chance given to it by Naik J.
15. It is also difficult to state whether the posts of the Headquarters Assistant Commissioners were interchangeable with those of the District Excise Officers, or they were superior posts. In the Quarterly Civil List No. CCXC (Corrected up to 1-10-1949), under Part X--Excise Department (at page 114) 6 Assistant Commissioners of Excise are shown and there are 21 District Excise Officers. The same appears at page 119 in the Quarterly Civil List No. CCXCI (Corrected up to 1-4-1949). From the Memorandum No. 1788-1800-VIII, dated Nagpur, 15-11-1950 at page 53 of the paper-book) it appears that there were only three posts of the Headquarters Assistant Commissioners, of which one had been sanctioned on a temporary basis and the other two on a permanent basis.
It is still more difficult to state precisely how many of the posts of the District Excise Officers and Assistant Excise Commissioners were permanent and how many temporary. If there were only three posts of the Headquarters Assistant Commissioners, why should the Civil Lists, referred to above, show as many as 6 Assistant Commissioners in the Excise Department, though it is clear that three of them are deputed for sales tax work. But it is not certain whether those persons working as Sales Tax Commissioners were also regarded as permanent District Excise Officers or not. Till there is a clear picture of the whole strength of the Excise Department, it cannot be said definitely from what date the petitioner ought to be taken to be officiating in a clear vacancy.
16. It may also be mentioned here that in the Memorandum No. E-6500, dated 27-12-1949 (at page 29 of the paper-book) it is mentioned that the petitioner had been working as District Excise Officer in a clear vacancy for more than two years, while in para 9 of the Return (at page 44) it is mentioned that 'Shri Richharia was beyond doubt officiating in a clear vacancy on 5-12-1948'. It will be manifest that the Government was not clear in their mind as to the date from which the petitioner had been working in a clear vacancy.
17. In this state of affairs, the action of the Government in reverting the petitioner to his substantive post, as a measure of penalty for not passing the Departmental Examination within a period of 2 years, without giving him a reasonable opportunity to show cause against his reversion, does not appear to be warranted or justifiable. In the present case the reversion of the petitioner from an officiating post had been ordered not on administrative grounds but only as a measure of Penalty and as such it will attract the provisions of Article 311(2) of the Constitution. See M.V. Vichoray v. The State of Madhya Pradesh, ILR (1952) Nag 105: (AIR 1952 Nag 288) (A).
18. Clause (2) of Article 311 of the Constitutionrequires that the civil servant in question is entitledto have an opportunity to show cause at two stages :(a) once after he is found guilty and punishment isprovisionally proposed, and (b) then, against thepunishment so proposed upon the above finding. Asno opportunity has been given to the petitioner toshow cause at either stage, we hold that the reversion of the petitioner to the post of Excise Inspectorby way of penalty was unconstitutional and that theorder of the Separate Revenue Department, datedNagpur, 22-11-1950, reverting the petitioner from hispost of officiating District Excise Officer is inoperative. The petitioner is entitled to be retained in thatpost or in equivalent post, till Government takesaction according to law and gives an opportunity tothe petitioner to show cause against the proposedaction. The petitioner will be entitled to costs. Counsel's fee Rs. 75/-.