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N. Subramaniam Vs. Divisional Personnel Officer, South Eastern Railway - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 66 of 1965
Judge
Reported inAIR1970Ori12
ActsConstitution of India - Article 311(2)
AppellantN. Subramaniam
RespondentDivisional Personnel Officer, South Eastern Railway
Appellant AdvocateP. Palit, Adv.
Respondent AdvocateB.K. Pal and ;B. Pal, Advs.
DispositionPetition dismissed
Cases ReferredState of Bombay v. F. A. Abraham
Excerpt:
.....in character and, therefore, the reversion which was made without com-plying with the requirements under article 311(2) of the constitution is bad, and (2) that the order of reversion has cast astigma on the petitioner and, therefore, necessitated compliance of article 311(2) of the constitution. in short, in the case of an appointment to a permanent post in a government service on probation or on anofficiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. he could not, therefore, without more, complain if he was sent back to his original post. palit must also fail......subramanyamdisig. stn. bm-i cto 175-240.disig. stn. bm-ii bhc 130-212in place of sri n. o. kar ****note:- reversion of item no.1 is ordered since his services are not satisfactory.'according to mr. palit, the note contains the stigma. it is not disputed on behalf of the petitioner that an order of reversion simpliciter in respect of a government servant officiating in a higher post to his lower substantive post can be passed without complying with article 311(2) of the constitution. what mr. palit takes exception to is the incorporation in the note to the following effect :'reversion of item no. 1 is ordered since his services are not satisfactory.'and contends that this note attracts theapplication of article 311(2) of the constitution. the supreme court in air 1958 sc 36, p. l. dhingra.....
Judgment:

R.N. Misra, J.

1. The petitioner has come before this Court under Article 226 of the Constitution questioning the legality of the order dated 5-10-64. He happens to be an employee under the South Eastern Railway and was working as a Block Maintainer, Grade II. The Railway Administration sanctioned some Block Maintainers' posts in Grade I, temporarily for a period of 2 years in April, 1963, and the petitioner, after passing the prescribed test examination, was promoted from Grade II to Grade I as a Block Maintainer. The order of appointment is in Annexure A and is dated 6-3-64. About 7 months thereafter he was reverted to his former Grade II post.

2. Mr. Palit, appearing on behalf of the petitioner, contended (1) that the order of appointment in Annexure A wasof a substantive nature and was not officiating in character and, therefore, the reversion which was made without com-plying with the requirements under Article 311(2) of the Constitution is bad, and (2) that the order of reversion has cast astigma on the petitioner and, therefore, necessitated compliance of Article 311(2) of the Constitution.

3. It is necessary to refer at length to the order of appointment to determine the validity of the first contention. So far as relevant, the said order of . appointment reads as follows :

'M. No....E/artisan/Sig. dated 6.3.64.The following promotions and postings are ordered with immediate effect to implement the proposed Hd. Qr. Stn. of BM Gr. I, Gr. II and BM Gr. III as approvedby D. S.

Serial No.NameFromPay scaleTo Desg.Stn. Pay & scaleRemarks

*******2.Shri N. SubramanyamBM-II-CTC145/-

130-212BM-I.CTC175/-

175.240Asst. new post-sanctioned vide C P C No.5/829/478 of 9.4.68.

Note :-- Items 1 to 3 passed T/Test of BM-I. Promotions of Item 5 to 11 are ordered purely as temporary on stop-gap measure in the exigencies of services and therefore these do not confer any title or claim on pffg, incumbents for future promotions either permanent or temporary and also will not count for seniority in the offg. grade.

sd/-DPO, KUR. '

4. Mr. Palit mainly relied upon the Note appended at its foot, to support his contention that the first three persons including the petitioner were appointed substantively after having duly qualified themselves while the others were on temporary basis. This contention cannot be s ustained. The distinction between the two categories indicated in the Note i.e. items 1 to 3 on one side and the remain-ing persons on the other, is apparently to indicate that the service of the second category would not ensure for the seniority in the officiating grade. There is no material on record to hold that the petitioner's appointment was to continue for the entire period for which the post had been sanctioned as shown in Annexure I, that is. for a term of 2 years, as such it must be held that the petitioner had been appointed temporarily to officiate in the higher post of a Block Maintainer Grade I.

5. This leads us to examine the other contention of Mr. Palit as to whether the order of reversion attaches a stigma, and, therefore, attracts the application of Article 311(2) of the Constitution. The order of reversion, 90 far as relevant, reads :

'South Eastern Railway.

office of the D. S., KUR.

Office Order No. E/Artisan/Sig.

dated 5-10-64.

The following postings are ordered with immediate effect :

Serial No.NameFromToRemarks

1.Sri SubramanyamDisig. Stn. BM-I CTO 175-240.Disig. Stn. BM-II BHC 130-212In place of Sri N. O. Kar ****

Note:- Reversion of Item No.1 is ordered since his services are not satisfactory.'

According to Mr. Palit, the Note contains the stigma. It is not disputed on behalf of the petitioner that an order of reversion simpliciter in respect of a Government servant officiating in a higher post to his lower substantive post can be passed without complying with Article 311(2) of the Constitution. What Mr. Palit takes exception to is the incorporation in the Note to the following effect :

'Reversion of Item No. 1 is ordered since his services are not satisfactory.'

and contends that this Note attracts theapplication of Article 311(2) of the Constitution. The Supreme Court in AIR 1958 SC 36, P. L. Dhingra v. Union of India, indicated at page 42 :

'It is, therefore, quite clear that appointment to a permanent post in a Government service, either on probation or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment.under the ordinary law of master andservant, is that it is terminable at any time. In short, in the case of an appointment to a permanent post in a Government service on probation or on anofficiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time.'

It was further indicated in the said judgment,

'If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. . . .The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression 'terminate' or 'discharge' is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.'

6. The contention of Mr. Palit that the Note contains a stigma has tp be tested in the light of the observations of the Supreme Court extracted above. Admittedly, the impugned order is not the consequence of any proceeding and Article 311(2) of the Constitution has not been followed in this case. But was itnecessary to be followed? The answer would depend upon a finding as to whether the contents of the Note appended to the impugned order have visited thepetitioner with any penal consequence or entail or provide for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion. We do not find that the petitioner has been visited with any evil consequence by the mere indication of the reason for his reversion in the Note tp the impugned order. Officiation in a higher post is ordinarily allowed to test the suitability of a servant, and rendition of satisfactory service in the officiating post is the sine qua non for continuation therein, ultimately leading to a substantive promotion of the incumbent to such higher post. To us it appears that the test of the efficiency or suitability of the incumbent is inherent in the process of officiation, and officia-tion normally ends up in reversion of the incumbent in case he does not render satisfactory service during officiation.

7. In this view of the matter, the mere indication of the reason in the order of reversion cannot amount to punishment. We are fortified in this view of ours by the observations of the Supreme Court in AIR 1962 SC 794, State of Bombay v. F. A. Abraham, where it has been laid down :

'We are unable to agree with the observation in M. A. Waheed's case, AIR 1954 Nag 229, that when a person officiating in a post, is reverted for unsatisfactory work, that reversion amounts to a reduction in rank. A person officiating in a post has no right to hold it for all times. . . .Again, sometimes a person is given an officiating post to test his suitability to be made permanent in it later. Here again, it is an implied term of the officiating appointment that if he is found unsuitable, he would have to go back. If, therefore, the appropriate authorities find him unsuitable for the higher rank and then revert him back to his original lower rank, the action taken is in accordance with the terms on which the officiating post had been given. It is in no way a punishment and is not, therefore a reduction in rank.'

Applying the aforesaid test to the case which was before it, the Supreme Court came to the conclusion that the respondent had of course no right to the post of Deputy Superintendent of Police to which he had been given an officiating appointment nor did he contend to the contrary. He could not, therefore, without more, complain if he was sent back to his original post. This is what happened in the case even if it be taken that the petitioner had been reverted to his original rank because he was found unsuit-able for the higher rank to which he had been given an officiating appointment. Reversion in all officiating appointments would necessarily lead to the loss of benefit of higher pay. But that by itself cannot indicate that the reversion was by way of punishment, because the officiating incumbent had no right to continue in the higher post, or to the benefits arising from it. The reversion in the instant case must, therefore, be taken to have been under the terms of the officiating employment itself, and the contention raised by Mr. Palit that the indication of the reason in the order of reversion brings about a stigma cannot be supported. Our view also finds support, from the recent decision of the Supreme Court in the case of Union of India and others v. K. C. Dhaba in Civil Appeal No. 882 of 1966 disposed of on 7-4-1969 (SC) (still unreported).

8. On the aforesaid analysis, the second contention of Mr. Palit must also fail. No other point is raised and therefore the writ application is dismissed, but in the circumstances we make no order as to costs.

G.K. Misra, C.J.

9. I agree.


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