1. The petitioner challenges the order of his reversion from the post of Director of Fisheries, Crissa to which post he was temporarily appointed to act for specified period to the post of Joint Director of Fisheries, by an order dated February, 27, 1968 passed by the Government of Orissa,
2. The permanent incumbent of the post of Director of Fisheries, Orissa was one Sri G. N. Mitra who since September,1963 has been and still is, on deputation to the Government of India retaining however his lien in the post. The then senior-most Deputy Director of Fisheries Sri G. B. Mohanty was promoted to officiate in the said post of Director of Fisheries in the place of Sri G. N. Mitra. In June, 1964 Sri G. B. Mohanty died. Thereafter the petitioner Sri Prasanta Mohapatra was appointed temporarily to act as Director of Fisheries in the vacancy caused by Sri Mitra's deputation, for periods of six months successively by a series of orders. The last of these orders dated November 2, 1967 which is relevant for the purpose of this writ petition, reads as follows:
Government of Orissa.
Agricultural Department. Notification:
Dated Bhubaneswar 2nd November, 1967.
No. 3 FY-OA-7/36-33797/Ag. Sri Prasanta Mohapatra, who was appointed temporarily to act as Director of Fisheries, Orissa, is allowed to continue as such till 25th May, 1968, or till the return of Sri G. N. Mitra, Director of Fisheries, under deputation to Government of India, whichever is earlier.
By order of the Governor.
Sd. B. K. Mohanty
Deputy Secretary to Government'
3. By the impugned order dated February 27, 1968 the petitioner was reverted and appointed temporarily as Joint Director of Fisheries which is lower in rank than that of Director of Fisheries for the period specified in that order. The order reads as follows:
'Government of Orissa.
Bhubaneswar, 27th February, 1968. No. 6558-Ag. On relief by Sri P. Misra, I. A. S., Sri Prasanta Mohapatra, who was last appointed temporarily, as Director of Fisheries in Notification No. 33797 AG dated 2-11-67 is reverted and appointed temporarily as Joint Director of Fisheries for a period of six months or till a selection is made in consultation with the Public Service Commission, Orissa, whichever is earlier. The headquarters of the Joint Director will be at Cuttack.
By order of the Governor.
Sd. B. K. Mohanty,
Deputy Secretary to Government'.
The petitioner challenges this order of reversion to a lower post after premature termination of his services as officiating Director of Fisheries, as amounting to a punishment as this was done obviously without giving him an opportunity to represent against such reversion in contravention of Article 311(2) of the Constitution. His point is that the impugned order, in so far as it brings about thetermination of his services as temporary Director of Fisheries from a date prior to the date specified in the order of appointment dated November 2, 1967, operates as a punishment for which the procedure under Article 311 should have been followed and this not having been done the order is liable to be quashed.
4. In support of the order of reversion, the argument urged on behalf of the State, in substance, is this: In case of probationary, officiating or temporary appointments the persons appointed have no right to the posts; their services can be terminated at any time according to the rules and service conditions if any; Article 311 has no application. The State relied on Rule 31 of the Orissa Service Code, Vol. I which provides that a Government servant officiates in a post when he performs the duties of a post -on which another person holds a lien; a Government servant may, however, be appointed to officiate in a vacant post, on which no other person holds a lien, by the authority competent to make a substantive appointment to that vacant post; it was submitted that the petitioner's appointment as Director of Fisheries was an officiating appointment in that he was appointed temporarily to act in place of the permanent incumbent on deputation.
Therefore, it is submitted, he has no right to the post and so premature termination of his services by reversion at any time during such officiation cannot be challenged as unconstitutional. This argument, in our opinion, is not tenable in view of the settled position in law as discussed hereunder.
5. The test for determining whether the termination of the service of a Govt. 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 at the time of the termination of his service by way of reversion, such premature termination of service by reversion before the expiry of the period specified in the order of his officiating or temporary appointment, will by itself be a punish-ment, and he will be entitled to the pro-tection of Article 311. Shortly put, the principle is that when a servant has a 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: Purshotam Lal Dhingra v. Union of India, AIR 1958 SC 36, 48.
6. What happened here is this: The petitioner had already been appointed for successive periods continuously to act temporarily as Director of Fisheries in place of the permanent incumbent on deputation, by a series of orders. The last such order dated November 2, 1967 permitted him to 'continue' to act-as Director of Fisheries till May 25. 1968 or till the return of the permanent incumbent Sri G. N. Mitra whichever is earlier. It is thus a case of temporary or officiating appointment for a fixed period under the terms of emplovment as communicated in the order of November 2, 1967. There is nothing in the said order dated November 2, 1967 permitting premature termination of his appointment before the expiry of the period fixed in that order.
Therefore, following the principles laid down by the Supreme Court, the petitioner having been allowed to continue to act as Director of Fisheries though temporarily or in an officiating capacity for the period specified in the order of November 2, 1967. he acquired a right to hold the post till the expiry of that period and his service cannot be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Article 311(2) of the Constitution.
7. In this view of the case, the impugned order of the Government dated February 27, 1968 is quashed. The writ petition is allowed with costs. Hearing fee Rs. 100.
A. Misra, J.
8. I agree.