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ishwar Chandra Mohanty Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 36 of 1964
Judge
Reported inAIR1966Ori173; (1966)IILLJ105Ori
ActsConstitution of India - Articles 311, 311(2) and 320(3)
Appellantishwar Chandra Mohanty
RespondentState of Orissa and anr.
Appellant AdvocateRanjit Mohanty and ;R.K. Kar, Advs.
Respondent AdvocateAdv. General
DispositionApplication allowed
Cases ReferredGirdhari Lal v. Slate of Punjab
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....ahmad, c.j.1. in this application for a writ, direction, or order, as provided in article 226 of the constitution of india, the subject matter of complaint is a notification no. iim-69/02-1047 lab. dated 21st september, 1963, issued by the secretary to the govt. of orissa in the labour department, reverting the govt. employee. the petitioner shri iswar chandra mohanty who was then temporarily holding the post of assistant labour commissioner, orissa, to his permanent post of head assistant in the office of the labour commissioner-cum-chief inspector of factories, orissa.2. the principal prayer made in the petition is that ' writ be issued directing the continuance of your petitioner in the said post of assistant labour commissioner, and for his confirmation therein, with a further.....
Judgment:

Ahmad, C.J.

1. In this application for a writ, direction, or order, as provided in Article 226 of the Constitution of India, the subject matter of complaint is a notification No. IIM-69/02-1047 Lab. dated 21st September, 1963, issued by the Secretary to the Govt. of Orissa in the Labour Department, reverting the Govt. Employee. the petitioner Shri Iswar Chandra Mohanty who was then temporarily holding the post of Assistant Labour Commissioner, Orissa, to his permanent post of Head Assistant in the office of the Labour Commissioner-Cum-Chief Inspector of Factories, Orissa.

2. The principal prayer made in the petition is that ' writ be issued directing the continuance of your petitioner in the said post of Assistant Labour Commissioner, and for his confirmation therein, with a further direction, that the petitioner is entitled to his emoluments and all benefits and seniority with effect from 21st September 1963.'

3. The petitioner was originally appointed in the office of the Director of Development, Orissa. on the 6th April, 1940. as a lower division assistant At that time the Director of Development consisted of the Directorates of Industries. Agriculture, Veterinary Services, and Co-operation But with effect from 1st April, 1940, the Department of Factory Inspection, Orissa. which was so far joint with that of Bihar was separated, and the Director of Development was appointed also as the Chief Inspector of Factories. Orissa. Subsequently in due course between 1941 and 1946 the Directorates of Agriculture. Veterinary Services and Co-operation, were separated from the Directorate of Development with the result that thereafter the Directorate of Development consisted only of the Directorate of Industries and Factories Inspection, and as such, since, then, the common Officer in charge of these two Departments was renamed as Director of Industries

On 4th November 1948, there was a declaration made that the Chief Inspector of Factories shall be a Head of Department in the Commerce and Labour Department This was followed by another notification. No. 785 dated 26th October 1950 whereby the Chief Inspector of Factories was declared to be the Labour Commissioner in the Labour Department; thus since 15th June 1963 the Office of the Labour Commissioner was re designated as Labour Commissioner-cum-Chief Inspector of Factories in accordance with another Govt resolution No. 3804/Lab of that date. This state of affairs continued till 12th October, 1968 when the office of the Labour Commissioner was separated from that of the Chief Inspector of Factories with the result that at present these two officers are now functioning independently of each other. Further, thereafter on the 2nd January 1964 the post of Personal Assistant to the Labour Commissioner-cum-Chief Inspector of Factories was re-designated as personal Assistant to the Labour Commissioner.

4. In the meantime, the petitioner having served in various capacities was, on 9lh April 1948 made the Head Assistant in the office of the Director of Industries-cum-Chief Inspector of Factories. He was subsequently confirmed in that post on 23rd August 1967. with effect from 1st March 1956 by which time the combined office of Chief Inspector of Factories-cum-Labour Commissioner was already separated from that of the Director of Industries.

5. It appears that subsequent to the appointment of the petitioner as lower division assistant in the office of the Director of Development in 1940, one Shri U.N. Rath also joined him there originally as a lower division assistant on the 13th September, 1943 He was thus junior to the petitioner and this fact is not disputed. Further, it was so is also evident from two other unimpeachable circumstances--first is that in the gradation list of the staff of the Common Directorate which was then prepared by the then Director of Industries on 24th April 1951 (Annexure A to the petition) the petitioner was placed 4th in the order of seniority while Shri U.N. Rath was placed 9th. Secondly at the time when the petitioner was in the year 1948 promoted Head Assistant. Shri Rath was still a Grade I assistant.

6. Thus while those two assistants were working as such in the combined office of the Director of Industries there was on 27th August 1959 a temporary vacancy created in the gazetted post of Assistant Labour Commissioner Orissa. The case of the State of Orissa is that in order 'to avoid dislocation to work the petitioner Shri Tswar Chandra Mohanty who was the seniormost ministerial officer in the combined office of Labour Commissioner-cum-Chief Inspector of Factories was appointed temporarily to the post of Assistant Labour Commissioner to fill up the vacancy in place of Shri N. Pati who was required to go abroad for training in labour matters for a period of twenty weeks ' This was no doubt a deputation vacancy and therefore, on the return of Shri Pati the petitioner was on 29th January I960 reverted to his original substantive post of Head Assistant in the Office of the Labour Commissioner-cum-Chief Inspector of Factories Orissa. Soon, thereafter however there was another vacancy created in the post of the Assistant Labour Commissioner and the petitioner was again on the 8th April. 1960 appointed temporarily to that post This vacancy was only for a period of three months. On the expiry of this period, therefore, the petitioner was again reverted to his substantive post of Head Assistant on 7th July 1960.

From 6th July, 1960, to 11th May 1961, the petitioner was on leave. In the meantime another gazetted post, namely that of Personal Assistant to the Labour Commissioner cum-Chief Inspector of Factories was created by order No. 10254/1 about dated the 24th October 1960 and on 12th May, 1961 the petitioner was temporarily appointed to this post and his substantive post of Head Assistant was, during his absence, filled up temporarily by Sri. U.N. Hath who was then the seniormost ministerial officer in the gradation list after the petitioner. Fortunately, however, there was again another vacancy created in the post of Assistant Labour Commissioner and the petitioner was asked whether he would accept the same. In reply he stated that

'Since the post of Assistant Labour Commissioner is higher than that of Personal Assistant and Government are now appointing me to the post of Assistant Labour Commissioner I shall have to join the post of Assistant Labour Commissioner and I am submitting my joining report accordingly. '

This he did on 25th May 1961 and thus, since then, held the post of Assistant Labour Commissioner for the third time; and the office of the Personal Assistant to the Labour Commissioner cum-Chief Inspector of Factories was during this period temporarily filled up again by promoting Shri U.N. Math who was already temporarily acting us the Head Assistant in his place

7. On this occasion the petitioner held the office of the Assistant Labour Commissioner upto 21sl September 1963. In the meantime he earned and drew two increments The first fell due to him in 1962 and the second in 1963. But before he could earn the second increment there was on the 20th April, 1963, a notification issued reverting the petitioner to the post of Head Assistant on the ground that the post of Assistant Labour Commissioner was held in abeyance Against this order the petitioner lodged a protest and his case was that in fact, on that very day the post of Assistant Labour Commissioner was extended Government thereafter on further consideration of the matter cancelled the reversion order dated 20th April 1963 and maintained the status quo Thus the petitioner even thereafter continued to hold the post of Assistant Labour Commissioner (to which he had been temporarily appointed for the third time) and earned his second increment in that post in the year 1963.

Subsequently on the 18th July, 1963 there was a letter received from the Public Service Commission about him That letter is dated 18th July 1963 and bears No 1604 P.S.C. (Annexure 1 to the affidavit in reply, filed on behalf of the State of Orissa) by the Under Secretary, Labour Department; That letter reads as follows :

'ORISSA PUBLIC SERVICK COMMISSION.

No 1604-P. S. C.

To

The Joint Secretary to the Govt. of Orissa.

Labour Department, Bhubaneswar.

Sub:-- Your letter dated 1-11-1962 No. 11450/Lab.

Dated Cuttack the 18th July, 1963.

Sir.

I am directed to say that the performance of Shri Iswar Chandra Mohanty, during his trial period as Assistant Labour Commissioner is extremely poor and blame-worthy in all res-peels and in the opinion of the Commission he does not deserve to be continued any further in this post and should he reverted to his substantive appointment The adverse remarks recorded in his character roll should he duly communicated to him.

His confidential character roll is returned herewith.

Yours faithfully.

(Sd.) Illegible.

Secy. to the Commission

Accordingly it is said that in pursuance of the letter received from the Public Service Commission the impugned order of reversion was passed Thai order of reversion reads as follows.

' Government of Orissa.

Labour Department

NOTIFICATION

Dated Bhubaneswar. 21st Se.pl. 1963, No. III-M/62-1047 Lab Shri Iswar Chandra Mohanty temporary. Assistant Labour Commissioner, Orissa is reverted to his permanent post of Head Assistant in the Office of the Labour Commissioner-cum Chief Inspector of Factories Orissa

By order of the Governor

Sd C.B Jain

Secretary to Government'

8. It is however stated that notwithstanding this order the petitioner continued to hold that post till the 7th October 1963 when he banded over the papers of the office to the District Labour Commissioner Berhampur. under protest.

9. It is claimed that thereafter the petitioner submitted a memorial to the Governor of Orissa against the order of reversion originally effected by notification No 4972/Lab. dated the 20th April. 1963 and finally by notification No. 1047/Lab dated the 21st September 1963. But this memorial was also rejected and the order of rejection was communicated to him in Labour Commissioner's memo No 3873 dated 24th September 1963.

10. Subsequently therefore, the petitioner submitted anothor representation to the Chief Minister in his letter No 56 dated 27th September 1963 but to neither of them there was any reply received. Hence, the present writ petition under article 226 of the Constitution was therefore filed by him on the 27th February, 1964.

11. It is not disputed that even after the reversion of the petitioner to his substantive post of Head Assistant the post of Personal Assistant to the Labour Commissioner-cum-Chief Inspector of Factories, and thereafter on its re-designation to that of Personal Assistant to the Labour Commissioner continued to be held by his junior Shri U.N. Rath till the latter half of 1964 when he died in harness. At present therefore that office is said to he still lying vacant.

12. In the meantime, as already stated, the post of Labour Commissioner-cum-Chief Inspector of Factories was bifurcated on 12th October 1963 But before that date this Joint Office had all along been held, since 1958 by opposite party No. 3 Shri O.P. Tripathy who continued to hold it even thereafter till 27th February, 1964, when the present petition was filed.

13. The grievance made by the petitioner is that since May 1960 there was continued mala fide effort made by this Shri D.P. Tripathy Labour Commissioner-cum-Chief Inspector of Factories to deprive the petitioner of the dues to which he was justly entitled and that the order of reversion was issued as a result of malice on his part. In support of this grievance a number of allegations have been made by the petitioner in Paragraph 26 of his petition According to the petitioner, the order of reversion was passed by the State Government at the behest of Shri D.P. Tripathy and the same was the result 'of personal hatred, animosity, rancour, ill will and bias which the said D P. Tripathy bears against the petitioner ' The claim of the petitioner is that

'there were no regular proceedings everdrawn up against him, nor any adverse remarkin his character roll was ever communicated tothe petitioner in accordance with Governmentof Orissa Home Department Circular letter No.142 (51) Reforms dt. 19th February 1953 (Bookcircular) No 29' ' that the said reversionplaces the petitioner far below in the gradationlist inasmuch as the said Shri U.N. Rath whowas the 9th in the gradation list in the jointoffice of the Director of Industries and LabourCommissioner-cum-Chief Inspector of Factories,Orissa On the 24th April 1951 . andwas functioning as a Grade I assistantunder the petitioner holds the post ofPersonal Assistant to the Labour Commissioner,on the date the petitioner was reverted to thepost of Mead Assistant and as such the seniorityof the petitioner his pay and emoluments andhis future prospects have all been negativedwithout following the procedure prescribed by law'

The further allegation of the petitioner is that he having held the post of Personal Assistant to the Labour Commissioner his reversion to the post of Head Assistant is unconstitutional and in violation of the rules of service governing him and therefore in fact this reversion amounted to the punishment of reduction in rank and as such the procedure prescribed in Article 311 of the Constitution not having been followed the order of reversion is illegal and invalid.

14. The persons impleaded as opposite parties to this petition are three, namely--(i) The State of Orissa, (ii) The Secretary to the Government of Orissa, Labour Department, and (iii) Shri D.P. Tripathy, Labour Commissioner, Orissa.

15. In answer to the petition two counter affidavits have been filed one on behalf of Mr. D.P. Tripathy and the other on behalf of the State of Orissa sworn by Shri. S.N. Yunus, Under Secretary to the Government of Orissa, Labour Department. In both these counter affidavits the main allegations made by the petitioner have all been substantially controverted and challenged.

16. The main defence set up on behalf of the State Government is to be found in paragraphs 14, 15 and 16 of the counter affidavit sworn on their behalf. They read as follows:

'(14) That as the Public vService Commission advised that the petitioner should be reverted to his substantive appointment the petitioner Sri Iswar Chandra Mohanty was reverted to his substantive post of Head Assistant in which he was already confirmed.

16. That at the time of his reversion to his subslantive post one Shri U.N. Rath was acting as Personal Assistant to the Labour Commissioner on promotion, as he was the seniormost ministerial officer in the Directorate of Labour Commissioner and his appointment to that post was already approved by the Public Service Commission. Sri Mohanty could not be posted to the post of Personal Assistant to the Labour Commissioner-cum-Chief Inspector of Factories as Shri Rath was already in that post for which the concurrence of the Public Service Commission has been obtained and he be longed to the Labour side.

16. From the above, it will be seen that as between Shri Iswar Chandra Mohanty and Sri U.N. Rath the appointment of Shri U.N. Rath to the gazetted post of Personal Assistant which was made during the absence of Sri Iswar Chanjira Mohanty was approved by the Public Service Commission, but in the case of Sri Mohanty the Public Service Commission advised that he should be reverted to his substantive post. The post of Personal Assistant to the Labour Commissioner being a gazetted one could not be filled up by Sri I.C. Mohantv without the concurrence of the Public Service Commission and the Public Service Commission positively advised that be should be reverted to his substantive post.''

In substance, therefore, the plea raised by the State of Orissa is that the appointment of the petitioner as Assistant Labour Commissioner was a temporary appointment and as such he had no right to that post; and that as the order of reversion was passed for the reason of his unsatisfactory work and not by way of punishment the provisions of Article 311 of the Constitution had no application to the case of the petitioner. Accordingly the State has submitted that the order of reversion passed on the 21st September, 1963, is legal and valid and if as a result thereof the petitioner finds himself placed in the gradation list below Sri U.N. Rath who was originally junior to him that alone cannot be a ground for holding that the order of reversion is punitive or that it has visited him with any evit consequences.

17. The only point therefore that falls for consideration in this case is whether the order passed on 21st September 1963, reverting the petitionei from the post of Assistant Labour Commissioner which he was then holding temporarily to his substantive post of Head Assistant is a case of 'reduction in rank' within the meaning of Article 311 of the Constitution and if it is so, whether in the face of the admitted non-compliance of the requirements of that article in the matter of giving reasonable opportunity of showing cause against reversion proposed thereby, that order can at all be held to be valid and legal.

18. A Government servant, in law, has no fundamental right to be continued in any government employment or the rank held by him in the course of that employment vide Balakotiah v. Union of India. AIR 1958 SC 232. Such a right, under the common law of master and servant is the creature of conlract entered into between the employer and the employee. In the case of Government or Crown servants, however the position in England is different There what is applicable in the case of Crown servants is the English Common Law Thereunder all servants of the Crown hold office during the pleasure of the Crown. Originally, in India this principle of English Common Law was applied as a rule of justice, equity and good conscience Subsequently, for the first time it was given statutory form in India by Section 96B of the Government of India Act. 1915, which inter alia provided that-

'subject to the provisions of the Act and the rules made thereunder, every person in the Civil Service of the Crown in India holds office during His Majesty's pleasure.'

In due course, however, the exercise of His Majesty's pleasure has been put to two main restrictions as are now to be finally found in Article 311 of the Constitution. Article 310 reiterates the old rule of English Common Law that all Government servants hold their posts during the pleasure of the President or Governor as the case may be. This is followed by Clauses (1) and (2) of Article 311 which lay down the aforesaid two restrictions in these words:

' (1) No person who is a member of the Civil Service of the Union or of an all India Service or Civil Service of State, or holds a civil post under the Union or the State, shall be dismissed or removed by any authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.'

In the present case, it is the second clause of Article 311 that has been relied on by the petitioner in support of his case. This clause contains three expressions: (i) 'dismissed', (ii) 'removal', and (iii) 'reduced in rank'. So far as the petitioner is concerned his case is based on the interpretation of the third expression 'reduced in rank'. Fn other words, his grievance is confined to the submission that he has been reduced in rank without being given an opportunity of showing cause against the order reverting him to his substantive post of Head Assistant and as such the order is hit by Article 311 and void in law Therefore, in the present case we have to confine our attention only to the implication, import and ambit of the expression 'reduced in rank' occurring in Clause (2) of Article 311. As observed in P.L. Dhingra's case, by their Lordships of the Supreme Court AIR 1958 SC 36 'these are technical words used in cases in which a person's service is terminated by way of punishment.'

Therefore, these words as used in Article 311 should be read and understood in the same sense and treated as words of art. Looked at. therefore, from that point of view what is to be determined in the present case is whether the order reverting the petitioner from the post of Assistant Labour Commissioner which he was at the relevant time holding temporarily, to his substantive post of Head Assistant was or was not affected by way of punishment within the meaning of Article 311. If it is found that it was affected by way of punishment within the meaning of that article, the order in this case has to be held as void and illegal; for it is no! denied that in passing that order there was no compliance of the requirements which are laid down in Article 311(2). But if it is found that the order of reversion was not made by wav of punishment, then the application made by the petitioner has to be thrown out as one without merit.

19. Now, before we enter into examination of this proposition as set out above, it is, I think necessary, in view of the fact that the petitioner at the relevant time was holding the post of Assistant Labour Commissioner temporarily, to find out which classes of Government servants are entitled to the protection of Article 311(2). This question has been elaborately discussed by the Supreme Court in Dhingra's case, AIR 1958 SC 36 and answered in these words (in paragraph 14):

'In our judgment, just as Article 310 in terms makes no distinction between permanent and temporary posts in the matter of their tenure being dependent upon the pleasure of the President or the Governor, so does article 311 in our view make no distinction between the two cases, both of which are therefore within its protection and the decisions holding the contrary view cannot be supported as correct.'

In fact this aspect of law has not been controverted by the learned Advocate General appearing for the State. What the learned Advocate General has submitted in this case on behalf of the contesting parties is only this much: that the reversion of the petitioner in this case was not done by way of punishment and as such this case is not attracted by the terms of Article 311. In other words it has been impliedly conceded by the learned Advocate General that in case it is found that the impugned order of reversion of the petitioner in substance amounted to 'reduction in rank' by way of punishment, then the order of reversion, as passed cannot be sustained in the eye of law. Therefore the mere fact that at the relevant time the post of Assistant Labour Commissioner was being held by the petitioner temporarily can he no ground for holding that the petitioner, as such, is not entitled to the protection envisaged by Article 311(2).

20. It is true that the order of reversion (which has already been quoted above in extenso) is. on the very face of it, innocuous and colourless and does not in the least give any impression that it was, in fact passed by way of punishment; but in law the statutory protection as provided in Article 311(2) is to be judged not only from the point of view of form only, but also equally from the point of view of substance. In the aforesaid Dhingra's case, AIR 1958 SC 36 in the majority judgment delivered by Das. C. J. it has been observed (in paragraph 28) that:

'The use of expression 'terminate' or 'dis charge' is not conclusive In spite of the use of such innocuous expressions this Court has to apply the two tests mentioned above, namely (i) Whether the servant had a right to the post or rank, or (ii) whether he has been visited with evil consequences of the kind hereinbefore referred to. If the case satisfies either of these two tests, then it must be held that the servant has been punished and the termination of his service must be taken as dismissal or removal from service or the reversion to his substantive post must be regarded as a reduction in rank and if the requirements of the rules and Article 311 which give protection to Govt. servants have not been complied with, the termination of the service of the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.''

It has been conceded by Mr. Mohanty appearing for the petitioner that so far as the first test laid down in the aforesaid observation is concerned that has got no application to the facts of the present case, and learned counsel has not pressed his case on the footing of that test. In all probability as it appears from the facts staled before us. the post of Assistant Labour Commissioner was a permanent post, but even then it is admitted that it was being held by the petitioner only temporarily and not substantively. Therefore, on the facts of this case there can be no question of the petitioner having any right to hold that post or rank. In the aforesaid Dhingra's case, AIR 1958 SC 36 their Lordships while dealing with this point in the majority judgment as to the rights of a temporary employee as compared with those of a permanent employee and other classes of employees in regard to the post held by them has summarised the entire discussion in these words:

'In the absence of any special contract the substantive appointment to any permanent post gives the servant appointed a right to hold the post until under the rules he attains the age of superannuation, or is compulsorily retired after having put in the prescribed number of years of service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from service Except in these two cases the appointment to a post permanent or temporary, or probation or on an officiating basis, gives the servant so appointed no right to the post unless his service has ripened into what is in the service rules, called a quasi permanent service.'

Here, at a certain stage, an attempt, was made on the basis of certain assertions made in the petition, that the petitioner though holding the post of Assistant Labour Commissioner as an officiating hand, had by then acquired a quasi permanent service; but this part of the case was subsequently given up and Mr. Mohanty did not press it any further. In short, therefore, the case as pressed before us in this Court has to be disposed of exclusively on the footing that post of Assistant Labour Commissioner though a permanent one, was at all relevant times held by the petitioner on a temporary basis without his having acquired therein any right or lien. therefore the first test fails in securing any relief to the petitioner on the facts of this case.

21. Then I come to the second test. In this eonnection there is no difficulty about the law bearing on the subject. It is, already stated and not disputed that if the order of reversion was passed by way of punishment, it has to be set aside as the requirements of Article 311(9) have admittedly not been complied with, in reverting the petitioner to his substantive post.

22. But the difficulty if any that is there--which I must say is not easy to define--is the application of that law, and it is more so when the reversion of a Government employee is effected to a post lower in rank from the post which is higher In rank and held by him temporarily or on probation. It is not denied that the post of Assistant Labour Commissioner is higher, both in rank and scale of pay than that of the Personal Assistant to the Labour Commissioner-cum-Chief Inspector of Factories and of the Head Assistant; and that likewise me post of Personal Assistant to the Labour Commissioner-cum-Chief Inspector of Factories is higher than that of the Head Assistant which is the substantive post of the petitioner.

23. The nature of employment of a Government servant who is appointed temporarily or on probation is elaborately explained in the aforesaid Dhingra's case, AIR 1958 SC 36 in these words:

'An appointment to a permanent post in Government service on probation means as in the case of a person appointed by a private employer, that the servant so appointed is taken on trial. The period of probation may in some cases ho fixed period, e.g. for six months or for one year, or it may be expressed simply as 'on probation' without any specification of any period. Such an employment on probation under the ordinary law of master and servant comes to an end, if, during or at the end of probation, this servant so appointed on trial is found unsuitable and his service is terminated by a notice. An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post, is on leave, or when the permanent post is vacant and no substantive appointment has yet been made to that post. Such an officiating appointment comes to an end on the return of the incumbent substantively holding that post from leave in the former case, or on a substantive appointment being made to that permanent post in the latter case, or on the service of a notice of termination as agreed upon or as may be reasonable under the ordinary law

It is therefore quite clear that appointment to a permanent post in Govt. service either on probation or on 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 service the implied term of such appointment under the ordinary law of master and servant is that it is terminable at any time. In short, in the case of an appointment to a permanent post in Government service on probation, or on officiating 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 follows, therefore that in the case of a Government employee holding a post higher In rank either temporarily or on probation, his reversion to his substantive post which is lower in rank may be validly effected purely in exercise of the right flowing from the contract or the rules of service, without any idea of punishment behind it.

24. It is also not unusual that in some cases a person is given an officiating appointment in a higher post to test his suitability to be thereafter made permanent in it. In such a case also it is an implied term of such an officiating appointment that if he is found unsuitable he would have to go back; if the appropriate authority find him unsuitable for officiating in the higher rank and then revert mm back to the original post in a lower rank, the action taken by the Govt. is in accordance with the terms on which the officiating appointment was given. It is in no way a punishment and therefore not a reduction in rank when the reversion has in no way affected him so far as the conditions and prospects of his service are concerned. He of course loses the benefit of his appointment to the higher rank, but that by itself cannot indicate that the reversion was by way of punishment because he had no right to continue in the higher post or to the benefits arising from it, Therefore, it is obvious that reversion from a post temporarily held by a person does not per se amount to reduction in rank because the appointment held by him is not a substantive appointment.

25. There may however be cases where the Government, on finding that the temporary employee is unsuitable for the post on account of misconduct, negligence, inefficiency or other disqualification, decides that simple termination of service may not be enough and that the conduct of the servant has been such that he deserves punishment as well, entailing penal consequences. In such a case the Government may choose not only to revert him to his substantive post in exercise of its power under the contract or the service rules pertaining thereto, but also to punish the servant on the basis of his misconduct, negligence, inefficiency and the like and inflict on him the punishment of reduction in rank carrying with it penal consequences. In such case though the order passed may be one of simple reversion, but in substance it will amount to 'reduction in rank' There fore the Government servant in that case will be entitled to the protection of Article 311(2).

But more often than not in such a case there is always a controversy raised whether the reversion therein has been effected in exercise of the power under the contract or the rules governing the conditions of service, or by way of punishment. For the solution of this difficulty there is a guiding principle laid down by their Lordships of the Supreme Court in the aforesaid Dhingra's case AIR 1958 SC 36 in these words.

'That principle is that when a Government servant has a right to a post or rank either under the terms of the contract of employment ex press or implied, or under rules governing the conditions of his service, the termination of the service of such a servant, or his reduction to lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or 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 temporary or permanent, 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 of itself be a punishment.....To put it in another way, if the Government has any contract, express or implied, or under the rules, the right to terminate the employment at any time, then such termination tn the manner provided by the contract or the rules is prima facie & per se not a punishment and does not attract the provisions of Article 311.'

26. It should, however, be noted with care that what the aforesaid guiding principle provides is only a rule of presumption that in such a case the reversion is prima facie and per se not a punishment and therefore does not attract the provisions of Article 311(2). But this is after all a rule of presumption and as such open to rebuttal and can be rebutted by the surrounding circumstances on the record, as held in Dhingra's case AIR 1958 SC 36: as also in P.C. Wadhwa v. Union of India, AIR 1964 SC 423. Ramaiah v. State, AIR 1965 Mvs 164, Ramchandra v. Secy. to Govt. W. B. AIR 1964 Cal 265, L. Hirway v. M.B. State, AIR 1958 Madh. Pra. 135. But these circumstances will however necessarily in actual practices vary from case to case and therefore, when that presumption is challenged a further enquiry has to be made as to how far the challenge has been established.

Ordinarily, if the Government servant while holding a higher post (in rank) temporarily is reverted for the reason of the return of the permanent incumbent (substantively holding that post) from leave or on a substantive appointment being made to that higher post there will be no difficulty in holding that the same has been effected in exercise of the power under the contract or the rules of the service, and not by way of punishment. But cases may arise where the reversion to the substantive post is effected even without the return of the permanent incumbent from leave, or without the substantive appointment being made to the higher post In that event though prima facie the reversion may be said to have been effected in exercise of the power under the contract or the relevant rules of service it is still open to the employee to show and establish that in substance and in truth it was not a case of reversion simpliciter but a case of reversion inflicted by way of punishment amounting to 'reduction in rank', as contemplated by Article 311. Or in other words, it is open to him to show that it has not been effected for any administrative reason or in the ordinary course, but actually by way of punishment though in the garb of simple reversion as if done in exercise of the right under the contract or service rules. And it is this aspect of the case which has been vehemently pressed in this case by Mr. Mohanty on behalf of the petitioner.

27. In law it is by now well settled that though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment, or the rules governing the conditions of service of the employee, nevertheless if the right exists under the contract or the rules of service to terminate the service the motive operating on the mind of the Govt. is wholly Irrelevant. Therefore, in judging and appreciating the surrounding circumstances what has to be looked into is not the motive or the reasons leading to the order of reversion but the ultimate consequence which flows from the order affecting the service of the employee concerned. In fact, it is the latter fact alone which as a rule is crucial and decisive in answering the question as to whether the reversion was done in the exercise of power under the contract or the rules of service, or was punitive in character. If the consequence is nothing more than what would have happened in the ordinary course, without entailing any penal consequences on the employee the order of reversion will have to be taken as having been passed in exercise of the powers under the contract or the rules governing the conditions of service.

But if the consequence arising from the order of reversion is penal in nature the rule of presumption as laid down in the aforesaid Dhingra's case, AIR 1958 SC 36 that it is prima facie not by way of punishment will stand rebutted and the reversion effected in such a case, will be deemed to be by way of punishment and tantamount to 'reduction in rank' within the meaning of Article 311(2) of the Constitution, Sometimes no doubt an order of reversion is preceded by simple preliminary enquiry as well: but that preliminary enquiry is undertaken only to aid and assist the authorities concerned in asserting the merit and utility of the temporary Government servant in the discharge of his duty in the higher post in which he is working either temporarily or in an officiating capacity Therefore, such an enquiry, also by itself can be no evidence of the fact that the order of reversion passed thereafter was penal or punitive, for it is only after a proper assessment of the merit or demerit of the servant that an order of reversion can be made. In other words, such a preliminary enquiry is inherent in the situation and cannot, of itself, be evidence of the fact that he was 'reduced in rank' as a result of such an order by way of punishment.

It hag accordingly been held in Champaklal T. Union of India, AIR 1964 SC 1854 that :

' Generally a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out and it is very necessary that the two should not be confused. Even where Government does not intend to take action by way of punishment against a temporary servant on a report of bad work or mis-conduct, a preliminary enquiry is generally held to satisfy Government that there is reason to dispense with the service of a temporary employee, or to revert him to his substantive post, for as we have already said Government usually does not take action of this kind without any reason. Therefore when a preliminary enquiry of this nature is held in the case of a temporary employee or government servant holding a higher rank temporarily, it must not be confused with the regular departmental enquiry (which usually follows such a preliminary enquiry) when the Government decides to frame charges and get departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the Government servant. Therefore so far as the preliminary enquiry is concerned there is no question of its being governed by Article 311(2) for the enquiry is really for the satisfaction of Government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary servant, or a servant holding a higher rank temporarily to which be has no right.

In short a preliminary enquiry is for thepurpose of collection of facts in regard to thework and conduct of a Government servant inwhich he may or may not be associated so thatthe authority concerned may decide whether ornot to subject the servant concerned to theenquiry necessary under Article 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquirymay be held even ex parie for it is merely forthe satisfaction of Government, though usually,for the sake of fairness explanation is takenfrom the Government servant concerned evenat such an enquiry. But at that stage he hasno right to be heard for the enquiry is merelyfor the satisfaction of the Government, and itis only when the Government decides to holda regular departmental enquiry for the purposeof inflicting one of the three major punishments that the Government servants get theprotection of Article 311.....'

To the same effect is the observation made in another reported decision of the Supreme Court in Jagadish Mitter v. Union of India, AIR 1964 SC 449 which is in these words:--

' This simple position is sometimes complicated by the fact that even while exercising its power to terminate the service of a temporary servant under the contract or the relevant rule, the authority may in fairness enquire whether the temporary servant should be continued in service or not. It is obvious that temporary servants or probationers are generally discharged because they are not found to be competent or suitable for the post they hold. In other words, if a temporary servant or probationer is found to be satisfactory in his work, efficient and otherwise eligible, it is unlikely that his services would be terminated and so before discharging a temporary servant the authority may have to examine the question about the suitability of the said servant to be continued and acting bona fide in that behalf the authority may also give a chance to the servant to explain if complaints are made against him, or his suitability is disputed on some grounds arising from the discharge of his work, but such an enquiry would be held only for the purpose of deciding whether the temporary servant should be continued or not.

There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not to punish the temporary servant but just to decide whether he deserves to be continued or not. If as a result of such enquiry the authority comes to the conclusion that the temporary servant is not suitable to be continued it may pass a simple order of discharge, by virtue of the powers conferred on it by the contract or the relevant rule: in such a case it would not be open to the temporary servant to invoke the protection of Article 311 for the simple reason that the enquiry which ultimately led to the discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged. 'On the other hand in some cases the authority may choose to exercise its Rowers to dismiss a temporary servant and that would necessitate a formal departmental enquiry in that behalf. If such a formal enquiry is held and an order terminating the services of a temporary servant is passed as a result of the finding recorded in the said enquiry, prima facie the termination would amount to dismissal of the Government Servant. It is in this connection that it is necessary to remember cases in which the services of a temporary servant have been terminated directly as a result of a formal departmental enquiry and cases in which such termination of a temporary servant may not be the direct result of the enquiry, and this complication arises because it is now settled by decisions of this Court that the motive operating in the mind of the authority in terminating the services of a temporary servant does not alter the character of the termination and is not material in determining such character'

28. In practice, therefore, what really helps in finding out the distinction as to whether the order of reversion passed in a case is the result of the exercise of the power under the contract, or rules of service, or by way of punishment is the consequence that flows from the order against the Government servant affected thereby It is for this reason that in the aforesaid Dhingra's case AIR 1958 SC 36 what has been stressed in this connection is the consequence and accordingly it has been observed therein that-

'the, real test for determining whether the reduction in rank 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, on the loss of seniority in his substantive rank or stopping or postponement of his future chances of promotion, then the circumstances 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'

It is, however, true as observed in the judgment given by Das C. J. (as he then was) in AIR 1964 SC 428 that :--

' When a person it reverted to his substantive rank the question of penal consequence in the matter of forfeiture of pay, loss of seniority etc., must be considered in the context of his substantive rank from which he is reverted, for every order of reversion must necessarily mean that the pay will be reduced to the pav of his substantive rank. '

29. Now, therefore, it is in the light of these principles of law that we have to weigh and judge the submissions both for and against the relief sought in this application. The main submission made by Mr. Mohanty, as already stated is that the order of reversion in the presenl case was made by way of punishment and not in exercise of the power given under the contract or the rules of service. In support of this contention, reliance has been placed by him on two broad facts as also on the cumulative effect against therefrom and from the entire history of the case. The two broad facts are :

(i) That the order of reversion is based exclusively on the opinion given by the Public Service Commission in their letter No. 1604, dated the 18th July 1963 (which has been quoted already in full) punitive in character.

(ii) That as a result of the impugned order of reversion what the petitioner has suffered from is not only the salary which he was entitled to get as officiating Assistant Labour Commissioner, but also the benefits which had been already earned by him before his appointment as Assistant Labour Commissioner on the last occasion, namely : (i) his post of Personal Assistant to the Labour Commissioner-cum-Chief Inspector of Factories, Orissa--a post higher in rank than the post of Head Assistant and (ii) his seniority in his substantive post vis-a-vis Shri U.N. Rath who was all along junior to him, but who on reversion, as a result of his continuing to hold even thereafter the post of Personal Assistant to the Labour Commissioner-cum-Inspector of Factories, Orissa, was placed in the gradation list higher to that of Head Assistant

30. Accordingly, it is submitted that as a result of the impugned order the petitioner has been deprived not only of his officiating post, but also even of what had already been earned by him as an officiating Personal Assistant to the Labour Commissioner-cum-Inspector of Factories, Orissa, before his appointment to the post of Assistant Labour Commissioner. Further it is also contended that in any case, thereby the petitioner's future chance of promotion have been denied for ever.

31. In my opinion, there is much force in the submission made by Mr. Mohanty. Therefore, on these grounds alone the order of reversion as passed in this case has to be held as punitive and as such hit by Article 311 of the Constitution which admittedly has not been complied with in the present case.

32. The fact that Government in passing the impugned order did not apply its own mind independently and was guided exclusively by the opinion given by the Public ServiceCommission, is substantially admitted by the State Government in paragraph 14 of the affidavit sworn by the Under Secretary to the Government of Orissa, in Labour Department. Therein it is stated :

' As the Public Service Commission advised that the petitioner should be reverted to his substantive appointment the petitioner Shri Iswar Chandra Mohanty was reverted to his substantive post of Head Assistant in which he was already confirmed '.

It is true that under Article 320 of the Constitution the Public Service Commission has to be consulted in all such matters. But as observed in AIR 1959 Madh Pra 135 at p. 142 .

' The function which the Public Service Commission exercised under Article 320 is advisory and it cannot be said that after they have been consulted and their views obtained. It was not open to the Raj Pramukh to depart from their view. There is nothing in the wording of Article 320 to give rise to that inference'.

Therefore the stand taken by Government that in view of the opinion Riven by the Public Service Commission they had no option in the matter is of no avail, once it is found that the order as passed was in substance by way of punishment and not in exercise of the power under the contract or rules of service.

33. It may be mentioned here that the temporary appointment of the petitioner on the last occasion to the post of Assistant Labour Commissioner (under notification No IIM 154/ 58 5772/Lab. dated the 20th May 1961--vide annexure D to the petition) was based on the recommendation of the Public Service Commission, made in their letter No. 597 P. S. C. dated the 27th April 1961, addressed to the Secretary to the Government of Orissa, Labour Department. Further it is also not disputed that just before he was holding the gazetted post of Personal Assistant to the Labour Commissioner-Cum-Chief Inspector of Factories temporarily, and lastly that his appointment to this latter post had also been made after the necessary approval by the Public Service Commission as is evident from their letter No. 7430 P. S. C. dated the 14th March, 1961, addressed to the Secretary to the Government of Orissa Labour Department (Annexure A to the additional counter affidavit filed by Shri K.M. Panigrahi on behalf of the State of Orissa).

34. As against these, all that, in connection with what that period of his service, appears to be against him, on the records of this case, is that on the second occasion of his appoint ment as Assistant Labour Commissioner, the petitioner had made an application to the Public Service Commission for his being made permanent in that post and the Commission did not make any recommendation in his favour. But there is no material on record to show that there was ever during all this period any positive adverse comment passed against the petitioner by the Public Service Commission besides the one that was made by them in their aforesaid letter dated the 18th July 1963. On the contrary, it appears as claimed by him in para 8 of his writ petition that he had uniformly a steady career in his service and continued to get bispromotions from time to time, without any break as and when the occasion arose.

Further it also appears that on the first occasion when he was acting as Assistant Labour Commissioner, the then Labour Commissioner-cum-Chief Inspector of Factories, Orissa, in his tetter No. 10622 dated the 5th/7th December, 1959 intimated to the State Government that there being no one else who could be considered senior to the petitioner Government should recommend the petitioner to the Public Service Commission for the post of Assistant Labour Commissioner. Subsequently, when he was about to complete bis officiating appointment on that occasion, another letter No. 1494 dated the 2nd February; 1960 was issued by the Labour Commissioner requesting the State Government to continue the petitioner in the said post as his work was found to be satisfactory.

These circumstances do not fit in at least squarely with the sudden adverse comment that is recorded for the first time, and that too in very damaging terms, in the letter of the Public Service Commission dated the 18th July, 1963. I do not however mean to say that on merit the opinion recorded by the Public Service Commission is not correct. It may or may not be so But what cannot be ignored is that at least Government did not apply its independent mind to the matter and allowed themselves to be wholly guided by the aforesaid opinion and passed the impugned order of reversion exclusively in pursuance thereof.

35. In taw the power to revert a gazetted government servant vests exclusively in the Government and not in the Public Service Commission though the latter has to aid and advise Government by their opinion Therefore, where the Government passed an order of reversion exclusively on the basis of the opinion given to the effect by the Public Service Commission, without applying its own independent mind to the merit of the case, that order can be validly challenged as vitiated by mala fides and not binding in law.

In AIR 1964 Cal 265 at p. 272 the learned Judge while dealing with this point has in my opinion if I may say so with all respect, rightly pointed out that-

'Mala fide does not necessarily involve malicious intention. It is enough if the aggrieved party establishes

(i) that the authority making the impugned order did not apply its mind at all to the matter in question vide L.J.J. D'Souza v. Secy, of State of Bombay, 1956 S.C.R. 382 (387) : (S) AIR 1956 S.C. 531 (534), or,

(ii) that the impugned order was made for a purpose or upon a ground other than what ii mentioned in the face of the order: Peranmal Lakhman Pal v. Union of India AIR 1958 S. C. 163 (172).

These principles have been applied by tht Supreme Court in a case of reversion of aGovernment servant in the case of Sukhbans v. State of Punjab, AIR 1962 SC 1711. When an authority is vested with the power but he is required to consult an advisory body before taking his decision, the responsibility for the decision or the final action that emerges is that of the authority who is entrusted with that power If the authority concerns, fails to apply its mind and to exercise its discretion the order will be vitiated by mala fide AIR 1952 S. C. 16; (S) AIR 1956 S.C. 531 and AIR 1958 S. C. 163.'

It was further held therein that-

'Where the Government mechanically acted upon the advice given by the Public Service Commission and reverted the petitioner from the officiating higher post to his substantive post without applying its mind to the credentials and the exceptional record of the petitioner upon which they had acted for a long time and to the question whether there were any changed circumstances furnishing a consideration for a contrary decision the order would be vitiated by mala fides.'

Therefore on that ground also the present order of reversion cannot be supported in law as one passed by Government in exercise of its power under the lerms of the contract or rules of service

Further in the petition it also seems to have been suggested that in fact the order of reversion in the present case was the result of malice on the part of the Labour Commissioner, Sri. D.P. Tripathy In support of the latter allegations a number of facts have been as already referred to stated in para 25 of the writ petition. But this part of the case was not, at the time of the argument, pressed by Mr. Mohanty: and therefore we need not go into it. The submission made by the learned counsel has been, in substance, confined to the point that the Stale Government having acted exclusively on the opinion given by the Public Service Commission in its letter dated 18th July 1963 without applying its mind independently to the case the letter has to be read as a part of the order of reversion. In my opinion this contention is well founded.

36. This therefore takes up to the content and implication of the opinion given by the Public Service Commission in their letter dated 18-7-1963. That letter can be split up into two parts. In the first part the Commission state that 'the performance of Sri Iswar Chandra Mohanty is extremely poor and blameworthy in all respects, and in the opinion of the Commission he does not deserve to be continued any further in this post.' In the second part the Commission recommended that 'the petitioner should be reverted to his substantive appointment.' Considerable stress is laid by Mr. Mohanty on the words 'poor blameworthy' in all respects and the words 'he does not deserve to be continued any further in this post' and it is submitted that these words are, on their very face, suggestive of the fact that the reversion recommended by the Commission was by way of punishment. It is true that when reversion is made for the reason that the servant did not give satisfaction, it will normally in all case In some form or other affect his future chances of promotion. But that consequence cannot be necessarily attributed to the order of rever sion by its own force or terms.

That order, by its own force or terms, does not penalise the servant, or injuriously affect the right which he has as the holder of a substantive post, or his pay and allowance in that post, or his seniority therein, nor it has the effect of postponing the future chances of his promotion (vide Dhingra's case AIR 1958 SC 36.) The position is however different when the order of reversion is in essence a speaking order which, by its own force and in terms suggests that the reversion was done by way of punishment In that case the presumption of the reversion being innocuous cannot be applied. In my opinion this is a case where; the order when read--as it ought to be read in the circumstances of the case--with the opinion given by the Public Service Commission is by its own force and in terms punitive As already stated, the Government in the present case does not seem to have applied its mind to the merits of the case and acted simply on the opinion sent by that body.

This opinion clearly states that 'the performance of Sri Iswar Chandra Mohanty is extremely poor and blameworthy in all respects and in the opinion of the Commission he does not deserve to be continued any further in that post'; in other words the opinion given by the Public Service Commission to the effect that the petitioner 'does not deserve to be continued in this post and that he should be reverted to his substantive appointment' is by way of retribution or correction and as such it is a penalty Where an act is not intended to be either by way of retribution or correction it cannot be regarded as a penalty; but the position changes if it is intended to be either by way of retribution or correction: in the latter case it is nothing but by way of penalty and as such penal in consequence vide Laxminarayan v. Union of India, AIR 1956 Nag 113. And if both the first and second parts of the recommendation are taken together, they unmistakably amount to the implication that the petitioner was deprived not only of the officiating post which he was then holding but also of his future chances of promotion.

This becomes all the more obvious by the reason of the fact that at the time when the petitioner was reverted, the post then held by him, was not filled up by any other incumbent but left vacant though it was a permanent post. In substance, therefore, the reversion was then made exclusively for the reason that of the opinion received from the Public Service Commission which was, in terras, penal in nature. As such there is no escape from the conclusion that the order passed by the Government which was based exclusively on the, basis of the opinion of the Public Service Commission, as admitted in the counter affidavit of the Under Secretary, reverting the petitioner straigntaway to the post of Head Assistant was punitive, and not passed in the ordinary course or for administrative reasons vide AIR 1965 Mys 164. Had the order been passed in the ordinary course he should have been reverted to the post of Personal Assistant to the Labour Commissioner-cum-Chief Inspector of Factories, Orissa in which he was already officiating on the day when he was promoted to the post of Assistant Labour Commissioner on the last occasion.

It is true that he had no lien or right to the post of Personal Assistant as he bad been appointed thereto on an officiating basis. But at the same time it cannot be laid that lie was at any time before that found incompetent at least to hold the post of Personal Assistant, nor is there any reason to presume that in the ordinary course he would not have continued in the post had he not been, immediately after his appointment to that post, promoted as Assistant Labour Commissioner There can thus be no doubt that the order of reversion to the post of Head Assistant had the effect of reducing him to a rank lower to what he would have been ordinarily entitled to.

37. Then again, as already slated, it is not denied that though the post of Personal Assistant to the Labour Commissioner-cum-Chief Inspector of Factories was higher in rank than that of the Head Assistant, it was on the date of his reversion from the post of Assistant Labour Commissioner left as before with his junior Sri. U.N. Rath. Therefore his reversion to hts substantive post of Head Assistant, taken along with the continuance even thereafter of Shri Rath in the post of Personal Assistant, had the effect of adversely affecting his seniority.

In answer to this view of the case our attention has been drawn by the learned Advocate General to the case of High Court of Calcutta v. Amal Kumar AIR 1962 SC 1704. Therein It has been observed that

'the expression 'rank' in Article 311(2) has reference to a person's classification and not to his particular place in the same cadre in the hierarchy of service to which he belongs. So losing some places in the seniority list in the same cadre ... does not amount to reduction in rank within the meaning of Article 311(2)'.

But the aforesaid rule applies only where it is claimed that reversion per se amounts to reduction in rank Here, however, what we find is that the reversion was done by way of punishment and in that connection what has to be seen is whether in fact there has been as a result thereof any loss of seniority or rank to him or not As already stated the effect of the order of reversion was that Shri U.N. Rath who was all along junior to the petitioner was left undisturbed in his post of Personal Assistant while the petitioner was reduced to the rank of Head Assistant, though the recommendation of the Pay Commission in respect of this post P.A. to the Labour Commissioner (quoted at para 9 of the writ petition) was that-

The Committee recommends that the post of Personal Assistant should ordinarily be filled up by promotion from amongst the ministerial officers and for such promoted officers the scale of pay should be Rs. 310-25-435/.' It is nowhere the case of the State Government that this recommendation was not given effect to. On the contrary Mr. D.P. Tripathy, Labour Commissioner in para 6 of his affidavit while dealing with the earlier appointment of the petitioner to this post of Personal Assistant has specifically stated that-

'Shri Iswar Chandra Mohanty being the seniormost employee of the defunct office of the Labour Commissioner-cum-Chief inspector of Factories, was recommended for being appointed against the post of Personal Assistant to the Labour Commissioncr-cum-Chief Inspector of Factories. Orissa'

In other words, the earlier appointment of the petitioner to this post was based on the ground that he was the senionnost in the office. Therefore, if on reversion, his junior was allowed to continue in the post of Personal Assistant and he was directed to hold his substantive post, namely, that of Head Assistant a post lower in rank, that obviously by implication made him junior to Shri F.N. Rath.

38. On behalf of the State it has however been, by way of explanation, submitted that this happened because of two reasons:

(i) That the petitioner was an employee on the Factory side of the common directorate of Labour Commissioner-cum-Chief Inspector of Factories but the post of Personal Assistant was meant for an employee on the labour side of the directorate:

(ii) That in the absence of any fresh approval from the Public Service Commission, the post of Personal Assistant being a gazetted one could not be given to the petitioner on reversion.

39. In my opinion there is no substance in either of these two contentions. It is not denied that when for the first time on 12-5-61 the post of Personal Assistant was created that was given to the petitioner. Therefore the question arises that if in fact he was all along an employee on the Factory side of the common directorate and that the post was meant for an employee on the labour side, how could the petitioner then be appointed to the post. On the contrary, it appears as stated by Mr. D.P. Tripathy, the Labour Commissioner, in his affidavit that the appointment of the petitioner at that time to the post of Personal Assistant was made on the ground that he was the senior-most ministerial officer in the common directorate. Similarly, Shri U.N. Rath also on the promotion of the petitioner to the post of Asst. Labour Commissioner, Orissa on the ground that he was the next senionnost ministerial officer in the Combined Directorate. Lastly, it is the admitted fact that at least till 21st September, 1963 (when the order of reversion was passed) the directorate was joint combining the offices of the Labour Commissioner and Chief Inspector of Factories and that the same was split up thereafter only on the 12th October, 1968. Therefore the aforesaid first explanation given on behalf of the State in support of the impugned order must fail.

40. As for the second ground it will suffice to say that there is no evidence on record to show that at or nearabout the time' of the impugned order there was any opinion sought by the State from the Public Service Commission as to the petitioner's suitability for his appointment as Personal Assistant: and in any case he could have been at least provisionally appointed to that post in anticipation of the opinion of the Public Service Commission. if any. that was in fact sought from them in connection therewith.

41. Lastly, the consequence as contemplated in the matter of reversion has to be looked at from the point of view of the servant reversed and not from the point of view of the difficulty if any which the employer may find himself faced with a result of his own independent action in the matter of awarding to the servant what is justly due to him.

42. Therefore the reasons given on behalf of the State for depriving the petitioner even of the benefits of the post of Personal Assistant which he actually held at the time of his last promotion to the post of Assistant Labour Commissioner cannot but be an evidence of the fact that the impugned order of reversion was not made in the ordinary course, or for administrative reasons, but by way of punishment.

43. For all these reasons I have no hesitation to hold that the order of reversion as passed in the circumstances of this case is punitive as contemplated in law and as such--in the face of the admitted facts is hit by the provisions of Artile 311(2) of the Constitution.

44. Before, however. I conclude the judgment it may be mentioned here that the learned Advocate General in support of the contention made on behalf of the State that the reversion made in this case was not punitive, but was done in exercise of the power under the contract or the rules of service, drew our attention to a number of decisions like those in: Hartwel) Prescott Singh v. U. P. Govt. AIR 1957 SC 886. State of Bombay v Abraham, AIR 1962 SC. 794: Jaishanker v. State of U.P. AIR 1958 All 741 (FB); AIR 1956 Nag 113; Chiranjilal v. Union of India, AIR 1957 Raj 81; Harprasad Gupta v. State of U. P., AIR 1963 All 415; Girdhari Lal v. Slate of Punjab, AIR 1960 Pun] 244; as also Dhingra's case, AIR 1958 SC 36; and Champaklal's case, AIR 1964 SC 1854. But in my opinion none of these cases made any separate and detailed discussion. They are all substantially based on the principles already discussed above. It is a different matter that in the application of those principles--which I must say is by no means easy--they may have expressed some varying opinions here and there. But that cannot be a around for holding that thereby they have laid down any uniform yardstick for the application of law on the subject. That will naturally vary from case to case, and from facts to facts, and will finally depend on the circumstances of each case.

45. In the result, therefore, the order of] reversion dated the 21st September, 1968 passed in this case has to be held as void and illegal Accordingly, the application it allowed with costs; the order of reversion is set aside and the petitioner is declared to be continuing in service as Assistant Labour Commissioner, Orissa, as he was on the day when the impugned order was passed. Hearing fee Rs. 200/-(Rupees two hundred only).

DAS, J.

46. I agree.


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