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Kashinath Patnaik Vs. Sri P.K. Kapila, I.A.S. Secretary, Supply and Transport, Govt. of Orissa - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 170 of 1951
Judge
Reported inAIR1952Ori285; 19(1953)CLT149
ActsConstitution of India - Articles 226, 310, 311 and 311(2); Orissa Service Code - Rule 27; Evidence Act, 1872 - Sections 35
AppellantKashinath Patnaik
RespondentSri P.K. Kapila, I.A.S. Secretary, Supply and Transport, Govt. of Orissa
Appellant AdvocateK. Patnaik, Adv.
Respondent AdvocateAdv. General
Excerpt:
.....is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi,..........(1) a person having no substantive appointment under government may be appointed to a temporary post substantively when no other person has a superior claim to the post; otherwise, the appointment should be made in an officiating capacity. (2) it should be specified in the order of appointment whether such appointment is made substantively or in an officiating capacity. necessary entry in the service book, where service book is maintained, should also be made showing the nature of appointment as follows : temporarysubstantive;temporarysubstantive***'in a subsequent letter no. 449 (20) f. dated 29th january, 1945, from the finance department, government of orissa, to the revenue commissioner etc., this point was further clarified :'sub. :-- principle to be observed in making.....
Judgment:

Narasimham, J.

1. This is a petition under Article 226 of the Constitution. The petitioner was a permanent lower division clerk of Puri Collectorate on a scale of pay of Rs. 50-2-70-2-90 per month. On the 20th May 1946, he was appointed temporarily as Head Assistant of the Puri District Civil Supply Office on a pay of Rs. 100/- per month, plus the usual dearness allowance--Vide Annexure A attached to the petition. On or about the 20th May 1948, he was deputed to act as Head-Clerk-cum-Ac-countant in the Civil Supply Office at Dhenka-nal--Vide Annexure B.

On the 12th July 1951, all of a sudden, he was reverted to his permanent post, that is, lower division clerk in Puri Collectorate, by Order No. 27201 ST., of the same date, passed by the Secretary to the Government of Orissa in the Department of Supply and Transport--VideAnnexure C. Feeling aggrieved by this order of reversion the petitioner filed a representation, first to the Secretary, Supply and Transport Department, and then to the Hon'ble Minister in charge of that Department. Both the representations were rejected. The reason given by the Hon'ble Minister for rejecting the representation may be gathered from letter No. 35872 dated 20th September 1951, from the Secretary, Supply & Transport Department to the District Magistrate, Dhenkanal, material portions of which are as follows :

'Sub. :-- Reversion of Sri Kasinath Patnaik to his permanent post in Puri Collectorate.

'With reference to your letter No. 933/ Res/51 dated, 3-8-51 forwarding the petition of Sri Kashinath Patnaik, ex-Head Assistant of your Civil Supply Office dated 2-8-51, addressed to the Hon'ble Minister, Government of Orissa, Supply & Transport, I am directed to say that the Government, after careful con- sideration, have decided that the Supply & Transport Department does not want the services of Sri Patnaik, His reversion to his per- manent post is not a punishment. His petition has, therefore been rejected.'

Being aggrieved by this order, the petitioner has come to this Court for the issue of an appropriate writ under the Article 226 of the Constitution.

2. The main contention of the petitioner may be stated as follows. He was holding Sub-stantively the temporary post of Head-clerk-cum-Accountant in the Civil Supply Office at Dhenkanal. Consequently, his reversion to the post of a lower division clerk in Puri Collecto- rate amounts to 'reduction in rank' and that under Article 311, Clause (2) of the Constitution he was entitled to be given a reasonable opportunity of showing cause, against such reduction in rank. It was admitted by the learned Advocate-General that no formal proceeding was drawn up for reducing the petitioner in rank and that he was given no opportunity at all to show cause why he should not be reverted to his permanent post in the Puri Collectorate. But an attempt was made to justify the order of reversion on the ground that the order, in effect, does not amount to punishment and that consequently the Government could revert him. to his permanent post in the Puri Collectorate without drawing up a regular proceeding. It was further urged that Clause (2) of Article 311 has no application to the present case. The petitioner's work in the Supply and Transport Department was reported to be unsatisfactory and the Government, therefore, thought it undesirable to keep him in that Department any longer.

3. In the early stage of the argument it was not clear as to whether the petitioner was appointed substantively to the post of Head-clerk-cum-Accountant in the Civil Supply Office at Dhenkanal. On the other hand, annexures A and B filed by the petitioner himself along with his application seem to indicate that he was first appointed temporarily as Head Assistant in the District Supply Office at Puri on 20th May 1946 and then temporarily deputed to act as Headclerk-cum-Accountant in the Civil Supply Office at Dhenkanal. The word 'temporarily' is somewhat ambiguous. It is admitted that all posts in the Supply Department are temporary in the sense that they have beensanctioned for a limited time only--see Rule 45 of the Orissa Service Code.

The learned Advocate-General however urged that though the posts were temporary the petitioner's appointment to these two posts was in an officiating capacity, that is to say, he was merely on trial and if his work was found unsatisfactory, the Secretary, Supply & Transport Department was justified in reverting him to his permanent post in the Puri Collectorate without drawing up a regular proceeding. In support of this contention, the learned Advocate-General produced before us the original order,dated 16th May 1946, passed by the then District Magistrate at Puri which is as follows :

'Sri G. Misra should revert to the main Collectorate, and Sri Kashinath Patnaik who is going to be relieved from the Civil Defence Branch will take his place by the 24th instant as on trial.'

Learned counsel for the petitioner, however, challenged the statement of fact of the Advocate-General and asked us to examine the Service Book of the petitioner. The Service Book was therefore, called for and scrutinised. The relevant entries may be quoted :

123456789

Name of appointment.Whether Substantive or officiating, and whether permanent or temporary.If offg. here state substantive appointment.Pay in substatantive appointment.Additional pay for officiating.Other emoluments falling under the term 'pay.'Date of a appointment.Signature of the Government servant.Signature & designation of the Head of Office, or other Attesting Officer in attestation of columns 1 to 8.

Rs Head AssistantSubstantive

Temporary...100......24-5-46Sd. Kashinath PatnaikSd. Illegible O. S.O. Puri 3.2.47

Sd. Illegible 3-2-47Head Clerk Cum AccountantSubstantive

Temporary...100......7-6-48 F.N.Sd. Kashinath PatnaikSd. Illegible 6.7.48 O. S.O. DKLHead Assistant C. S. Office, Dhenhanal.Substantive

Temporary...149......1-4-50Sd. Kashinath PatnaikSd. Illegible 0. S. 0. DKL

It will be noticed that though on the 24th May 1946, the petitioner was appointed as the Head Assistant of the Puri District Supplies Officer on trial, on 3-2-47 his appointment was noted as 'Substantive/Temporary' in his Service Book. The Column 3 was left blank thereby indicating that he was not holding any officiating post. Again in Column 4, his pay of Rs. 100/-was shown as his pay in substantive appointment. The entry has been attested by such a responsible Officer as the Civil Supplies Officer himself. To a similar effect is the entry dated 6-7-48 which is also attested (by Civil Supplies Officer?) Dhenkanal; also he was recorded as holding 'Substantive/Temporary' post and that entry is also attested by the Civil Supplies Officer, Dhenkanal. On behalf of the Government, an affidavit has been filed by the Additional Under-Secretary of the Supply Department to the effect that the Service Book entries 'are not borne out by records and that the appointment of Sree Kashinath Patnaik was all along on temporary Officiating basis'. But the contemporary records, which might show that the Service Book entry is incorrect, were, however, not produced before this court. The learned Advocate-General wanted further time to investigate this aspect of the case. But as the application for writ was pending from 25th September, 1951, and innumerable adjournments had been given at the request of the Advocate-General, we did not think it desirable to prolong the hearing any further. The Service Book of a MinisterialOfficer is a permanent record containing a complete history of his services and the correctness of the entries found therein cannot be lightly challenged especially when every important entry has been attested by a Gazetted Officer. A vague statement in the affidavit of the Additional Under-Secretary to the effect that the Service Book entries 'are not borne out by records' will not suffice to cast any doubt on the correctness of those entries. I must, therefore, accept the Service Book entries as correct and they show unmistakably that from 3-2-47, at any rate, the petitioner's appointment was 'Substantive/Temporary'.

4. The next question for consideration is what was meant by the words 'Substantive/ Temporary'. The expression 'Temporary Posts' has been defined in Rule 45 of the Orissa Service Code as 'a post carrying a definite rate of pay and sanctioned for a limited time'. It has been admitted before us by the learned Advocate-General that all the subordinate posts in the Supply Department of the Government of Orissa are temporary inasmuch as they have been sanctioned for a limited period only though that sanction may be extended from time to time. This explains why the post of the Head Assistant of the Puri District Supply Office and the post of the Head Clerk-cum-Accountant in the Dhenkanal Civil Supply Office were shown as temporary posts. The definition of 'temporary post' in Sub-rule (30) of Rule 9 of the Fundamental Rules is identical with the definition given in Rule 45 of the Orissa ServiceCode. While construing the aforesaid sub-rule of the Fundamental Rules, the Auditor-Generaldecided that temporary post can be held either substantively or in' an officiating capacity : (see Auditor-General's letter No. 828/Code/117-22 dated 11-12-22). On the 15th July, 1938, theGovernment of India in Finance Department Memorandum No. F.8(10)/Ex-1/38 dated 15-7-1938, gave the following decision :

'Government have decided, in consultation with the Auditor-General, that substantive appointment to a temporary post should be made in a limited number of cases only, as for example when the posts are, to all intents and purposes, quasi-permanent, or when they have been sanctioned for not less then, or there is reason to believe that they will not terminate within a period of, three years. In all other cases, appointment to temporary posts should be made in an officiating capacity only.'

5. These rules, laid down by the Government of India in respect of Officers under their rule-making control, have been adopted by the State Government also in respect of Officers under their control. I may refer to the letter No. 4646(20)F(c) dated 19/3/43 from the Deputy Secretary to Government of Orissa, Finance Department, to the Revenue Commissioner, Orissa :

'Sub. :-- Principle to be observed in making appointments in temporary posts.

I am directed to say that it has been brought to the notice of Government that no general principle is being followed in making appointment to all temporary posts in substantive or officiating capacities, as a result of which difficulties arise in regulating the increments of the incumbents, Government have been pleased to decide that the following guiding principles may be observed in making appointments to temporary posts, in order to obviate the difficulty arising in the matter of regulating increments of the incumbents of these temporary posts;

(1) A person having no substantive appointment under Government may be appointed to a temporary post substantively when no other person has a superior claim to the post; otherwise, the appointment should be made in an officiating capacity.

(2) It should be specified in the order of appointment whether such appointment is made substantively or in an officiating capacity. Necessary entry in the Service Book, where Service Book is maintained, should also be made showing the nature of appointment as follows : TEMPORARY

SUBSTANTIVE;TEMPORARY

SUBSTANTIVE***'

In a subsequent letter No. 449 (20) F. dated 29th January, 1945, from the Finance Department, Government of Orissa, to the Revenue Commissioner etc., this point was further clarified :

'Sub. :-- Principle to be observed in making appointments in temporary posts.

I am directed to invite a reference to sub-para 1 of this Denartment memo No. 4646 (20) F (C) dated the 19th March 1945 in which it was laid down that a person having no substantive appointment under Govt. may be appointed to a temporary post sub-stantively when no other person has a superior claim to the post. I am (directed?) to say that it has now been decided by Government that a permanent Govt. servant can also be appointed substantively to a temporary post if the conditions, that no other person has a superior claim to the post, are fulfilled. * * *'

As recently as 18th May, 1951, the Government of Orissa, Department of Supply and Transport, in their letter No.19602/ST

DE 284/51dated

Cuttack, the 18th May 1951 extended the principles contained in the aforesaid two letters to Ministerial posts in the Civil Supplies Organisation.

'With reference to letter No. CS-19/570/51 dated 20-2-51 and subsequent reminder dated 25-3-51 from the C. S. O., Ganjam on the above subject I am directed to say that since this Depart. G. O. No. 31570 (13) ST dated 23-8-50 issued to all District Magistrates was based on the G. O. No. 4946 (20) F dated 19-3-43 issued by Finance Department outlining the principle to be observed in making substantive or officiating appointments in temporary posts, the said G. O. may also conveniently be extended to the ministerial staff of the Civil Supplies Organisation and they may accordingly be appointed on temporary officiating or temporary substantive basis as the case may be.

A separate communique will issue by the Transport Organisation for their staff in the districts.'

From the aforesaid papers, it appears clear that there were the following four classes of Govt. servants : (1) a Government servant appointed in a permanent post; (2) Government servant appointed to officiate in a permanent post; (3) A Government servant appointed subsequently in a temporary post; and (4) a Government servant appointed to officiate in a temporary post. The petitioner was admittedly a permanent Government servant in the sense that he was holding a substantive appointment as a Lower Division Clerk in the Collectorate at Puri. His subsequent substantive appointment in the Civil Supplies Department, whether at Puri or at Dhenkanal though in a temporary post, means that he was entitled to hold those posts so long as the post continued to exist. Doubtless this right to hold that post is subject to his liability to be (dismissed by?) appropriate departmental proceedings after framing a formal charge against him and giving him an opportunity to show cause. In such a case, appropriate punishment may be given to him under Rule 49 of the Civil Service (Classification Control and Appeal) Rules.

6. The next question to consider is whether Clause (2) of Article 311 of the Constitution has been contravened. That clause may be quoted in full :

'311. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or 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.'

Clause (2) of Article 311 is almost identical with Sub-section (3) of Section 240 of the Government of India Act, 1935. There are some decisions under that Act dealing with dismissal or removal from services of Government servants. But so far as 'reduction' in rank is concerned, no decision has been cited before us. It was pointed out by the Federal Court as early as in 1943, in 'AFZALUR RAHMAN v. EMPEROR', 1943 F.C.R. 7 that in construing Sections 240 and 241 of the Government of India Act, the long-established practice regarding the procedure for punishing Government servants (in that case the punishment was in the nature of dismissal) should be examined and the provisions of the aforesaid sections of the Act should be understood in the light of that long-standing practice. This observation will apply with equal force in construing Article 311, especially the words 'reduced in rank' occurring in Clause (2) of that Article. The word 'rank' has not been defined, and if the strict dictionary meaning is to prevail, it may include both 'officiating rank' and 'substantive rank' of a Government servant. But, in the present case, it is academic to consider whether the reversion of a Government servant from a post in which he was officiating to his substantive post would amount to reduction in rank so as to attract the provisions of Clause (2) of Article 311. It has already been held that the petitioner was holding a substantive post in the Civil Supplies Department & the Advocate-General very fairly did not urge that reversion from a higher substantive post to a lower substantive post would not amount to reduction in rank. As soon as a Government servant is substantively appointed to a post he gets a right to that post which has been described as 'lien' in Rule 27 of the Orissa Service Code, which may be quoted below :

'27. Lien means the title of a Government Servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively'.

It must, therefore, be held that the petitioner got a right to hold the post of Head Clerk-cum-Accountant in the Civil Supply office at Dhen-kanal, and that right can be impaired only after compliance with the provisions of Clause (2) of Article 311. I do not think it can be seriously contended that the petitioner's reversion to his substantive appointment as a Lower Division Clerk in the Purl Collectorate will not amount to 'reduction in rank'. At Dhenkanal, his post was that of a Head Ministerial Officer whereas as Lower Division Clerk at Puri he will become an ordinary ministerial officer. The pay of the two posts shows great disparity. At Dhenkanal he was in the scale of Rs. 125-8-165-10-185, whereas as a Lower Division Clerk at Puri Collectorate he will be in the scale of Rs. 50-2-70-2-90. The petitioner has thus been reduced in rank by Order No. 27201. ST. dated Cuttack, 12th July 1951, of the Government of Orissa, Department of Sup-ly and Transport, without being given a reasonable opportunity of showing cause against such reduction. From the affidavit of the Sup-ply Department, it appears that his work at Dhenkanal was considered unsatisfactory; but in that case specific charges should have been framed against him and he should have beenasked to explain the same if the Government really wanted to impose any punishment, by way of reduction in rank, on him. The view taken by the Government that the said order would not amount to punishment is clearly wrong in view of the entries found in the Service Book of the petitioner and fully discussed in the preceding paragraphs.

7. It is true that all Government Servants in the State hold office during the pleasure of the Governor. But Clause (1) of Article 310 of the Constitution, while emphasising this aspect of the condition of service of a Government servant, qualifies it by saying 'Except as expressly provided by this Constitution'. Article 311 is one of such express provisions, and where there has been a contravention of Clause (2) of that Article, I think the High Court has jurisdiction to interfere in exercise of the powers conferred by Article 226.

8. I would, therefore, declare the order of the Government of Orissa, Department of Supply and Transport (No. 27201 ST, dated, Cuttack, the 12th July 1951) reverting the petitioner from his post of Head Clerk-cum-Ac-countant at Distrct Civil Supplies Office, Dhenkanal, to his permanent post in Puri Collectorate, as invalid and inoperative. The petitioner is entitled to be retained in that post or in an equivalent post unless and until the Government (if so advised) draw up a regular departmental proceeding for reducing him in rank or for imposing on him any other punishment they think fit. The petitioner is entitled to costs. Hearing fee is assessed at Rs. 150/- (one hundred and fifty rupees).

Panigrahi, J.

9. I agree.


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