1. This is an application, under Articles 226 and 227 of the Constitution praying to quash an order dated 11th September, 1968 reverting the petitioner as a Civil Surgeon. The petitioner Dr. Dasarathi Mohapatra joined service under the State of Orissa as an Assistant Surgeon and in due course was promoted to the rank of Civil Surgeon. While working as Civil Surgeon he was temporarily promoted to the rank of Joint Director of Health Services on a provisional basis by order dated the 29th July, 1968 of the Government of Orissa in the Health and Family Planning Department and by the said order Ms services were placed at the disposal of the Labour, Employment and Housing Department for appointment as Administrative Medical Officer, Employees' State Insurance Scheme. The order ran as follows :
'Dr. Dasarathi Mohapatra, Civil Surgeon at present Medical Superintendent, T. B. Hospital, Puri, is temporarily appointed as a Joint Director of Health Services on provisional basis for a period of six months with effect from the date of joining or till the appointment is made in consultation with the Orissa Public Service Commission or until further orders, whichever is earlier.
2. His services are placed at the disposal of the Labour, Fmployment and Housing Department. Bhubaneswar for appointment as the Administrative Medical Officer, Employees State Insurance Scheme vice Dr. P. C. Mohanty appointed as the Director of Health and Family Planning Services, Orissa.
XXXXX (vide -- Notification No. IX. Med. XXIA-5/18 15798/H. dated July 29, 1968 of the Health and Family Planning Department).'
2. It is not disputed that on the date the petitioner was promoted as Joint Director of Health Services, two other officers who were junior to him in the gradation list of Civil Surgeons, namely, Dr. I. P. Acharya and Dr. G. C. Mohanty were also promoted to the rank of Joint Directors of Health. The petitioner joined as Administrative Medical Officer, Employee's State Insurance Scheme on 9-8-1968. In pursuance of the order of the Health Department placing the services of the petitioner at the disposal of the Labour Department, the latter Department on 19th August, 1968 issued an order appointing the petitioner temporarily until further orders as Administrative Medical Officer of the Employees State Insurance Scheme with effect from 9-8-1968 for a period not exceeding one month.
On 11th Sept. 1968, the Government in the Health Department issued the impugned order reverting the petitioner to the rank of Civil Surgeon. It is necessary to reproduce the order in extenso for appreciation of the several contentions raised in this case.
'Government of Orissa Health and F. P. Department NotificationDated the 11th September, 1968.
No. 19100/H. Dr. Iswari Prasad Acharya Joint Director of Health Services, Family Planning is transferred and posted as Joint Director of Health Services, Medical vice Dr. B. M. Nanda, retired.
No. 19101/H. Dr. Natabar Mohanty, Civil Surgeon, Cuttack, is temporarily appointed as a Joint Director of Health Services on provisional basis for a period of six months with effect from the date of his joining or till the appointment is made in consultation with the Orissa Public Service Commission or until further orders, whichever is earlier, and posted as Joint Director of Health Services, Family Planning vice Dr. Iswari Prasad Acharya transferred.
No. 19102/H. Dr. Narayan Mohapatra, Civil Surgeon, Sambulpur is transferred, and posted as the Civil Surgeon, Cuttack vice Dr. Natabar Mohanty appointed as a Joint Director of Health Services.
No. 19103/H. Dr. Dasarathi Mohapatra, Joint Director of Health Services at present Administrative Medical Officer, Employees State Insurance Scheme is reverted to the rank of Civil Surgeon with effect from the date of his relief from the Labour, Employment and Housing Department, and is posted as the Civil Surgeon, Sambalpur vice Dr. Narayan Mohapatra transferred.
By order of the Governor D. P. Tripathy Secretary to Government.'
The effect of this order was that while Dr. I. P. Acharya, and Dr. G. C. Mohanty who were juniors to the petitioner in the cadre of Civil Surgeons, and who simultaneously with the petitioner were promoted to the rank of Joint Directors, Public Health were allowed to continue in the aforesaid higher cadre, the petitioner was not only reverted to the rank of Civil Surgeons but another officer Dr. Natabar Mohanty who in the gradation list of Civil Surgeons is even junior to Sri G. C. Mohanty was freshly promoted to the rank of Joint Directors.
It is contended by the petitioner that in the circumstances referred to above, his reversion to the rank of Civil Surgeon amounts to the imposition of penalty by way of reduction in the rank, and that as admittedly the procedure contemplated under Article 311 has not been followed, the impugned order has to be struck down as illegal.
3. The State of Orissa contends that as the petitioner had been promoted temporarily until further orders to the higher rank of Joint Director, Public Health he had no manner of right to hold the post and as in the higher rank he was found unsuitable, his reversion to his substantive post of Civil Surgeon does not carry with it any stigma and does not entail any penal consequences and as such cannot be construed as a penalty to attract the operation of Article 311.
4. It is now well settled that a reduction in rank may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to the particular rank, then the very reduction from that rank will operate as a penalty for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has by contract, expressed or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such a case is or is not by way of punishment is to find out if the order of reduction also visits the servant with any penal consequences. Thus, if the order entails or provides for forfeiture of his pay or allowance or the loss of his seniority in the substantive rank or stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government has purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the term of the contract of employment or under the rules, in truth and reality the Government has terminated the employment a: and by way of penalty. The Court, therefore, has to apply the two tests mentioned above, namely (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences referred to above. If the case satisfies either of the two tests, then it must be held that the servant has been punished and if the requirements of the rules and Article 311 have not been complied with, the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant. (See P.L. Dhingra v. Union of India, AIR 1958 SC 36).
5. Shri R. N. Misra appearing for the petitioner does not dispute that the petitioner has not acquired any right to hold the post of Joint Director and that his appointment was only temporarily made until further orders. He, however, contends that the petitioner's reversion was not occasioned by any want of vacancies in the higher cadre, because on his reversion, an officer still junior to him has been promoted to fill up his place, and that in view of this fact and also the fact that officers junior to him in the substantive rank and who were promoted simultaneously with him to the higher cadre, have been allowed to continue in such higher cadre, the petitioner's reversion in the circumstances must be deemed to be by way of penalty. In support of this contention he relies on P.C. Wadhwa v. The Union of India, AIR 1964 SC 423; Ramaiah v. State of Mysore, AIR 1965 Mys 164 and State of Andhra Pradesh v. Chinna Reddi, AIR 1963 Andh Pra 412, The decision in Wadhwa's case, AIR 1964 SC 423 proceeded on the basic fact that for members of All India Services like the Indian Police Service to which Wadhwa belonged, promotion was a matter of right and that a person borne on junior scale of pay has a right to hold the post in senior scale depending upon the availability of a post and consequently if a person holding a post in the senior scale, though in an officiating capacity, is found to be unfit to hold that post, action will have to be taken against him as required under Rule 5 of the Discipline and Appeal Rules because his reversion to a post in the lower scale would amount to reduction in rank within the meaning of Article 311. Obviously no such considerations can be applied in the case of the service of which the petitioner belongs.
In AIR 1965 Mys 164, the petitioner Ramaiah along with six others, some senior and some junior to him, in the substantive rank were appointed to officiate in higher posts. Subsequently, the petitioner alone was reverted to his substantive post, the order being that for a period of one year thereafter during which his work would be assessed, he would not have any promotion. In those circumstances, Ramaiah's reversion to his substantive post was held to be a penalty because for a period of one year after his reversion he was not to have any promotion. This meant that there was postponement of his chances of promotion in the substantive rank. In the instant case, there being no such order postponing the petitioner's chances of promotion in future, the decision in Mysore case cannot be of any help to the petitioner. Mr. Misra contends that the petitioner has just about a year to retire and during this period he may not in usual course get any chance of further promotion. That is altogether different matter and cannot be pressed into service to judge the nature of the impugned order.
In AIR 1963 Andh Pra 412, the petitioner who was an Upper Division Clerk in the Collector's office, Guntur was on his application appointed as an Upper Division Clerk in the Andhra Secretariat Service which was in a higher scale of pay. He completed the probation in the latter service and was declared to be an approved probationer. Some time thereafter, he was reverted to his former post in the Guntur Collectorate and he therefore came to the High Court complaining that this amounted to reduction in rank within the meaning of Article 311. The High Court, on a consideration of the rules on the subject, came to the conclusion that under the relevant rules, an approved probationer can only be transferred to serve in a post borne on the same cadre or class and that he can be reverted only for want of vacancy. Although an approved probationer does not as such acquire the status of a permanent member of the service, the fact does remain that he awaits appointment as a full member of the service. It is in these circumstances that their Lordships held that the reversion of the petitioner In that case amounted to a penalty attracting the operation of Article 311. None of these cases therefore on which Sri Misra relies can be of any assistance to him,
A Division Bench of this Court had occasion to consider the identical question in Baradakanta Misra v. State of Orissa, ILR 1966 Cut 503. The petitioner in that case was a Subordinate Judge who had been temporarily promoted to the higher rank of A. D. M. (J.). Some time afterwards, he was reverted to his substantive rank of Subordinate Judge. Admittedly at that time an officer (Sri S. Naik) who was junior to him in the rank of Subordinate Judges and who had been promoted to the higher rank of A. D. M. (J.). was allowed to continue as such. The grievance of the petitioner was that the order of reversion passed against him without reverting his junior Sri S. Naik on the principle of 'Last come first go' resulted in the loss of his seniority and as such it visited Mm with penal consequences. Ahmad, C. J. after an elaborate discussion of the law on the subject and the various decisions cited at the Bar overruled the contention. His Lordship observed-
'Lastly it has to be noted that when a promotion to a higher post as an officiating hand is not available to be claimed as a matter of right on the basis of seniority alone but -is to be made after selection by the authority concerned on the principle of seniority-cum-suitability, situation like this is bound to follow, when an officiating employee not having been found suitable on trial is reverted under the rules of service to his substantive post. It is not uncommon that at a time a number of officers may have been acting as officiating hands in the higher posts. It is true that in such a cane if any of them has to be reverted exclusively on the ground of the exigencies of service alone and not for the reason or his being found unsuitable for the post, the usual principle of 'last come first go' will ordinarily be followed (vide Ramaswamy v. I. G. of Police, Mysore. AIR 1966 SC 175). This state of affairs, however, will prevail only so long as reversion is due exclusively to the exigencies of service. But where reversion of an officiating hand is due to the fact that on trial he is found not suitable, the principle of 'last come first go' can have no relevancy or applicability. It is quite understandable that in such a case the officer who is reverted on the ground that on trial he has been found not suitable may not be then the juniormost in the higher rank. In that case it will necessarily follow that notwithstanding his seniority he will be reverted while those standing junior to him in that rank will continue to officiate as before. Therefore, that circumstance by itself can be no ground for holding that his reversion resulted in any loss of his seniority in the substantive rank.'
6. The same view was expressed by the Supreme Court in Divisional Personnel Officer, Southern Railway. Mysore v. Raghavendrachar, AIR 1966 SC 1529. In that case, the respondent and one James Blazey were promoted from the lower grade of Train Examiners to officiate in the higher grade. The respondent was shown against item No. 2 and Blazey against item No. 3 in the promotion list The promotion of both was purely on provisional basis. Later on, the respondent was reverted to the lower grade while Blazey was retained in the higher grade. The respondent having complained that this circumstance indicated that his reversion was by way of penalty, their Lordships held that the respondent's rank in the substantive post, that is, in the lower grade, was in no way affected by the reversion. In the substantive grade the respondent retained his rank. He was visited with no penal consequences. Once It was accepted that the respondent had no right to the post to which he was provisionally promoted, his reversion did not amount to a reduction in rank.
7. It was further contended by Sri Misra that Government's view that the petitioner was found unsuitable in the higher post cast a stigma on him and although the order of reversion appeared innocuous on the face of it, it is clear that petitioner's reversion was ordered by way of penalty. It was also contended with some amount of vehemence that the Government's action reverting the petitioner was mala fide. It may be noticed that in the order reverting the petitioner to his substantive post, the Government indicated no reasons. It is only in answer to the writ petition that Government in their counter stated that the petitioner was given ad hoc promotion to the post of Joint Director, Health, on trial basis and since he was not found suitable, after trial, he was reverted to his substantive post of Civil Surgeon.
It was further stated that the services of the petitioner were placed at the dis-pasal of the Labour Department for appointment as Administrative Medical Officer for a period of not exceeding one month. But as the petitioner was not found acceptable to the Labour Department, the Administrative Department, namely, the Health Department had to review his case and they found him unsuitable for the post of Joint Director, Health, to which he was promoted on ad hoc basis and therefore he was reverted. During hearing, Sri Misra for the petitioner has attacked this action of Government as mala fide, although no such allegation was made in the writ petition itself. It may be noticed that the order of reversion did not indicate any reason and there is nothing in the order to cast any stigma on the petitioner. For every order of discharge or reversion, there is always a reason and once it is found that the right exists with the Government under the terms of the contract or the rules to revert the petitioner, the motive operating in the mind of the Government is wholly irrelevant. If there is no stigma on the face of the order, one cannot look into the background to discover whether any such stigma can be inferred. (See Champaklal v. Union of India, AIR 1964 SC 1854 and I. N. Saksena v. State of Madhya Pradesh, AIR 1967 SC 1264. In dealing with this aspect of the matter, the real character either of termination of service or of reduction in rank must be determined by reference to the material facts that existed prior to the order. If in a case where a temporary servant attacks the validity of his discharge on the ground of mala fides on the part of the authority, the latter to resist the plea of mala fides refers to certain facts justifying the order of discharge and these facts relate to misconduct, negligence or inefficiency of the said servant, it cannot logically be said that in view of the plea thus made by the authority long after the order of discharge, it should be held that the order of discharge was the result of considerations set out in the said plea. That is not even the case here because mala fides on the part of the Government have not been pleaded in the petition.
We have pointed out relying on B. K. Misra's case, ILR (1966) Cut 503 referred to above that the authority concerned has the right to revert an officer, if found unsuitable, although it may so happen that his juniors in the substantive cadre are allowed to continue to officiate in the higher post.
8. Mr. Misra lastly contends that right from the time of the promotion, the petitioner was working in the Labour Department to which his services had been lent and that he was tried not for a single day in the post of Joint Director of Health under the Health Department to which he was promoted and that in such circumstances, the plea of the Government that he was found unsuitable in the post of Joint Director cannot be accepted. This argument can hardly be accepted. As rightly contended by the learned Government Advocate it may be that Government in considering the case of the petitioner for a promotion to the higher rank was of opinion even initially that he was not suitable for appointment in any of the posts of Joint Directors under the Health Department, but wished to try him in the post of Administrative Medical Officer under the Labour Department which is generally meant for officers of the cadre of Joint Directors and after trial having found him unsuitable even in the post of Administrative Medical Officer decided to revert him.
It may also be, as contended by the learned Government Advocate, that after the Labour Department found him to be unsuitable, Government considered whether he was suitable to be appointed as one of the Joint Directors under the Health Department and came to the conclusion that he was not suitable. Whether it is the one or the other, that is exclusively a matter for the decision of Government and it would not be open to the Court to question that decision.
9. In the result, therefore, the petition must fail and is dismissed. But in the circumstances of the case, there will be no order as to costs.
10. I agree.