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Barada Kanta Misra Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in(1967)ILLJ663Ori
AppellantBarada Kanta Misra
RespondentState of Orissa and anr.
Cases ReferredTropical Insurance Company v. Union of India
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.....k. ahmad, c.j.1. this petition is under article 226 of the constitution of india for an appropriate direction, order or writ as provided therein. the petitioner is a member of the judicial branch of the orissa civil service. the petition is directed against the government order issued under notification no. 1068, dated 15 january 1963, reverting the petitioner from the post of temporary additional district magistrate (judicial) to his substantive rank of subordinate judge. the grievance made by the petitioner is that this order of reversion was passed by way of punishment. as such it amounted to his reduction in rank as contemplated in article 311 of the constitution of india, therefore, the procedure as laid down therein not having been admittedly followed and the petitioner not having.....
Judgment:

K. Ahmad, C.J.

1. This petition is under Article 226 of the Constitution of India for an appropriate direction, order or writ as provided therein. The petitioner is a member of the Judicial Branch of the Orissa Civil Service. The petition is directed against the Government Order issued under Notification No. 1068, dated 15 January 1963, reverting the petitioner from the post of temporary Additional District Magistrate (Judicial) to his substantive rank of Subordinate Judge. The grievance made by the petitioner is that this order of reversion was passed by way of punishment. As such it amounted to his reduction in rank as contemplated in Article 311 of the Constitution of India, Therefore, the procedure as laid down therein not having been admittedly followed and the petitioner not having been given any opportunity of showing cause against that order, it is said to be void, illegal and not binding in law.

2. The persons impleaded as members of the opposite party to the petition are two:

(1) Government of the State of Orissa, and

(2) High Court of Oriasa.

Before, however, the controversy as between the parties is taken up for consideration, it is, I think necessary, to set out at first the necessary and important facts of the case which are here more or less admitted. They are as follows.

3. The petitioner was Initially appointed as a Munsif on probation on 27 June 1947. In due course he was confirmed as a Munsif and sometime in the first-half of 1956 he was promoted temporarily to the post of Subordinate Judge, Subsequently on 24 January 1962 he was confirmed in the cadre of Subordinate Judge with effect from 20 September 1958.

4. Formerly under the Orissa Civil Services (Judicial Branch) Rules, 1950, the Judicial Branch of the Orissa Civil Service had no post as that of Additional District Magistrate (Judicial). Those rules included only the posts of Subordinate Judges and Munsifs and any other Civil Judicial posts inferior to the posts of District Judge, while the posts which were included in the then Orissa Superior Judicial Service Rules, 1949, were only those of the District and Sessions Judges, Additional District and Sessions Judges and some special posts as named therein. Under neither of these rules, therefore, there was any post specifically named as that of Additional District Magistrate (Judicial). The post of the Additional District Magistrate (Judicial) aeerna to have been mooted for the first time by the Government of Orissa in their resolution passed on 1 May 1960 and subsequently given a fuller shape in their letter No. 18923 A, dated 26 September 1961, and resolution dated 6 November 1961, This was all done by the Government of Orissa in the wake of the scheme of separation of the judiciary from the executive which was enforced in and extended to the different districts of the State gradually from time to time. Thereby seven temporary posts of Additional District Magistrates (Judicial) in the scale of Rs. 750-1,150 par month plus dearness allowance admissible under the rules were originally created. Resolution 1, in Para, 2, inter alia recited that

An officer of the rank of District and Sessions Judge has been posted as Additional Dstrict Magistrate for the three districts of Cuttack, Puri and Balasore and vested with full powers of a District Magistrate.

5. That was followed by the aforesaid letter No. 18923 A, dated 26 September 1961. It was In these words:

GOVERNMENT OF ORISSA

Home Department

No. 18923 A

From

Sri K.S. Bawa, I.A.S., Joint Secretary to Government,ToThe Registrar,Orissa High Court, Cuttack.Dated, Bhubaneawar, 26 September 1961,[Subject.-Creation of posts of Additional District Magistrates (Judicial) under the scheme for separation of judiciary from executive.]

Sir,

I am directed to convey the sanction of Government to the creation of 7 (seven) posts of Additional District Magistrates (Judicial) for exercising control and supervision over Judicial Courts under the schema for separation of judiciary from executive, temporarily till 28 February 1G62 with effect from the date or dates the posts are filled up. The posts will carry the pay in the scale of Rs. 750-40-1,150 plus the dearness allowance admissible under rules.

The charge is debitable to the appropriate units under demand 1 '27. Administration of Justice-B-Civil and Seasions Courts-Separation of judiciary from executive' in the budget estimates for 1961-62.

The Accountant-General, Orissa, is being informed.

This has been conculred in by Finance Department in their U.O.R. No. 68337, dated 26 September 1961.

Your faithfully,

(Sd.) K.S. Bawa,

Joint Secretary to Government.

Then came resolution 2, which recited:

No. 21247 A

---------------

STE/1-16/6T:

GOVERNMENT OF ORISSA

(Home Department)

Resolution.

Dated, Bhubaneswar, 6 November 1961.

[Subject.-Separation of judiciary from the executive.]

[Read.-Resolution No. 8706-A, dated 1 May 1960.]

The separation of judiciary from the executive was tried on an experimental basis in the three coastal districts of Cuttack, Purl and Balasore with effect from 1 May 1960. With the experience gained, the separation scheme was extended to three more districts of Dhenkanal, Mayurbhanj and Sambalpur with effect from 1 May 1961 just after one year. A second Special Officer of the rank of District and Sessions Judge was appointed as Additional District Magistrate. The first Special Officer was then placed in charge of the separation scheme in the districts of Cuttack, Dhenkanal and Sambalpur and the second Special Officer in charge of the districts of Puri, Balasore and Mayurbhanj.

As the scheme proved successful, it was decided that the separation of judiciary from the executive would be extended to the whole of the State by the end of the calendar year 1962. As an immediate measure, Government in consultation with the High Court extended the separation schema with effect from 25 October 1961 to the districts of Ganjam, Sandargarh and Keonjhar.

For effective supervision of the work of Judicial Magistrates and proper implementations of the scheme of separation, it was considered expedient to appoint seven Judicial Additional District Magistrates for the nine separation districts and to abolish the posts of two Special Officers. Accordingly seven Additional District Magistrates have been recruited by promotion from the Subordinate Judges. One Additional District Magistrate has been placed in charge of the districts of Samoalpur and Sundargarh, one in charge of the districts of Mayurbhanj and Keonjhar and each of the rest five in charge of one of the districts of Cuttack, Puri, Balesore, Ganjam and Dhenkanal.

Eighteen Additional Munsifs and eight Stipendiary Magistrates have been appointed to work as Judicial Magistrates. Decision has also been taken to amend the Superior Judicial Service Rules so as to create a cadre of Additional District Magistrates (Judicial), as part of the Superior Judicial Service and to form a separate order of Munsif-Magistrates by absorbing the existing Munsifs, newly recrulted Additional Munsifs and Stipendiary Magistrates and such of the Deputy and Sub-Deputy Collectors now working as Judicial Magistrates who may be considered fit and suitable for such absorption....'

6. It however appears that despite the provision as made therein in that regard, the then prevailing Orissa Superior Judicial Service Rules, 1949, was not got amended until 5 March 1963, and it was only since that date that they were repealed and substituted by the present Orissa Superior Judicial Service Rules, 1963, which are now in force. In Rule 4(1) of the Orissa Superior Judicial Service Rules, 1963, it is specifically provided that

The cadre of the service shall consist of two branches, namely,

(i) Superior Judicial Service, Senior Branch, and

(ii) Superior Judicial Service, Junior Branch.

7. Sub-rule (2) of that rule lays down that the cadre of the Superior Judicial Service, Senior Branch, shall consist of

(1) District and Sessions Judges,

(2) Additional District and Sessions Judges, and

(3) the special posts named therein.

8. Its Sub-rule (3) further adds that

The cadre of the Superior Judicial Service, Junior Branch, shall consist of nine Additional District Magistrates (Judicial).

But these Superior Service Rules, 1963, which came into force for the first time on 5 March 1963, never applied to the petitioner as by that time he had already been reverted from the post of Additional District Magistrate (Judicial). In other words during the period between 6 November 1961 and 5 March 1963, with which we are concerned here, the posts of Additional District Magistrate (Judicial) continued to be included in the Judicial Branch of the Orissa Civil Service as defined in the Orissa Civil Services (Judicial Branch) Rules, 1950, and were not yet included in the cadre of the Orissa Superior Judicial Service as defined in the then prevailing Orissa Superior Judicial Service Rules, 1949.

9. This being the position of the service rules relating to the post of Additional District Magistrate (Judicial), we now come to the specific appointments made to these posts in pursuance of the provisions made in the aforesaid resolutions of the Government of Orissa. In that connexion it appears that for filling the first seven posts of Additional District Magistrates (Judicial) created under the aforesaid letter No. 19923 A. dated 26 September 1961, the High Court in their Full Court meeting held on 23 September 1961 selected seven Subordinate Judges and sent their names to Government for their appointment as Additional District Magistrates (Judicial). Government, on the basis of this recommendation, appointed them as such with effect from 26 September 1961. These seven Subordinate Judges were:

(1) Sri Khageswar Mohanti.

(2) Sri U.N. Misra.

(3) Sri G.K. Misra.

(4) Sri B.R. Rao.

(5) Sri S.K. Patra.

(6) Sri R.C. Kar.

(7) Sri S.K. Mohanti.

10. In making selection of these Subordinate Judges for the posts of Additional District Magistrates (Judicial), the following minutes were recorded by the High Court in their Full Court meeting:

We may proceed on the assumption that promotions to the seven posts of Additional District Magistrates (Judicial), will be made from Subordinate Judges only, as I understand from informal talks with the Home Secretary yesterday that Government may not be able to spare any Additional District Magistrates from the executive side.

The Additional District Magistrate (Judicial) must possess special qualifications. They must show real administrative ability in controlling the work of Subordinate Magistrates. They should also be tactful in their dealing with Executive Officers. They must also possess resource in order to solve any sudden difficulties that may crop up. They will have to depend upon the Executive District Magistrates for accommodation, staff, stationery, etc., and other allied matters In the early stages of the working of the scheme In these districts. They will have to practically organize a new office and should be able to face new difficulties, especially in the districts like Ganjam, Keonjhar and Sundargarh, where separation will be introduced for the first time simultaneously with the creation of these posts. Hence, in my opinion, promotion of Subordinate Judges to the ranks of Additional District Magistrates (Judicial) should not be based on considerations of mere seniority, but on other considerations like those pointed out above, such as administrative ability, resource, tact, etc. We may, therefore, have to supersede a few officers whose record has not been particularly good and who are not likely to make a success as Additional District Magistrate.

11. I would, therefore, select the following Subordinate Judges for promotion to the seven posts of Additional District Magistrates (Judicial):

(1) Sri Khageswar Mohanti.

(2) Sri U.N. Misra.

(3) Sri G.K. Misra.

(4) Sri Bachu Raghava Rao.

(5) Sri S.K. Patra.

(6) Sri R.C. Kar.

(7) Sri S.K. Mohanti.

12. Doubtless, this means temporary supersession of Sri K. N. Sarkar, Sri L.B.N.S. Deo, Sri B. K. Misra, Sri D.S. Nanda and Sri S. Nayak. But this cannot be helped, as none of these officers appears to have shown any of the qualities indicated above so far. Bat we may Inform these officers semi-officially that their supersession is only temporary and If they show real ability, resource and tact, their cases will be considered favourably later on. Some more vacancies of Additional District Magistrates (Judicial) are likely to arise when the scheme is extended to the remaining districts of Bolangir, Kalahandi and Koraput in 1962, and they will get their chances then.

13. As regards the posting of these seven officers, the following recommendations may be sent up to Government:

(1) Sri Khageswar Mohanti-

Dhenkanal.(2) Sri G. K. Misra-Cuttack.

(3) Sri U. N. Misra-Puri.

(4) Sri Bachu Raghava Rao-

Sambalpur.(5) Sri S.K. Patra-Baripada.

(6) Sri S.K. Mohanti-Ganjam.

(7) Sri R.C. Kar-Balasore,

Circulate to Full Court.

(Sd.) R.L. Narasimham. I agree. I agree.Sd.) R.K. DAS (Sd.) S. BURMAN28 September 1961 28 September 1961.

14. It is the common case or the parties that on 28 September 1961 in the gradation list of Subordinate Judges the position of these seven officers who were selected for the first seven posts of Additional District Magistrates (Judicial) vis-a-vis the petitioner and a few others who are to be referred to hereafter was in order of seniority as follows:

(1) Sri K. Mohanti.

(2) Sri U.N. Misra.

(3) Sri G.K. Misra.

(4) Sri L.B.N.S. Deo.

(5) Sri K.N. Sarkar.

(6) Sri B.K. Misra (petitioner).

(7) Sri B.R. Rao.

(8) Sri S.K. Patra.

(9) Sri R.C. Kar.

(10) Sri D.S. Nanda.

(11) Sri S. Nayak.

(12) Sri S.K. Mohanti.

(13) Sri S.P. Sharma.

(14) Sri L. N. Samant.

Therefore, it is manifest that at the time of appointment of this first batch of seven Subordinate Judges as Additional District Magistrates (Judicial) the petitioner Sri B. K. Misra was not taken in as Additional District Magistrate (Judicial) and that out of the seven Subordinate Judges who were appointed as such only three, namely, Sri K. Mohanti, Sri U. N. Misra and Sri G. K. Misra, were senior to him in the gradation list of the Subordinate Judges while the remaining four, namely, Sri B.R. Rao, Sri S.K. Patra, Sri R.C. Kar and Sri S.K. Mohanti were all junior to him. The petitioner, therefore, for that reason felt aggrieved and on 19 October 1961 submitted a representation against this supersession of his claim to the post of Additional District Magistrate (Judicial). That representation, it seems, did not find favour with the authorities and even the next vacancy which fell vacant thereafter in the rank of Additional District Magistrate (Judicial) did not go to him; and on 13 December 1961 it was given to a Subordinate Judge who was junior to him, namely, Sri D.S. Nanda. So the petitioner again submitted another representation against the supersession of his claim. Unfortunately there is no material on the record to show as to what was the exact order which was passed on that representation. All that transpires from the record is that, therefore, when there was again a vacancy caused in the cadre of the Additional District Magistrate (Judicial) that was given to the petitioner by the Notification No. 7890 Ref., dated 23 March 1962. That notification reads as follows:

GOVERNMENT OF ORISSA

Home Department

Notification.

Dated Bhubaneswar, 28 March 1962.

No. 7890 Ref.

S.J.E./1-16/61. The following Subordinate Judges are appointed to act as Additional District Magistrates (Judicial) in the scale of Rs. 750-40-1,150, and are posted to the districts noted against their names.

In exercise of the power conferred by Sub-section (1) of Section 12 of the Code of Criminal Procedure, 1898 (V of 1898), the State Government do hereby vest the said Subordinate Judges with powers of the Magistrate of the First Class in the district; to which they are posted.

In exercise of the powers conferred by Sub-section (2) of Section 10 of the said Code, the State Government do hereby appoint them to be Additional District Magistrates la the districts noted against their names and direct that they shall exercise all the powers of District Magistrate under the said Code and under all other laws for the time being in force.* * *

By this promotion to the post of Additional District Magistrate (Judicial), though only on a temporary posts, his starting pay was raised from Rs. 690 to Rs. 750 and since then the petitioner continued to act as such in the office of Additional District Magistrate (Judicial) till 15 January 1963 when, as already stated, he was reverced to his substantive post of Subordinate Judge. In the meantime one more post had fallen vacant in the rank of Additional District Magistrate (Judicial) and that was given on 4 January 1963 to Sri S. Nayak. This Sri S. Nayak was also admittedly junior to the petitioner in the cadre of Subordinate Judges and it is not disputed that since then he has been all along acting as such in that post. Thus on 15 January 1963 when the impugned order was passed, the following Subordinate Judges were, in the order of their dates of appointment, acting as Additional District Magistrates (Judicial):

Name of officers Date of joining

(1) Sri B.R. Rao ... 20 October 1961.

(2) Sri S K. Patra ... 13 October 1961.

(3) Sri R.C. Kar ... 21 October 1961.

(4) Sri S.K. Mohanti. 18 October 1961.

(5) Sri D.S. Nanda ... 13 December 1961.

(6) Sri B. K. Misra ... 1 April 1962.

(7) Sri S. Nayak ... 14 January 1963.

It was in this position that on 15 January 1963 there were two notifications simultaneously issued, one bearing No. 1068 and the other No. 1070. By the former the petitioner was reverted to his substantive rank of Subordinate Judge. That read as follows:

No. 1068-Barada Kanta Misra, temporary Additional District Magistrate (Judicial), Cuttack, is reverted to the rank of Subordinate Judge and his services are placed at the disposal of Law Department.

15. By the other notification Sri D. P. Sharma, Subordinate Judge, junior to the petitioner in the gradation list of Subordinate Judges was appointed to act as temporary Additional District Magistrate (Judicial) perhaps in the very vacancy which was caused by the reversion of the petitioner to his substantive rank as Subordinate Judge.

16. The notification as to the reversion of the petitioner was however not without any history behind it. It appears that while the petitioner as acting Additional District Magistrate (Judicial,) was posted at Cuttack, he took cognizance on 1 September 1962 of a case under Section 341, Indian Penal Code, against two railway employees. But subsequently on 24 October 1962 he dropped the above case under Section 249, Criminal Procedure Code. In the opinion of this Court, as it appears from Para. 10 of the counter-affidavit filed on behalf of the High Court and other material on the record this was a case of misuse of power by the petitioner and an act highly injudicious. Accordingly on 9 November 1962 a confidential letter bearing No, 6315/XX-6-63 was sent to the petitioner by Sri T. V. Rao, the then Registrar of the High Court of Orissa calling upon the petitioner

to show cause on or before 17 November 1962 why he may not be reported to the Government for demotion as Subordinate Judge and deprived of the powers of an Additional District Magistrate (Judicial) for some time to come.

This letter is annexure D to the writ petition and annexure B to the counter-affidavit on behalf of opposite party 2. In reply thereto the petitioner submitted his show cause dated 20 November 1962 which is annexure E to the writ petition.

17. This Court after considering the show cause, as it stated in Para. 7 of the counter-affidavit dated 12 February 1963 filed on behalf of the Government of Orissa, recommended to the Government to revert the petitioner to his substantive rank of Subordinate Judge which the Government did by the impugned notification dated 15 January 1963. This Para. 7 inter alia reads:

The petitioner had been appointed as Additional District Magistrate (Judicial) on a temporary basis and some time after the petitioner's appointment as Additional District Magistrate (Judicial) certain acts of the petitioner performed in the dis-charge of his duties as Additional District Magistrate (Judicial) came to the notice of the High Court and the latter called for an explanation from the conclusion that the petitioner's work was unsatisfactory and he was not suitable for dis-charging the responsibility of the office of Additional District Magistrate (Judicial), The High Court thereupon communicated their views to the Government and the latter after considering all relevant matters agreed with the High Court and ordered the reversion of the petitioner to his substantive rank.

18. Thereupon the petitioner sent a letter bearing No. 125, dated 18 January 1963, to the Home Department for intimating him the grounds of reversion. To that he did not receive any reply. In the meantime in pursuance of the aforesaid order of reversion already passed against him, the petitioner was on 23 January 1963 compulsorily relieved from his office as Additional District Magistrate (Judicial). He then went on leave from 24 January to 17 June 1963. While on leave the petitioner on 5 April 1963 Bent an appeal to the Chief Minister, Orissa against Homo Department Notification No. 1968, dated 15 January 1963, reverting him to his substantive post of Subordinate Judge. As to this appeal in Para. 15 of the petitioner's affidavit dated 7 April 1965 filed in reply to the counter-affidavits of the opposite parties, it is stated that:

The petitioner's appeal to the opposite party 1 against the impugned order of reversion, was not forwarded by the opposite party 2 for a long time, and thereafter the representation having been forwarded to the opposite party 1, the petitioner came to know in September 1964, within about a fortnight before filing of this writ petition, that the appeal had been disposed of in April-May 1964, without an order in favour of the petitioner; and the petitioner applied for a copy of each order on the same day, but it having not been supplied, the petitioner filed the writ petition, and therefore there is no unreasonable delay in filing the writ petition. The petitioner used to send reminders to the opposite party 1, some of them being on 31 March 1963, 10 December 1963 and 23 April 1964.

Thus we find that though the order of reversion was passed so far back as on 15 January 19S3, the present application challenging the validity of that order was filed on 25 September 1964.

19. In the meantime the petitioner on expiry of his leave had already joined his post as Subordinate Judge at Sundargarh. While posted there as such it is said the petitioner committed some further acts of misconduct, referred to in detail in Para. 18 of the counter-affidavit dated 10 February 1965 filed on behalf of the High Court, which reads as follows:

As the Subordinate Judge, Sundargarh, for the period from 17 Jane 1963 to 19 April 1964 the petitioner committed various acts of misconduct in discharge of his official duties, namely, using intemperate and objectionable allegations against the ministers including the Chief Minister, causing friction between the Court and the members of the Bar, making wild and reckless allegations against the authorities, some members of the High Court staff and a Judicial Officer, writing judgments in a slipshod manner, adopting highly irregular and unsatisfactory methods in the disposal of sessions cases and exhibiting lack of judicial balance both in language and appreciation of relevant evidence in a civil suit, etc., as a result of which regular charges were drawn up against him and he was placed under suspension. On 15 May 1984 (on which date he was placed under suspension) alter assuming charge of his office as Subordinate Judge, Sundargarh, he committed further acts of misconduct, namely, gross indiscipline and disobedience of Court's orders, gross misconduct in the discharge of duties, causing or attempting to cause disappearance of evidence of taking over charge, attempting to induce a public servant to give false and fabricated evidence by approaching the Civil Surgeon, Sundargarh, for giving a false certificate of sickness after having obtained a fitness certificate a few hours before, etc., with the result that additional charges had to be framed against him. The charges and additional charges drawn up against the petitioner in the departmental proceedings started against him are filed herewith as annexures C and D.

We are not here concerned with the charge which are referred to in this paragraph. They form the subject-matter of a separate proceeding which is still pending for disposal and in answer thereto an elaborate explanation has already been filed by the petitioner. That explanation is dated 20 December 1964 and is annexure H to his affidavit dated 7 April 1965 filed in reply to the counter.

20. Thus we find that at present the petitioner is faced with two adverse actions taken against him. The first is the aforesaid order of reversion made on 15 January 1963 which is the subject-matter of the present application. The other is the proceeding taken against him as to why he should not be dismissed from service for the reasons as stated in the charges and additional charges followed by the usual order of suspension in the course of that proceeding with effect from 15 May 1964, This proceeding and the subsequent suspension of the petitioner affected in the course of that proceeding have obviously no bearing on the Impugned order of reversion and therefore the facts connected therewith are not relevant for the purposes of this present application. But a reference to this proceeding and suspension has been made here as in the course of hearing as also in the counter-affidavits filed on behalf of the opposite parties, some stress has been given on some of the facts connected therewith.

21. The present application on behalf of the petitioner has been pressed by Sri Mohapatra appearing for him on the following three main grounds:

(1) That the impugned order of reversion has visited the petitioner with penal consequences.

(2) That subject to the availability of post in the rank of Additional District Magistrate (Judicial) the petitioner as the seniormost officer in the cadre of Subordinate Judge had a right to hold it without any selection by the authorities concerned.

(3) That inasmuch as the order of reversion was passed exclusively on the basis of the report sent to Government by the High Court without Government who were the final authority in the matter having applied their own independent mind to the matter, the order of reversion is invalid for the reason of mala fide.

22. In answer thereto the submissions made in defence by Sri S. Mohanti appearing for the High Court, opposite party 2, and by the learned Government Advocate, Sri G. Rath, appearing for the Government of Orissa, opposite party 1, are:

(1) That the petitioner was promoted to the post of Additional District Magistrate (Judicial) with effect from 2 April 1962 on trial basis.

(2) That on trial the petitioner was found unsuitable to hold the post of Additional District Magistrate (Judicial) and therefore he was reverted to his substantive post of Subordinate Judge on administrative grounds, as provided in Rule 13 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, read with Clause (d) to the explanation as given therein. In other words the order of reversion was not passed by way of punishment.

(3) That the petitioner was not the seniormost Additional District Magistrate (Judicial) in the State on the date of his reversion. The claim of the petitioner in regard thereto is perhaps based on the footings of the Instructions issued in Resolution No. 11589 A, dated 8 December 1947, of the Government of Orissa in the Home Department, but that Instruction was subsequently cancelled by another Resolution No. 3821/Gan., dated 26 March 1962, of the Government of Orissa in the Political and Services Department.

(4) That the posts of Additional District Magistrate (Judicial) are selection posts requiring appointment of officers possessing special qualification, such as, tact, resource and administrative ability.

(5) That the petitioner had DO right to promotion to or hold the post of Additional District Magistrate (Judicial).

(6) That it is wrong to say that the order of reversion passed by the Government was based exclusively on the report submitted by the High Court to them. On the contrary, the Government ordered the reversion of the petitioner to his substantive post after carefully considering all relevant matters connected therewith. Farther the plea of mala fide on this ground having not been pleaded in the writ application, it is not open to be raised for the first time at the time of hearing.

23. Now in law both on principle and by authority it is well-settled that the protection guaranteed under Article 311 of the Constitution of India extends to all Government servants holding permanent or temporary posts or officiating in any of them-vide Parshotam Lal Dhingra v. Union of India 1958-I L.L.J. 544, Sukhbans Singh (S.) v. State of Punjab 1963-I L.L.J. 671, Jagdish Mitter v. Union of India 1964-1 L.L.J. 418, and the latest un-reported decision of the Supreme Court in Civil Appeal No. 975 of 1964 (Divisional Personnel Officer, Southern Railway, Mysore v. S. Raghavendrachar) disposed of on 17 December 1965 [since reported in 1967-1 L.L.J. 401] Therefore, there will be no difficulty in the present case for the petitioner, if it is found that the impugned order of reversion is a case of reduction in rank as contemplated by Article 311 of the Constitution. But as observed in Parshotam Lal Dhingra v. Union of India 1958-I L.L.J. 644 (vide supra) the words 'dismissal,' 'removal' and 'reduction in rank' as used in Article 311 in respect of the law of master and servant are technical words used in cases if a parson's services are terminated by way of punishment. Therefore, in a case where as here a grievance is made that the order of reversion amounts to reduction in rank the protection guaranteed under Article 311 of the Constitution of India may be invoked only if it is established that the reversion of the petitioner effected by the impugned order was done by way of punishment. In the case of a temporary employee the difficulty in judging as to whether or not the reversion has been effected by way of punishment arises due to the fact that unless otherwise provided either in the contract of service or the rules governing that employment, there is always power under the common law of master and servant in the employer, may he be private individual or Government or an authority to promote an employee temporarily on trial basis to be made permanent subsequently if and when found suitable for that post or for the limited purpose of carrying on the duty of that post during the absence of the permanent hand either for the reason of leave or any other or in the course of any vacancy in that post, until a permanent hand is appointed thereto-vide State of Bombay v. F.A. Abraham 1963-II L.L.J. 422. In the case of Government or authority this power under the common law is invariably incorporated in the rules governing the service and sometimes also in the terms of contract of service. Necessarily, therefore, in the case of such temporary promotion which is given in exercise of this power under the rules or contract of service the tenure of the employee to the higher posh in precarious inasmuch as he may always be in exercise of the implied authority of the employer under the common law, or the provision made thereabout in the contract of service or the rules governing it, reverted to his substantive post as and when the permanent hand has joined the post on return or permanent appointment has been made to that post or when on trial he is found not suitable for the post, by the employer-vide Parshotam Lal Dhingra v. Union of India 1958-I L.L.J. 544 (vide supra); Sukhbans Singh v. State of Punjab 1963-I L.L.J 671 (vide supra) and State of Orissa and Anr. v. Ramnarayan Das 1961-I L.L.J. 552. Such a revers on is usually said to be done on administrative grounds.

24. But at the same time a temporary employee may also be liable to punishment as any permanent employee. In this respect both the classes of civil servants, permanent or temporary, as in the case of protection under Article 311 stand on the same footing and the provisions for punishment, may then be provided in contract of service or the rules governing it, apply equally to both of them. That being so, in a case where a temporary employee is on trial, found not suitable for the post, the employer may choose either to simply revert him to his substantive post in exercise of the power which he has under the common law or in the alternative not only to revert him to his substantive post but also to punish him for the misconduct he is found to have committed. In the former case Article 311 of the Constitution will not be attracted to, action having been taken purely on administrative grounds and not by way of punishment, but in the latter it will be. In other words, as observed in Jagdish Mitter v. Union of India 1964-I L.L.J. 418 at 423 (vide supra), in the case of a temporary employee, the employer or

the appropriate authority possesses two powers to terminate the cervices of a temporary public servant; it can either discharge him purporting to exercise its power under the terms of contract or relevant rule, and in that case, it would be a straightforward and direct case of discharge and nothing more; in such a case, Article 311 will not apply. The authority can also act under its power to dismiss a temporary servant and make an order of dismissal in a straightforward way; in such a case Article 311 will apply.

25. Therefore, mere reversion from a temporary post held by an employee does not per se amount to redaction in rank as contemplated in Article 311 of the Constitution, because the temporary post held by nun unless otherwise provided in the contract of service or the rule governing it is not substantive-vide State of Orissa v. Ramnarayan Das 1961-I L.L.J. 552 (vide supra); Parshotam Lal Dhingra v. Union of India 1958-I L.L.J. 544 (vide supra); Sukhbans Singh v. State of Punjab 1963-I L.L.J. 671 (vide supra); Hartwell Prescott Singh v. Uttar Pradesh Government A.I.R 1957 S.C. 886. In other words there must be, in the case of reversion of temporary servants, something more to indicate that the order of revision passed was by way of punishment. What that additional material should there be to lead to that conclusion will vary from case to case; but in order that it may be held to be punitive it must satisfy as laid down by the authorities either of the two tests

(1) whether the servant had a right to the post or rank, or

(2) whether he has been visited with evil consequences as laid down in the majority judgment of the well-known case of Parshotam Lal Dhingra v. Union of India 1958-I L.L.J. 544 (vide supra). Therein in the course of discussion on this point it has been observed at p. 562:. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emeluments 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, express 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 datermining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rack under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression terminate' or ' discharge' is not conclusive. In spite of the use of such Innocuous expressions the Court has to apply the two tests mentioned above, namely,

(1) whether the servant had a right to the post or the rank, or

(2) whether he has been visited with evil consequences of the kind hereinbefore referred to ?

If the case satisfies either of the two tests, then it must be held that the servant has been punished and the termination of his service mast be taken as a dismissal or removal from service or the reversion to the substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311 which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.

26. Thus it is in the light of these two tests, namely,

(1) whether the petitioner had the right to the post or rank, or

(2) whether he has been visited with any evil consequerces as explained in the aforesaid case,

that the case of the petitioner has now to be judged in order to find out whether the reversion in his case has been effected by way of punishment or simply on administrative grounds as provided in the contract or rules of service. The submission made on behalf of the petitioner is that on the facts of this case both these two tests are fully satisfied and therefore, his reversion is punitive.

27. Now in support of the first test that he had the right to the post of Additional District Magistrate (Judicial), there is no material brought on the record either in the form of any rule or any term of contract of service which may directly establish that the petitioner had a right to the post of Additional District Magistrate (Judicial). On the contrary Rule 13 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, which is admittedly applicable to the case of the petitioner is a clear indicative of the fact that an officiating employee has no right to the post he holds as such. In thin Rule 13 there is an explanation given which says:

The following shall not amount to a penalty within the meaning of this rule,

and is, therefore, followed by a number of items Including one in Clause (d) which mentions:

Reservation to a lower service, grade or post of a Government servant officiating in a higher service, grade or post on the ground that he is considered, after trial, to be unsuitable for such higher service, grade or post, or on administrative grounds unconnected with Ma conduct.

This part of the explanation can be obviously consistent only with one and one construction, that is, a servant officiating in higher service, grade or post has no right to hold is and his tenure in that post is precarious in the sense that he may be reverted to his substantive post on the ground that after trial he has been found unsuitable for that higher service, grade or post. Therefore, this part of the provision made in Rule 13 completely negatives the contention raised by Sri Mohapatra that the petitioner, though an officiating hand had a right to hold the post of Additional District Magistrate (Judicial).

28. What, however, has been contended by Sri Mohapatra is that so long as the Orissa Superior Judicial Service Rules, 1963, were not in force, which in fact came into force on 5 March 1963, the persons holding the posts of Additional District Magistrate (Judicial) and those of Subordinate Judges were members of a common cadre and as there were then no statutory rules made prescribing the conditions of transfer or promotion of a person holding the post of Subordinate Judge to the post of Additional District Magistrate (Judicial) the transition of a member of the service from the rank of Subordinate Judge to that of Additional District Magistrate (Judicial) did not depend upon the consideration of the comparative merits of a group of officers in the rank of Subordinate) Judges inter se bar, exclusively upon the consideration of their seniority above. In other words, it has been contended that there was no element of selection involved in promoting Subordinate Judges to the posts of Additional District Magistrates (Judicial). Therefore, relying on the rule of law as laid down in the majority judgment of P.C. Wadhwa v. Union of India 1964-I L.L.J. 395, it has been claimed that the petitioner being admittedly the seniormost officer in the cadre of Subordinate Judges at the time when he was promoted to the rank of Additional District Magistrate (Judicial) he had the right to that promotion and as such a right to hold it when promoted. In our opinion there is no substance in this contention. The facts of the aforesaid Wadhwa case were entirely different and are quite distinguishable. Therein while dealing with this point the majority judgment observes (p. 408):

Even though a largo body of rules has been framed by the Central Government governing the rights, privileges, discipline, etc., of the members of the Indian Police Service, there is not a single rule which specifically deal a with the appointment of an Assistant Suparintendent of Polios to the post of Superintendent of Police. In other words there is no specific rule which prescribes the condition for transfers or 'promotion' of a person holding a post carrying a pay in the junior scale to a post carrying salary in the senior pay-scale. Nor again, is there any rule which specifically provides that in so far as a member of the Indian Police Service is concerned he has to be freshly appointed to a post carrying a salary in the senior scale of pay, This may be apparently because 'appointment' connotes only initial appointment to the service. In this situation we have get to deduce the precise legal position from the largo body of rules to which we have referred. It seems clear beyond doubt that in BO far as the Indian Police Service is concerned there is only one cadre. Appointments to posts borne on that cadre are to be made by direct recruitment except to the extent of 25 per cent of the senior posts which may be filled by promotion from the State Police Service leaving aside for the moment appointments made by special recruitment or emergency recruitment.... In our opinion, the whole scheme of the rules indicates that a person borne on the junior scale of pay has a right to hold a post on the senior scale of pay depending upon the availability of a post and his seniority in the junior scale of pay.

29. Therefore, it is manifest that so far as the last portion of this observation is concerned which is the main plank of the argument of Sri Mohapatra, it is based exclusively on the footing that under the rules governing the rights, privileges, discipline, etc., of the members of the Indian Police Service no element of selection was involved in promoting an Assistant Superintendent of Police to the post of Superintendent of Police. In other words, it was in the context of the rules governing the rights, privileges, discipline, etc., of the members of the Indian Police Service that the aforesaid conclusion was therein arrived at. Bat the position here is different. The persons belonging to the Judicial Branch of the State Civil Service are not governed by the rules in the background of which that conclusion was come to. A case of promotion to persons belonging to the Judicial Branch of the State Civil Service is not governed by the rules in the background of which that conclusion was come to. A case of promotion to persona belonging to the State Civil Service is governed and regulated by Article 235 of the Constitution. This article in substance Incorporates what was formerly provided under the Government of India Act, 1935, in Section 235 and inter alia provides that:

The control over District Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persona belonging to the Judicial Service of a State and holding any post inferior to the post of District; Judge shall be vested in the High Court.

30. It is not disputed that at the relevant time the post of Additional District Magistrate (Judicial) was inferior to the post of District Judge as defined in the Orissa. Superior Judicial Service Rules, 1949, which was then in force. It follows, therefore, that at that time the promotion of a Subordinate Judge to the poet of Additional District Magistrate (Judicial) vested exclusively in the High Court as provided under Article 235 of the Constitution, subject of course to such appeal as were then allowed by the law regulating conditions of the service, or in other words by the rules made under Article 309 of the Constitution. Then it is also well-settled that the exercise of the power under Article 235 by the High Court is not justiciable unless some other provision of the Constitution has been violated-vide High Court, Calcutta v. Amal Kumar A.I.R. 1982 S.C. 1704. Therefore, the very fact that there is such a provision made in Article 235 of the Constitution vesting absolute power of promotion in respect of such officers in the High Court is a complete answer to the claim of the petitioner that by reason of seniority alone he was entitled to promotion as a matter of right. The very purpose underlying the article in our opinion is to vest an exclusive control over District Courts and Courts subordinate thereto, in the High Court, That being so, the power given therein in regard to promotion necessarily implies the power of selection and this selection has to be done upon the consideration of the comparative merits of the group of officers concerned including their claim by reason of seniority, or in other words upon the consideration of their seniority-cum-suitability and not upon seniority alone. It is in fact in exercise of this power that the transition of a member of the service from the rank of Munsif to that of Subordinate Judge is effected upon the consideration of comparative merits of the officers in the rank of Munsifs inter se there being no specific provision made in that behalf in the rules governing the subordinate judiciary. Therefore, in view of what has been provided in Article 235 of the Constitution it cannot be accepted that the High Court in appointing Subordinate Judges to the rank of Additional District Magistrates (Judicial) had no power of selection. As such the authority of P. C. Wadhwa v. Union of India 1964-I L.L.J. 395 (vide supra), has no application to the facts of the present case.

31. It is not contended here that during the relevant time the High Court in making the selection of Subordinate Judges for the post of Additional District Magistrates (Judicial) did not consider the comparative merits of the officers in the rank of Subordinate Judges inter se, or that in the course of that selection the case of the petitioner was not taken into consideration. And we think that even if it had been so contended, that contention in the light of the materials on the record could have no legs to stand upon. In the minutes recorded by the Full Court at its meeting held on 23 September 1961 which has been brought on the record by Sri Mohanti in the course of his argument there is a specific statement made to the effect that

This means temporary supersession of Sri K.N. Sarkar, Sri L.B.N.S. Deo, Sri B. K. Misra, Sri D.S. Nanda and Sri S. Naik. But this cannot be helped as none of these officers appears to have shown any of the qualities indicated above so far. But we may inform these officers semi-officially that their supersession is only temporary and If they show real ability, resource and tact, their cases will be considered favourably later on.

In that view of the matter it cannot be asserted with any success that the High Court in making the aforesaid selections for the posts of Additional District Magistrates (Judicial) was not conscious of the claim of the petitioner on the ground of his seniority in the rank of Subordinate Judges though it is a different matter that on scrutiny he was not found suitable and his name was not selected on the first two occasions. It is now, therefore, too late for the petitioner to claim that the High Court had no power to make any selection and he had a right to promotion by reason of his seniority alone. The fact that the High Court has the power of selection in the matter of promotions also finds support, from the decision of the Supreme Court in High Court, Calcutta v. Amal Kumar : [1963]1SCR437 (vide supra). The plaintiff in that case was a number of the Judicial Branch of the State Civil Service, West Bengal, and at that time held the post of Munsif. The High Court had superseded him and had promoted officers junior to him in the cadre of Munsif to the rank of Subordinate Judge. The claim made by him in the suit was that he had a right to promotion to the rank of Subordinate Judge by reason of his seniority in the rank of Munsif and as such his supersession was illegal. In answer thereto:

It was claimed on behalf of the High Court that it was the sole administrative authority to determine questions of promotion of Munsifs to Subordinate Judge's grade ; in exercise of that sole authority and discretion, the High Court considered the plaintiff's case for promotion as Subordinate Judge, and passed orders on a proper appreciation of the plaintiff's record of service, and in the best interest of the judicial administration of the State.

The Supreme Court on an elaborate discussion on this point upheld the contention of the High Court and finally held that

the plaintiff had no right to promotion.

Therefore, the claim made on behalf of the petitioner that at the time of his appointment as Additional District Magistrate (Judicial) he being the seniormost in the cadre of Subordinate Judges had a right to promotion by reason of his seniority alone and as such had a right to hold the post when promoted cannot be upheld. This disposes of the claim made on his behalf in regard to the first test.

32. Then we come to the second teat. In this connexion what has to be first looked into at the very outset is the order of reversion itself. It has already been quoted above in extenso. In terms it is not denied that it is colourless and innoduous. There is no allegation made therein about any misconduct, negligence or inefficiency or any other disqualification, nor there is anything stated therein to suggest that it entails or provides for the forfeiture of his pay or allowances, or the loss of his seniority in his substantive rank, or the stoppage or postponement of his future chances of promotion. Therefore, there is no scope for the allegation that the older on the very face if it casts any aspersion or attaches any stigma to the petitioner suggesting that the action taken against him in the matter of reversion was by way of punishment. Had it been so, the matter would have been simple and on that ground alone it would have been very easily hold that as the order cast aspersion and attached stigma to the officer, the order was punitive in character as was the case in Jagdish Mitter v. Union of India 1964-I L L.J. 418 (vide supra). Therein the relevant observation made is at p. 428:

But it seems to us that when the order refers to the fact that the appellant was found undesirable to be related in Government service, it expressly cast a stigma on the appellant and in that sense must be held to be an order of dismissal and not a mere order of dis-charge.

33. In the present case, however, as already stated, the order of reversion passed against the petitioner is innocent and innocuous. Therefore, so far as the form of the order itself is concerned, that can be of no avail to the petitioner in establishing his allegation that it was passed by way of punishment. That being so the next important question that arises for consideration in this connexion is whether the form of the order alone is conclusive to dispose of the controversy as to whether the order of reversion passed in the present cape was punitive or administrative without any idea of punishment behind it. Sri Mohanti relying on the decisions in Jai Shanker Hajela v. State of Uttar Pradesh 1959- II L.L.J. 165; Radhey Raman v. State of Uttar Pradesh A.I.R. 1959 All. 136; Bharatendra Nath v. Incometax Commissioner, West Bengal A.I.R. 1958 Cal. 569 and Dhajadhari Dutta v. Union of India 1958-II L.L.J. 892 has urged that unless there is any material inherent in the order of reversion itself which may entail, cause or give rise to any forfeiture of his pay or allowances or the loss of his seniority in the substantive rank or the stoppage or postponement of his future chances of promotion the order cannot; be held to be punitive. In other words, the submission made by Sri Mohanti is that the enquiry in regard to the question whether the reversion has been affected by way of punishment or on administrative grounds has to be kept confined to the very terms of the order and is construction and not to any matter extraneous to it. In our opinion, this submission made by Sri Mohan(sic) cannot be accepted as correct. What is essentially required in this connexion is only this much that the evil consequence which distinguishes it from a pure and simple administrative order must flow from the order itself. If it does flow from it, the conclusion is irresistible that the reversion was done by way of penalty. But it does not follow from it that the enquiry as to the question whether any evil consequence does or does not flow from the order is to be confined to the terms of the order or its construction alone. On the contrary, in our opinion, that enquiry has to be determined in the light of the entire materials on the record leading to the order though it is a different matter that in a case where the order of reversion is innocuous and colourless the presumption is that is was done on administrative grounds. But this presumption is not conclusive. Otherwise, the very protection guaranteed under Article 311(2) of the Constitution will have no significance or sanctity left and can be easily got whittled down by the mere form given to the order-a guarantee given under the Constitution. That is the reason why we flad that in State of Orissa v. Ram Narayan Das 1961-I L.L.J. 552, it has been emphatically pointed out that (pp. 556-557):

The use of the expression 'discharge ' in the order terminating employment of a public servant is not decisive ; it may, in certain cases amount to dismissal. If a confirmed public servant holding a substantive post is discharged, the order would amount to dismissal or removal from service; but an order discharging a temporary public servant may or may not amount to dismissal. Whether it amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry.

34. Earlier the same view was expressed in Dhingra case 1958-I L.L.J. 544 (vide supra) in these words (p. 562):

The use of the expression ' terminate' or ' discharge' is not conclusive. In spite of the use of such innocuous expression the 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 rank must be regarded as a reduction in rank.

Subsequently it was again reiterated in some of the other decisions of the Supreme Court. In the case of Sukhbans Singh v. State of Punjab 1963-I L.L.J. 671 (vide supra) though the form of the order as it appears from the facts stated therein was prima facie innocent and innocuous, but in the course of the discussion the entire history of the case and all the materials brought on the record were gone into for the conclusion that (p. 676):

The only reasonable inference which can be drawn from all these facts is that the Government in fact wanted to punish him for what it thought was misconduct on his part and, therefore, reverted him.

In the care of P.C. Wadhwa v. Union of India 1964-I L.L.J. 395 (vide supra) the vary grievance raised by the appellant of that case was that though the order of reversion was expressed in innocuous terms, but in substance and reality he had been reverted by way of punishment. The learned acting Chief Justice who spoke for the minority Judgment in that case while dealing with this plea went into all the materials on the record and finally observed at p. 404:

that is to be considered in a case of this nature is the effect of all the relevant factors present thereto. If on a consideration of those factors the conclusion is that the reduction is by way of punishment involving penal consequences to the officer, even though Government has a right to pass the order of reduction, the provisions of Article 311 of the Constitution are attracted and the officer must be given a reasonable opportunity of showing cause against the action proposed to be taken against him. Our conclusion is that in the present case the appellant was reverted by way of punishment.

A still more straight and direct authority on this points is to be found in the case of Jagdish Mitter v. Union of India 1964- I L.L.J. 418, which has already been referred to in some other connexion. Therein on this point it has been emphatically observed that at p. 424:

it must be emphasized that the form in which the order terminating his service is expressed will not be decisive.... That is why the form of the order is inconclusive ; it is the substance of the matter which determines the character of the termination of services. In dealing with this aspect of the matter, we must bear in mind that the real character of the termination of services must be determined by raference to the material facts that existed prior to the order.

35. Therefore, the contention raised by Sri Mohanti as stated above stands completely negatived by these weighty authorities of the Supreme Court. In that view of the matter the decisions relied upon by Sri Mohanti in support of his contention can have no binding authority on this question. Rather on scrutiny we find that as a matter of fact none of them lays down the proposition in term to wide as stated before us by Sri Mohanti. In Jai Shanker Hajela v State of Uttar Pradesh 1959-II L.L.J. 165 (vide supra) the point referred to the Full Bench was at p. 165:

Is a reversion from a temporary or officiating higher grade to a substantive post a reduction in rank within the meaning of Article 311 irrespective of the fact whether the reversion was for some fault of the person reverted or otherwise

In answer thereto, the learned Judge who decided that case held at p. 172:

Reversion from a temporary or officiating higher grade to the substantive post in the lower grade is not 'reduction in rank' within the meaning of Article 311 even though the reversion is ordered on account of unsatisfactory work or conduct of the civil servant provided it is ordered by the State in exercise of its power of reverting him under the contract, express or implied, or under the rules of service. If on the other hand, the reversion is ordered as a punishment so as to entail penal consequences, i.e., if he is reverted not to his substantive post in the rank but to a post in a still lower rank, or the reversion is accompanied by a consequential order, entailing penal consequences other than those flowing out of the reversion, he is reduced in rank, within the meaning of the article.

The discussion, therefore, made in that case is more or less confined to an abstract question of law and that has nothing to do with the question that is raised here. It is true that in the other case of the Allahabad High Court in Radhey Raman v. State of Uttar Pradesh : AIR1959All135 there is an observation made to the effect that:

This evil consequence could not be attributed directly to the terms of the order of reversion, if the order of reversion does not penalize the servant in terms and of its own force and injuriously affects the rights which the servant has as a holder of a substantive post in one of the several ways indicated in Dhingra case 1958-I L.L.J. 544 (vide supra).

This observation may perhaps be in certain respects susceptible to the contention advanced by Sri Mohanti. But in our opinion what it substantially means to convey is that the evil consequence must flow from the order of reversion and any evil consequence which cannot be attributed directly to the order is no evidence of the fact that the reversion was done by way of punishment. Same or similar are the observations made in the other two remaining decisions. In Dhajadari Dutta v. Union of India 1958-II L.L.J. 392 (vide supra), what was observed was that:

The future right of promotion that must be affected is something which must not be indirect or remote but must arise directly out of the order of reversion.

But it has to be noted that this observation was made therein in answer to the question as to when it can be said that the chances of future promotion has been adversely affected by the order of reversion, and not in answer to the question as raised here. This case also, therefore, is quite distinguishable. Then what is observed in Bharatendra Nath V. Incometax Commissioner, West Bengal : AIR1958Cal559 (vide supra) is that:

When the order of reversion is not a bare order, bat adds further directions winch involve penal consequences to the servant concerned, the order will be an order by way of punishment. If those penal consequences are expressly imposed, the order will be one ' providing for ' them. If they follow from the form in which the order is framed, such as that the order for reversion will subsist for a certain period in any event and daring that period the Government servant concerned will not be considered for promotion, it will entail those consequences. But when the order is a bare order of reversion and nothing more, consequences ensuring naturally from such an order, however adverse, will not satisfy the test of evil consequences and will not make the order a penal order.

This observation when read in its context is found confined to the consideration as to how far the consequences arising from an order of reversion are Inherent and natural in the circumstances of the case and how far such consequences can be indicative of the fact that the order of reversion is by way of punishment. There is no direct observation made therein that when the order is a bare order of reversion, no other relevant material can be looked into to find its true character. Therefore, none of these authorities, in our opinion, gives any direct support to the contention as advanced before us by Sri Mohanti. Therefore, neither on principle nor on authority it can be held to be correct.

36. We, therefore, now proceed to examine the other relevant materials on the record, apart from the order itself, which have been brought to our notice by Sri Mohapatra in proof of the claim that the order of reversion, though on its face innocuous and colourless, was in substance and reality passed by way of punishment. These materials are as follows:

(1) That the order of reversion was preceded by an enquiry in the course of which the petitioner was called upon to show cause why on the grounds as stated in the show-cause notice he should not be demoted and it was on the basis of the conclusion arrived at in this enquiry that the impugned order of reversion was passed. Therefore, it is claimed that the order that was passed in this case was by way of punishment.

(2) That in the show-cause notice, which was sent to the petitioner in the course of that enquiry what the petitioner was called upon to explain was as to why he should not be reported to Government for demotion as Subordinate Judge and deprived of the power of an Additional District Magistrate (Judicial) for some time to come. In other words, it is claimed that the purpose of the enquiry was not simply to revert, him but also to postpone his future chance of promotion for some time to come.

(3) That the Government despite the request made in that behalf refused to supply the petitioner with the reasons why the action of demotion was taken against him. This refusal is said to have been made with a view to conceal the real fact that the order was in fact passed by way of punishment, otherwise in the normal course there should have been no difficulty in disclosing then and there that on trial he was found unsuitable for the higher post and therefore reverted.

(4) That though the petitioner was reverted to his substantive post of Subordinate Judge but other officers who were junior to him both in the substantive rank of Subordinate Judge and officiating rank of Additional District Magistrate (Judicial) were notwithstanding that allowed to continue in the higher rank. Therefore, it is said that the principle of ' last come, first go,' which is usually adhered to in cases where the reversion is on account of exigencies of service was not followed and as such, it showed that his reversion was done not on the ground of exigencies of service but by way of punishment,

(5) That in the vacancy caused in the rank of Additional District Magistrate (Judicial) on the reversion of the petitioner to his substantive post of Subordinate Judge, the officer appointed to fill it up was one who was junior to him as a Subordinate Judge. As a result thereof it is claimed that the petitioner lost his seniority as a Subordinate Judge as against that officer.

(6) That the reversion of the petitioner was made not on account of any exigencies of service, but on account of the fault said to have been found in his work as referred to and recorded not only in the aforesaid show-cause notice but also in service book and other papers. Therefore, it is said that the impugned order has left and cast a stigma on him and is thus punitive in character.

37. We accordingly take up each of these points separately in the order in which they have been just stated and examine whether in fact they lend support to the contention advanced by Sri Mohapatra.

38. The first point relates to the enquiry which was admittedly done before the impugned order of reversion was passed. In our opinion, the mere fact that there was an enquiry made before the order was passed is no evidence of the claim that the order of reversion which followed it was a punitive order. Already discussed, in the case of an officiating employee Government have simultaneously two powers to effect his demotion, firstly under the rules or contract of service, and secondly by way of punishment. In the latter case it is obligatory on Government to launch a regular formal enquiry as contemplated under Article 311(2) of the Constitution before inflicting any punishment on him. Such an enquiry will obviously be an evidence of the fact that the action was taken against him by way of punishment. But in the former case also there may be a sort of preliminary enquiry got made by Government at least to satisfy itself that there was a good and valid reason made out for the reversion of the officer as provided in the rules or conduct of service. An enquiry In such a case is neither formal nor taken by the authority with a view to inflict any punishment on the employee, but only to satisfy itself that in the circumstances of the case it was justified and proper. In the course of that enquiry Government may, if they so like, give the officer even an opportunity to show cause before taking any final action in the matter. Such an enquiry therefore is not in any way indicative of the fact that the reversion which ultimately it gave rise to was made by way of punishment.

39. It follows, therefore, that when enquiry is permissible in both the esses, what is crucial in deciding as to whether the purpose underlying it was to inflict punishment on the temporary employee or only to revert him under the relevant rules of the service regulations is to find out not only the factum of enquiry but also its nature and form-vide State of Bombay v. F.A. Abraham 1963-II L.L.J. 422 (vide supra); Jagdish Mitter v. Union of India 1964-I L.L.J. 418 (vide supra) and Champaklal Chimanlal Shah v. Union of India 1964-I L.L.J. 752, the respective scopes of these two kinds of enquiries have been elaborately explained and finally it has been observed:

It may decide to dispense with the services of the servant or revert him to substantive post without any action being taken to punish him for his bad work and/or conduct. Or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of Article 311(2). But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connexion with the alleged misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the Government servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him... Generally, therefore, 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 misconduct a preliminary enquiry is usually held to satisfy Government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already Government does not usually 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 a 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 a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the Government servant.

40. In the present case we have, therefore, to find whether the show-cause notice which was issued and the enquiry which followed in pursuance thereof were all done by way of regular departmental enquiry or only a preliminary enquiry. In our opinion, there is no material on the record to prove that the enquiry which was in the case of the petitioner made was done by way of regular departmental enquiry. As already stated what directly and immediately led to the enquiry against the petitioner and his reversion to his substantive post was his action in starting a criminal case against the railway employees of Jaipur Road Railway Station level crossing on 1 September 1962, and therefore, in the show-cause notice, it is mainly the facts relating to this incident which are found though no doubt with certain adverse observations made here and there against the steps taken by him in that connexion. So far as these observations made therein are concerned, we shall deal with them separately under the fifth heading. At present it will suffice to say that the narration as made therein consists exclusively of the facts relating to the incident. There is no charge framed or any indications made therein suggesting that the petitioner was called upon to face any formal enquiry or to cite any evidence to rebut what was stated therein. In these circumstances, the only reasonable conclusion that can be drawn is that this enquiry was in the nature of a preliminary enquiry and was taken by the High Court only to assure itself that the facts stated therein were not wrong. Therefore, though as a result of that enquiry the High Court came to the conclusion that he should be reported to Government for demotion as Subordinate Judge and deprived of the powers of an Additional District Magistrate (Judicial), but that action does not appear to have been taken by way of punishment. As such, this factum of enquiry alone cannot be of any avail to him in support of his case.

41. The second point relates to the grievance that the order of reversion which followed the proceeding had, in the circumstances of the case, the effect of postponing his future chances of promotion for some time to come, though it was not so stated in the order. To support this contention our attention has been drawn to the show-cause notice which is annexure D of the writ petition. Therein the last paragraph reads:

You are, therefore, called upon to show cause on or before 17 November 1962 why you may not be reported to Government for demotion as Subordinate Judge and deprived of the powers of an Additional District Magistrate (Judicial) for some time to come.

On principle it is not very seriously disputed and by authorities it is established that if the reversion of the petitioner had in fact been done for sometime to come, It could not but amount to the postponement of his future chances of promotion, and as such judged by the test as laid down in the aforesaid Parshotam Lal Dhingra case 1958-I L.L.J. 544 there could be no escape from the conclusion that it was passed by way of punishment. But the difficulty here is that though in the show-cause notice it is stated that why the petitioner should not be demoted for some time to come there is no mention of this fact in the final order which was thereafter made by Government. It may be that originally the High Court intended to demote him for some time, but finally it gave up the idea of imposing any punishment and confined the action to his simple reversion on administrative grounds, or that though the High Court reported on that line, but Government did not agree with it and decided only to revert him in exercise of their power given under the rules. Unfortunately the report which was sent by the High Court to the Government after the aforesaid enquiry recommending his reversion to his substantive past is not on the record. There were two applications filed on behalf of the petitioner to direct the opposite parties to produce this report along with other documents. In reply both on behalf of the Government and the High Court this report along with other documents were claimed to be privileged documents under Section 123 of the Evidence Act and reliance was placed in support of this claim on the decisions in State of Punjab v. S.S. Singh A.I.R. 1961 S.C. 498: Harprasad Gupta v. State of Uttar Pradesh : AIR1953All415 ; Mohamed Ilyas Alvi v. State of Maharashtra 1965-II L.L.J. 487 and Ganga Ram v. Union of India : AIR1964Pat444 . It is true that the report sent to the Government by the High Court was substantially in the nature of consultation provided for in Article 233 of the Constitution and as such they could be validly claimed to relate to the affairs of the State. Therefore, for that reason we had to reject the prayer made by the petitioner for the production of that report as also of other documents. But we cannot help expressing our opinion that the privilege under Section 123 of the Evidence Act being discretionary it could have been, in the circumstances of the present case, better exercised by producing the document than withholding it. Anyway the report not being on the record the only material left before us in support of the contention that the reversion was Intended to postpone the future chances of promotion of petitioner for some time to come, is the show-cause notice. But that fact, as already stated, is equally consistent with the conclusion that though the High Court originally intended to do it, but either that finally at the time when the order was passed it gave up to pursue that line of action or Government which finally passed the order decided that reversion simpliciter alone would serve the purpose. Therefore, the claims made in this regard, on the basis of the show-cause notice alone, that the impugned order of reversion had the effect of postponing his future chances of promotion for some time to come cannot be accepted.

42. The third point, as stated above, relates to the grievance that despite the request made in that behalf in his petition dated 18 January 1963 Government refused to supply the petitioner with the reasons as to why the action of demotion was taken against him. The explanation given by Government for the refusal to supply the petitioner with the reasons is to be found in Para. 11 of their counter-affidavit dated 12 February 1965. Therein it is stated that as the petitioner did not wait for the reply and immediately thereafter made a representation to the Chief Minister on 8 April 1963, no further action on the petitioner's representation was considered necessary. Apart from it the mere refusal on the part of the Government to communicate to the petitioner the reasons of his reversion can be no positive evidence of the fact that the reversion was made by way of punishment-vide State of Bombay v. F.A. Abraham 1963-II L.L.J. 422 (vide supra). It may be, as stated in the counter-affidavit filed on behalf of the Government, that after rejecting the representation filed by the petitioner to the Government it was not considered necessary to pursue the matter any further, thereafter. Lastly a non-disclosure of the reasons may at best

give rise to a suspicion about the motive which led the Government to take the action, but it is now firmly established that if the action is justifiable under terms of the employment, then the motive Inducing the action is irrelevant in deciding the question whether the action had been taken by way of punishment

-vide State of Bombay v. F.A. Abraham 1963 -II L.L.J. 422 (vide supra); Shrinivas Ganesh v. Union of India 1957-II L.L.J. 189; Parshotam Lal Dhingra v. Union of India 1958-I L.L.J. 544 (vide supra) ; Jagdish Mitter v. Union of India 1964-I L.L.J. 418 (vide supra) and Champaklal v. Union of India 1964-I L.L.J. 752 (vide supra). Therefore, this point also has to be held as one without substance.

43. The fourth and fifth points are more or less interrelated. In respect of the fourth point it is the common case of the parties that at the time when the petitioner was reverted to his substantive post of Subordinate Judge there was then at least one officer in the rank of Additional District Magistrate (Judicial) who, though junior to the petitioner both in the rank of Subordinate Judge and in the officiating rank of Additional District Magistrate (Judicial) was rot reverted and allowed to continue in that rank despite the re version of the petitioner. He was Sri S. Naik. We may recall here that at that time in the cadre of Additional District Magistrate (Judicial) there were in all seven Subordinate Judges working as such including the petitioner. It is not disputed that all the remaining six were originally in the substantive rank of Subordinate Judges junior to the petitioner. But out of those six, five were promoted to the post of Additional District Magistrate (Judicial) earlier than the petitioner. But his claim is that notwithstanding their appointments as Additional District Magistrate (Judicial) at an earlier date the seniority inter se between them even after their promotion to the rank of Additional District Magistrate (Judicial) remained unaffected; in other words, it continued to be on the basis of their original position in the substantive list of Subordinate Judges. This claim of the petitioner seems to be presumably founded on the resolution of Government of Orissa, Home (Appointment) Department, bearing No. 11589 A, dated 8 December 1947. But what has been overlooked in this connexion is that this resolution was subsequently withdrawn, by another resolution of the Government dated 26 March. 1962. That being so, the first five Subordinate Judges then acting as Additional District Magistrates (Judicial), though originally junior to the petitioner in the substantive rank of Subordinate Judges, were senior to him in the rank of Additional District Magistrate (Judicial), they having been promoted earlier. Therefore, as already stated, the only Additional District Magistrate (Judicial) at that time who was junior to the petitioner both in the rank of Additional District Magistrate (Judicial) as well as in the substantive rank of Subordinate Judges was Sri S. Naik alone. The grievance of the petitioner is 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 him with a penal consequence. It is well-settled that when a person is reverted to his substantive rank the question of penal consequences in the matter of forfeiture of pay or loss of seniority must be considered in the context of the substantive rank and not with reference to his officiating rank from which he is reverted-vide Parshotam Lal Dhingra v. Union of India 1958-I L.L.J. 544 (vide supra); P. C. Wadhwa v. Union of India 1964-I L.L.J. 395 (vide supra). Judged on the basis of this principle it cannot be held that mere continuance of Sri S. Naik in the rank of Additional District Magistrate (Judicial) who was junior to the petitioner resulted in any loss of his seniority in the substantive rank of Subordinate Judges. Sri Mohapatra in support of his contention to the contrary has laid reliance on Madhav v. State of Mysore : [1962]1SCR886 and a Bench decision of this Court in Iswar v. State I.L.R. 1965 Cut. 893. The case of Madhav v. State of Mysore A.I.R 1962 S.C. 8 (vide supra) has been considered and distinguished in a recent unreported decision of the Supreme Court in Civil Appeal No. 975 of 1964-Divisional Personnel Officer, Southern Railway, Mysore v. S. Raghavendrachar disposed of on 17 December 1965 since reported in 1967-I L.L.J. 401. Therein it has been unambiguously held that the reversion of a Government servant from an officiating post to his substantive post notwithstanding that his juniors are retained in the higher posts, does not by itself amount to a reduction in rank within the meaning of Article 311(2) of the Constitution. Therefore, this latest decision finally settled the controversy on this point. The case of Madhav v. State of Mysore : [1962]1SCR886 (vide supra) has been distinguished there on the ground that the main reason which led to the order of reversion made in that case was that Valkuncha's chances of promotion was irrevocably barred for a period of three years and not that he had lost his position in the substantive rank as a result of the reversion. Then so far as the decision of this Court in Iswar v. State I.L.R. 1965 Cut. 893 (vide supra) is concerned, that is also clearly distinguishable. Therein the officer on reversion had not been posted to the post he held at the time of his promotion to the higher post, bat to a post lower to it. Therefore, on this and other grounds it was held therein that it resulted in depriving him even of what he had already earned before his promotion to the higher rank. That is the case not here. 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 case if any of them has to be reverted exclusively on the ground of the exigencies of service alone and not for the reason of his being found unsuitable for the post, the usual principle of ' last come, first go ' will ordinarily be followed-vide O. S. Ramaswamt v. Inspector-General of Police, Mysore : (1970)ILLJ649SC . This state of affairs however will prevail only so long as reversion is due exclusively to the exigencies of service whore 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 of applicability. It is quite understandable that in such a case the officer who is reverted on the ground that on trial be 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 la the substantive rank.

44. Likewise there is no force in the contention that the appointment of Sri D. P. Sharma to the vacancy caused in the rank of Additional District Magistrate (Judicial) by the reversion of the petitioner caused him any loss of his seniority in the substantive rank. It is true that Sri D. P. Sharma had been all along junior to the petitioner in the rank of Subordinate Judge, but his selection for promotion to the rank of Additional District Magistrate (Judicial) had nothing to do with the reversion of the petitioner, nor it disturbed his seniority in his substantive rank of Subordinate Judge. It is not disputed that though the petitioner was reverted to his substantive post, the post held by him in the rank of Additional District Magistrate (Judicial) was not abolished. Therefore, in the usual course some other officer from the rank of Subordinate Judge had to be promoted to that vacancy, and this promotion had to be male by the authority concerned, as already stated above, on the principle of seniority-cum-sustability and not on the ground of seniority alone. As such that selection could be made even in favour of an officer junior to him in the rank of Subordinate Judge, if he satisfied that test. Therefore, it follows that the promotion of such an officer from the rank of Subordinate Judge, depended upon the selection made by the authorities concerned and did not directly arise out of the petitioner's order of reversion. What flows from an order of reversion in such a case is only the existense or availability of a vacancy and not the subsequent selection made for that post. In that view of the matter, if in the present case Sri D. P. Sharma was subsequently selected for promotion as an officiating hand in the rank of Additional District Magistrate (Judicial) from the rank of Subordinate Judge for the vacancy caused by the reversion of the petitioner, it cannot be held that this promotion in any way disturbed the seniority of the petitioner in the rank of Subordinate Judge, or that it flowed as a matter of course out of the order of his reversion. As already stated, a temporary appointment of an officer from his substantive post to any higher rank is, as a rule, always governed, unless otherwise provided, by two dominant rules

(1) that he has no right to promotion, and

(2) that when promoted he may be reverted to his substantive post when found subsequently unsuitable for the higher rank.

Therefore, whenever an officer so appointed temporarily to a higher rank is reverted to his substantive post when found not suitable, it is inherent in the situation that in the vacancy caused by his reversion an officer junior to him in the substantive rank may be given the next chance to fill up that vacancy. This is no evidence at all of the fact that the seniority of the officer reverted has been disturbed in his substantive rank as a result thereof or that the reversion was done by way of punishment. In our opinion, therefore, neither of the two points raised by Sri Mohapatra under the aforesaid headings 4 and 5 can succeed on the facts of the present case.

45. Next it is contended that the order of reversion having been made on the ground of misconduct as stated in the show-cause notice and other relevant documents, it cast an indelible stigma, on him affecting his future chances for promotion and prospects of service and as such it was punitive. This pare of the case, as alleged here, is not free from difficulty and in fact this put us to some anxiety. But on a careful consideration this has to be rejected. The order of reversion as already stated is by itself Innocuous and colourless. It is true that as a result thereof the petitioner lost the benefit of appointment to the higher rank and for future vacancy also that order was not to be altogether ignored in considering his case but that much of the set-back is Inherent and implicit in a situation like this arising from the fact that after trial the officer has been found unsuitable. In other words, this part of the consequence is independent of the fact as to what led to the order whether simple incompetency or any punishment. What is implied to have been cast by way of a stigma is not what is inherent and implicit in any process of reversion which may be effected either with or without any element of punishment. On the other hand, it suggests that the action of reversion taken against the officer was based not on the simple ground that alter trial he was found unsuitable, but on the ground that his conduct in the course of his officiating period was so reprehensible as he had to be condemned. In case, therefore, where such a result is to accrue from the order of reversion it has to be considered as punitive though on its face it may be innocuous and colourless. Usually, however, what happens is that the circumstances which weigh in the mind of the authorities in making an order of reversion, whether the reversion may be for the reason of simple incompetency or it may be by way of punishment, are the same, namely, misconduct, negligence, inefficiency or other disqualifications, and it is this which causes much of confusion. In judging whether the order of reversion is for the reason of one or the other the distinguishing features have to be carefully kept in view. In a case where the reversion is made for the simple reason of incompetency, misconduct, negligence, inefficiency and other disqualifications constitute only ' the motive or the inducing factor which influences the Government to take action under the rules of service ' while in the former they form the very basis or foundation of the action taken against the employee. Therefore, if there is any material on the record to suggest that the misconduct alleged against the employee is the basis of the order and that misconduct is to affect his future chances of promotion or prospects of service, that material is a clear proof of the fact that the action taken against him is punitive. But it will not be so if that misconduct is found to have operated only as a motive or inducing factor as for example in a case where it is referred to in the course of the enquiry to ascertain whether the facts relating thereto are correct. This distinction has been explained in Parshotam Lal Dhingra case 1958-I L.L.J. 644 (vide supra) in these words at pp. 561-562:

It is true that the 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 specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v. Union of India 1957-II L.L.J. 189 (vide supra), wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency, or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with.

46. It is, therefore, from this point of view that the materials relied upon by Sri Mohapatra in support of his contention that the order of reversion passed against the petitioner cast an indelible stigma on him has to be judged and weighed. These materials are five in number:

(1) The show-cause notice dated 9 November 1962 sent by the Registrar, High Court, to the petitioner which ultimately led to the impugned order of reversion. This show-cause notice as already stated is annexure D to the writ petition.

(2) An extract of the character rolls of the petitioner for the year 1962 recorded on 13 January 1964. This is annexure B to the writ petition.

(3) An extract from the statement showing the acts of misconduct of the petitioner which forms part of annexure C to the counter-affidavit filed on 9 February 1965. Annexure C contains the charges that have been framed on 11 May 1964 against the petitioner in the proceeding subsequently taken against him for his dismissal from service. The aforesaid statement enclosed therewith contains a number of items. The extract in question relates to item 12.

47. It is in two parts. The first part states the alleged act of misconduct. It reads as follows:

Started a criminal case under 8. 341, Indian Penal Code, against the level creasing gate-keeper and stationmaster of Jaipur Road Railway Station or acts done by them in the purported discharge of their official duties which amounted to abuse of the process of the Court and also committed gross improprieties and illegalities in the various judicial orders passed in that case, resulting in the discharge of the accused under Section 249, Criminal Procedure Code.

48. The second part relates to the action taken against him in connexion therewith by the High Court and it reads:

The Court called for the explanation of B. K. Misra, and after considering it found it unsatisfactory and got him reverted from the rank of Additional District Magistrate (Judicial) by recommending to Government.

(4) The show cause dated 20 November 1962 sent by the petitioner to the High Court. This is annexure E to the writ petition.

(5) The representation dated 8 April 1963 Bent by the petitioner to the Chief Minister.

The last two items substantially relate to the reversion of the case as presented by the petitioner before the authorities concerned. Therefore, they cannot provide any clue as to whether the Government in passing the order of reversion used the materials against the petitioner as the basis of the order or that those materials operated only as the motive or the inducing factor which influenced the Government to take that action. Therefore, they are not relevant for the purpose.

49. The other three documents, no doubt, throw some light on the subject as to what the High Court thought about the performance of the petitioner in the course of his officiating period as Additional District Magistrate (Judicial). But of the three documents, only one relates to the period prior to the date of the order. The other two came into existence long after the order of reversion was passed by the Government. Therefore, they could not have been the occasion for the order of reversion passed against him. They can at best only aid or assist in appreciating the opinion expressed by the High Court about his conduct in the show-cause notice. In the show-cause notice what is mainly referred to as already stated is the incident relating to the Criminal Case No. 491-C-II of 1962 which was started by the petitioner under Section 341, Indian Penal Code, against the assistant stationmaster and gate-keeper, Jaipur Road Railway Station level crossing, on 1 September 1962.

50. It may be conceded that the way in which the show-cause notice was drafted might give an impression, especially when read with the concluding portion as to why he may not be reported to Government for demotion as Subordinate Judge and deprived of the power of Additional District Magistrate (Judicial) for some time to come, that the proposal of reversion as originally made by the High Court was to have some adverse effect on his future chances of promotion and prospect of service. But there is no evidence on the record to establish that what was stated by the High Court in the show-cause notice about the petitioner was ultimately all accepted by the Government at the time when the order of reversion was passed by it. It may be that the Government on a fuller consideration of the entire matter brought to its notice, decided simply to revert him in exercise of the power given to it under the rules of service and not to Impose any punishment on him, and it is perhaps for that reason that there is not a word to be found in the final order passed by the Government suggesting any stigma on the petitioner. The High Court was at best only a reporting authority. The final action had to be taken by the Government. Therefore, unless it is found that imputations made in the show-cause notice did not operate only as the motive of the inducing factor which influenced the Government to pass the order of reversion, but constituted the very basis of it, it cannot be held that the order was made by way of punishment and not in exercise of the power given under the rules on the simple ground of unsuitability. Unfortunately there is no evidence on the record to support the latter conclusion. On the contrary, the specific statement made by the Government in its counter-affidavit sworn on its behalf on 12 February 1965 is that

the petitioner was reverted from his officiating higher rank to his substantive post for administrative reasons, as he was found unsuitable for discharging the responsibilities of the post of Additional District Magistrate (Judicial). Since the reversion was not ordered by way of punishment for misconduct it did not amount to 'reduction in rank' within the meaning of Article 311(2) of the Constitution.

51. Further, in this connexion, it has also to be noted that at least on two previous occasions the claim of the petitioner on the ground of his seniority had already been passed over before he was given the chance to officiate in the rank of Additional District Magistrate (Judicial). Therefore, it may be that on the third occasion even after trial, the petitioner was found not to have improved and therefore had to be reverted on the simple ground of unsultabliity. Sri Mohapatra in this connexion has drawn our attention to the decisions in Sukhbans Singh v. State of Punjab 1963-I L.L.J. 671 (vide supra); P. C. Wadhwa v. Union of India 1964-I L.L.J. 495 (vide supra) and Ram Chandra v. Secretary to Government, West Bengal : AIR1964Cal235 . The facts of all these cases are clearly distinguishable. The decision in Ram Chandra v. Secretary to Government, West Bengal : (1968)IILLJ376Cal (vide supra) is based on the footing that the order of reversion on the very face of it cast a stigma on the officer. That is not the case here. The decision in Sukhbans Singh v. State of Punjab 1963-I L.L.J. 671 (vide supra) is based on the finding of mala fide in the sense that the order of reversion was found not to have been made

in the bona fide exercise of the Government's undoubted right to revert a probationer because of his unsuitability for the higher post.

52. Therein in the course of discussion on this point, the entire chain of events which ultimately led to the order of reversion has been taken into consideration and finally found that

the only reasonable inference which can be drawn from all these acts is that the Government in fact, wanted to punish him for what it thought was misconduct on his part, and therefore, reverted him.

53. On the facts of this case there is no material on the record to suggest that the authorities concerned had any malice against the petitioner in reverting him to his substantive post. In P. C. Wadhwa v. Union of India 1964-I L.L.J. 395 (vide supra), the Court had before It the entire file dealing with the order of reversion and one of the orders passed therein as found by the Court suggested that the officer concerned was really reverted by way of punishment and not on the simple ground of uasuitability. Here the entire record of the case which ultimately led to the impugned order of reversion is not before us. In these circumstances the submission made by Sri Mohapatra that the order of reversion though colourless and innocuous in terms was in truth and reality passed by way of punishment cannot be accepted. On the contrary the facts and circumstances of the case establish that the impugned order of reversion was passed by the Government on the ground that after trial the petitioner was found unsuitable for the higher post and not by way of punishment. Therefore, it 1s a case which is fully covered by the proviso to Rule 13, Clause (d), of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. This, therefore, disposes of the entire discussion made in respect of the second test as stated above.

54. Lastly it has been submitted by Sri Mohapatra that inasmuch as the order of reversion was passed by the Government exclusively on the basis of the report sent by the High Court without Government having applied its own independent mind, the order of reversion is bad for the reason of mala fide. As a pure proposition of law it is well-settled that mala fide does not necessarily involve a malicious intention. It is enough if it is shown that the authority in making the impugned order did not apply its mind at all to the matter in question-vide L.J.J. D'Souza v. State of Bombay : 1956CriLJ935 . In the present case, however, there is no such plea taken in the petition. Therefore, it cannot be now allowed to be taken for the first time at the hearing stage-vide Tropical Insurance Company v. Union of India : [1955]2SCR517 . But apart from this, on merit also we think it has no substance. It is true that had it been raised as a specific point in the petition, Government should have been in a better position to meet it elaborately in the counter-affidavit. But even the little that la there to be found in regard to this point in the counter-affidavit is, in our opinion, sufficient to lead to the conclusion that apart from the question of absence of pleading, on merit too this contention has no substance. In Para. 7 of the counter-affidavit sworn on behalf of the Government the positive statement made is to the effect that

the High Court thereupon communicated their views to the Government and the latter after considering all relevant matters agreed with the High Court and ordered the reversion of the petitioner to his substantive rank.

This obviously is not in the least consistent with what is now claimed on behalf of the petitioner. Therefore, this part of the submission also made on behalf of the petitioner falls.

55. For these reasons, we held that the application is without substance. It is accordingly dismissed. But, in the circumstances of the case, there will be no order for costs.

S. Burman, J.

56. I agree.


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