In pursuance of Government's instructions contained is Deputy Secretary, Transport's D.O. letter No. 13060 S/XXXA-10/18/M/59, dated September 5, 1967 the following reversion?, transfers and postings are hereby ordered : -
(1) Sri R.S. Sial, officiating General Manager, U.P. Government Roadways, Aligarh, is reverted to his substantive post of Assistant General Manager, and posted at Luck-now as Assistant General Manager (Rural) vice Sri V.P. Gupta transferred.
8. Perusal of the above order shows that it contains no adverse remarks against the appellant, nor can it be said that any stigma attaches to the appellant because of that order. At the time the above order was made the substantive rank of the appellant was that of Assistant General Manager. The post of General Manager which was held by the appellant was only in an officiating capacity. The appellant had no vested right to retain that post. In case the authorities concerned came to the conclusion that the appellant should not be allowed to retain the post in which he was officiating, they could pass an order for his reversion without complying with the requirements of Article 311 provided the order was not by way of punishment.
9. Appointment to a post on an officiating basis is, from the nature of employment, itself of a transitory character and in the absence of any contract or specific rule regulating the conditions of service to the contrary, the implied term of such an appointment is that it is terminable at any time. The Government servant so appointed acquires no right to the post. But if the order entails or provides for forfeiture of his pay or allowance or the loss of his seniority in the substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that though, in form, the Government had purported to exercise its undoubted right to terminate the employment, in truth and reality, the termination was by way of penalty see Parshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC and Union of India and Anr. v. Gajendra Singh, etc. etc : 3SCR660 .
10. Officiating and temporary Government servants are also entitled to the protection of Article 311 as permanent Government servants if the Government takes action against them by meting out one of the punishments, i.e. dismissal, removal or reduction in rank see Parshotam Lal Dhingra v. Union of India, (supra), Champaklal Chimanlal Shah v. Union of India : (1964)ILLJ752SC and Appar Apar Singh v. The State of Punjab and Ors. : (1970)IILLJ686SC .
11. The test for attracting Article 311(2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive of its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order [see Stale of Bihar and Ors. v. Shiva Bhikshuk Mishra : (1970)IILLJ440SC .
12. In the case of State of Punjab v. Shri Sukh Raj Bahadur : (1970)ILLJ373SC this Court enunciated the following propositions which have to be borne in mind:
(1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.
(2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.
(3) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
(4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.
(5) If there be a full-scale departmental enquiry envisaged by Article 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.
13. Keeping in view the principles enunciated above, we have looked at the facts of the case and are not satisfied that the order of reversion of the appellant was by way of punishment. It has already been mentioned above that no aspersion was cast on the appellant in the order of reversion and as a result of that order no stigma attaches to his name. The appellant was merely officiating in a higher post and the impugned order had the effect of reverting him to his substantive post. The attendant circumstances to which our attention has been invited with a view to show that the order of reversion was by way of punishment are two letters dated July 12, 1967. One of these letters was addressed by the Deputy Secretary, Vigilance Department to the Director of Vigilance wherein reference was made to the report of the officers of the Intelligence and Evaluation Cell. It was requested that an open enquiry might be made into the allegations of involvement of the appellant in a matter relating to the supply of non-genuine and substandard motor parts by a Delhi dealer. In the other letter addressed to the Secretary to Uttar Pradesh Government, Transport Department a request was made by the Deputy Secretary, Vigilance Department that in case the appellant was not confirmed on the post of General Manager, he might be reverted since an enquiry made by the CID into the allegations of corruption against the appellant had revealed that there was substance in those allegations. The above letters would show that the authorities concerned came to the conclusion that, pending the holding of an open enquiry into the charges of corruption against the appellant, he should not be allowed to officiate in a higher post. It cannot, in our opinion, be inferred therefrom that the reversion of the appellant was by way of punishment. All that can be said is that the contemplated enquiry into the charges of corruption against the appellant provided the motive for the reversion of the appellant. The existence of such a motive cannot, in our opinion, vitiate the order for the reversion of the appellant. It may be taken to be well settled that even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influence the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under the contract or the rules to terminate the services the motive operating on the mind of the Government is wholly immaterial see Union of India v. R.S. Dhaba : 3SCR603 . The same rule would hold good if the order passed is not for termination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity.
14. Application was filed during the pendency of the appeal on behalf of the appellant that this Court might take into account additional documents. These documents were in existence at the time the appellant filed the petition in the High Court. The petition in the High Court remained pending for more than a year. We are not impressed by the plea taken on behalf of the appellant that he could not trace these documents with due diligence and has been able to trace them now. The documents in question are not of such a nature as are needed to enable us to pronounce this judgment. In the circum-tances, the application filed by the appellant for taking on record additional documents in appeal is rejected.
15. The appeal fails and is dismissed with costs.