Skip to content


Nandan Bhargava Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Judge
Reported in(1967)IILLJ327Raj
AppellantNandan Bhargava
RespondentState of Rajasthan and ors.
Cases ReferredJ. Patel and Ors. v. State of Gujarat A.I.R.
Excerpt:
- - circular dated 8 february 1962 and memorandum dated 30 november 1962. he, therefore, prays for expunction of these remarks as well. it is also stated that the writ petition has been filed after a good deal of delay. the service consists of senior posts as well as junior posts. provided that if the government after consultation with the commission is satisfied that during a particular year no member of the service is suitable for promotion in a particular category, direct recruitment may be made to that category through the agency of the commission on such terms regarding qualifications, experience and age, etc. 9. rule 7 (ii) on which strong reliance is placed by the petitioner for showing that ho had a right to be promoted to the post of chief conservator of forests and for.....kan singh, j.1. the writ petition before us is by nandan bhargava, who is at present conservator of forests, planning and demarcation, rajasthan, and by it he seeks to challenge an order of the state government reverting him from the post of the chief conservator of forests with effect from 5 november 1962, when he had already held that post since 4 september 1961 from which date he was appointed to officiate as chief conservator of forests on the expiry of the tenure o one sri n.n. sen the petitioner has also made grievance of the successive two appointment to the post of chief conservator subsequent to his reversion :first k. b.m' mohan lal, respondent 4, was appointed end subsequent to that r. k. chaturvedi, respondent 3, was appointed on that post. the petitioner also seeks a.....
Judgment:

Kan Singh, J.

1. The writ petition before us is by Nandan Bhargava, who is at present Conservator of Forests, Planning and Demarcation, Rajasthan, and by it he seeks to challenge an order of the State Government reverting him from the post of the Chief Conservator of Forests with effect from 5 November 1962, when he had already held that post since 4 September 1961 from which date he was appointed to officiate as Chief Conservator of Forests on the expiry of the tenure o one Sri N.N. Sen The petitioner has also made grievance of the successive two Appointment to the post of Chief Conservator subsequent to his reversion :first K. B.M' Mohan Lal, respondent 4, was appointed end subsequent to that R. K. Chaturvedi, respondent 3, was appointed on that post. The petitioner also seeks a direction for ex-punction of certain adverse entries paid to have been made in the confidential report of the petitioner. The case that ha has Bet out in the writ petition is briefly this:

2. The petitioner who was Chief Corservator of Forests in the former United State of Rajasthan came to be fixed up as a Conservator of Forest in the integrated sot-up of the new United State of Rajasthan. He Bays that he was a appointed to officiate as Chief Conservator of Forests on several occasions, but lastly be was appointed to officiate as Chief Conservator of Forests on 4 September 1961, on the vacancy caused when the tenure of appointment of Sri N. N. Sen came to an end on 3 September 1961. The matter of appointment to the post of Chief Conservator of Fore-ate, the petitioner maintains, was governed by the Rajasthan Forest Service Rules, 1961, hereinafter to be referred to as the rule, and under Rule 7 (ii) the Government was bound to promote the petitioner who alone fulfilled the required qualifications for being promoted to the post of Chief Conservator of Forest in substantive capacity. Taking his stand on Rule 7 (ii) the petitioner submit? that there was no provision for making on officiating appointment and to all Intents and purpose according to him, he was a substantive appointee to the post. He point out that, Rule 28, which provides for emergent, temporary appointments, could not govern his case, as the vacancy against; which he has appointed was not a temporary but a permanent one. The petitioner claims that as he had acquired a right to hold the post of the Chief Conservator of Forest, the Government could not have reverted him and the reversion, as it has visited him with evil consequence, was rendered to be one in the nature of reduction in rank within the meaning of Article 311 of the Constitution and as this was ordered in contravention of the rules, without affording him an opportunity to have his say against the action, it was violative of Article 311 of the Constitution. K. B. Mohan Lal, respondent 4, who was retired Conservator from Assam, was appointed to the post of Chief Conservator of Forests with effect from 5 November 1962 and this, according to the petitioner, was in clear violation of the provision of the rules as the Government had not made the recruitment through the agency of the Rajasthan Public service Commission. Nor had the Government come to hold any definite opinion that during that year no member of the Forest Service was suitable for promotion. Farther, the petitioner proceeds to say, the terms for direct recruitment in such a contingency have to be prescribed by the Government after obtaining the concurrence of the Public Service Commission thereto and this was not done in the present case. Thus, the petitioner urges that K. B, Mohan Lal's appointment was ultra vires and he had no title to bold the post. The petitioner further suggests that there had been manipulations to put. K B. Mohan Lai as Chief Conservator of Forest a by reducing the petitioner and for this the petitioner imputes mala fides to R. K. Chaturvedi who was then Revenue Secretary in charge of the Forest Department. He avers that Chaturvedi had made adverse remarks in his confidential report (document 6) without any justification whatsoever in clear contravention of the Government; Circular dated 8 February 1962 and Memorandum dated 30 November 1962. He, therefore, prays for expunction of these remarks as well.

3. The writ petition has been contested by respondents 1 to 3. K. B. Mohan Lal, respondent 4, has, however, not appeared in this Court and that was for the obvious reason that he had since retired and is no longer In the service of the State of Rajasthan. Traversing the averment made in the writ petitioner, it is submitted by the contending respondents that the petitioner war appointed only in an officiating capacity as a stopgap arrangement and it is not correct on his part to claim that he was a substantive holder of the post. As regards the applicability of Rule 7 (ii) of the rules, it is pointed out that tie proviso thereunder gives a discretion to the Government to examine the suitability of persons in the next below cadre and there could be no promotion until and unless a member of the service was found suitable according to the criterion laid down In the rules and particular reference Is made to Rule 24 in this behalf. It is further submitted that the petitioner's case for promotion, was considered according to the criterion laid down in Rule 24 of rules and, as he was not found suitable for promotion he was reverted to his substantive rank. It is further said that there is a departmental promotion committee for assessing the suitability of the candidates for promotion and as the departmental promotion committee, after going through the record of the petitioner, did not recommend him for promotion as Chief Conservator of Forests, the Government did not approve of his appointment according to the recommendations of the departmental promotion committee. As regards the appointment of K. B. Mohan Lai, it is submitted that his appointment was made after the departmental promotion committee had sent its recommendation that the Government should consider the desirability of having a direct recruit as the petitioner was not suitable and when the recommendation had been accepted by the Government. It is denied by the respondents that the reversion of the petitioner, in the circumstances, involved any violation of Article 311 of the Constitution. It is also denied that Chaturvedi was actuated with any malice against the petitioner in making the adverse remarks in the confidential reports submitted by him. It is also urged on behalf of the respondents that the instructions regarding preparation of confidential reports are purely administrative in character and they are liable to be changed from time to time and they are not Justiciable and consequently this Court should not take any notice of them. It is also stated that the writ petition has been filed after a good deal of delay.

4. It will be observed from the above narration that the main question that falls for consideration is whether the appointment of the petitioner as Chief Conservator of Forests on 4 September 1961 could be regarded as one in substantive capacity, though the Government had expressly ordered that he was appointed officiating Chief Conservator of Forests. Allied to this is the question whether in the facts and circumstances brought out before us the petitioner's reversion could be regarded to be one in violation of Article 311 of the Constitution. We may, therefore, direct our attention to these two questions first.

5. It will be convenient here to refer to the relevant provisions of the rules. The rules were made by the Governor of Rajasthan In exercise of his power under Article 309 of the Constitution and they regulate the recruitment to posts borne on the Rajasthan Forests Service and also lay down the conditions of service of persons who are the members of that service. The service consists of senior posts as well as junior posts. It is not disputed that the posts of Chief Conservator of Forests and those of Conservator of Forests are senior posts. Fart HE of the rules provides for recruitment. Rule 7, which occurs In that part and which provides for recruitment to senior posts, runs as follows:

7. Sources of recruitment.-(1) Recruitment to the post of Assistant Conservator of Forests in the service after the commencement of these rules shall be made by direct recruitment and by promotion from amongst the rangers, grade I, through the agency of the Commission. The ratio of direct recruitment and promotion shall be 3 : 1:

Provided that

(a) the total number of posts filled up by promotion at any time shall not exceed 25 per cent of the total number of the sanctioned posts in the grade;

(b) there shall be no direct recruitment to the post of Subdlvisional Forest Officer.

The present Incumbent will, however, continue till they are promoted in due course as Assistant Conservators of Forests.

(ii) Recruitment to the senior posts shall be made by promotion from amongst the members of the service in the next below cadre and who are eligible for promotion under the provisions of these rules:Provided that If the Government after consultation with the Commission is satisfied that during a particular year no member of the service is suitable for promotion in a particular category, direct recruitment may be made to that category through the agency of the Commission on such terms regarding qualifications, experience and age, etc., as may be prescribed by the Government.

6. Part V provides the procedure for recruitment by promotion and the relevant rules thereunder, namely, Rules 24 and 25, run as under:

24. Criteria for promotion.-(1) For purposes of recruitment to the service by promotion, selection strictly on the basis of seniority-cum-merit shall be made from among all the parsons, eligible for such promotion under the provisions of these rules.

(2) In selecting the candidates for promotion regard shall be had to their:

(a) technical qualifications and knowledge;

(b) tact, energy and intelligence;

(c) integrity, and

(d) previous record of service.

25. Procedure of selection.-(i)(a) As soon as it is decided that a certain number of vacancies in the category of Assistant Conservator of Forests is to be filled up by promotion, the Chief Conservator shall prepare a list, not exceeding five times the number of vacancies, out of all the seniormost members of the Rajasthan Subordinate Forest Service, who are eligible for promotion under the rules and shall forward it together with character rolls and personal files to the Secretary to Government in the Forest Department.

(b) A committee consisting of-

(i) the Chairman of the Commission or a member thereof nominated by him as Chairman;

(ii) the Secretary to Government in the Forest Department;

(iii) the Special Secretary to Government in Appointments Department or his representative not below the rank of Deputy Secretary; and

(iv) the Chief Conservator of Forests shall consider the cases of all the persons Included in the list interviewing such of them as they deem necessary and shall select a number of candidates twice the number of vacancies likely to be filled by promotion, and shall arrange their names in a list In order of seniority and the Deputy Secretary to the Government In the Forest Department shall be the non-member Secretary.

(c) The list prepared by the committee after examination by Government shall be forwarded by the Government to the Commission together with the character rolls and the personal files of the candidates included in the list as also of persons superseded, if any for advice on their suitability for promotion. The Commission shall then consider the cases of the persons included in the list and those superseded, if any, and subject to their suitability, approve as many of them as the number of vacancies likely to be filled by promotion. The names shall be arranged in the same order in which they were placed in the list and the same shall be forwarded to the Government.

(ii) As soon as it is decided that a certain number of vacancies in the senior posts are to be filled by promotion, the Chief Conservator of Forests shall prepare a list containing names of candidates eligible for promotion, not exceeding five times the number of vacancies, in each category, out of all the seniormost members of the service eligible for promotion and forward it together with the character rolls and personal files to the Secretary to Government in the Forest Department.

The committee referred to In Rule 26 (1)(b) shall consider the cases of all the persona Included in the list interviewing such of them as they deem necessary. It shall select a number of candidates equal to the number of vacancies in such category and prepare a list to be forwarded to the Government.

The Secretary to Government in the Forest Department shall put up tee list prepared by the committee to the Government together with the character rolls and personal files of the candidates included in the list as also of persons superseded, if any.

(iii) The final selection in respect of the lists received from the Commission under Rule 25 (ii)(c) and from the committee under the Rule 25 (11) shall be made by Government and the names of the persons selected (shall be arranged in the order of seniority.

7. The appointments to senior posts are made by the Government under Rule 27, which runs as under:

27. Appointments to senior posts.-All substantive appointments to the higher categories shall be made by Government on occurrence of vacancies by graded promotion within the service as provided in Rule 24 on the basis of criteria of seniority-turn merit.

Rule 28 which provides for the making of emergent temporary appointments may also be reproduced as it will also come up for consideration:

28. Emergent temporary appointments.- A temporary vacancy in any category of the service may be filled by Government by appointing thereto in an officiating capacity an official eligible for promotion to the post or by direct appointment of persons eligible for selection under the rules, provided that if the duration of the appointment actual or probable is more than six months, the Commission shall be consulted as soon as possible after the appointment Is made and in any case before the expiry of six months from the date of appointment regarding the suitability of the candidates appointed.

8. The learned Counsel for the petitioner submits that Rule 7 (ii) is mandatory and the Government are bound to make the promotion from amongst the members of the service in the next below cadre and as the petitioner was the only person who was eligible for appointment as chief Conservator of Forest the Government had no option but to promote him and, in these circumstances, the learned Counsel urges, the Government were not justified in characterizing the appointment as un officiating one. In this respect he points out that in Rule 28, that was not attracted in the present case, as the vacancy caused on the expiry of the term of N. N. Sen could not be characterized as a temporary one within the meaning of the rules. The learned Counsel has placed reliance on the dictionary meaning of the term 'temporary' to which we wall refer hereinafter in the course of our discussion.

9. Rule 7 (ii) on which strong reliance is placed by the petitioner for showing that ho had a right to be promoted to the post of Chief Conservator of Forests and for ignoring the use of the expression 'officiating' in characterizing the appointment of the petitioner has, in our view, to be read in conjunction with Rule 27 of the rules. Rule 7, which embodies a principle of recruitment, is not the provision under which a substantive appointment is made. Part VI of the rules deals with appointments, probation and confirmation. For making appointments to senior pasts in substantive capacity the source of authority lies in Rule 27. This rule clearly enjoins that all substantive appointments to the higher categories shall be made by the Government from within the service as provided in Rule 24 on the basis of criteria of seniority-cum-merit. It is nobody's case that the procedure contained in Rule 24 or 25 was followed when the petitioner wan first appointed as officiating Chief Conservator of Forests on 4 September 1961 The learned Counsel for the petitioner however, wanted us to presume that these requirements of procedure were followed as official acts should be presumed to be performed regularly. We are however, unable to subscribe to this view. In the first place the very fact that the appointment has been characterized as officiating shows that the Government had not made any substantive appointment within the meaning of Rules 27 of the rules. Secondly, the manner in which the Government had dealt with the case of Bhargava shows that his appointment was never, in fact intended to be substantive. A letter of the Deputy Secretary to the Government of Rajasthan in the Revenue A Department to the Rajasthan Public Service Commission dated 12 October 1961, at p. 116 of the paper book, clearly mansions that the question of securing the services of a suitable officer from outside was receiving the consideration of the Government and in the meantime the appointment of Nandan Bhargava as officiating Chief Conservator of Forests was to be treated as an ad hoc arrangement, Again, tits Government, in their letter dated 9 May 1962, to the Public Service Commission which is at p. 118 of the paper book, reiterated that Nandan Bhargava was appointed as officiating Chief Conservator of Forests on an ad hoc basis with effect from 3 September 1961, and the Government; were watching his work. In this letter the Government desired the Public Service Commission to give its concurrence to the continuance of Nandan Bhargava as officiating Chief Conservator of Forests. In its letter dated 5 July 1962, at p. 119 of the paper book, the Commission pointed out to the Government that the concurrence of the Commission should have been sought before the expiry of the six months' period. In those circumstances, the Public Service Commission declined to give its concurrence to the continued officiation of Nandan Bhargava as Chief Conservator of Forests and called upon the Government to take steps immediately for filling this post according to the rule Thereafter, it appears that a meeting of the departmental promotion committee was hold and that committee consisted of the Chairman, Rajasthan Public Service Commission, the Forests Secretary and the Special Secretary (Appointments). The minutes recorded by that committee are at p. 125 of the paper book. These documents do not leave any doubt in our mind that the appointment of Bhargava was never intended to be made in a substantive capacity and the suggested presumption of the regularity of official acts cannot carry us any far in the present case.

10. Rule 7 (ii), so our mind, only deals with the amplitude of the principle of recruitment by promotion. Recruitment to the senior posts by promotion is the normal rules, but the proviso appended thereto reserve discretion to the Government that, if they find that in a particular year no member of the service is suitable for promotion in any particular category, then, according to the procedure laid down therefore direct recruitment may be made through the agency of the Public Service Commission. But one thing is very clear from Rule 27 itself that the only way in which substantive appointments by promotion, to post in the higher categories could be made is in accordance with Rule 24 on the criteria of seniority-cum-merit. It is true that Rule 24, the heading of which provides for emergent temporary appointments, is not happily worded and it is susceptible of the interpretation that officiating appointments for a limited period could be made only on the occurrence of a temporary vacancy.

11. We may pause here to refer to the dictionary meaning of the term 'temporary.' The Law Lexicon gives the meaning of the term 'temporary' as lasting for a time only, exiting or continuing for a limited time, not of long duration, not permanent, transitory, changing, lasting for a short time. The same meaning is found In other dictionaries and It is not necessary to multiply reference to dictionaries. Similarly, the term 'vacancy' has been defined to mean an unoccupied office or post.

12. Assuming that Rule 28 could not have been resorted to for making an officiating appointment, in the present case the question still is as to what will be the position if the appointment made is not shown to have fulfilled the requirement of Rule 27 of the rules, under which alone a substantive according with Rule 24. To our mind, there can be only two ways in which the order of officiating appointment of the petitioner can be looked at:

(i) that it is not accordance with any provision of rules and consequently bad; and

(ii) that as the making of officiating appointment for a limited period against a non-temporary vacancy has been dealt with by any provision of the rules, the be taken to reside in the Governor under Article 310 of the Constitution.

The rules have only comes into force in 1961 but even prior to that, appointments were made on the posts of the Chief Conservators or Conservator of Forests and such appointments could be made only under Article 310 of the Constitution. The question, therefore, immediately arises whether a complete go-by is given to Article 310 even for making appointments in contingencies not expressly dealt with by the rules. We cave given our anxious consideration to this aspect of the matter and our answer is that to the extent the rules are silent only on any particular matter, resort can certainly be had to the constitutional powers of the Governor as contained in Article 310 of the Constitution. To our mind, assuming that Rule 28 of the rules only deals with the contingency of making officiating appointments against temporary vacancies, undoubtedly there is no provision about making immediate arrangements on the occurrence of a permanent vacancy not necessarily always Toy retirement, but sometimes suddenly by unexpected resignation of an incumbent or even on account of his death. In such a case if the thesis of the learned Counsel for the petitioner were to be accepted, then as soon as the permanent vacancy occurs on account of the death or resignation of the holder of a senior post, then the Government are either bound to leave the post vacant till they make a substantive appointment, after going through the procedure laid down in the rules, or they will have to promote the officer in the nest below cadre. It could not be the intention to take away the power of the Government to make immediate arrangements by ordering someone to officiate against the non-temporary vacancy till all the required formalities under the rules are undergone for making a substantive appointment. We are persuaded to think that on matters for which no provision is made in the rules the general power of making appointment under Article 310 of the Constitution can be resorted to. As pointed out by their lordships of the Supreme Court in State of Uttar Pradesh v. Babu Ram Upadhya : 1961CriLJ773 , Article 310 of the Constitution is only subject to the limitations contained in Article 311. The relevant observations of their lordships were as follows:

In India every person who is a member of a public service described In Article 310 of the Constitution holds office during the pleasure of the President or the Governor, as the case may be, subject to the express provisions therein. The power to dismiss a public servant at pleasure is outside the scope of Article 164 and, therefore, cannot be delegated by Governor to a subordinate officer, and can be exercised by him only in the manner prescribed by the Constitution. This tenure at pleasure IB subject to the limitations or qualifications mentioned in Article 311 of the Constitution, The Parliament or the legislatures of 8bates cannot make a law abrogating or modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310, as qualified by Article 311. The Parliament or the legislatures of States can make a law regulating the conditions of service of such a member which includes proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Article 310 of the Constitution read with Article 311 thereof. The Parliament and the legislatures of States also can make a law laying down and regulating the scope and content of the doctrine of reasonable opportunity embodied in Article 311 of the Constitution; but the said law would be subject to Judicial review. If a statute could be made by legislatures within the foregoing permissible limits, the rules made by an authority in exercise of the power conferred thereunder would likewise be efficacious within the said limits. Under Article 313 the Police Act and the Police Regulations made IB exercise of the powers conferred on the Government under Section 243 of the Government of India Act, 1935, continue to be in force after the Constitution so far as they are consistent with the provisions of the Constitution.

Though these observations were made in constitution with the taking of disciplinary proceedings, the ambit of Article 310 of the Constitution fell to be considered in that case. To cur mind, therefore, Article 310 can be resorted to the extent it Is not inconsistent with any rule made under Article 309 of the Constitution regulating the condition of service. We may not however, consider in that case whether rules made under Article 309 of the Constitution can, or cannot override the provisions of Article 310 of the Constitution, as that question does not directly arise before us. Consequently we are of the opinion that as the making of an officiating appointment against a permanent vacancy which may occur in several ways, such as on account of death, resignation or retirement of an incumbent, is not clearly provided in the rules, such an officiating arrangement can be ordered in exercise of the powers of the Governor under Article 310 of the Constitution. That being so, we are unable to accept the contention that even though the appointment of the petitioner was characterized as an officiating one, it has to be taken to be one in substantive capacity.

13. Turning now to the other question, namely, whether in the facts and circumstances of the case the reversion of the petitioner from the post of the Chief Conservator of Forests to that of Conservator of Forests was in violation of Article 311 of the Constitution, the principles on which it has to be determined whether any reversion or termination is violative of Article 311(2) or not have been authoritatively settled by their lordships of the Supreme Court in Parshotam Lal Dhlngra v. Union of India 1958-1 L.L.J. 544, Parshotam Lai Dhingra, who was officiating on the post of Signal and Telecommunication Engineer (Telegraphs) in Class II, was reverted to his substantive post in Class III. He challenged the order of his reversion. By a majority judgment their lordships were pleased to lay down the following tests for saying whether in any particular case Article 311 of the Constitution would be attracted. Their lordships observed as follows at pp. 560-562:. Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service as denned in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a Government servant is by way of punishment IB to ascertain whether the servant, but for such termination, had the right to hold the post. If ha had a right to the post, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311. In other words and broadly speaking, Article 311(2) will apply to those oases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction Jn rank. To put it in another way, if the Government has, by contract, express or Implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules Is, prima facie and per se, not a punishment and does not attract the provisions of Article 311...

Where, however, the termination of service is founded on the right flowing from contract or the service rules, there, 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... A reduction in rank likewise may be by way of punishment or It may be an innocuous thing. If the Government servant has a right, to a particular rank, then the very redaction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment...The real test for determining whether the reduction In such cases is or not by way of punishment Is to find cut if the order for the reduction also visits the servant with any penal consequences....The use of the expression ' terminate' or ' discharge is not conclusive. Than in each. case the Court has to apply the two tests, namely,

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

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

If the case satisfied either of the two tests, than it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to MB substantive rock must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to Government, have rot been complied with, the terminated of service or the redaction in rank must be held to be wrongful and in violation of the constitutional right of the servant.

14. Applying the above tests to the case of Parshotam Lal Dhingra 1958-I L.L.J. 544 (vide supra), their lordships held that as the petitioner was appointed to the higher poet on an officiating basis he had no right to continue on that post end, therefore, his reduction did not operate as a forfeiture of any right and could not be described as reduction in rank by way of punishment. The provisions of Article 311(2) were consequently not attracted to the case. We have not been able to discover as to hew the case of the petitioner can be distinguished from that of Parshotam Lal Dhingra 1958-I.L.L.J. 544 (vide supra). The petitioner was appointed only in an officiating capacity as Chief Conservator of Forests and he had rot acquired any lien or right to hold that post. Thus, cue of the two tests for seeing whether the servant had a right to the post or rank has not been satisfied in this case. The other test, namely, whether the servant has been visited with evil consequence of the kind too, in our opinion, is not satisfied for the simple reason that the reversion was not ordered as a punishment, The fact that the servant stands to suffer loss of higher salary is not the test for seeing whether the order of reversion is one passed under the rules or that by way of penalty. We had occasion to deal with this question in a recent case decided by us and it is reported as Ishwari Prasad Atri v. Stale of Rajasthan 1065 R.L.W. 7. We had observed:

The mere fact a civil servant loses his employment and consequently suffers loss of salary is not the test for seeing whether an order is one under the roles only, or reality in the nature of penalty. Loss of employment with this of Income is a common attribute of both. The true test, to our mind, is the underlying intention of the Government.

In that case we were dealing with a case of termination of the service of a temporary employee and for our support we had relied on Parshotam Lai Dhingra case 1958-I L.L.J. 544 (vide supra).

15. A very recent case of their lordships of the Supreme Court reported as Champaklal Chimanlal Shah v. Union of India 1964-ILL.J. 752 confirms our view. In that case their lordships had pointed out a clear distinction between the enquiries that the Government might make for ascertaining (ha suitability of Government servant who are temporary or officiating for the purpose of seeing whether they should be retained on such posts and enquiries that are made with a view to taking palace action against them. The following observation at p. 754: may be quoted with advantage:

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 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. Therefore, so far as the preliminary enquiry is concerned, there is no question of Its being governed by Article 311(2), for that enquiry is really for the satisfaction of Government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the casa of a temporary Government servant or a servant holding higher rank temporarily to which he has no right. Such a preliminary enquiry may even be held ex parte, though usually for the sake of fairness, explanation Is taken from the servant concerned even at such an enquiry. It is only when the Government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the Government servant; gets the protection of Article 311 and all the rights that that protection Implied as already indicated above. That is why 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 is irrelevant.

The mere fact that soma kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with In accordance with the contract or the specific service ruin (e g,, Rule 6 in this case) would not mean that the termination of service amounted to Infliction of punishment of dismissal or removal within the meaning of Article 311(2). Whether such termination would amount to dismissal or removal within the meaning of Article 311(2) would depend upon facts of each case and the action taken by Government which finally leads to the termination of service.

From this passage it will be quite evident that If the Government, after considering the suitability of a particular incumbent who had not by then acquired the right to hold the post, reverts him to his substantive rank or terminates his services, in case he is temporary, In accordance with the service rules, then that action cannot attract the provisions of Article 311 of the Constitution. The crux of the matter is whether it, can be inferred that the Government really intended to take disciplinary action against the Government servant concerned. There lordships Lad also pointed out that whether a particular termination or reversion would amount to punishment within the meaning of Article 311(2) of the Constitution would depend upon the facts of each case an 1 such determination will ultimately depend upon the action taken by the Government which finally leads to the order of termination or, in a case like the present one, the order of reversion.

16. We have already referred to the correspondence that was exchange between the Government Public Service Commission about the continuance of the period of officiation of the petitioner. We have also pointed out that the Public Service Commission declined to give concurrence to the petitioner's further officiation. Thereafter on 25 September 1962 the departmental promotion committee met and after allotting some marks to the petitioners as also to the other officer, namely, Sri Ram Pratap Sharma whose case was also considered, came to the conclusuion that neither of the two officers was suitable for promotion as Chief Conservator of Forests. We have also persued the Secretariat notes which have been brought on this record. On 7 March 1961, the Assistant Secretary noted that Bhargava had completed six months as Chief Consevator of forests and hence reference to the public Service Commission had become overdue consequently the Revenue Secretary put up a proposal to the Government that the Public Service Commission's concurrence may be sought for continuing the officiating arrangements. The proposal was put up to the Forest Minister and the Chief Minister and both of them signified their approval to it. Thereafter, the Public Service Commission was addressed, but it refused its concurrence. In the light of the comments offered by the Public Service Commission, a proposal was submitted on 4 August 1962 by the Revenue Secretary to the Government for constituting the departmental promotion committee. On this proposal the Chief Secretary noted that this must be done urgently and to it the Minister-in-charge agreed. As it appears from the note of the Revenue Secretary dated 20 October 1962, the committee was constituted in accordance with Rule 25. The Secretariat notes are available from pp. 126 to 134 of the paper book. We are thus satisfied that the Government had no intention to take any penal action against the petitioner within the meaning of Article 311 of the Constitution. A departmental promotion committee consisting of the Chairman of the Rajasthan Public Service Commission, Special Secretary to the Government in the Appointment Department and the Secretary to the Government In the Forest Department made a unanimous recommendation to the effect that the petitioner was not found suitable to be promoted to the post substantively and, therefore, they recommended the making of a direct recruitment from outside the Rajasthan Forest Service. On the facts and circumstances of the case, therefore, we are unable to hold that the reversion of the petitioner was violative of Article 311 of the Constitution.

17. We may now briefly refer to the various cases cited by the learned Counsel for the petitioner.

18. We have already referred to Parshotam Lal Dhingra case 1958-I L.L.J. 544 (vide supra). The learned Counsel for the petitioner argued on the basis of the observations in Parshotam Lal Dhingra case (vide supra) that the petitioner had been visited with evil consequences Inasmuch as the future prospects of his promotion were marred and fee has also suffered a lose of salary. The learned Counsel also points out that as the confidential report, which was adverse to the petitioner, had been taken into consideration behind his back, that showed that the action against him was penal in character. We are unable to accept this contention. As pointed out by their lordships in the Supreme Court case, Champaklal Shah v. Union of India 1964-I L.L.J. 752 (vide supra), the crux of the matter is whether the Government intended to take a penal action. Any enquiry made for the purpose of as certaintng the suitability of a particular incumbent will not necessarily involve an element of punishment. Rule 24 of the rules permits the perusal of the previous record of the service, amongst other things, while making selection of candidates for promotion. The observations made in Parshotam Lal Dhingra case 1958-I L.L.J. 544 (vide supra) cannot be pressed in service by the petitioner for making out a case of punishment.

19. The learned Counsel then placed reliance on P.C. Wadhwa v. Union of India 1964-I L.L.J. 395. Wadhwa case is clearly distinguishable as in that case Wadhwa, who was officiating in the senior time-scale of Indian Police Service as Additional Superintendent of Police, was served with a charge sheet, but thereafter the enquiry was not held and he was reverted to his substantive rank as Assistant Superintendent of Police in the Junior scale of the Indian Police Service. At the time the appellant was reverted, officers junior to him In the Indian Police Service cadre of the State were officiating in the senior scale. The order not only entailed loss of pay, bat also loss of seniority and postponement of future chances of promotion. So, the main consideration with their lordships in holding that reversion to be in the nature of punishment was that the junior officers were allowed to continue as officiating Superintendents of Police and this entailed a lose of seniority of Wadhwa.

20. Champaklal Chamanlal Shah v. Union of India 1964-I L.L.J. 752, to which we have referred above, is a later decision of their lordships and, to our mind clarifies the principles further and it is laid down that whether any particular reversion or termination is or is not penal will depend upon the facts of each case and on the action taken by the Government which finally leads to the termination or reversion as the case may be. We have already discussed the obvious Intention of the Government In ordering the reversion of the petitioner. Wadhwa case 1964-I L.L.J. 395 (vide supra), therefore, is of no help in deciding the present case.

21. The learned Counsel then invited our attention to Ram Chandra Chaudhuri v. Secretary to the Government of West Bengal : (1968)IILLJ376Cal . In that case the following observations were made:

A mere reduction in the physical sense, viz,, demotion to a lower post from a higher post, is not sufficient to attract the operation of Article 311(2). What la required is that such degradation must be by way of penalty.

If the Government servant had a right to a particular rank, then the very reduction from that rank will operate as a penalty so as to attract Article 311(2).

22. Where the Government servant had been promoted to a higher post on an officiating basis and thereafter reverted to his substantive lower post, Article 311(2) will not be attracted. The motive or the ground such as inefficiency, misconduct, etc., behind the reversion is immaterial in such a case. But Article 311(2) may be attracted if besides the physical degradation or reversion to the lower post, the order of reversion also belte the servant with some penal cosequences. One of the penal consequences sufficient to attract Article 311(2) is the stoppage or postponement of future chances of promotion. Thus, if there is anything In the order of reversion which would stand in the way of the Government-servant earning future promotion even by subsequent display of merit, it is certainly a, prime consequence which would attract Article 311(2).

23. These observations, to our mind, do not go contrary to the passages from the two Supreme Court judgments which we have extracted above. We do not find anything In the order of reversion to indicate that even by subsequent display of merit the petitioner will not be able to earn future promotion. The order of reversion as such does not attach any stigma to the petitioner.

Lastly, the learned Counsel for the petitioner Invited our attention to A, J. Patel and Ors. v. State of Gujarat A.I.R. 1965 Guj. 23, It is laid down in that case that the power of the Governor of a State under Article 309 of the Constitution to make rules regulating the recruitment and conditions of service of persons appointed to public service and posts In connexion with the affairs of the State cannot be treated differently from the power of the legislature to do so by an Act under Article 309. The rules framed under the proviso to Article 309 would be statutory rules and would have force and effect as such and would confer right which could be enforced in a Court of law so long as they did not impinge the provisions contained in Article 310 and did not deal with the tenure of office of such persons as provided by Article 310. These rules were held to confer rights on Government servants which they could enforce. There can ba no quarrel with these observations, but, as we have already hold above, the petitioner was not substantively appointed as a Chief Conservator of Forests and consequently he had not acquired any right to hold the post. The Government could order his reversion, if it was not their intention to take any penal action, without complying with Article 311 of the Constitution. The second contention of the petitioner too has thus no force and has to be repelled.

24. Turning now to the contention of the petitioner that Chaturvedi was actuated with malice, we may observe that it has not been shown as to what personal ill-will Cuaturvedi had against the petitioner, besides Chaturvedi being the Secretary to the Government In the Forest Department to which the petitioner belong. Moreover, the making of entries in the confidential record of an officer is governed by instructions which are purely administrative in character having not been Issued under any statute. They, therefore, do not have the force of law and are not justiciable. As we have already observed, K. B, Mohan Lai has already retired from service and consequently the prayer for a writ In the nature of quo warranto against Mm has become infruoctuous. At the same time we cannot help observing that, as pointed out by the Public: Service Commission in its correspondence to the Government, rules have not properly been observed in making the appointment; of K. B. Mohan Lal. If cannot be over-empliafiizad that it is necessary for the Government to follow the statutory rules made by the Governor so as to inspire in the administration not only amongst the Government servants but In the public at verge in course of the arguments the learned Government Advocate submitted been us that in filling up the existing vacancy of the Chief Conservator of Forests the rule a will be complied with both in letter and in spirit and the case of the petitioner will also be examined once again before any final action is taken. We have no reason to think that the Government will act is violation of the rules. It is needless to any text under Rule 7 (II) of the rules recruitment to the senior post is required to be made by promotion unless a case for the application of the proviso is made out. For this the Government, after consul that with the Public Service Commission, have to be satisfied that during a particular year no member of the service is suitable for promotion in a particular category. It is only on this satisfaction that the further action by way of direct recruitment could be taken through the agency of the Commission on such terms regarding qualifications, experience and age, as may be presceibed by the Government. The order regarding the holding of the charge of the passed of Chief Conservator of Forests by R. K. Chaturvedi who is the Revenue Secretary to the Government and held the charge as the time as he was the Secretary is charge of the Forest Department also (sic). Two, to our mind, was a temporary arrangement and but for the claim put forth by the petitioner that merely on account, of his being appointed in officiating capacity he should be earned to be sub satantive on the post of the Chief Conservator of Forests, the Government, might have done the normal thing of giving the officiating chance to the petitions? again. Anyway, since the matter is going to be dealt with afresh according to the rules, we are not disposed to Interfere with the temporary arrangements for the carrying on of the duties of the office of the Chief Conservator of Forests.

25. With these observations we hereby dismiss the present writ petition, but. In the circumstances, order the parties to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //