The following Asstt. Managers who were promoted on ad hoc officiating basis on the post of Dy. Manager are hereby reverted to the post of A.M. with immediate effect. They would however, continue to work as A.M. at their existing place of duties till further orders.
S.No. Name Present place of posting
1. Shri M.K. Jain Jodhpur I-Branch
2. ' K.S. Singhal Bhiwadi Branch
3. ' R.K. Pokharna Regional Office, Bikaner
By order of M.D.
General Manager (A).
There is no stigma what so ever cast on the petitioner in the above order of reversion. The motive for issuing order of reversion is immaterial. Though the petitioner has made an allegation that the order of reversion of the petitioner has been made merely on account of the inquiry pending against him but there is neither any material nor any justification for taking such a view. The Corporation has taken a clear stand that the reversion has been made on account of the work of the petitioner having not been improved even after reinstatement and complaints received regarding integrity of the petitioner. There is no reason to disbelieve the above stand taken by the Corporation. The conduct of the Corporation that even the order of suspension passed during inquiry of the petitioner was revoked on September 15, 1984, shows that there was no malice or ill-will on the part of the Corporation to revert the petitioner on some extraneous ground. After the order of suspension being revoked the petitioner was allowed to continue on the post of Deputy Manager and after October 25, 1984, the case of the petitioner was considered along with others for extension and the petitioner and two others were not found suitable to continue on the post of Deputy Manager and thus, the action taken by the Corporation cannot be said to be penal in character.
14. In D.B. Belliappa's case (supra) it has been observed by the Supreme Court as under:
If the services of a temporary Government servant are terminated in accordance with the conditions of his service on the ground of un-satisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a like reason which marks him off a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Article 16. Conversely, if the services of a temporary Government servant are terminated arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of un-fair discrimination may arise, not with standing the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. Excepting perhaps, in cases analogous to those covered by Article 311(2), proviso (c), the authority cannot withhold such information from the Court on the lame excuse, that the impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the rules governing the conditions of the service.
15. In the case in hand before me once it is held that the order of reversion of the petitioner was made on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, the case of the petitioner falls as a class apart from other employees who have been retained on the post of Deputy Manager.
16. In Sughar Singh's case (supra) it was found as a matter of fact that the basis for reversion was admitted to be an adverse entry in the character roll of Sughar Singh. In view of such admission it was held that the order of reversion was by way of punishment and amounted to reduction in rank. The above case was considered in Pawan Kumar Dubey's case (supra) by the Supreme Court. While dealing with Sugharsingh's case it was observed as under:
We have examined the record of the case of Sughar Singh AIR 1974 SC 423. Our judgment in the case perhaps does not fully bring out the factual background on which the decision of that case was based. In that case, the Govt. servant concerned had been suspected of making an alteration in his own service record. It was not shown how he could possibly have had access to his service record as he was not in charge of the record. One of the alterations made meant an increase in his age so that he would, according to the altered state of the record, have had to retire earlier. Sughar Singh complained, when asked to show cause against the alleged tampering that it must have been manipulated by his enemies interested in injuring him. It could not be determined who was responsible for the alterations. Never the less, the following adverse entry was made on Sughar Singh's record:
1966-is suspected to have got entries of date of birth and educational qualifications altered on the authority of a fictitious certificate which had to be corrected later on. Severely warned.
Two years later, as a result of this entry, based expressly on bare suspicion, without further inquiry into the question whether Sughar Singh AIR 1974 SC 423 could be responsible for tampering with the record, a reversion order, innocuous on the face of it, had been made on 12th August, 1968. The effect of the reversion order was that Sughar Singh who apart from this entry, had an excellent record, was reverted from a post in which he had been officiating from 16th March, 1961, until the reversion order dated 12th August, 1968. It was shown that about 200 officers, junior to him, were still officiating in the cadre from which Sughar Singh had been reverted to his substantive post of Head Constable. No administrative need or exigency could be shown to justify the reversion order. All Officers, including Sughar Singh, who had been officiating had been selected after special training for the higher cadre. The question naturally arose: Why was Sughar Singh selected for discriminatory treatment.
It was then observed as under:
We do not think that Sugharsingh's case AIR 1974 SC 423 in any way conflicts with what has been laid down by this Court previously on Article 311(2) of the Constitution or Article 16 of the Constitution. We would, however, like to emphasize that, before Article 16 is held to have been violated by some action these must be a clear demonstration of discrimination between one Government servant and another, similarly placed, which cannot be reasonably explained except on an assumption or demonstration of 'malice in law' or 'malice in fact'. As we have explained, acting on a legally extraneous or obviously misconceived ground of action would be a case of 'malice in law'. Orders of reversion passed as a result of administrative exigencies, without any suggestion of malice in law or in fact, are unaffected by Sugharsingh's case (supra). They are not vitiated merely because some other Government servants, juniors in the substantive rank, have not been reverted.
17. In the present case, the order of reversion of the petitioner has been passed as a result of administrative exigencies without any malice in law or in fact. In view of these circumstances, merely because some other employees, junior in the substantive rank of Assistant Manager, having not been reverted, cannot be said to be violative of Article 16 of the Constitution.
18. In Amolak Chand's case (supra), the order of reversion of the petitioner from the post of Naib Tehsildar to the post of Inspector Land Records was assailed on the ground that the petitioner appellant in that case could not be adjudged unsuitable on the basis of (i) adverse entries made in Annual Performance Appraisal Report for the years 1977-78; (ii) adverse entries made in Annual Performance Appraisal Reports for the year 1982-83; and (iii) pendency of the departmental inquiry under Rule 16 of the CCA Rules. It was held that when a particular adverse entry in the annual performance appraisal report has material bearing for adjudging the suitability of a person for the purpose of promotion, it cannot be acted upon to deny the promotion to him, until and unless it is communicated to him and an opportunity is afforded to explain it. It was observed in the above case that the adverse entry for the year 1977-78 was not communicated to the petitioner and it was clear from the reply to the stay petition filed on behalf of the respondents that it was taken into consideration to deny the promotional opportunity to the petitioner appellant. It was held that it cannot be acted upon as it was not communicated to the petitioner-appellant and he had, no opportunity to explain it. It was also held that the petitioner appellant had been adjudged unsuitable on the basis of the adverse entries in the Annual Performance Appraisal Report for the year 1982-83 without decision of representation submitted by him in regard to it. The above case is thus totally distinguishable and had no relevance at all to the facts and circumstances of the present case.
19. In the result, I find no force in this writ petition and it is dismissed with no order as to costs.