D. Basu, J.
1. The petitioner was initially appointed as Senior Technical Assistant under the Department of Anthropology, Government of India, on 9 June 1955 under the Central Services (emporary Service) Rules, 1949, and declared 'quasi-permanent,' under those rules, with effect from 1 July 1958, by the order at annexure A.
2. By the order at annexure D, dated 20 September 1958, the petitioner was promoted in an officiating capacity, to the post of Research Associate in the psychology section of th.3 department with effect from 23 Jane 1958.
3. Petitioner alleges that trouble in the petitioner's service career started after Sri N.K. Bose joined as Director of the department in 1959 and also that he incurred the displeasure also of Sri P. C. Ray. officer-in-charge of the psychology section, when the petitioner was promoted to the post of Research Associate in his section; that Sri P. C. Ray raised an objection against the petitioner's promotion which was, however, turned down by the Deputy Minister, Dr. Das, after inquiry, towards the end of 1960.
4. By the order at annexure H, dated 24 August 1960, the Director, Sri Bose, reverted the petitioner with effect from 1 September 1960 to his original post of Senior Technical Assistant, and upon the petitioner's demand for the reasons for the reversion, he Was told by annexure I, that
he was reverted to the post of Senior Technical Assistant as his work as Research Associate was found unsatisfactory by competent authority.
5. His representation for reconsideration was also rejected (annexure J), dated 28 November 1930 and his appeal against that order had the same fate (annexure K).
6. The petitioner's representation to the President of India against the order of reversion was not forwarded and his representation to the Secretary of the Ministry of Education was also rejected (annexure M., p. 80, to the petition, February 1965).
7. The petitioner now challenges the validity of the order of reversion at annexure H, and the order rejecting the appeal against that order, on the ground that Article 311(2) of the Constitution ought to have been complied with inasmuch as it is a penal order, and also that it is mala fide.
8. The petitioner's second prayer is against an order treating him to be on leave from 7 February to 6 November 1964 (annexure P). The petitioner's case on this point is that it is the respondents who refused to allow the petitioner to join at Calcutta, even though he reported for duty at his office on 7 February 1964, and that he never sought for any leave during the period in question. This action of the respondents is challenged as ultra vires the relevant rules.
9. The petition is opposed by an affidavit filed on behalf of all the respondents, by respondent 1, the present Director.
10. Before going into the merits of the petitioner's case as to the invalidity of the order of reversion, we have to dispose of the preliminary objection raised on behalf of the respondents that the petitioner is not entitled to any relief on this score, on the ground of delay.
11. The impugned order of reversion was made on 21 August 1960 and the instant rule was obtained on 29 June 1965.
12. The petitioner has therefore to account for the period between 24 August 1960 and 29 June 1965. The petitioner's case, in short, is that he was during this period engaged in making appeals and representations against the impugned order.
13. Sometime after 24 August 1960, the petitioner preferred an appeal in exercise of his statutory right, but that appeal was rejected and communicated to him as far back as July 1961 (annexure K). No further appeal was open to him under the rules, but he made a representation (though described as appeal at annexure L) on 29 May 1964 which also was rejected on 25 February 1965.
14. On the foregoing facts, I am satisfied that the plea of delay is bar to the petition, raised by the respondents, should succeed:
(a) The petitioner should have come to Court within a reasonable time after his statutory appeal had been rejected in July 1961. It has been held in various case3 that a petitioner cannot exonerate himself from delay in coming to Court under Article 226 on the ground that he was engaged in pursuing non-statutory representations, when the matter was governed by statutory rules [vide (1) Gandhinagar Motor Transport Society v. State of Bombay : AIR1954Bom202 and (2) Sikri Brothers v. State of Punjab ).
(b) Even if the non-statutory representation can be taken as a step by which delay may be explained, there is no explanation as to why the petitioner waited for a period of about three years since July 1961 to submit the representation at annexure L.
15. This delay cannot be explained away by any means inasmuch as Rules 25, 33 and the like of the Central Civil Services (Classification, Control andAppeal) Rules, 1957, by which the petitioner is admittedly governed, prescribe a definite period of limitation for each step, by making a non-statutory representation, the petitioner cannot be entitled to a larger period of time.
(c) Above all, no explanation is available why the petitioner could net come to Court until the lapse of four months even after the representation was rejected on 25 February 1965.
16. There are, of course, exceptional cases such as the violation of fundamental rights or a patent lack of jurisdiction where the Court may be inclined to interfere irrespective of the conduct of the petitioner. But this is a case of reversion from an officiating appointment where any such exceptional circumstances do not exist so as to persuade the Court to offer any latitude to the petitioner.
17. In my opinion, the relief sought by the petitioner as against the order of reversion should be refused on the ground of delay.
18. Even if we enter into the merits of the petitioner's case as to the reversion, the petitioner is not entitled to succeed.
19. Petitioner's substantive appointment was to the post of Senior Technical Assistant. He has been reverted to that post by the impugned order, from the post of Research Associate, to which he had been promoted ' in an officiating capacity,' by the order at annexure D (p. 45), so that he had no legal right to that higher post.
20. The impugned order of reversion contains no stigma on its face. It simply states-
G.C. Kundu is reverted to the post of Senior Technical Assistant....
The law on this subject has been well-settled by a number of Supreme Court decisions:
(a) An order of reversion from an officiating appointment does not constitute reduction in rank to attract Article 311(2), without more, because by anofficiating appointment the Government servant acquires no title to the higher appointment, Parshotam Lal Dhingra v. Union of India 1958-I L.L.J. 544.
(b) But it may attract Article 311(2) if it entails penal consequences, in addition to the revision, e.g., stopping his future chances of promotion, loss of seniority in his substantive rank, or forfeiture of pay, etc., which he has already earned, Parxhotam Lal Dhingra v. Union of India 1958-IL.L.J. 544 (vide supra); Madhav v. State of Mysore : 1SCR886 .
(c) If the order does not entail any such penal consequences, it would not attract Article 311(2) even if the motive for the reversion is some misconduct or inefficiency or unsuitability or unsatisfactory work of the employee, State of Bombay v. Abraham (F. A.) 1963-II L.L.J. 422 and Jagdish Mitter v. Union of India 1964-I L.L.J. 418.
That the impugned order does not entail any penal consequences other than the reversion from the officiating post is admitted: but the case of the petitioner is that it is penal inasmuch as it has been made on the ground of his work being unsatisfactory. But, as I have said, the impugned order itself contains no stigma which might stand in the way of his future promotion or the like. But, subsequent to the impugned order of 24 August 1960, the petitioner wanted to know the reason for his reversion by an application of 2 November 1960 (Para. 10 of the petition), and, in reply thereto the petitioner was told by the letter at annexure I (p. 51) that he had been reverted on the ground that ' his work as Research Assistant was found unsatisfactory by competent authority.
21. The question whether and how far a stigma attached to the order of reversion or termination of service renders the order penal in order to attract Article 311(2) has again received judicial gloss in a number of cases, and the result is:
(i) If the order itself contains an adverse remark, such as that ' the employee is undesirable to be retained in Government service,' Jagdish Mitter v. Union of India 1964-I L.L.J. 418 (vide supra) or recites that discharge has been ordered for ' unsatisfactory work and conduct,' State of Orissa and Anr. v. Ram Narayan Das L1961-IL.L.J. 552'! and Saksena I.N.).w. State of Madhya Pradesh 1967-II L.L.J. 427, the order is penal, within the purview of Article 311(2).
(ii) But no such stigma can be said to be attached to the order of reversion or discharge where, subsequent to the order and, in reply to the representations of the employee, he is told that the reason was that 'he was an ex-convict'- Union Territory of Tripura and Anr. v. Gopal Chandra Dutta Choudhuri 1963-II L.L.J. 633.
(iii) On the same principle, where the order itself does not contain any express words throwing any stigma on the employee, the Court cannot delve into the files to discover whether some kind of stigma could be inferred on such research-State of Uttar Pradesh v. Madan Mohan Nagar 1937-II L.L.J. 63j and Saksena (I.N.) v. State of Madhya Pradesh 1967-II L.L.J. 427 (vide supra).
22. Applying the foregoing principles, it is clear that the petitioner cannot complain that the impugned order is penal or contains a stigrma simply because, in reply to the petitioner's query, the respondents said that he was reverted because his work was unsatisfactory-Union Territory of Tnpura and Anr. v. Gopal Chandra Dutta Choudhuri 1983-II L.L. J. 633 (vide supra) and State of Bombay v. Abraham (F.A.) 1963-II L.L.J. 422 (ibid.). As stated earlier, even though an adverse view or remark may have supplied the motive for the reversion, the reversion cannot be held to be by way of punishment- Jasbir Singh v. Union of India 1963 S.C.C. A. 1272 of 1963, dated 12 January 1968.
23. Failing in the foregoing plea, petitioner introduces his case of personal or express malice, namely, that ever since his promotion, the Director, N.K. Bose, and Sri Bay, officer-in-charge of the psychology section, were ill-disposed towards him.
24. Malice, would, no doubt, vitiate the exercise of any statutory power. But it has to be established by sufficient materials. But the only material offered by the petitioner in this behalf is the fact that his research work on tribal psychology or the like has not been approved by these authorities. But when an officer is promoted to a higher rank in an officiating capacity, he is on trial in that higher capacity and it is for the competent authorities to assess his performance and not this Court. The petitioner sought to establish that his writings have received approbation in other quarters but to rest on such a case would be an assessment of the petitioner's work by this Court which it cannot or should not undertake.
25. The petitioner must, for the present, abide by the assessment made by his superiors and acquire a better lot by doing further work to their satisfaction.
26. The petitioner's case against the order of reversion must, therefore, be dismissed.
27. IV. We have nest to deal with the petitioner's second prayer relating to the orders treating him to be on leave for the period from 6 February to 6 November 1964 (annexures O to P).
28. The facts relating to this point, as they emerge from the affidavits on either side, are as follows.
29. The petitioner was sent on tour duty to Mandla, but on his way, he fell ill atNagpur. He was advised by the respondents to get himself admitted into the local hospital and then to proceed on tour after recovery. He was not permitted to come back to Calcutta (annexure H, p. 32 of the counter-affidavit). But as the petitioner insisted on coming back to Calcutta, he was 'permitted to come back to Calcutta on leave' and he was directed to 'avail leave as admissible until fit for tour duties' (annexure H, p. 33, of the counter-affidavit).
30. The petitioner returned to Calcutta but did not apply for leave at all even though the permission granted by the telegram at p. 33 of annexure H to the counter-affidavit was clearly conditional upon his taking leave (vide Para. 20 to the counter-affidavit). Instead of applying for leave, the petitioner addressed to respondent 1, the letter at annexure O to the petition dated 7 February 1984 in which he simply wrote-.I report myself for duty at headquarters on the forenoon of 7 February 1964.
31. The petitioner was not allowed to join at headquarters and the letter in reply is at annexure O (dated 10 February 1964) to the petition which contains two points:
(a) The petitioner could not be permitted to report for duty at Calcutta because ' there is no indoor work in the psychology section which can be entrusted to him.'
(b) He should produce a medical certificate of fitness for ' tour in the field,' before resuming duty for the following reason:.he has not proceeded on any tour and and such he has no pending data on which he can work. Efforts were made to send him on tour for the last two years but on every occasion the tour could not be materialized due to his constantsickness.
32. On receipt of the preceding letter, the petitioner wanted to know the rules under which ' he was not permitted to join duty ' when he himself had not applied for any leave (annexure P to the petition, p. 87), The reply to the petitioner's foregoing letter is the letter at annexure P, p. 84 to the petition, dated 21 February 1964 by which-
(i) the petitioner was granted earned leave from 7 to 28 February 1964;
(ii) he was directed to report for duty on 29 February 1964 ' with a medical certificate of fitness to the effect that he is fit to undertake touring works';
(iii) he was informed that the appointing authority ' is competent to ask him to proceed on leave as his physical disability is interfering with the efficient discharge of his duties.
33. The petitioner protested by his letter of 26 February 1964 (annexure I, p. 63, of counter-affidavit), contending that he could not be forced to take leave and also that his letter of appointment did not state that the appointment was made solely for the purpose of tour duty and that accordingly there was nothing to prevent him from resuming duties at the office for which he was physically fit, though not for tour in the meantime, the respondents arranged for a medical examination of the petitioner by the medical board and directed the petitioner to appear before it on 4 May 1964 (annexure J to counter-affidavit). There was again a spate of correspondence on this point and eventually the petitioner appeared before the board which advised [annexure J to counter-affidavit (pp. 71 and 72), dated 6 May 19S4] that the petitioner should be admitted into the medical college hospital as an indoor patient for investigation for ' septic ulcer ' and reappear before the board for a final report 'as regards his fitness to undertake extensive tours,' The petitioner got himself admitted into the medical college hospital but left it on 4 June 1964 before the investigation could take place (annexure J to counter-affidavit, p. 73).
34. Some time elapsed before the petitioner was directed by the respondent (in October 1964) to appear before the Staff Surgeon at Fort William, which he did eventually on 31 October 1964, and the report of the Staff Surgeon is at p. 77 of annexure J, ibid., to the following effect-.I reexamined Sri Kundu on 31 October 1964. At present he is free from symptoms of duodenal ulcer. He appears to be fit to resume his normal duties.
35. On receipt of the foregoing report, the petitioner was directed by respondent 1, by his letter of 7 November 1964 (annexure J, ibid., p. 78) ' to report for duty immediately.' Thereupon the petitioner did report for duty at headquarters on the forenoon of 10 November 1964 (annexure J, ibid., p. 79).
36. The dispute is as regards the absence of the petitioner for the period between 7 February and 9 November 1934. That the petitioner did not do any work during this period is patent. The case of the respondents is that the petitioner was granted earned leave from 7 to 28 February 1964 (annexure P to the petition, pp, 84-86) and thereafter at half-pay from 29 February to 17 March 1964 as was due to him on leave account and thereafter extraordinary leave from 17 March to 8 June 1964; half-pay leave from 9 to 28 June 1964 and extraordinary leave again from 29 June to 9 November 1964, firstly, because he refused to go on tour and then because the petitioner did not remain in. the medical college hospital nor appear before the medical board in time owing to his own default, which caused a delay in getting his. fit certificate for resumption ofduties.
The petitioner's plea is-
(a) That his appointment not being solely for tour duties, he could not be debarred from resuming office duties while he was not fit for outdoor work.
(b) That he cannot be forced to undergo medical examination or to go on leave when he himself did not apply for leave.
37. I shall take up the question first with reference to the Central Civil Services (Medical Examination) Rules, 1953 (herein-after called 'the rules') which have been relied upon by the respondents. The relevant rule is Rule 2 (1) of the rules which says-
Where the competent authority has reason to believe that a Government servant to whom these rules apply is suffering from....
(b) a physical or medical disability which, in its opinion, interferes with the efficient discharge of hisduties.
that authority may direct that Government servant to undergo a medical examination within such period not exceeding one month as may be specified by it and may, if it considers it essential to do so, also direct the Government servant to proceed on leave forthwith pending medical examination. such leave shall not be debited to the leave account of the Government servant, if the examining medical authority subsequently expresses the opinion that it was unnecessary for the Government servant to have been required to proceed onleave.
(a) The above rule forms an exception to the general principle that leave is a voluntary event resulting: from an application of the Government servant who intends to avail himself of it. This rule enables the authorities to compel the Government servant to go on leave provided the conditions specified in the rule are satisfied, and that is questioned by the petitioner.
38. It is evident from the rule that-
(i) The Government servant can be asked to proceed on leave only if there is an order directing him to undergo medical examination under the rules and such leave is only ' pending such medical examination.'
(b) The medical examination referred to means such examination as may be prescribed by the President by order, according1 to Sub-rule (3) of Rule 2. Now, Rule 1 of the order made by the President in exercise of this powers ...vide Ministry of Home Affairs, Notification No. 38 11 54-Est. (A)/28 December 1957, prescribes the medical authority by whom such examination shall be made in the case of different categories of Government servants.
39. It follows, therefore, that when the Director directed the petitioner to produce a medical certificate for resumption of his duties and directed him to remain on earned leave for the period between 7 and 28 February 1934 (annexure P, p. 04). there was no order for such medical examination as is contemplated by the rules. Hence, the order at annexure P, was not authorised by these rules.
40. An order directing the petitioner to appear before the medical board was issued only on 25 April 1964 (annexure Q).
41. Hence, the order granting the petitioner compulsory leave can be brought under the rules only with effect from 25 April 1964.
42. It was however argued by Sri Dutt on behalf of the petitioner that the primary condition for the application of Rule 2 (1) was not satisfied in this case, namely, that the competent authority must entertain a reasonable belief that the physical disability of the petitioner ' was interfering' with the efficient discharge of his duties,' On this point, the petitioner strongly relies on the fact that the letter of appointment of the petitioner did not show that he had been appointed solely for outdoor duties. It is true that the petitioner was not appointed on the condition that he was meant solely for outdoor duties ; bur the papers on the records also show that touring was required for an 'efficient discharge of his duties' as a Research Officer since, in the field of anthropology, no research could be made unless data were first collected by firsthand contact with the human materials in relation to which the research was to be carried on (annexure J, pp. 66, 69 and 83). Admittedly, the petitioner was allotted the subject of Tribal Psychology which required touring. The papers in I series of the counter-affidavit, however, show that since 1962, the petitioner had been complaining-of ill-health whenever he was put on tour duty. In fact, his case all along has been that he was physically fit for office work but not for outdoor work. On the disputed occasion, it was on his way to Mandla that he reported sick at Nagpur and was, in fact, he was again insisting that he was unfit for tour duty, though he could do office work (annexure I; letters dated 26 February and 30 April 1964J. It was, therefore, not unreasonable on the part of the respondents to direct the petitioner to appear before the medical board on the ground that his physical disability was standing in the way of an efficient discharge of his duties which undoubtedly consisted of tour duties, in part though not wholly. It was contended that since the particular officer who had made the order has not filed the affidavit, existence of the reasonable belief could not be established. But the materials on the record are patent enough and the contention must be rejected.
43. The only other question is whether the leave under the Medical Examination Rulessince 25 April 1964 should be debited against the leave account.
44. Rule 2 (1) says that the said leave shall not be debited if the medical authority ' subsequently expresses the opinion that it was unnecessary for the Government servant to have been required to proceed on leave.' Or, in other words, if the medical authority after examining the Government servant express the opinion that he had no physical disability at the date when the order for his medical examination and leave under Rule 2 (1) had been made by his official superior, the compulsory leave shall not be debited against his leave account, and, that, accordingly, he shall be deemed to have been on duty all the time.
45. We have, therefore, to see whether the medical authority did express such opinion. It is to be noted that owing to the petitioner's defaults in the matter of appearing before the medical board, he was eventually directed to appear before the Staff Burgeon and he was examined by him (annexure J to the counter-affidavit,). From the petitioner's own letter at annexure J (p. 80 to the counter-affidavit) it appears that the petitioner was once examined by the Staff Surgeon on 11 June 1963, when ho certified that the petitioner was unfit for strenuous work and advised him to stay at Calcutta for six months. He was examined by the Staff Surgeon on 11 and 30 September 1964 (annexure J, pp. 77-81). It also appears that at these examinations, the Staff Surgeon had found the petitioner suffering from duodenal ulcer and that on re-examination on 31 October 1964, the Surgeon declared him free from that disease. On these facts, it is impossible to hold that the petitioner had been unnecessarily asked to be medically examined and to go on leave under Rule 2 (1). On receipt of the report of fitness from the Staff Surgeon, the respondent directed the petitioner to report for duty, by his letter of 7 November 1934 (annexure J, p. 78 of the counter-affidavit).
46. The order of leave between 25 April and 6 November 1964 is, therefore, fully justified by the Medical Examination Rules, and the petitioner must fail to that extent.
47. There remains the question of leave from 7 February to 24 April 1964 until which date the order for medical examination in terms of Rule 2 (1) had not been made.
48. On this point. I am of the opinion that the petitioner's contention must succeed:
(i) Firstly, leave under Division XI of the Fundamental Rules can be granted only upon an application for leave made by the Government servant concerned. As already stated, to this proposition an exception has been engrafted by the Medical Examination Rules and respondents could not lay their hands on any other rules. Hence, prior to an order under Rule 2 (1) of the said rules being made, the respondents could not order that the petitioner should remain on leave.
(ii) Secondly, unless the appointment was made solely for outdoor work, the respondents had no power to refuse the petitioner to join at headquarters. Of course, they could have insisted on their order for tour duty and drawn up disciplinary proceedings against the petitioner for refusing their order; or they could have made an order under Rule 2 (1) of the Medical Examination Rules forthwith. But neither having been done, the order granting the leave unasked for from 7 February to 24 April 1964, must be held to be invalid and the petitioner should be treated as on duty during that period for all purposes, including his emoluments.
48. III The 'petitioner had in his petition another prayer that the Union of India could be directed to dispose of his appeal to the President of India against the impugned order of compulsory leave. In Para. 26 of the counter-affidavit it is stated that the said appeal had been disposed of and that the decision too been communicated to the petitioner on 7 June 1935, by the letter No. F. 2/2.1.64 which has been produced by the supplementary counter-affidavit of 2 August 1987. It is true that in the original letter of 3 June 1935, the appeal was not referred to, but it has been made clear by annexure A to the said supplementary affidavit that the previous letter communicated the rejection of the appeal preferred by the petitioner. In these circumstances, no mandamus can issue to compel the Union of India to dispose of the petitioner's appeal.
49. In the result, the rule will be made absolute in part only, with respect to the order of leave for the period from 7 February to 24 April 1964. Let the orders at annexure P (pp. 84-87) in so far as it treats the petitioner to have been on leave from 7 February and 24 April 1964, be cancelled and the petitioner be treated as on duty during the said period and his emoluments on that basis be paid to him within the period of two months from this date. The nature of leave for the remaining period be also adjusted, on the footing of the earned leave which will now be due to the petitioner for some days after the foregoing1 cancellation of such leave for the period from 7 February to 24 April 1964.
50. There will be no order as to costs.