C.B. Capoor, J.C.
1. This is a petition under Article 228 of the Constitution of India and arises out of the following circumstances:--
2. By an order dated 5th July, 1952, the petitioner; was selected for appointment as Factory Manager, Himachal Rosin and Turpentine Factory Nahan, at Rs. 250/- p. m. in the scale of Rs. 250-10-450. He was to be on probation for a period of one year from the date of joining. He took over charge of the aforesaid post on 14-7-1952. The period of probation expired on 14-7-1953 and was not extended. He continued to hold the aforesaid post till 20-5-1959 when he was transferred to Paonta as Superintendent of Potteries Centre in the pay scale of Rs. 300-25-450, The petitioner's pay as Superintendent Potteries Centre was fixed at Rs. 310/- p.m. By a telegram dated 28-3-1980 the petitioner was required to hand over charge to one Shri Bhattacharji and to report for duty at Simla. He handed over charge on 31-3-1960 and reported for duty to the Director of Industries at Simla.
No order was made by the Administration regarding the posting of the petitioner and he submitted representations to the Director of Industries, Secretary (Industries), Chief Secretary to the Himachal Pradesh Administration and the Lieutenant-Governor, Himachal Pradesh and the President of India requesting them to restore him to the post of Manager, Himachal Rosin and Turpentine Factory Nahan or to any higher post but there has not been any response to those representations. Ever since 9-4-1960 he has been performing such duties as were assigned to him by the Industries Department but no salary has so far been paid to him. He has, therefore, prayed that a writ of mandamus or any other appropriate writ, order or direction may be issued to the respondents directing them to restore him to the post of Factory Manager, Himachal Rosin and Turpentine Factory and pay him his salary and other dues with effect from 1-3-1960.
3. The application has been opposed on behalf of the respondents on the grounds that the petitioner was appointed temporarily to the post of Manager, Rosin and Turpentine Factory, Nahan, in the scale of Rs. 250-10-400, that it was by mistake that in the order of appointment the maximum of the pay scale was indicated as Rs. 450/- and that the period of probation was to be one year. The respondents contention is that the post of the Manager, Rosin and Turpentine Factory Nahan was temporary and no permanent appointment could have been made to that post. Their further allegation is that even though the Administration had a right to terminate the services of the petitioner it did not do so as a measure of clemency and appointed him as Employment Officer in the grade of Rs. 200-15-350 but he did not join that post, that the salary due to the petitioner from 1-3-1960 to 17-3-1960 was remitted to him by Remittance Transfer Receipt which he did not accept and that no question can arise of the payment of any salary for the period after 8-4-1960 as the petitioner did not join as Employment Officer as ordered by the Administration. It has, lastly, been contended that as the headquarters of the Union of India were at New Delhi this Court did not have jurisdiction to issue any writ to that authority.
4. The first question that arises for decision is as to whether there was any mistake, advertent or otherwise, in the order of appointment. The maximum of the scale of pay may well have been stated by mistake, as urged on behalf of the respondents, for according to Annexure 'A' to written-statement the President had conveyed his sanction to the creation of the post of Manager, Himachal Rosin and Turpentine Factory Nahan in the scale of Rs. 250-10-400. The question is, however, not material for the purposes of this case as the petitioner does not claim to have reached the maximum stage in the scale of pay mentioned in the order of appointment. I, however, find it extremely difficult to hold that it was by mistake that the petitioner was put on one year's probation. The order of appointment clearly bears out that the petitioner was to be on one year's probation and in spite of several representations made by him it was not intimated to him that the condition in the order of appointment regarding the period of probation was inserted by mistake.
5. The next question that arises for consideration is as to what is the effect of the absence of any order extending the period of probation. The petitioner's contention is that on the expiry of the period of probation he should be deemed to have been confirmed and in support of that contention reliance has been placed upon a ruling of the Allahabad High Court reported in Kanshi Ram Anand v. The State of U. P., AIR 1956 All 380. The facts of that case were that Dr. Kans Ram Anand was appointed as Medical Officer in the Medical and Health Department of Government of Uttar Pradesh on 20-6-1949 on probation for a period of two years. The probationary period was not extended and he continued to be in service until 5-8-1954 when he was discharged from service on the ground that the State Medical Board had not found him to be fit for retention in service. No opportunity as contemplated by Article 31), of the Constitution was afforded to him to show cause as to why he be not discharged from service.
The contention put forward on behalf of Dr. Anand was that he was in the permanent employment of the State Government and his services could not be terminated without giving him a reasonable opportunity to show cause against the order of discharge. The contention found favour with Mehrotra, J. (now a Judge of the Assam High Court) and his decision was upheld on spedal appeal by O. H. Mootham, C. J. (now retired) and Raghubar Dayal, J. (now a Judge of the Supreme Court). On behalf of the State it was contended that the period of probation should be deemed to have been extended. This contention was repelled and it was held that Rule 49(a) or the Civil Services (Classification, Control and Appeal) Rules which provided for the termination of employment of a person appointed on probation during or at the end of probation in accordance with the terms of the appointment and the files governing the probationary service did not apply to the case. If an officer placed on probation is allowed to continue in service after the expiry of the period of probation without such period being extended he may well be deemed to have been confirmed.
6. On behalf of the respondents it has been contended that the post to which the petitioner was appointed was temporary and as such he could not be held to have been confirmed on that post on the expiration of the period of probation and in support of that contention reliance has been placed upon Annexures 'A' to 'H' to the written-statement. Annexure 'A' does not help the respondents. It contains two paragraphs. In the first paragraph the sanction of the President of India was conveyed to the creation of certain posts for the Himachal Rosin and Turpentine Factory Nahan for the period from 1-9-1951 to the end of February 1952. The post of Manager of the aforesaid factory was not included in those posts. Paragraph 2, which is quite independent of paragraph 1, conveyed the sanction of the President for the creation of the post of manager to the scale of Rs. 250-10-400. This paragraph does not say that the post of manager was a temporary one or was created upto the end of February 1952 only.
Annexures 'B' to 'H' are copies of office orders whereby the Lieutenant-Governor Himachal Pradesh had sanctioned the creation inter alia of the post of Manager, Himachal Rosin and Turpentine Factory Nahan from year to year with effect from 1-3-1952 to February 1960. Those annexures do indicate that the post of the manager of the aforesaid factory was a temporary one but those annexures, barring 'G' and 'H' relating to the period from 1st March 1957 to 28th February 1958 and 1st March 1958 to 28th February 1959, do not appear to have been endorsed to the Manager, Himachal Rosin and Turpentine Factory Nahan and it could not therefore be said that prior to 1st of March 1857 the petitioner was informed by the Administration that the post of the manager was temporary.
7. On behalf of the respondents reliance has also been placed upon the service book of the petitioner in proof of the fact that the post to which he was appointed was temporary. The service book is maintained by the Head of Office and the petitioner cannot be fastened with notice of the contents thereof Moreover the mere fact that a certain post was a temporary one would not necessarily lead to the inference that a permanent appointment could not be made in the grade admissible for such post. The employer may well have in mind to fix up the employee at some other post of equal rank on the abolition of the post to which the latter is initially appointed.
8. Article 311 inter alia provides that no person who is a member of a civil service of the Union or an all India service or a civil service of a State shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
9. It has been held by the Supreme Court by a majority decision in the case of Parshotam Lal Dhingra v. Union of India, reported in AIR 1958 SC 36 that reduction in rank 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 reduction from that rank will operate as a penalty for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences.
10. In the instant case the petitioner was appointed as Employment Officer in the scale of Rs. 200-15-350 whereas the scale of pay admissible to him as Manager, Himachal Rosin and Turpentine Factory Nahan was Rs. 250-10-450 (or may be Rs. 400/-). There could, therefore, be no doubt that the rank of the petitioner was reduced and the reduction in rank was in the nature of a penalty. It was urged on behalf of the respondents that they had a right to terminate the services of the petitioner as Manager, Himachal Rosin and Turpentine Factory Nahan and to reappoint him to a post carrying a lesser scale of pay. I am, however, unable to accede to that contention. First of all, there is no order of the Administration terminating the services of the petitioner as Manager, Himachal Rosin and Turpentine Factory Nahan. Secondly, in view of the fact that the petitioner was allowed to continue On that post even after the expiry of the period of probation without the extension of such period he had acquired a lien to that post and in view of Article 311 of the Constitution his rank could not have been reduced without affording an opportunity to him to show cause against the contemplated reduction in rank.
11. On behalf of the respondents the competence of this Court to issue a writ against the Union of India has also been challenged on the ground that the headquarters of the Union of India were not within the territorial Jurisdiction of this Court and it has further been contended that as this Court could not issue any writ to the Union of India it could not Issue any writ to the Himachal Pradesh Administration either. It is now well settled that a High Court cannot issue a writ to a person or authority outside its territorial jurisdiction vide Election Commission, India v. Venkata Rao, AIR 1953 SC 21.0, Altafur Ranman v. Collector, Central Excise Allahabad, AIR 1960 All 551, Hans Raj v. Hindusthan Commercial Bank, Kanpur, AIR 1980 Punj 360. I am, however, unable to uphold the contention advanced on behalf of the respondents that this Court will not have a right to issue a writ against the Himachal Pradesh Administration also.
In the aforesaid cases the order which was sought to be vacated was made by an authority outside the territorial jurisdiction of the High Court concerned whereas in the instant case no order against the petitioner has been passed by the Union of India or the President of India and the issue of a writ to the Himachal Pradesh Administration will not involve directly or indirectly the setting aside of any order of the Union of India or the President of India. The question as to whether this Court has the jurisdiction to issue a writ even if it involved the setting aside of any order of the Government of India does not arise in the present case and I refrain from expressing any opinion thereon. If and when such a question will arise it may inter alia have to be considered as to whether the order passed by the authority outside the territorial jurisdiction of this Court is a nullity and as to whether its order has been passed in the exercise of revisional or appellate powers or on a mere representation made by the aggrieved person.
12. In conclusion, the petition is acceptedand a writ in the nature of mandamus is issuedto respondent No. 2 directing it to appoint thepetitioner to the post of Manager, HimachalRosin and Turpentine Factory Nahan or to anyother post the pay scale of which may not be lessthan the scale of pay which was admissible to theManager, Himachal Rosin and Turpentine FactoryNahan in the year 1951. The petitioner will gethis costs from respondent No. 2.