D.B. Lal, J.
1. The petitioner Kalam Dass was employed in the office of the Director of Welfare Department in the year 1958. Thereafter he was promoted and appointed as Teacher in the Tibetian Refugees Camp Kasumpti. While the petitioner was working as teacher in that camp he applied for the post of Election Kanungo. He was selected and was given a letter of appointment, dated 31st July 1965. He was appointed as a temporary hand and his services were likely to be terminated after giving one month's notice without assigning any reason. It was, however, mentioned, that he would be considered against a permanent post whenever such post was available, subject to his satisfactory work and conduct. The petitioner continued to serve as Election Kanungo up-till 10th December, 1971, when the impugned order was passed reverting him to the Welfare Department, as his services were no longer required by the Election Department.
2. The petitioner contends that under Rule 8 of the Himachal Pradesh Election Department Subordinate Class III Services (Recruitment, Promotion and Certain Conditions of Service) Rules, 1966, three years was the maximum probationary period and since this period expired on 31st July. 1968, he should be deemed confirmed with effect from that date. As he was reverted from a substantive post, the order of reversion, according to him. amounted to punishment under Article 311 (2) of the Constitution.
3. The petitioner further contended that one Jagdev Singh (respondent No. 3) made a complaint against him and as a result to that complaint his work and conduct was not found satisfactory and he was reverted. As such the order of reversion was made without enquiry or show-cause notice, as required under Article 311 (2). Such an order of reversion amounted to punishment and should be quashed. According to the petitioner the order of reversion was thus illegal and without jurisdiction and should be set aside. He has further demonstrated that certain officials junior to him in rank are retained in service. As such Arts. 14 and 16 are attracted and the petitioner could not be reverted.
The petitioner has, therefore, sought that the impugned order reverting him should be quashed and that he should be declared permanent Election Kanungo.
4. The respondents contend the petition on the allegations, that the petitioner was purely a temporary hand and was never appointed against a permanent post. As such according to them. Rule 8 did not apply to him. He never started his probationary period and so he couldnot be deemed automatically confirmed after the expiry of three years, as claimed by him. It is further pleaded by the respondents, that whatever complaint of misconduct was made against the petitioner, that amounted to a motive to consider the work and conduct of the petitioner unsatisfactory and so he was not considered fit to be posted against the permanent vacancy for which option was given to him in the appointment letter. Whatever misconduct was alleged against the petitioner was never the foundation for the order of reversion. In this manner Article 311 (2) was not attracted and no enquiry was called for. It was alleged that Arts. 14 and 16 were also not attracted and the petitioner was rightly reverted to his permanent department.
5. Before adverting to the contentions submitted by the respective parties, it would be appropriate to set out the relevant rule as well as pertinent letters and orders for sake of elucidation. Rule 8 relied upon by the petitioner exists in the following terms:--
'Rule 8:-- Probation and confirmation of Members of the Service.
(i) Members of the service who are appointed against permanent vacancies shall, on appointment to any post in the service, remain on probation for a period of two years in the case of direct-recruitment and on trial for a period of one year in case of promotion; .....
Provided always that the total period of probation including extensions, shall not exceed three years'. It would be noticed that the appointment is to be made 'against permanent vacanciess' and it would be a question of fact as to whether the appointment of the petitioner was, at all, made against a permanent vacancy.
The appointment letter issued to the petitioner contained as follows:--
'Reference interview held on 30th June. 1965, in the office of the Deputy Commissioner. Mahasu, for the post cited as subject.
2. Shri Kalam Dass, teacher Tibetian Refugee Camp (Welfare Department) Kasumpti is hereby offered a post of Election Kanungo on the following terms and conditions:--
(i) Pay in the scale of Rs. 60-4-80/ 5-120/5-175 plus Rs. 10/- p.m. as special pay and other allowances admissible from time to time.
(ii) His appointment shall be temporary and his confirmation against a permanent post when available will be subject to his work and conduct being satisfactory.
(iii) His services can be terminated at any time after giving one month'snotice without assigning any reason thereof. If he may desire to leave the service, he shall also give one month's notice to the competent authority before quitting the service'.
The order of reversion existed in the following form:--