R. S. SIAL versus THE STATE OF U.P. & ORS

R. S. SIAL

THE STATE OF U.P. & ORS.·. March 25, 1974

[H. R. KHANNA AND P. K. GOSWAMI, JJ.)

Constitution of India, Art. 311(2)-Reversion from _an officiating higher post to substantive post-If attracts Art. 311(2)

_The appellant wh~ was Assis~t. General Manager in the State Transport Department was appointed as offic1at:J.ng General ~ianager in the same depart-mei;tt: During the period of his .officiating appointment he was reverted. At the llme of the appellant's reversion there were two letters from the Vigilance Department making certain allegations against the appellant. These letters show that the authorities concerned came to the conclusion that pending the enquiry. the app~llant should not be allowed to officiate in higher post. His writ petition challenging the order of reversion was dismissed by the High Court.

· !t was contellded in this court that the order of reve~ion -was by way of punishment and since it had been made without complying with the requirements of Art. 311 of the Constitution the same was liable to b~ quashed.

Dismissing the appeal,

HELD :-The test for attracting Art. 311(2) of the Constitution is whetli.er the misconduct or negligence is mere motive for the order of reversion or termination of service of the temporary employee. The form of the order ho\';·ever, is not conclusive of its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is mere motive · or is the very foundation of the· order. [757E]

perusal of the order showed that it contained no adverse remarks against the appellant nor could it be said that any stigma attached to the appellant because of that order. The post of General itanager which was held by the appeIIant was only in an officiating capacity. The appellant had no vested right to retain that post. In case the author_ities concerned came to the conclusion that the appellant should not b~ allowed to retain the post. of which he was officiating they could pass an order for his reversion without complyin~ with the requirements of Art. 311 provided the order was not by way of punishment. [756H)

Parshotam Lai Dhi11gra v. Union of India, [1958] S.C.R. 828, Union of India & Anr. v. Gajendra Singh etc. etc .• [1972] 3 S.C.R. 660 and State of Bihar & Ors. y. Shi~'a Bhik.shuk-Mishra, [1971) 2 S.C.R. 191, followed.

State of Punjab v._Shri Sukh Rai Bahadur, [1968] 3 S.C.R. 234, referred to. --.,,,--: It is wen -sC-ttled that even ihough misconduc4 negligence, inefficiency ot -other disqualifications may be the motive or the inducing factor -which influence the Government to take action under the express or implied terms of the contract of employment or under the statutory rule. nevertheless if tight exists. under the contract or the rules to terminate the services the motive operating on the mind of the Governmen-:: is \vhollv immaterial. The same rule would bold good if the order passed is not for termination of service but for reversion '?f Government servant from. higher post to lower post \\"-hich he holds tn substantive cap~city. [758H]

Union of India v. R, S. Dhaba, [1969] 3 S.C.R. 603, referred to.

CIVIL APPELLANT JURISDICTION: Civil Appeal No. 1062 of 1971.

Appeal by Special Leave from the Judgment and Order dated the ·

12th January, 1971 of the Allahahad High Court (Lucknow Bench) ~t Luck;now in Writ Petition No. 1073 of 1968.

S. V. Gupte, I. P. Goyal and G. S. Chatterjee, for the appellant.

C. N. Dikshit, and R. Ba11a for the respondents.

The Judgment of the Court was delivered by

KHANNA, J.-This appeal by special leave is directed against Full Bench decision of the Allahabad High Court . whereby petition under article 226 of the Constitution onndia filed by the appellant was dismissed.

The appellant was appointed Traffic Manager in the transpnrt organization of the State of Uttar. Pradesh on July 21, 1948. The office of Traffic Manager was subsequently designated a~ Assistant General Manager and the· appellant continued ·to work as such. On December 1, 1955 tl)e appellant was confirmed as Assistant General Manager with effect from April 1, 1955. On July 5, 1963 the appellant was appointed Officiating General Manager in the Gorakhpur region of the Transport Department The appellant continued to officiate as General Manager of Government Roadways till September 7, 1967 when he.was reverted to the post of Assistant General Manager. The appellant filed writ petition No. 3167 of 1967 in the Allahabad High Cqurt challenging the order of his reversion but the same was summarily dismissed by Division Bench of that court as per order dated Se?tember 12, 1967. Representation was made by the appellant against the order of his reversion but the representation too was re-jected by the State Government as per letter dated October 7, 1968. The writ petition which has given rise to this appeal was thereafter filed by the petitioner praying for quashing the ordei by which he had been reverted from the post of Officiating General .Manager to that of Assistant General Manager as well as the orders whereby his represen-tation had been rejected.

number of grounds were set out in the petition for assailing the impugned orders, but at the hearing of the appeal only one ground has been pressed and it is only that ground with which we are con-cerned. According to 1the appellant, the order of his reversion was by way of p\mishment and as it had been made wiihout complying with requirements of article 311 of the Constitution, the same was liable to be quashed.

The petition. was resisted by the State of Uttar Pradesh and the affidavit of Shri Bhagwan Sarup Sl\Xena, Deputy Secretary to the Government in the· Transport Department was filed in opposition to the petition. Objection was;taken that the present petition was barred because of the dismissal of the earlier petition. On merits it was stated that the appellant was merely ,officiating as General Manager and bad no right to that post. According to the respondent-State, the appellant could be reverted to his substantive post of Assistant G~neral Manager withO\lt the State takipg any disciplinary action or assigning anv reason.

When the petition can1e up for hearing ~fore single Judge the learned Judge referred the matter to farger Bench. Ultimately, the matter was heard by Full Bench of the High Court. The learned Judges held that the present l;>etition was barred because of the dis-JDissal of lhe appellant's earlier petition. On merits also, the learned

Judges did not accept the contention· advanced on behalf of the appel-·)ant and held that as he was only officiating as General Manager, he did not have any lien on that post. The reversion was held to.be not by way of punishment. The Government, in the opinion of the High: Court, was entitled in exerci~ of its power to revert person who was: officiating in higher post. Contention was also raised that the order of reversion was violative of the principles of natural justice but this contention was repelled. In the result the petition of the appellant was dismissed.In appeal before us Mr. Gupte on behalf of the appellant has argued that as the previous petition No. 3167 of 1967 filed by the appellant had been dismissed summarily by means of non-speaking· order, it cannot b~ said that the dismissal of that petition was on merits. As such, according to the learned counsel, the present petition was not barred because of the dismissal of the pre·;ious petition. The second conten· tion of Mr. Gupte is that the reversion. of the appellant from the post of Officiating General Manager to that of Assistant General Manager was by way of punishment and as the same had been ordered without com-plying with article 311 of the Constitution, the order of reversion was liable to be quashed. The above contentions have been controverted by Mr. Dikshit on behalf of the respondent-State. It is, in our opinion, not necessary to go into the first contention of Mr. Guptc because we find that the order of reversion of the appellant cannot be said to have been made by way of punishment.

The material part of the order of reversion reads as under :

"OFFICE OF THE TRANSPORT COMMISSIONER UTT AR PRADESH

No. 714/PAVS/67 Dated Lucknow, September 7, 1967 ORDER

In pursuance of Government's instructions contained is Deputy Secretary, Trausport's D.0. letter No. 13060 S/XXXA-10/18/i'vl/59, dated September 5, 1967 the folJowing reversion~, transfers and postings arc hereby crdcred :-

(1) Sri R. S. Sial, officiating General Manager, U.P. Government Roadways, Aligarh, is reverted to his substan-tive post of Assistant General Manager, and posted at Luck-now as Assistant General Manager (Rural) vice Sri V. P. Gupta transferred."

Perusal of the above order shows that it contains no adverse remarks against the appellant, nor can it be said that any stigma attaches to the appellant because of that order. At the time the above order was made the substantive rank of the appellant was that of Assistant General Manager. The post of General Manager which was held by the appdlant was only in an officiating capacity. The appellant had no vcst.,d right to retain that post. In case the authorities concerned came to the conclusion that the appellant should not be allowed to

retain the post in which he was officiating, they could pass an order for his reversion without complying with the requirements of article 311 provided the ord~r was not by way of punishment.

Appointment to post on an officiating basis is, from the nature of employment, itseH of transitory character and in the absenee of any contract or specific rule regulating the conditions of service to the con-B trary, the implied term of such an appointment is that it is terminable at any time. The Government servant so appointed acquires no right to the post. But if the order entails or provides for forfeiture of bis pay or allowance or the loss of his seniority in the substantive rank or the stoppage or postponement of bis future chances of promotion, then that circumstance may indicate that though, in form, the Government had purported to exercise its undoubted right to terminate the employ-c ment, in truth and reality, the termination was by way of penalty [see Parshotam Lal Dhingra v. Union of India (I) and Union of India & Anr. v. Gajendra Singh, etc. etc.([2])].

Officiating and temporary Government se~vants are also entitled to the protection of article 311 as permanent Government servants if the Government takes action against them by meting out one of the punish-ments, i.e. dismissal, removal or reduction in rank [see Parshotam Lal Dhingra v. Union of India, (supra), Champaklal Chimanlal Shah v. Union of India(') and Appar Apar Singh v. The State of Punjab & Ors.(<)].

The test for attracting article 311 (2) of the Co1istitution is whether the miscpnduct or negligence is mere motive for the ~order of rever-sion or termination of service or whether it is the very foundation of the order of termination of service cif the temi;><>rary employee. The form of the order, however, is not conclusive of its true nature. The entirety of circumstances pre~eding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is mere motive or is the very foundation of the order [sec State of Bihar & Ors. v. Shira Bhikshuk Mishra(')].

In the case of State of Punjab v. Shri Sukh Raj Bahadur([6]) this Court enunciated the following propositions which have to be borne in mind:

"(!) The services of temporary servant or probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art. 311 of the Constitu-tion. (2) The circumstances preceding or attendant on the. order of termination of service have to be examined in each case, the motive behind it being immaterial. (3) lf the order visits the public servant with any evil consequences or casts an aspersion against his (I) [1958] SCR 828. (2) [1972] 3 SCR 660. (3) [196415SCR190. (4) [1971] 2 SCR 890. (5) [1971] 2 SCR 191. (6) [19681 3 SCR 2J4.

character or integrity, it must re considered to be one by way of punishment, no matter whether he was mere probationer or temporary servant.

(4) An oruer of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public ser-vant should be retained in service, does not attract the operation of Art. 311 of the Constitution. (5) If there be full-scale departmental enquiry envisag-ed by Art. 311 i.e. an Enquiry Officer is appointed, charge sheet subm;tted, .explanation called (or and considered, any order of termination of service made thereafter will attract the operation of the said article." -cKeeping in view the principles enunciated above, we ha\-C looked at the facts of the case and are not satisfied that the order of reversion of the appellant was by way of punishment. It has already been men-tioned above that no aspersion was cast on the appellant in the order of reversion and as result of toot order no stigma attaches to his name: The appellant was merely officiating in higher post and the impugned order had the effect of reverting him to his substantive post. The attendant circumstances to which our attention has been invited with view to show that the order of reversion was by way of punishment are two letters dated July 12, 1967. One of these letters was addressed by the Deputy Secretary, Vigilance Department to the Director of Vigilance wherein reference was made to the report of the officers of the Intelligence and Evaluation Cell. It was requested that an open enquiry might be made into the allegations of involvement of the appellant in matter relating to the supply of non-genuine and sub-standard motor parts by Delhi dealer. In the other letter addressed to the Secretary to Uttar Pradesh Government, Transport Department request was made by the Deputy Secretary, Vigilance Department that in case .the appellant was n6t confirmed on the post of General Manager, he might be reverted since an enquiry made by the CID into the allegations of corruption against the appellant had rewalcd that there was substance in those allegations. The above kiters would show that the authorities concerned came to the conclusion that, pend-ing the holding of an open enquiry into the charges of corruption against the appellant, he should not be allowed to officiate in higher post. It cannot, in our opinion, be inferred therefrom that the rever-sion of the appellant was by way of punishment. All that c:i.n be said is that the contemplated enquiry into the charges of corruption against the appellant provided the motive for the reversion of the appellant. The existence of such motive cannot, in our opinion, vltiale the order for the reversion of the appellant. It may be taken to l>o well settled that even though misconduct, negligence, inefficiency or other disquali-fications may be the motive or the inducing factor which influence the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if right exists, under the contract or the rules to terminate the services the

motive operating on the mind of the Government is whoUy immaterial [see Union of India v. R. S. Dhaba( [1]) .]. The same rule would hold good if-the order passed is not for termination of service but for rever-sion of Government servant from higher post to lower post which he holds in substantive capacity.

Application was filed .during the pendency of the appoal on behalf of the appellant that this Court might take into account additional documents. These documents were in existence at the time the appel-lant filed the petition in the High Court. The petition in the High Court remained pending for more than year. We are not impressed by the plea taken on behalf of the appellant that he coulct not trace these documents with due diligence and has been able to trace them now. 1be documents in question are not of such nature as arc need·od to enable us to pronounce this judgment. In the circum-c tances, the application filed by the appellant for taking on record addi-tional documents in appeal is rejected.

The appeal fails and is dismissed with costs .

,4ppeal dismissed.