H.R. Kapoor vs The Commissioner, Transport, Himachal Pradesh Government etc.

Chet Ram Thakur, J.—By this petition under Article 226 read with Article 227 of the Constitution of India, the Petitioner has prayed for quashing the order, Annexure F, which reads as under:

HIMACHAL PRADESH TRANSPORT DEPART- MENT OFFICE ORDER Simla-1, the 4th February, 1974

No. H.O.: 9E-826/73-A.--Shri H.R. Kapoor ad hoc C&S Superintendent is hereby reverted to his original post of officiating Head Assistant with immediate effect.

He is posted in the Head Office vice Shri R.L. Kapoor, as Head Assistant, on return from leave.

By order, S.K. Alok Commissioner Transport, Himachal Pradesh.

The Petitioner is an employee of the Himachal Pradesh Government Transport since 1949. He was promoted as a Head Clerk on 24-2-1962. On 9-8-1966 he was promoted as a Superintendent on ad hoc basis and he continued to work as such till 30-9-1966. Again, with effect from 25-11-1968 he was promoted as a Head Assistant and thereafter again as a Superintendent on ad hoc basis with effect from 25-1-1971, vide order, Annexure A. This ad hoc promotion was made on the recommendation of the Departmental Promotion Committee. The Petitioner submitted that at the instance of certain interested persons and with an ulterior motive the Respondent No. 2 issued the memo, dated 2-7-1973, to the Petitioner stating that he (Respondent No. 2) proposes to hold an enquiry against the Petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, (hereinafter called the Rules of 1965). The Petitioner sent a reply to the said memo, asking Respondent No. 2 to supply him certain documents to enable him to give a proper reply to the memo. Thereafter he was asked to give the details of the documents. He furnished the details but no reply was given to him nor the documents had been supplied. On 8-3-1974 when the Petitioner was on leave he was informed that he was required to attend his office on 6-3-1974. On joining his duties he learnt that an office order (Annexure F) was passed on 4-2-1974 by Respondent No. 1 reverting him as officiating Head Assistant with immediate effect. Simultaneously the Respondent No. 1 issued another office order appointing Respondent No. 3 on officiating basis to the post held by the Petitioner, and copy of that order is Annexure G. He, therefore, has challenged both these orders. The Petitioner has contended that the reversion order has not been made in the ordinary course and apparently it is as a measure of punishment. The departmental enquiry is proposed to be held against the Petitioner in respect of certain transactions which took place as far back as 1965 with which the Petitioner had no direct concern and that even before holding the enquiry the Petitioner had been punished in that he has been reverted to a lower post. The Petitioner had applied to furnish him some documents so that he could reply to the articles of charges but no documents had been supplied to him and even before any charge could be proved against him he is being punished. The motive behind this is manifestly ulterior. The reversion is a punishment with a stigma. The Respondent No. 2 had no power or authority to initiate a departmental enquiry against the Petitioner as the Respondent is not his appointing authority. The reversion of the Petitioner constitutes a legal mala fide in the eye of law, and the order is also violative of the principles of natural justice and fair play besides highly discriminatory in character. There are two permanent posts of Superintendents in the office of Respondent No. 1. The Respondent No. 3 was promoted to one of the posts in 1972, whereas the Petitioner had been promoted during the year 1971. There is absolutely no exigency or expediency to fill up the post held by the Petitioner. As such the order of reversion is apparently unreasonable and mala fide, the motive being to harm him. The reversion amounts to a major penalty and no such penalty could be imposed before an opportunity is given to the Petitioner to defend his case and the charge is proved. In these circumstances he prayed for quashing the order of reversion.

The Respondents 1 and 2 raised preliminary objection that the Petitioner has no locus standi as his appointment to the post was purely on ad hoc basis. Shri Ashwani Kumar had already been appointed in his place on regular basis with effect from 4-2-1974, hence the petition was infructuous. Further, it was averred that the department had one temporary and nine permanent posts of Superintendents sanctioned on its State basis cadre. The temporary post came to be converted into permanent one from 26-12-1973. There were ten lien holders against the posts of Superintendents who had been promoted. Therefore on 25-1-1971 when the Petitioner came to be promoted on ad hoc basis he could not claim appointment against a permanent post in preference to his seniors. In reply to para 4 it was submitted that there were serious allegations against the Petitioner. The Petitioner had been served with a charge-sheet as per Annexure B to the petition. It was denied that he was charge-sheeted with an ulterior motive or at the instance of any individual or that there has been any delay on the part of the department. The Respondent No. 2, the Deputy General Manager (Com.), was the Head of the Office in respect of the Headquarter''s office of the Department, where the Petitioner was on the rolls at the relevant time. He was thus fully competent to initiate departmental proceedings under Rule 14 of the C.C.S. (C.C. and A.) Rules, 1965, against the Petitioner. The Departmental Promotion Committee (hereinafter called the D.P.C) met on 31-1-1974 to consider and select persons against various vacant posts including the category of Superintendents. As a result, the Petitioner was reverted from his ad hoc post to that of his officiating appointment as Head Assistant with effect from 4-2-1974. It was further submitted that the reversion of the Petitioner from a purely ad hoc status to his officiating status was neither wrong nor illegal or inoperative in any way, instead it was valid and lawful order. The Petitioner had not been reverted either from his substantive or officiating status of Head Clerk or Head Assistant respectively. The Petitioner had duly been considered for the post of Superintendent in accordance with his place in seniority/eligibility and his result has been placed in safe custody for necessary action, as soon as the Petitioner clears himself of the departmental proceedings. The Respondent No. 3 was rightly promoted on officiating basis.

The Respondent No. 3 also supported the submissions made by the Respondents 1 and 2 in their affidavit. He further submitted that he too was promoted as Superintendent on ad hoc basis on 23-9-1972 after consultation with the Himachal Pradesh Public Service Commission. Later on the new rules known as Himachal Pradesh Government Transport Department (Class III Non-Gazetted) Service Recruitment, Promotion and Certain Conditions of Service Rules, 1973 (hereinafter referred to as the Rules of 1973) were promulgated on 8-1-1974 and the Respondent has now been promoted as Superintendent on the basis of those rules with effect from 4-2-1974. After the enforcement of the rules the ad hoc are coming to an end when regular appointments are being made.

I have heard the learned Counsel for the parties. In my opinion, the Petitioner is not entitled for a relief for quashing the disciplinary proceedings initiated by the department against him in view of the fact that he has not made any prayer for quashing the same. He has undoubtedly made averments that Shri Kehar Singh, Deputy General Manager, was not competent to initiate the proceedings against him on the grounds mentioned in the petition, but no relief can be granted in the absence of any specific prayer as these are proceedings of extraordinary jurisdiction. The learned Counsel had submitted that he had made a prayer in the relief clause that he may be granted any other appropriate writ, order or direction that may be consistent with the facts and circumstances submitted in the writ petition and by which substantial justice may be done to the Petitioner. But, as already stated, this being an extraordinary jurisdiction exercised by the Court the prayer of the Petitioner cannot be allowed.

Now the only question that survives is the question whether the reversion is by way of punishment and not in the ordinary course. The promotion order in Annexure A, dated 23rd January, 1971, which says that he is promoted on ad hoc basis to the post of Costing and Statistics Superintendent in the scale of Rs. 400-650 and in para 2, however, it has been stated that Shri Kapoor''s ad hoc promotion will not confer upon him any right of seniority, etc. It is admitted that the Petitioner continued to work as a Superintendent till 4-2-1974, but the department contends that the temporary post came to be converted into permanent one from 26-12-1973. It was, however, admitted that there were ten posts of Superintendents in the Department and Sarvshri B.N. Raina, B.S. Handa, P.L. Gupta, Murari Lal, Jawahar Lal, B.D. Dubey, H.C. Aggarwal, Niggam Singh and Ram Singh are holding liens on those posts. It is also not disputed that none of the lien holders who had been promoted to the H.A.S. (Himachal Administration Service) were reverted. The only submission is that the temporary and ad hoc appointments were terminated and in its place permanent appointments were made on the recommendations of the D.P.C. The Petitioner, according to the admission of the Respondents also was considered by the D.P.C. and the recommendations of the D.P.C. have been kept in a sealed cover till the time the disciplinary proceedings are concluded and the Petitioner is exonerated from the same. Therefore, from this what would follow is that the Petitioner has been ignored or debarred from promotion because of the fact that the departmental proceedings are pending against him. He had already been promoted and is working on ad hoc basis as admitted by the Respondents although he had no right to continue. He had admittedly been appointed against one of the posts on which there was a lien of one of the ten persons, who had been promoted to officiate as H.A.S. officers. Unless they reverted the Petitioner also could not be reverted. If his reversion was ordered because of the pendency of the disciplinary proceedings then it is nothing short than punishment.

The learned Counsel has emphasised as to what is an ad hoc post and he has placed reliance on a number of authorities.

The first is Malinath Jain v. Municipal Corporation of Delhi and Ors. 1973 (1) S.L.R. (Del) 413], which says that even for an ad hoc promotion all eligible persons have a right to be considered under Article 16(1) of the Constitution. Therefore, it has got no relevancy in the present case.

The second authority is Som Math and Anr. v. Union of India and Ors. 1973 (1) S.L.R. (Del) 737. In this case the only question was whether ad hoc promotion could not last beyond a certain time limit. Therefore, this authority has also got no application.

The learned Counsel has also contended that even a temporary Government servant is entitled to protection of Article 311. This Article does not make any distinction between a permanent and a temporary post or officiating post. That protection is limited to the three major penalties contemplated by the service rules, viz, dismissal, or removal or reduction in rank by way of punishment and reliance is placed on The Divisional Personnel Officer, Southern Railway Vs. S. Raghavendrachar, There can be no dispute with the principle. But we have to examine the facts so as to attract the applicability of the principle to a particular case.

Further it has been contended that this order Annexure F read with order, Annexure G will clearly indicate that this is not an order of reversion simplicitor so as not to amount to reduction in rank but it is a reversion by way of punishment and that even though he is holding an ad hoc appointment yet he is entitled to the protection of Article 311 and support is drawn from K.H. Phadnis Vs. State of Maharashtra, , wherein it had been held:

A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence. Therefore, though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of "accident of service" in which a person sent from the substantive post to a temporary post has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be as tigma. On the other hand, if there is evidence that the order of reversion is not "a pure accident of service" but an order in the nature of punishment, Article 311 will be attracted.

Reliance is also placed on P.C. Wadhwa Vs. Union of India (UOI) and Another, where the Appellant, a member of the Indian Police Service, holding the substantive post of Assistant Superintendent of Police in the State of Punjab was promoted to officiate as Superintendent of Police, which was a post carrying a higher salary in the senior time-scale and posted as Additional Superintendent of Police. After he had earned one increment in that post, he was served with a charge-sheet and before the enquiry, which had been ordered, had started, he was reverted to his substantive rank of Assistant Superintendent of Police, the ground suggested for reversion being unsatisfactory conduct. No details of the unsatisfactory conduct were specified and the Appellant was not asked for any explanation. At the time when the Appellant was reverted, officers junior to him in the I.P.S. Cadre of the State were officiating in the senior scale and, therefore, it was held that the order of reversion made against the Appellant was in effect a ''reduction in rank'' within the meaning of Article 311(2) of the Constitution and inasmuch as he was given no opportunity of showing cause against the said order of reversion, there was violation of Article 311.

The further authority is State of Mysore v. R.R. Kulkami and Ors. (1972 S.L.R. (S.C.) 795. In this case it was held that in case of reversion from officiating post though Article 311 was not attracted but order should be quashed where power of reversion had been used for a purpose for which it had not been intended or power was used for collateral or extraneous purpose and that it was not necessary that object of reversion was to benefit others.

In State of Punjab and anr. v. Shri Jugal Kishore Gupta 1971 (1) S.L.R. (P&H) 784, the Respondents were officiating Sub-Divisional Officers. A screening committee was appointed to see whether they could be taken into Class II Service. The screening committee made a recommendation that they were not fit to be taken into Class II Service. This recommendation was forwarded to the Public Service Commission. The Public Service Commission dittoed the same, with the result that the Government of Punjab passed an order reverting the Respondents to their substantive rank. The Respondents challenged the order contending that the order reverting them to their substantive rank on the ground that they were not suitable for promotion amounted to a stigma and, therefore, it was invalid in view of the provisions of Article 311 of the Constitution of India. The writ petition was allowed. The State Government filed a Letters Patent Appeal. Therefore, dismissing the appeal of the Government it was held that reversion from officiating post on the report of the screening committee was invalid and the committee should have heard the officers before coming to conclusion whether they were fit or unfit to be promoted.

Lastly, I may also cite State of Uttar Pradesh and Ors. v. Sughar Singh (1974) 2 S.C. W.R. 80, which says that Article 311 applies to both permanent and temporary civil servants and that the motive is alone relevant for applicability of Article 311. In this authority it has been laid down:

An order of reversion is in its immediate effect bound always to be a reduction in rank. Even a reversion from a higher but temporary or officiating rank to a lower substantive rank is in a sense a reduction. But such orders of reversion are not always reduction in rank within the meaning of Article 311. If the officer is promoted substantively to a higher post or rank, he gets a right to that particular post or rank and if he is afterwards reverted to the lower post or rank which he held before, it is a "reduction in rank" in the technical sense in which the expression is used in Article 311. The real test in all such cases is to ascertain if the officer concerned has a right to the post from which he is reverted. If he has right to the post then a reversion is a punishment and can not be ordered except in compliance with the provisions of Article 311. If, on the other hand, the officer concerned has no right to the post he can be reverted without attracting the provisions of Article 311. But even in this case, he cannot be reverted in a manner which will show conclusively that the intention was to punish him. The order itself may expressly state that the officer concerned is being reverted by way of punishment. In fact the order may in various other ways cast a stigma on the officer concerned. In all such cases the order is to be taken as a punishment. Sometime again the order of reversion may bring upon the officer certain penal consequences like forfeiture of pay and allowances or loss of seniority in the subordinate rank or the stoppage or postponement of future chances of promotion: in such cases also the government servant must be regarded as having been punished and his reversion to the substantive rank must be treated as a reduction in rank. In such a case Article 311 will be attracted.

It is quite undisputed that the Petitioner was promoted on ad hoc basis with no right of seniority, etc. and he continued to work right from 1971 till February, 1974, when he was reverted. This also cannot be disputed that the Petitioner being an ad hoc appointee could not claim a right to the post. The contention of the opposite party was that regular appointments were made to the posts and that in so far as the Petitioner was concerned the recommendations of the D.P.C were kept in a sealed cover because of the pendency of the disciplinary proceedings against him and, therefore, he was reverted from the post till such time he was exonerated from the charges and Respondent No. 3 was promoted in his stead with a specific direction that he will have no right to the post when Shri Kapoor is exonerated from the disciplinary proceedings. Therefore, the only conclusion that can legitimately be drawn is that the reversion of Shri Kapoor was not because of the fact that he was an ad hoc appointee but because there were departmental proceedings pending against him. It is immaterial that the recommendations of the D.P.C. were kept in a sealed cover. It is also admitted that he is senior and on the basis of merit-cum-seniority he was promoted on the recommendation of the D.P.C. in the year 1971 also. But that was an ad hoc appointment and, therefore, the submission of the Respondents cannot be accepted as correct that the Petitioner had been reverted because the promotions were made on regular basis. The principle enunciated in these authorities is clearly applicable to the facts of the present case inasmuch as the order Annexure F read with Annexure G is attended with a stigma. The order Annexure F undoubtedly is an order of reversion simpliciter but the order Annexure G of the same date which is to the following effect will make it clear that he has been reverted to his substantive post of Head Assistant because of the pendency of the disciplinary proceedings against him:

HIMACHAL GOVERNMENT TRANSPORT DEPARTMENT OFFICE ORDER Simla-1, the 4th February, 1974

No. HO-9E-826/73A.--Shri Ashwani Kumar, substantive Auditor (Rs. 225--500) is hereby given officiating promotion to the post of a C&S. Superintendent (Rs. 400--650) w.e.f. the date he takesover as such, till the disciplinary proceedings against Shri H. R. Kapoor, Officiating Head Assistant get decided.

Shri Ashwani Kumar would continue to be posted as a C&S. Superintendent in the Head Office till further orders.

In consequence the ad hoc status as a C&S. Superintendent in operation in the case of Shri Ashwani Kumar shall stand revoked simultaneously.

The officiating promotion of Shri Ashwani Kumar to the post of a C&S. Superintendent would not in any way offer any right or claim upon him and the matter would be considered when Shri H.R. Kapoor is cleared of the disciplinary proceedings/vigilance case pending against him.

By order, S.K. ALOK, Commissioner Transport, Himachal Pradesh.

From the order it is also clear that the officiating promotion of Shri Ashwani Kumar was not to confer any right or claim upon him and the matter would be considered when Shri Kapoor is cleared of the disciplinary proceedings/vigilance case pending against him. So, by no stretch of imagination can this be construed as a order of reversion simpliciter not casting a stigma on the Petitioner. The Petitioner is definitely deprived not only of his seniority, etc. but also pay and other emoluments and in my opinion this is a clear case of reduction in rank attracting the provisions of Article 311 of the Constitution.

Shri Section Malhotra appearing for Shri Ashwani Kumar Respondent No. 3 has argued that the appointment is ad hoc and it does not give him any right. The ad hoc appointment does not prevent the Government from filling the post on regular basis and if no permanent status is conferred upon the Petitioner the order cannot be termed as by way of punishment. He has also drawn my attention to the appointment order, Annexure A and the Annexure R-3A, i.e. the seniority list. It would appear from the seniority list that there are as many as seven permanent posts of Superintendents and three temporary posts. Shri H.R. Kapoor Petitioner and Shri Ashwani Kumar have been shown as ad hoc appointees at Nos. 11 and 12 respectively. It is in the written statement of Respondent No. 3 as also admitted by the Respondents 1 and 2 that ten persons have already been taken in the H.A.S. and they are lien holders and these ad hoc appointments were also made consequent to the vacancies created by their promotion to the H.A.S. and now that they have made regular appointments and the Petitioner was also considered. That is true. But the Petitioner could not that way be reverted even if he was holding that post on ad hoc basis by casting a stigma or in anticipation of the conclusion of the disciplinary proceedings pending against him. Therefore, in my opinion, the contention raised by Shri Malhotra learned Counsel for Respondent No. 3 that he was only an ad hoc appointee and he had no right to the post and the Government was not debarred from filling the post on regular basis is not of any consequence. The Petitioner though considered he could not be reverted after he had qualified and this order of reversion, therefore, is by way of punishment, as is clear from the attendant circumstances already mentioned above.

Learned Counsel has also referred me to A.N. Bhoil v. Union of India and Ors. 1973 (2) S.L.R. 726, to show as to what are ad hoc appointments. There can be no dispute that ad hoc appointments are made to meet certain exigencies of service and once those exigencies are over the ad hoc appointments cease and regular appointments can be made. But the facts of the Present case are quite different inasmuch as the Petitioner and the Respondent No. 3 were both ad hoc appointees and the Government made regular appointments to the posts. The Petitioner was ignored from appointment solely on the ground that disciplinary proceedings were pending against him and Respondent No. 3 who was, as can be spelt out from the order Annexure G, was junior and had a lesser merit was appointed on a regular basis only till such time that the Petitioner was not exonerated from the disciplinary enquiry pending against him. Therefore, this order is nothing but an order by way of punishment attracting the applicability of Article 311 of the Constitution. Hence A.N. Bhoil''s case (supra) will not be applicable.

The authority State of Haryana v. Rajinder Sarin 1972 S.L.R. (S.C.) 112, also does not assist the Respondent inasmuch as it was a case about the interpretation and scope of Rule 10(1)(2) and (3) of the Punjab Public Relations Department (Gazetted) Service Rules, 1958, whereunder a period of probation of two years had been fixed for a person appointed against a substantive vacancy. In the present case before me I am not concerned with the period of probation but here I am concerned as to whether a person who had been appointed on ad hoc basis along with others and again when the posts were to be regularly filled in the Petitioner was also considered and the recommendations of the D.P.C. were placed in a sealed cover and he was not appointed and was reverted, whereas the other person who was lesser in merit and junior to him had been promoted on a tacit condition that the promotion will not give him any right to continue in the post and that his promotion would be only subject to the order of Petitioner in the disciplinary proceedings passed against him.

The further authority relied upon by Champaklal Chimanlal Shah Vs. The Union of India (UOI), . But I find that this authority has got no applicability to the facts of the present case.

Support is also drawn from Union of India and anr. v. Gajendra Singh etc. 1972 S.L.R. (SC) 537, which says:

Appointment to a post on an officiating basis is, from the nature of employment, itself of a transitory character and in the absence of any contract or specific rule regulating the conditions of service to the contrary, 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 his pay or allowance or the loss of his seniority in the substantive rank or the stoppage or postponement of his 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 employment, in truth and reality, the termination was by way of penalty.

But this authority does not assist the Respondent, rather it helps the Petitioner.

Similarly Union of India and Ors. v. R.S. Dhaba 1969 S.L.R. (S.C.) 442, will not assist him because the facts are different inasmuch as in the present case the Petitioner has been reverted mainly in anticipation of the disciplinary proceedings. Regular appointments had been made. He too had been considered. His regular appointment had been withheld and Annexure G states quite clearly that he could not be appointed to the regular post merely because the disciplinary proceedings were pending against him and the Respondent No. 3 was appointed only subject to the condition that the Petitioner is not cleared from the departmental proceedings and if he is cleared of then in that case it has been made specific that the Respondent will have no right to continue in the post and this is nothing but a stigma and this reversion, as stated before, has been made by way of penalty to which the provisions of Article 311 were clearly attracted.

Shri Hari Krishan learned Counsel for the Respondents has mainly dwelt on the point that the earlier appointment was ad hoc and it was only to continue till such time permanent or regular appointments were made to the posts on the recommendation of the Public Service Commission. According to him, the Public Service Commission was constituted only on 8th April, 1971, after the attainment of Statehood and the posts of Superintendents fell within the purview of the Public Service Commission and in the month of December, the Government issued a notification that the Public Service Commission is to be consulted in matters of appointments. But it may be stated that there is no averment made in the written statement to this effect. Therefore, this point cannot be considered at all. He had also stated that in October, 1973 the post had been taken out of the purview of the Public Service Commission and, therefore, it took time for approval, etc. and as such the Petitioner was permitted to continue on ad hoc basis till February, 1974, when he was ultimately reverted and, therefore, he says that this ad hoc appointment does not give him any right. I have already dealt with this point. There can be no dispute that ad hoc appointment does not give any right to the Petitioner. But here the Petitioner had been considered and then he was reverted on the specific order, as mentioned in Annexure G of the same date which is given in Annexure F also. These two orders have been split up only for purpose of communication, otherwise it must be treated as one order and this order is nothing but an order of punishment.

Shri Hari Krishan cited authorities to show that ad hoc appointments confer no right and I need not cite those authorities as there can be no dispute with the principle, but the facts, as stated, are quite distinguish-ble in the present case.

He has further argued that it is the discretion of the Government to judge the suitability of a candidate. There can also be no dispute. But the orders, Annexures F and G when read together leave no manner of doubt to conclude that the order of reversion is not because of the fact that he has got no right to the post but because there are disciplinary proceedings pending against him and Respondent No. 3 has been promoted till the Petitioner was not cleared of from the disciplinary proceedings.

In the light of above, I am of the view that the order casts a stigma and has been passed by way of punishment and is in violation of Article 311(2) of the Constitution. It is not a reversion simpliciter, but it entails loss of pay, allowances and other emoluments attaching to the post. The result, therefore, is that the orders, Annexures F and G are quashed.

I pass no order as to costs.