Kedar Nath Agarwal vs The State of Ajmer

Nigam, J.C.

Kedar Nath Agarwal has filed this petition praying this Court to quash orders, dated 20-4-1951 and 19-7-1952 reducing the petitioner in rank & pay and to quash the proceedings taken by the Deputy Commr. suspending and punishing the petitioner as also the appellate order, dated 19-7-1952 so far as it goes against the petitioner. He also claims a direction to the State Government that the petitioner be placed in the position in Which he would have been if the impugned order had not been passed.

The facts alleged by the petitioner briefly are that on 15-11-1949 he was promoted to the rank of Selection Grade Assistant in the office of the Chief Commissioner, state of Ajmer in pursuance of the Departmental Promotion Committee''s proceedings, dated 17-11-1949. All of a sudden on 17-4-1951, the Secretary to the Chief Commissioner transferred the petitioner to the Deputy Commissioner''s establishment. The petitioner suggests that this action was taken as the petitioner had incurred the displeasure of the authorities. On 20-4-1951 the petitioner was posted as an officiating Upper Division Clerk in the Forest Office and thus he was reduced in rank and in pay by an authority subordinate to the appointing authority, that is the Chief Commissioner, without giving him an opportunity to show cause against the proposed punishment. On 2-5-1951 the petitioner, while on medical leave, was served, merely for information, with a communication from the Deputy Commissioner containing certain allegations and was, pending enquiry into those allegations of gross misconduct and indiscipline, placed under suspension. Finally the Deputy Commissioner passed an ex parte order on 1-8-1951 punishing the petitioner with the stoppage of two yearly increments and entry in the character roll and reduced pay during the period of suspension. It is suggested that the departmental proceedings were conducted in violation of the principles of natural justice. On appeal the order stopping the annual increments for two years was set aside, but the orders about the entry in the character roll and the pay during the period of suspension were maintained.

In their reply the State of Ajmer have urged that the petitioner was holding the rank of Selection Grade Assistant only in an officiating capacity and, as such, he could be reverted to his substantive post for administrative reasons. It is urged that the petitioner was neither victimised nor reduced in rank but was merely reverted to his substantive post by the appropriate authority and that such reversion does not amount to reduction in rank or any other punishment. As the legal rights of the petitioner have not been infringed he has no grounds for complaint. For his conduct on 25-4-1951, the petitioner was suspended on 3-5-1951 and was served with a charge-sheet on 8-5-1951. After an enquiry affording all reasonable facilities, the Deputy Commissioner punished the petitioner as stated in the petition. It is further urged that the petitioner is not entitled to any relief by this Court as the decision of his petition requires detailed enquiry into allegations of fact and as such, he should seek the appropriate remedy by a regular civil suit.

I have heard the learned counsel for the petitioner and the learned counsel for the State of Ajmer.

It has been conceded before me that it la not the Chief Commissioner who is the appointing or the dismissing authority in respect of the petitioner. The Secretary to the Chief Commissioner has that authority since 1950.

The first question for my determination is whether the petitioner was holding the post of Selection Grade Assistant in a substantive or officiating capacity. Now, there is not much dispute that the post of Selection Grade Assistant actually created was a temporary post. That fact would not affect the position if the petitioner was holding that post substantively; he could not be reduced in rank without complying with the requirements of Article 311 of the Constitution. If, on the other hand, he was holding the post in an officiating capacity, he could be reverted for administrative reasons, but not by way of penalty, without being entitled to the procedure prescribed under Art. 311.

The learned counsel for the petitioner has urged that the petitioner was holding the post in a substantive capacity. It is admitted that no orders appointing the petitioner to this post substantively (or even in an officiating capacity until further orders) were actually passed. The learned counsel points out that there was no permanent incumbent of this post and, as such, the petitioner could have been appointed to the post only substantively. I am unable to agree with the learned counsel. It is possible that no substantive appointment may be made to a permanent post as the rules may require that a certain procedure be gone through before a substantive appointment could be made and yet it may be necessary in the interest of the administration to make an appointment. I am of opinion that a temporary appointment could be made to a post on which no other officer had a lien. Therefore, I am unable to agree with the learned counsel''s argument that when there is no other officer holding a lien on a particular post, the person holding that post must be deemed to have been appointed thereto substantively.

The question has therefore to be considered in the light of the orders and circumstances of each particular case. As already stated there is no specific order either appointing the petitioner substantively to this post or appointing him in an officiating capacity or until further orders.

The learned counsel for the State of Ajmer has drawn my attention to para 6 of Appendix ''B'' to the petition. In this the petitioner stated: While officiating as Selection Grade Assistant ......'' The petitioner''s case in the petition is that he was appointed to the post of the Selection Grade Assistant in a substantive capacity. The learned counsel for the State of Ajmer has also drawn my attention to the various orders issued by the State authorities in all of which the petitioner has been described as officiating in the post of the Selection Grade Assistant. I am of opinion that unless a person can affirmatively show that he has been appointed to a post substantively or has been confirmed in the appointment, the normal presumption would be that he had been appointed only in a temporary or officiating capacity. He would be entitled only to a presumption of the lesser in the absence of proof of the greater. This finds support in the statement of the record of service of the petitioner, Appendix ''B'', and also orders by the Chief Commissioner, Ajmer-Merwara, ''Appendix C''.

I am, therefore, of opinion that in the particular circumstances of the present case, it must be held that the petitioner was holding the post of a selection Grade Assistant in an officiating capacity until further orders. As such, unless the petitioner was reduced as a penalty, no reasons need be assigned for reversion to his substantive rank.

The next question for my consideration is whether the petitioner was reverted for administrative reasons or as a penalty for some fault or alleged fault of his.

Appendix ''C'' is a copy of the order, dated 17-4-1951. It is signed by the Secretary to the Chief Commissioner, Ajmer. It reads:

For administrative reasons Sri Kedar Nath Agarwal, Substantive Upper Division Clerk and at present officiating as a Selection Grade Assistant is transferred to the Establishment of the Deputy Commissioner, Ajmer, with, immediate effect.

On 20-4-1951 the Deputy Commissioner passed an order transferring the petitioner to the Forest Office (Copy Appendix ''E'').

On 2-5-1951 a communication (Appendix ''C'') was sent to the petitioner. It reads:

The Secretary to the Chief Commissioner has intimated that there is reason to believe that you have been engaging yourself in activities prejudicial to the interests of Government and also your conduct in the past has not been free from blame in the matter of divulging official information to unauthorised persons, you are not considered fit to continue to officiate as a Selection Grade Assistant in the Chief Commissioner''s Office. Accordingly you are reverted to your substantive post of upper division clerk with effect from the 18th April 1951 and are transferred to the office of the Deputy Commissioner, Ajmer.

The same day another order (Appendix ''P'') was passed suspending the petitioner with immediate effect pending enquiry into allegations of gross misconduct and indiscipline etc. A charge sheet (Appendix ''Q'') was framed on 7-5-1951 and was communicated to the petitioner on 8-5-1951. There are two charges, (i) of maliciously making insinuations against the Secretary to the Chief Commissioner and (ii) continuing to make these insinuations even after being asked to submit a representation in writing.

As a result of the enquiries, the Deputy Commissioner passed the order dated 1-8-1951 which has already been referred to above. A departmental appeal was preferred by the petitioner. Appendix ''Y'' was sent by the Chief Secretary to the Ajmer Government to the Deputy Commissioner with copy to the petitioner. This communication stated that as the petitioner was not given adequate opportunity to clear himself and as the evidence against him to indicate the malicious nature of the insinuations was not adequate, the punishment of withholding the annual increments was set aside but the other two punishments were maintained. A communication Appendix ''N'' was sent by the Chief Secretary to the petitioner telling him that his appeal as regards his reversion from the officiating post of Selection Grade Assistant to his substantive post of Upper Division Clerk had been rejected but his appeal against the order of transfer had been accepted and he was being posted to the Civil Secretariat to his substantive post of Upper Division Clerk.

The learned counsel for the petitioner has drawn my attention to Appendix ''C''. The learned counsel suggests that this communication, in fact, informed the petitioner of the reasons for his reversion to his substantive post. The learned counsel points out that two charges were levelled against the petitioner and he was thereupon considered not fit to continue to officiate as a Selection Grade Assistant in the Chief Commissioner''s office, and was, accordingly, reverted to his substantive post with effect from 18-4-1951. The learned counsel contends that this communication though from the Deputy Commissioner, who was not entitled to punish the petitioner before 20-4-1951, was in fact a communication from the Secretary to the Chief Commissioner who had the authority of awarding punishment. The learned counsel has also drawn my attention to Appendix ''Q'' which states:

............ though in fact your reversion and transfer was due to your own unreliability and for which you had been repeatedly warned.

The learned counsel has pointed out that in the order, dated 17-4-1951, there was no order of reversion. The order was merely one of transfer to the establishment of the Deputy Commissioner. It is, however, conceded before me that there is no post of a Selection Grade Assistant in the establishment of the Deputy Commissioner.

It can, therefore, be inferred that the order of 17-4-1951 also implied an order of reversion to the substantive rank of the Upper Division Clerk. The learned counsel for the petitioner has urged that Appendix ''O'' & Appendix ''Q'' must be read together with Appendix ''C in order to understand the nature and reasons for the reversion. The learned counsel urges that from Appendix ''C'' and Appendix ''Q'' it is clear that the petitioner was being, reverted to his substantive rank by way of penalty or punishment.

The learned counsel for the State of Ajmer, has, on the other hand, argued that the order of reversion was passed on 17-4-1951. It is clearly stated that the transfer (and therefore also reversion) was being made for administrative reasons. The learned counsel has further urged that any communication from the Deputy Commissioner who had no authority to punish the petitioner before 20-4-1951 could not be used as interpreting the order passed by the Secretary to the Chief Commissioner.

No communication from the Secretary to the Chief Commissioner to the Deputy Commissioner has been produced before me. From Appendix ''O'' it appears to me that the secretary to the Chief Commissioner had intimated two charges that is (i) there was reason to believe that the petitioner had been engaging himself in prejudicial activities and (ii) the petitioner had been divulging official information. Possibly these were the administrative reasons for which the petitioner was reverted. There should be some reason for every administrative order which is not passed on the whim of the authority concerned. I am of opinion that reasons do not matter where the authority concerned proposes to take an action for administrative reasons and does not propose to take an action by way of penalty or punishment. The procedure prescribed by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules need not be followed where the order on the face of it proceeds on administrative grounds and not by way of punishment. I am, therefore, of opinion that in the particular facts of the case it must be held that the order of transfer as well as of reversion was passed on account of administrative reasons and not as punishment. It is obvious that the order cannot operate as a bar so far as future promotions are concerned.

I have next to consider the order passed on 1-8-1951 by the Deputy Commissioner. I agree with the learned counsel for the petitioner that in view of the conclusions stated in Appendix ''Y'' it must be held that the petitioner was not afforded adequate opportunity to clear himself of the charges framed against him. It must therefore be held that the enquiry was not conducted in the proper manner. The punishment imposed will have to be set aside if this Court has jurisdiction to look into the matter. The learned counsel has also pointed out that while there was no charge against the petitioner of having refused to leave the Chief Commissioner''s room, he was punished on this charge. I am also not prepared to agree with the learned counsel for the State of Ajmer that reduced pay during the period of suspension does not amount to ''reduction in (sic). It cannot be gainsaid that so far as the reduction in rank is concerned, this Court has jurisdiction to look into the matter. I am, accordingly, of opinion that an order should issue directing the State of Ajmer to pay to the petitioner his whole salary for the period he remained under suspension minus the amounts already paid.

As regards the entry in the character-roll the contention of the learned counsel for the State of Ajmer is that this Court is not entitled to look into the matter. I have been referred to -- ''Veradaraja Iyer v. State of Travancore-Cochin'', AIR 1953 TC 140 (A). Head-note (f) reads:

.................. Any regulations and Standing Orders relating to Civil Service are only for the guidance of the Government and their Officers. Any violation thereof does not confer a right of action for the aggrieved civil servant against the Government........

Head-note (c) reads:

..................So long as the statutory inhibitions, if any, are not contravened the civil servants have no right to complain or any cause of action against the Government for or on account of the Government terminating their services.............

I have also been referred to -- '' AIR 1945 47 (Federal Court) The passage relied upon appears at page 55 column 2:

.................. In our view the question whether R. 55 was in force or whether or not it was in fact in this case complied with is not relevant, for even if it were in force and had not been complied with, it is in our judgment clear that failure to comply with such a rule could not give Mr. Lall any legal cause of action: See '' AIR 1937 31 (Privy Council) .

Dr. M. Krishnamoorthy Vs. The State of Madras and Another, lays down as below:

that the fact that rules are made to safeguard the rights of civil servants in matters of disciplinary action does not mean that the H.C. has jurisdiction to quash orders of Government dismissing a civil servant because one or other of the rules has been contravened. As there was no contravention of Article 311 of the Constitution the H.C. had no jurisdiction under Art. 226 to quash an order of dismissal by the Govt.

It is clear that Article 311 does not mention the punishment of censure and, as such, the question of contravention of that Article could not arise in respect of an entry in the character roll. I am, therefore, of opinion that this Court has no Jurisdiction under Article 226 to quash an order of an entry being made in the character-roll of the petitioner.

In the result, I direct the issue of an order to the Government of the State of Ajmer, to pay to the petitioner the full pay for the period 2-5-1951 to 1-8-1951, both days inclusive, minus such amounts as may have been paid to the petitioner in respect of this period. The other prayers are refused.

The petition succeeds only in part and I grant Rs. 25/- as costs to the petitioner.