Rabindra Nath Das vs The General Manager, Eastern Railway

Chakravartti, C.J.—This appeal involves a question of some importance under Article 311(2) of the Constitution of India which has been considered in some previous cases in certain of its aspects, but not in the aspect which calls for consideration here. The question is whether reversion of a Government servant to his substantive post from a higher post in which he was officiating is reduction in rank within the meaning of Article 311(2), when such reversion is on the ground of the Government servant''s unsuitability for the higher post, disclosed in the course of his performance of its duties.

The Appellant Rabindra Nath Das entered service under what was then the East Indian Railway as a clerk on November 16, 1918. Apparently he shaped well and by 1946 rose to be the chief clerk in the Coal Office of the Railway. By that time, the management of the Railway had been taken over by the State. In 1948, the Appellant was appointed by way of a stop-gap arrangement to officiate in a Gazetted post as Assistant Superintendent (Coal) and served in that capacity for about a month. Thereafter, he reverted to his substantive post of Chief Clerk, but again officiated as Assistant Superintendent (Coal) for a short term in 1949, in October, 1951, when the Office Superintendent of the Operating Department was about to proceed on leave, preparatory to retirement, the authorities held a test for the purpose of forming a panel of officers from amongst whom office Superintendents could be drawn. Three persons were chosen, the selections in order of preference being one Mr. R.K. Nandy, the Appellant and one Mr. K. Banerjee. Mr. R.K. Nandy was already officiating in a Gazetted post as Assistant Superintendent (Goods I). Accordingly, when the Office Superintendent of the Operating Department, Mr. S.D. Chowdhury, proceeded on leave with effect from October 19, 1951, the Appellant was appointed to officiate in his place with effect from the same date. The order of appointment which was dated October 22, 1951, stated that the Appellant was being appointed "to officiate as Office Superintendent on pay Rs. 350 in ''''Grade Rs. 360-20-500/350-25-450, vice Shri Chowdhury". On the retirement of Mr. Chowdhury four months later, Mr. R.K. Nandy was appointed substantively to the post, but as he was still serving as Assistant Superintendent (Goods I), the Appellant continued to officiate. We were somewhat surprised to learn that no fresh order was passed, because, quite obviously, the original order of appointment exhausted itself as soon as Mr. Chowdhury retired. Be that as it may, the Appellant continued to officiate as Office Superintendent and was allowed the usual increment in the time scale at the end of a year of service. Then, in August, 1953, after he had served in the officiating post for about two years, he was served with a communication from the Deputy General Manager (Personnel), dated the 6th of the month and containing extracts from what was stated to be the Confidential Report regarding him for the year ending on March 31, 1953. The extracts consisted in adverse remarks on every aspect of the Appellant''s abilities and work and the last of them was to the effect that the Appellant was not fit for confirmation in the post but should be given a month or two more to show if he could improve himself, failing which he should be reverted. How any question of confirmation could arise is not clear, because a substantive appointment to the post had already been made in the person of Mr. R.K. Nandy. The author of the Confidential Report was one Mr. N.C. Kapoor, Chief Operating Superintendent and Head of the Department. On October 9, 1953, the Appellant submitted a representation as to the adverse remarks in the Confidential Report, but on the very next day, October 10 an order was made by the Deputy General Manager (Personnel), reverting him to his substantive post of Chief Clerk on a pay of Rs. 340 and appointing Mr. K. Banerjee, the next man on the panel, to officiate as Office Superintendent. On October 12, 1953, the Appellant submitted a further representation to the Deputy General Manager (Personnel), praying that his case might be reconsidered and the order of reversion cancelled. No reply to either of his representations having been received, the Appellant made over charge of the post of Office Superintendent on October 26, 1953 and on that very day preferred an appeal to the General Manager. On November 2, 1953, he sent a reminder as to the appeal. Thereafter he received a communication from the Deputy General Manager (Personnel), dated the November 14, 1953, which informed him that the Chief Operating Superintendent had passed an order on his appeal of October 26, and set out the text of the order. The order consisted of a number of observations addressed to the Appellant in the second person singular and stated that he had been found unsuitable for the post of Office Superintendent, that his faults had been pointed out to him, that as he had been reverted for inefficiency, he was not entitled to any notice to show cause against his reversion, nor entitled to prefer an appeal to the General Manager and that it had been highly reprehensible of him to make ill-founded personal accusations, as he had done. The Deputy General Manager''s communication added that the order passed by the Chief Operating Superintendent disposed of the Appellant''s representations of October 9 and 12, 1952, as well. The Appellant then made a further representation to the General Manager on November 20, 1953, in which he denied that he had made any ill-founded personal accusations in his appeal and stated that, on the other hand, Mr. Kapoor had subjected to him to abusive language and gross insults on several occasions after the Confidential Report. He added that, under the rules, his appeal should have been disposed of by the General Manager himself and he requested the Deputy General Manager to obtain the orders of the General Manager. The Deputy General Manager replied to the communication by a letter, dated December 14, 1953, in which he stated that since the Appellant''s reversion from the officiating post did not constitute a penalty, no appeal to the General Manager lay.

Thereafter on February 14, 1954, the Appellant moved this Court under Article 226 of the Constitution and obtained a Rule on the General Manager, Deputy General Manager and Chief Operating Superintendent to show cause why an order in the nature of a writ of mandamus should not be issued to them, directing them to forbear from giving effect to the order of reversion or why the said order should not be directed to be withdrawn or quashed. At the final hearing of the Rule, it was sought to be argued before the learned trial Judge that the order of reversion had not been made bona fide and that it had been brought about by Mr. Kapoor for a certain purpose of his own. Reference was made to the Appellant''s record of service, an alleged recommendation by Mr. Kapoor himself at an earlier stage for the creation of a graded post of Chief Clerk for the Appellant''s benefit, which was done and the unusualness of the drawing up in August of a Confidential Report for the year ended in the month of March. The learned Judge, however, held that no adequate materials had been placed before him on which he could find mala fides. The only point seriously urged before him was that inasmuch as proper facilities had not been afforded to the Appellant for showing cause against his reduction in rank, the provisions of Article 311(3) of the Constitution had been violated. The learned Judge repelled that contention by holding that reduction in rank contemplated by Article 311(2) was reduction by way of a penalty and not reduction in the normal course. Although reversion from even an officiating post to a lower post, held substantively, would come within the Article, if such reversion was directed as a measure of punishment, reversion on, the ground of incapacity for the duties of the officiating post did not, in the learned Judge''s view, involve any penalty and was therefore outside the contemplation of the Article.

A great deal of argument appears to have been addressed to the learned Judge as to whether the order for reversion was justified on the merits. He naturally held that he could not, on an application under Article 226, take it upon himself to decide whether the conclusion arrived at by the Railway authorities was correct or not.

In the result, the learned Judge discharged the Rule and thereupon the present appeal was preferred.

During the pendency of the Rule before the trial Court, the Appellant retired from service on reaching the age of superannuation. The question, therefore, even before the learned trial Judge, was only one of an ascertainment of his rights in the past. He does not contend that he ought to have been confirmed in the post of Office Superintendent. Indeed, he himself pointed out in his affidavit-in-reply that Mr. R.K. Nandy having been appointed to the post substantively-an appointment of which he made no grievance-no question of his confirmation could arise so long as Mr. Nandy retained his lien on the post. His only contention is that since Mr. Nandy was still not available for occupation of the post and the officiating vacancy was continuing, he ought not to have been removed from it after two years of service and reverted to his substantive post of Chief Clerk. Such aversion, according to him, was reduction in rank and even if he was not entitled to impugn it on the merits in an application under Article 226, he was at least entitled to impugn it on the ground that the requirements of Article 311(5) had not been complied with. The principal question in the appeal is whether in that contention the Appellant is right.

Before taking up that question. I might dispose of a subsidiary one. No point appears to have been taken before the learned trial Judge that the Appellant''s appeal to the General Manager had not been dealt with by the proper authority and in accordance with the rules. Nor has any such ground been taken in the memorandum of appeal. But the point had been raised in the petition of appeal as well as the affidavit in reply and was mentioned before us in the course of the opening of the appeal. The point is that the Appellant''s appeal had been properly addressed to the General Manager under Rule 1717 (a) of the Railway Establishment Code-he being the authority next above the Deputy General Manager who had ordered the reversion and that the appeal could not be disposed of, not even by the Deputy General Manager but virtually by the Chief Operating Superintendent himself who had drawn up the Confidential Report. It is true that if it was thought that the order for reversion did not amount to imposition of a penalty and therefore no appeal lay under Rule 1717(a), the appeal could be � withheld under Rule 1723(i), but it was only an authority not lower than the authority from whose order the appeal had been preferred, viz., the Deputy General Manager, who could withhold it and not the Chief Operating Superintendent. It was the latter who, in the first instance, passed an order to the effect that no appeal to the General Manager lay. It appears that in dealing with the appeal, the Chief Operating Superintendent was not content with recording the reasons for withholding it, though even the withholding was beyond his jurisdiction, but he proceeded to pronounce on the merits of the appeal, addressed though it was to none less than the General Manager. In so dealing with the appeal, the Chief Operating Superintendent obviously corrogated to himself an authority which he did not possess. It is true that there was a second letter from the Deputy General Manager in which, speaking in his own person, he told the Appellant that no appeal lay to the General Manager, but there is no reason to think that the opinion communicated was anything more than the decision conveyed by the previous letter which was expressly based on the order passed by the Chief Operating Superintendent and was in fact that order itself. As soon as the point was mentioned before us in the course of the opening address for the Appellant, Mr. Kar who appeared for the Respondents very fairly stated that so far as this point was concerned, he was prepared to concede it and that the Appellant''s appeal would be treated as not disposed of and would be considered by the General Manager on its merits. That concession, very fairly and generously made, relieves us of the necessity of considering the subsidiary point any further.

To revert now to the principal point, the facts are that the Appellant was officiating as Office Superintendent in the place of the permanent incumbent and not doing so under an order limited as to time. He was, while the officiating vacancy was continuing, removed from it on the ground that he had proved unsuitable for discharging its duties and reverted to his substantive post of Chief Clerk which was a lower post and another person was appointed to take his place in the officiating vacancy. The question is whether he was "reduced in rank" within the meaning of Article 311(3) of the Constitution. It is not disputed that, in reverting him, the procedure prescribed by Article 311(2) was not followed".

There can be no doubt that Article 311 to concerned only with disciplinary action of certain graver varieties that may be taken against civil servants of the Union or a State. It contemplates punishment and lays down what authority shall be competent to impose it and what opportunities the civil servant intended to be punished must have to defend himself against the proposed penalty. The Article has no concern with any action which may be taken in the normal course, conformably to the nature or the terms of an employment, and which does not partake of the nature of punishment. The words of the Article are "dismissed "or removed or reduced in rank". The penal character of the action described by the first two words is patent and the last words "reduced in rank" also contemplate only such reduction as amounts to a penalty. Those words are obviously linked with the third category of the penalties set out in Rule 49 of the Civil Service (Classification, Control and Appeal) Rules and the fifth category of those set out in Rule 1702 of the Railway Establishment Code, both expressed in the same language: "reduction to a lower post or time-scale or to a lower stage in a "time-scale". Whether reduction to a lower time-scale or to a lower stage in a time-scale would be reduction in rank, we need not pause to consider, but reduction to a lower post would certainly be such reduction.

It is, however, important to note that not every reduction, but only reduction by way of penalty is contemplated, just as the Article does not contemplate very removal from service, but only removal on the basis of some imputation or charge. Indeed, the whole object of Article 311 is to regulate to a certain extent the imposition of the graver penalties on Government servants and to afford some protection to a class of persons who hold their posts during the President''s pleasure. Its object, however, is not to attach conditions to the normal control and disposition of appointments in accordance with their nature or the rules governing them or contracts relating to them.

Reduction in rank thus involves two concepts. There must be reduction in the physical sense, in other words, a Government servant must be sent down or put back to a lower post from a higher one he was holding and such demotion or reversion must be by way of a penalty.

Can there be a reduction in rank within the meaning of Article 311(5) in the case of reversion of a Government servant to his substantive post from a higher post in which he was officiating? The question has been considered in certain judicial decisions. Earliest in point of time is the decision of the Nagpur High Court in the case of M.V. Vichoray v. The State of Madhya Pradesh AIR (1952) (Nag.) 288, where it was held that if a person officiating in a higher post was reverted to his original post in the normal course and not by way of penalty, he could not be said to have been reduced in rank within the meaning of Article 311(5), but if reversion was ordered as a penalty, it would amount to reduction in rank. That view was accepted by the Orissa High Court in the case of Kashinath Patnaik Vs. Sri P.K. Kapila, I.A.S. Secretary, Supply and Transport, Govt. of Orissa, , though the question did not arise for decision and by the High Court of Travancore-Cochin in the ease of Sebastion v. State AIR (1955) (T.C.) 12. In this Court the view was accepted by Bose, J. in the case of Amalendu Roy Chowdhury v. Kailash Behari Mathwr (1952) 56 C.W.N. 847, 851, and by Sinha, J. in the case of Jatindra Nath Biswas Vs. R. Gupta, Superintendent of Police and Others, . The decisions of the Orissa and Travancore-Cochin High Courts are both concerned with an officer who had been loaned to a different department and was returned by the borrower department to the lender department, but whether that fact would make any difference, was not considered.

Strictly speaking, it seems doubtful whether of the two requirements of "reduction in rank", even the first is satisfied in the case of a reversion from an officiating appointment. Reduction in rank connotes that a person attained a higher rank and from that rank he has been reduced. No one can be reduced from a rank which he has not attained. When a person is appointed to officiate in a post, he is either put there on trial in order to see whether he will make good and can properly be confirmed in ft or he is placed there for a stated period or until further orders by way of a temporary arrangement, either to act for the incumbent of the post or to perform its duties till permanent arrangements for filling it are made. In none of these cases does he really acquire the rank of the post in which he officiates. Without being the holder of the post, he simply occupies it. According to the definition given in Rule 2003(29) of the Railway Establishment Code, "a railway servant officiates "in a post when he performs the duties of a post on which "another person holds a lien or when a competent authority "appoints him to officiate in a vacant post on which no other "railway servant holds a lien". The definition given in Rule 9(19) of the Fundamental Rules is virtually the same. Thus, a Government servant who officiates in a post merely performs its duties without coming to hold the post and without having acquired its rank. He acquires the rank only when he is appointed substantively on confirmation, if he is confirmed. The fact that a Government servant, officiating in a post, earns the ordinary increment in the time-scale of the salary of that post, is no indication that he has attained to the post and holds its rank, because his very appointment is to officiate in the post, carrying a salary graded in a particular way, and therefore if he officiates long enough, he gets the increments automatically. I should therefore think that, in strict theory, a Government servant officiating in a post does not hold its rank and accordingly when he is reverted from it, no question of his being reduced in rank arises.

But it may be said, as it was said in the Orissa case, that a Government servant, officiating in a post, holds at least an officiating rank and since Article 311(2) speaks of "rank" in general terms without qualifying it in any way, reversion from an officiating post also may be reduction in rank within the meaning of the Article. Decisions which have applied Article 311(2) to cases of reversion from officiating appointments must have proceeded on that basis. Since this view seems to have been widely accepted, though without any discussion, and it is a view which favours the Government servant and is not altogether untenable, I shall accept it as correct. Still, the second requirement of "reduction in rank" must be satisfied in order that Article 311(2) may be applicable. The reduction must be by way of an imposition of penalty. It has been held in the cases to which I have referred earlier, rightly if I may say so with respect, that reversion from an officiating appointment in the normal course involves no penalty and is not reduction in rank, but when an officiating incumbent is reverted on grounds, such as indiscipline or misconduct, irrespective of whether he is fit for the officiating post or not, the reversion is by way of punishment and accordingly there is reduction in rank within the meaning of Article 311(5). The short question which falls for decision in the present case is whether reversion from an officiating post on the ground of unsuitability for it is reduction in the normal course, involving no penalty or reduction by way of punishment.

In my opinion, the answer to the question is plain. When a Government servant is appointed to officiate in a higher post for a specified period and he is reverted on its expiry, he is obviously not penalised. When again he is appointed to officiate in a vacancy until further orders, either in the place of the permanent incumbent who is absent on deputation or on leave or because there is no permanent incumbent for the time being, he is not penalised if he is reverted when the permanent incumbent returns or a permanent appointment in the vacancy is made. In all these cases, the officiating vacancy itself comes to an end. But an officiating incumbent is no more penalised when, although the vacancy is continuing, he is reverted to his substantive post on the ground that he has proved lacking in the qualities necessary for discharging the duties of the officiating post. There is no punishment involved in such reversion, because the person reverted is not deprived of any benefit to which he has become entitled for the purpose of making him suffer: he is simply made to take the normal consequence of his failing to justify his further retention in the officiating post by exhibiting the necessary qualities. To give a homely illustration by way of analogy, if a candidate appearing at an examination fails to answer satisfactorily the questions set and is in consequence not passed, no one will say that he is punished. He is only weighed in the balance and, on being found wanting, is told that he has failed to qualify for a pass. It is implicit in the very nature of officiating appointments, at least those which are not for specified periods, that they are of a provisional character and liable to be terminated any moment if the person appointed proves unfit or ceases to be fit. A person appointed merely to perform the duties of an office by way of a temporary arrangement has no lien on the office and his tenure of it is necessarily and impliedly dependent on his performing the duties well. If he proves himself unable to perform the duties satisfactorily and is on that ground put back where he formerly was, it is obvious that thereby no disciplinary action is taken against him and he is not punished. What takes place is that the experiment of allowing him to function in a higher post having failed by reason of his inefficiency, it is terminated and his position in the service is consequentially re-adjusted by way of taking a normal step in the course of office administration. There is no penalty involved in the re-adjustment and no reduction in rank and therefore there can be no question of following the procedure prescribed by Article 311(2).

In the case of Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), , the Supreme Court had occasion to explain the true scope of Article 311(2). Directly their Lordships were dealing with "dismissal or removal", but the principle laid down by them must be taken to be of general application. Dismissal or removal, they said, "generally implies that the officer is "regarded in some manner blameworthy or deficient, that is to "say, that he has been guilty of some misconduct or is lacking "in ability or capacity or the will to discharge his duties as he "should do". This test will apply to reduction in rank as well. It will be seen that want of capacity is included among the reasons for the action taken, but it appears to me that demotion for want of capacity will be reduction in rank only when it can be said to have been directed as a punishment. If a person, holding a post substantively and as a permanent incumbent, is demoted from it on the ground of incapacity, such demotion will amount to punishment and will be reduction in rank. The reason is, in such a case, the person demoted is not merely disallowed to remain further in a post in which he was put tentatively and for which he has failed to prove himself qualified, but he is removed from a post to which he has a perfected right for the fault of inefficiency betrayed by him. Demotion from such a post and for such a cause is obviously a punishment. The test laid down by the Supreme Court, viz., a loss or diminution of an accrued benefit on the basis of an imputation or charge, is fully satisfied in such a case. The case of reversion from an officiating appointment on the ground of inefficiency stands on an entirely different footing, except perhaps where the appointment was for a specified period and it carried no condition that in the event of the appointee''s work being found unsatisfactory, he would be liable to be reverted earlier.

The various Service Rules or the Explanations appended to them have dealt with the case of a person appointed on probation or engaged under a contract for a specified period or appointed in a temporary capacity otherwise than under a contract and they have provided that discharge of such persons does not amount to dismissal or removal. Reference may be made to the Explanation to Rule 49 of the Civil Service (Classification, Control and Appeal) Rules and note 1 to Rule 1702 of the Railway Establishment Code. The case of a person appointed to officiate in a post has not been dealt with anywhere, obviously for the reason that a person officiating in a post cannot be said to be holding that post with a right to continue in it. The nearest approach to the case of reversion of an officiating incumbent is to be found in note 4 to Rule 1702 of the Railway Establishment Code which says that non-selection to a selection post because of an unsatisfactory record and unfavourable confidential report does not amount to withholding of promotion. I am referring to these rules or notes only for the purpose of pointing out that they appear to be based on a correct view of what disciplinary action is. With regard to persons appointed on probation, the position under the Civil Service (Classification, Control and Appeal) Rules appears to be somewhat inconsistent, because while the Explanation appended to Rule 49 says that the termination of the employment of a probationer does not amount to dismissal or removal within the meaning of that rule or Rule 55, Rule 55B, added in 1943, says that where it is proposed to terminate the appointment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of unsuitability, he should be apprised of the grounds of the proposed action and given an opportunity to show cause against it. Perhaps the two provisions can be reconciled by taking Rule 55B as a special provision, laying down that although the termination of the employment of a probationer is not dismissal or removal from service, an opportunity to show cause against termination must nevertheless be given. There is, however,, no rule corresponding to Rule 55B in the Railway Establishment Code. Termination of the employment of a probationer or of a person appointed for a specified period under a contract or of a person employed in a temporary post, in accordance with the terms of the employment or reversion from an officiating post in the ordinary course, including reversion for inefficiency, is not thus disciplinary action, either according to ordinary notions or in the contemplation of the relevant rules and they cannot therefore attract the provisions of Article 311(5).

I must observe, however, that as regards persons appointed to officiate in higher posts, the position is hardly satisfactory. They cannot, for the reasons I have given, insist on being allowed to show cause against their reversion, even when they are reverted in spite of the officiating vacancy continuing. If the authorities decide within a reasonable time whether a person, appointed to an officiating post, will or will not be retained in it, no just cause for complaint can arise. But it happens that a person appointed to officiate in a higher post is kept on in it for years, during which he draws the higher salary and earns increments of it, adjusting his family-budget and made of living accordingly, and then suddenly he is reverted to his substantive post and its far lower pay which results in a complete dislocation of his life. The present case is an apt example, though not an extreme one. Where such reversion is for misconduct, no complaint can obviously be made, but where it is reversion in what is called the ordinary course, though the vacancy may be continuing, it may legitimately be complained that the authorities should have taken their decision within a reasonable time. There can also be no doubt that the practice of keeping people in officiating posts for an indefinite period, with liberty to revert them at any time, affords room for abuses. It must have been to avoid the undesirable consequences of such a practice that, in 1944, the then General Manager of this particular Railway issued certain salutary instructions under pressure from a Labour union. They were embodied in serial No. 611, circular No. 3199, dated May 6, 1944 and provided inter alia that no employee who had been officiating in a higher post for more than six months or, in special cases, for more than twelve months, could be reverted on the ground of inefficiency without observing the procedure laid down in the Disciplinary Action Rules. Some argument was addressed in the present case to the learned trial Judge on the basis of circular No. 3199. But, as the learned Judge pointed out, the circular has since been superseded by an order of the Railway Board, contained in letter No. E44 PM12-Pt., dated November 22, 1950.

For the reasons I have given, it must be held that the view taken by Sinha, J., is correct and the Appellant''s application to this Court, so far as it is based on Article 311(2), must fail. But as was conceded by Mr. Kar, the Appellant''s appeal to the General Manager, dated October 26, 1953, had not been properly disposed of. It should now be considered by the General Manager himself. Although the Appellant has now retired from service, the matter of his reversion has not ceased to be of practical interest to him, because it bears on his pay after the order of reversion and perhaps also on his pension. I have no doubt that in spite of the unpleasantness which must unavoidably have occurred on account of this litigation, the Appellant''s case will receive full and fair consideration at the hands of the General Manager.

In the result the appeal is allowed in part and while the order of Sinha, J., dismissing the Appellant''s complaint under Article 311(2) is maintained, it is directed that the General Manager do consider the Appellant''s appeal, dated October 26, 1953, on its merits.

There will be no order for costs.

S.C. Lahiri, J.

I agree.