Ram Chadn Saini vs State of Himachal Pradesh

T.U. Mehta, J.—The Petitioner herein has made a grievance in this writ petition against the order of his reversion, from the post of Assistant Engineer on which he was officiating, to his substantive post of Junior Engineer. The notification by which the Petitioner has been so reverted is found at Annexure P-6 and is dated 23-9-1975. It runs as under:

The Governor, Himachal Pradesh, is pleased to terminate the ad hoc appointment as Assistant Engineers of Sarv-shri Ram Chand Saini and Siri Ram Gupta, with immediate effect. They will hand over charge to the senior most Junior Engineer.

Their posting orders as Junior Engineers are being issued separtely by the Chief Engineer, Himachal Pradesh.

Sd/- Gangesh Misra, Commissioner-cum-Secretary (PW) to Government of Himachal Pradesh, Simla.

Facts leading to this petition can be briefly stated as under. The Petitioner is a diploma holder in engineering and his services were allotted to the Himachal Pradesh at the time of the reorganisation of the then existing State of Punjab in the year 1966. At the time of the said allocation the Petitioner was permanent Sectional Officer which post was subsequently re-designated as a post of a Junior Engineer. It is an uncontroverted fact that in the integrated seniority list of Junior Engineers as on 1-11-1966 the Petitioner''s name was at serial No. 95. At Annexure P-1 we find the said seniority list.

Thereafter on 22-11-1972 the Petitioner was promoted to the post of an Assistant Engineer by virtue of the notification which is found at Annexure P-3. This notification is in the following terms:

The Governor, Himachal Pradesh, in consultation with the Himachal Pradesh Public Service Commission vide their letter No. 2-49/72-PSC, dated the 10th October, 1972, is pleased to promote the following diploma holder Sectional Officers (Civil) Draftsmen, H.P.P.W.D. to the post of Assistant Engineers in the scale of Rs. 400-30-700/40-1100 from the dates of their taking over charge of post, purely ad hoc basis till 31st December, 1972 or till regular appointments to the posts are made, whichever is earlier.

The notification then states the list of persons so promoted. The name of the present Petitioner appears in this list at serial No. 9. The list consists of 21 persons who were diploma holders and were promoted from the post of Sectional Officer to the post of Assistant Engineers. Thus according to this list the Petitioner was senior to 12 persons who are named at serial No. 10 to 21.

Here it should be noted that when the above promotion of the Petitioner was made on "ad hoc basis", rules for recruitment to the post of Assistant Engineer (Civil) were already in existence. These rules were framed by virtue of the notification dated 22-6-1972. A copy of these rules are found at Annexure P-2. Reference to the rules shows that appointment to the post of an Assistant Engineer could be made either by direct recruitment or by promotion from amongst the Sectional Officers who are diploma holders having seven years regular service. These rules however show that appointment to the post of an Assistant Engineer could be made initially on probation for a period of two years subject to such further extension not exceeding one year as may be ordered by the competent authority for the reasons to be recorded in writing. The case of the Petitioner is that when he was promoted as Assistant Engineer as per notification Annexure P-3 he had already put in seven years'' regular service as Sectional Officer and, therefore, according to the Petitioner, his promotion was in regular course of things and could, therefare, not have been described as on "ad hoc basis".

Facts of the case show that thereafter the Petitioner continued in his service as an Assistant Engineer and earned two increments on that post. His third increment was due in the month of December 1975.

Evidence found in the record of this case shows that for the year 1973-74 some adverse remark was made in the character roll of the Petitioner. This adverse remark was communicated to the Petitioner on 16-12-1974 with the result that the Petitioner filed a representation against the same on 14-1-1975. That representation was admittedly pending when the reversion of the Petitioner was made on 23-9-1975 as per impugned notification found at Annexure P-6. Evidence further shows that Departmental Promotion Committee held its sittings on 8th, 9th and 11th of April, 1974 and considered the adverse remarks passed against the Petitioner for the year 1973-74.

Thereafter on 2/7-5-1974 the Government issued one notification by virtue of which several Assistant Engineers who were officiating on ad hoc basis were taken on the post of Assistant Engineer on officiating basis by regularising their services. At Annexure P-5 we find a copy of this notification which gives a list of diploma holder Engineers whose services as Assistant Engineer were regularised. This list does not contain the name of the Petitioner but does contain the names of several persons from serial No. 27 onwards who were juniors to the Petitioner. This means that by virtue of this notification Annexure P-5 the services of the Petitioner were not regularised though the services of his juniors were regularised. Thereafter in the month of September 1975 the impugned order was passed reverting the Petitioner from his officiating post of Assistant Engineer to his substantive post of a Junior Engineer.

The grievance which is now made by the Petitioner is that his reversion by virtue of the impugned order amounts to punishment which was inflicted on him on account of the adverse entry made in his character roll for the year 1973-74 against which his representation was pending. According to the Petitioner if his reversion is the result of this adverse entry, the action amounts to punishment and, therefore, provisions contemplated by Article 311 of the Constitution would be attracted. The Petitioner points out that if this is so, the said reversion cannot be considered as valid unless he is given an opportunity to show cause against the adverse remarks, and the representation, which was made by him against the same, was finalised. The Petitioner further contends that if his reversion was not the result of the adverse entry made against him, the order of reversion offends Article 16 of the Constitution inasmuch as his juniors were retained in the officiating position as Assistant Engineers, and he was unduly selected for reversion.

The record of the case shows that on 23-9-1975, when the Petitioner was reverted, the Government issued another notification as found at Annexure P-7 by which several persons who were junior to the Petitioner were taken on the post of Assistant Engineers on ad hoc basis. This Annexure P-7, therefore, shows that the administration was in need of certain persons to officiate on the post of Assistant Engineers and, therefore, the reversion of the Petitioner was not made on account of any administrative exigencies, but was made purely on account of the adverse entry made in his character roll for the year 1973-74 and against which his representation was pending.

The case of the Petitioner is that his appointment, though styled as ad hoc, was never ad hoc, because it was made in accordance with the rules prevailing at the time when the was promoted to the post of Assistant Engineer. According to the Petitioner, therefore, his appointment was on temporary basis, but in regular course of things, and since his revrersion has come by way of punishment, the said reversion should be declared as illegal and void inasmuch as the same is made without complying with the requirements of Article 311 of the Constitution.

As against this the case of the Government, as found from the return filed by it, is that the promotion of the Petitioner as Assistant Engineer was merely ad hoc and, therefore, the Petitioner was liable to be reverted at any time. In this connection the Government have stated as under in para 4 of their return:

It is further denied that these promotions were made according to rules dated 22nd June, 72. There was valid exigency to act outside the rules. The operation of the rules was kept in abeyance as these were being reconsidered for making some modifications. A Public Health Circle had been created and the vacant posts of Assistant Engineers had to be filled in the public interest to take up the implementation of the scheme urgently and to achieve the utilisation of funds with the financial year. In view of this urgency, the Government had decided to make ad hoc promotions.

Thus according to the Government, the administration was in need to fill the posts of Assistant Engineers urgently and, therefore, promoted the Petitioners and others without complying with the rules of recruitment of 1972 because the operation of these rules was kept "in abeyance" as they were being reconsidered for making some modifications. Here it should be noted that on 20-6-1973 the Government issued one notification by virtue of which the previous notification about the recruitment to the posts of Assistant Engineers dated 22-6-1972 was superseded, and some recruitment rules for that post were framed. These recruitment rules are Rules of 1973. But it is obvious that these new rules of 1973 were not in force when the Petitioner was promoted to the post of Assistant Engineer on 22-11-1972. It is the admitted position that these recruitment rules of 1973 have been struck down by this Court as invalid and that an L.P.A. against that order is still pending in this Court.

The Government have further contended that even if it is held that the promotion of the Petitioner as Assistant Engineer on 22-11-1972 was not ad hoc, the Petitioner cannot succeed in this writ petition for the simple reason that his promotion was temporary and, therefore, he had no right to continue on the promoted post. In this connection the Government have contended in paragraphs 6, 7 and 10 of their return that the Departmental Promotion Committee did not find the Petitioner suitable for being continued on the post of the Assistant Engineer and, therefore, on consideration of the reports in the character roll of the Petitioner he was ultimately reverted by virtue of the impugned order in the month of September, 1975. In paragraph 7 of the return the Government have specifically stated as under:

It is denied that ad hoc appointment of the Petitioner as Assistant Engineer was terminated solely for the adverse entry for the year 1973-74. It was on the basis of careful examination and consideration of the reports in the character roll of the Petitioner. It is admitted that the Petitioner had made a representation against the adverse remarks communicated to him and the same is under process isasmuch as the wanting documents are being collected from the quarter concerned.

Thereafter in paragraph 10 the Government have stated as under:

....the fact that for regular appointment the Petitioner had already been found unfit by the Departmental Promotion Committee held in the Himachal Pradesh Public Service Commission on the 8th, 9th and 11th April, 1974. The Petitioner along with others was allowed to continue on ad hoc basis and as a result of subsequent performance it became necessary to review the matter in the public interest and the Petitioner was not found fit for further continuance on this post.

Thus it is clear that even after the Departmental Promotion Committee held its sittings in the month of April, 1974 the Petitioner was allowed to continue on the post of Assistant Engineer till the month of September 1975 when the impugned order was passed.

During the course of the hearing of this writ petition, Shri Paul, appearing on behalf of the Government, infomred this Court that during the pendency of this writ petition, the representation made by the Petitioner against the adverse entry in his character roll for the year 1973-74 has been decided against the Petitioner. I see no reason not to accept this statement of Shri Paul. However, it is not in dispute that on 23-9-1975, when the impugned order of reversion of the Petitioner was passed, the said representation of the Petitioner was pending and remained undecided.

The first question which arises to be determined is whether the promotion of the Petitioner as Assistant Engineer can be correctly described as "ad hoc." It is an admitted position that when the Petitioner was promoted as Assistant Engineer in the month of November, 1972, the recruitment rules of 1972 were in force. I have perused these recruitment rules and I find that all the requirements of these rules were satisfied in case of the Petitioner''s promotion. It is, therefore, difficult to comprehend how the Government can successfully contend that the Petitioner''s promotion was outside these rules. The above referred extract taken from the return filed by the Government explaining how the Petitioner''s promotion was "ad hoc", shows that in the view of the Government, the appointment of the Petitioner was ad hoc because the operation of the rules of 1972 was kept "in abeyance" as these rules were being reconsidered for making some modifications. If the rules were requiring some modifications, it is difficult to understand how they could have been ignored by the Government before they were actually modified. The Government in fact could not have kept these rules in abeyance simply because they wanted to modify them. So long as the modification was not actually done, these rules were very much in force and must have been complied with in ordinary course of things and, therefore, even if the notification promoting the Petitioner to the post of Assistant Engineer prefers to style the said promotion as "ad hoc", it does not necessarily become an ad hoc promotion if it is found that it was completely in compliance with the existing rules. In my opinion, therefore, the promotion of the Petitioner as Assistant Engineer was in regular course of things and was not falling outside the provisions of these rules.

It is an established legal position that if the rules of recruitment are in existence, the recruitment should ordinarily be made only under the provisions of the said rules because in exercise of the executive power under Article 162 of the Constitution the executive cannot ignore or act contrary to the statutory rules framed for the purpose. For this proposition a reference may be made to the decision given by the Supreme Court in B.N. Nagarajan and Others Vs. State of Mysore and Others, wherein speaking about the powers of the executive to act under Article 162 of the Constitution the Supreme Court has observed as under:

We see nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Article 162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an Act on the matter, the executive must abide by that Act or rule and it cannot in exercise of the executive power under Article 162 of the Constitution ignore or act contrary to that rule or Act.

However, it should be mentioned that there would be some administrative exigency when recruitment in accordance with the existing rules is not possible, and yet some recruitment is necessary in the interest of administration. In case of such a contingency, the administration should not stop functioning, and hence the executive has power to make an appointment which may fall outside the purview of the rules. Such appointments are ad hoe appointments. They are mostly irregular in character and require to be regularised at an appropriate time. What is an ad hoc appointment is explained by courts in various pronouncements. I may refer to some of them at this stage. In Bansi Ram v. State of Himmchal Pradesh reported in 1974 (1) S.L.R. 358 this Court has considered the question as to what is an ad hoc appointment. In paragraph 15 of the reported judgment Thakur, J. has summarised the case law on the point and has then observed as under in paragraph 16:

Thus it follows that the Government has got the right to make an ad hoc appointment in the absence of any rules or Act to meet certain exigencies but such an ad hoc appointment cannot last for an unreasonably long period, or, in other words, as soon as the purpose for which the appointment is made has been achieved the ad hoc appointment must end.

The summary of the case law which is made in paragraph 15 shows that an ad hoc appointment is for a particular purpose and that as soon as that purpose is achieved the person holding the appointment can be reverted or his services can be terminated. In the Allahabad case of Narendra Bahadur Srivastava v. Public Service Commission U.P. and Ors. reported in 1971 (2) S.L.R. 414 the Allahabad High Court observed that an appointment can be said to be on ad hoc basis only when it is known at the time of appointment that it is for a specific period, on a temporary post being created for a specific period or an officiating or temporary appointment being made in a leave vacancy or an officer going on deputation or for some similar reasons. The said High Court has further observed that where a person appointed to the post, whether permanent or temporary, has the expectation to remain in service for an unspecified period his appointment cannot be said to be on ad hoc basis. A Division Bench of the Delhi High Court has observed in C.B. Dubey and Ors. v. Union of India reported in 1975 (1) S.L.R. 580 that the expression "ad hoc" in its true meaning would mean "stop-gap", that is to say, without considering all the persons eligible for promotion. Such appointments are subject to be affected by the rights of those persons who were not Considered though they were eligible to be considered.

It is clear from these decisions that an appointment does not become ad hoc simply because the appointing authority prefers to style it as such. It is the intrinsic nature of the appointment and not its label which determines its true character. If the court finds that an appointment was necessary even though the rules of recruitment were not framed, or that even if the said rules were in existence, it was not possible to make it in compliance therewith for certain administrative reasons, the court may treat the said appointment as ad hoc in character. Every ad hoc appointment is no doubt temporary in character, but every temporary appointment is not necessary ad hoc. Therefore, when the court finds that a particular appointment was temporary, and was made when the rules of recruitment were available to the appointing authority, the court will be slow to presume that the appointment was ad hoc merely because it was temporary or because the appointing authority preferred to describe it as such. As already stated, above all appointments under the State should ordinarily be under prescribed rules. Therefore, if the case of the State Government is that a particular appointment was ad hoc, it should show that it did not comply with the existing rules and also that on account of certain administrative exigencies it was not possible to comply with the said rules. It is in view of this that we have to consider the explanation given by the State Government for showing that the Petitioner''s appointment was ad hoc. We have already quoted the said explanation which in substance says that the appointment was ad hoc because the Government contemplated some modifications in the existing rules. I have already pointed out that if the Government thought that the existing rules were required to be modified, it was not open to it to give a go-by to the existing rules till they were actually modified. I have also shown that at the time when the Petitioner was promoted to the post of Assistant Engineer he was fulfilling all the requirements of the rules of 1972 for the purpose of the said promotion. Therefore, in my opinion, the contention of the State Government that the promotion of he Petitioner was ad hoc should fail.

Here it should not be out of place to note that the practice of calling an appointment ad hoc, even though all the relevant rules of recruitment are satisfied, has earned some popularity with the State Government as is found from certain service matters coming up before this Court. In my opinion such a practice is not healthy as there is likely to be uncertainty in service resulting in nepotism in administration. Ultimately it is the administrative efficiency which suffers, by such treatment of regular appointments as ad hoc appointment. If regular appointments are dubbed as irregular, and are treated as such for a number of years, the officer concerned would never feel settled in service and would mostly remain preoccupied with attempts to win the personal favour of their superiors rather than with due diligence in discharge of their duties.

Reverting to the facts of the case I find that the Petitioner''s promotion as Assistant Engineer in the year 1972 was regular and that there was no administrative exigency which would have induced the Government to make the said appointment ad hoc.

However, it cannot be denied that this promotion of the Petitioner was temporary in character. Therefore, the next question which arises for my consideration is whether the termination of this promotion by the impugned order of reversion was legal or not.

It is a well settled position in law that a temporary appointment or promotion creates absolutely no rights in favour of the servant concerned on the promoted post. As observed by the Supreme Court in R.S. Sial Vs. The State of U.P. and Others, the appointment to a post on an officiating basis is, from the very nature of employment itself, of a transitory character, and in 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, therefore, acquires no right to the post. This principle cannot be disputed as it is well established. However, even a temporary servant who has no right to a particular post gets protection of Article 311 of the Constitution if his reversion from his temporary qualification to his substantive post is found to be by way of punishment. In this connection a short reference may be made to the leading decision of the Supreme Court in Parshotam Lal Dhingra Vs. Union of India (UOI), wherein certain principles governing the service matters have been stated as under:

Article 311 of the Constitution of India makes no distinction between a permanent and a temporary post and extends its protection equally to all government servants holding permanent or temporary posts or officiating in any of them.

Protection of Article 311 is available only where dismissal, removal or reduction in rank is said to be inflicted by way of punishment and not otherwise.

If the termination of service or reduction in rank is not by way of punishment, Article 311(2) is not attracted. To determine whether the termination or reduction in rank is by way of punishment, one has to consider whether the servant has a right to hold the post from which he has been either removed or reduced. In case of a probationary or officiating appointment to a permanent or temporary post, there is no such right. This does not mean, however, that the termination of service or reduction in rank of a servant who has no right to a post can never be dismissal or removal or reduction by way of punishment. If the Government expressly chooses to disqualify the service for misconduct, negligence, inefficiency or the like by inflicting on him the punishment of dismissal, removal or reduction in rank, the requirement of Article 311 must be complied with.

Reduction in rank must be a punishment if it carries penal consequences with it the two tests to be applied are:

(i) Whether the servant has a right to the post or the rank, and

(ii) Whether evil consequences such as forfeiture of pay or allowances, loss of seniority in his substantive rank, stoppage or postponement of his future chances of promotion have visited on the servant.

Where either of these tests apply the reduction in rank must be one within the meaning of Article 311(2) of the Constitution and will attract its protection.

Considering these four principles laid down by the Supreme Court in Parshotam Lal Dhingra''s case, it is apparent that the Petitioner had not right to the promoted post for the simple reason that his appointment was temporary. But he can challenge the order of his reversion provided it is found that the said order amounted to a punishment inflicted on him for certain wrong done by him. In this case it is an admitted position that the Petitioner was reverted before taking any action or complying with the procedure contemplated by Article 311 of the Constitution. But the question is whether the procedure contemplated by the said Article was attracted here. The answer to the question is in the affirmative if it is found that the order of reversion amounts to punishment. In these circumstances, the moot question is whether this order amounted to punishment or not.

On behalf of the Respondents it was contended that the order of Petitioner''s reversion did not amount to any punishment because he was reverted for the simple reason that he was not found fit for the post to which he was promoted. Let us consider how far this contention of the Government is acceptable.

In the foregoing portion of this judgment I have quoted the relevant portions from the return filed by the Government on this point. These portions show that it is not in dispute that for the year 1973-74 there was an adverse entry made in the character roll of the Petitioner. It is also not in dispute that the Petitioner had made representation against the said adverse entry, and that the said representation was still pending when the reversion order was passed. Therefore, if it is found that at the time of reverting the Petitioner to his substantive post this adverse entry was taken into account, then there would be on difficulty in concluding that the order of reversion was passed against the Petitioner by way of punishment. As held by the Punjab and Haryana High Court in Angpal Kapoor v. The State of Punjab reported in 1973(1) S.L.R. 989 , adverse remarks in character roll affect the future career of the servant and no notice of the remarks should be taken if an appeal is pending against them or where opportunity to show cause was not afforded to the concerned official. In The The Regional Manager and Another Vs. Pawan Kumar Dubey, the Supreme Court has considered this aspect of the matter in paragraph 16 of the reported judgment at page 342 of the report, wherein the following observations are found:

The Respondent''s representation again the last adverse entry, of the kind indicated above, made on January 25, 1973, was pending when the reversion order of February 20, 1973 was passed. His allegations that his juniors are still holding the posts in the cadre in which he was officiating and that there are no administrative reasons for his reversion are not controverted.

On these facts the Supreme Court came to the conclusion that the action of reversion taken on the basis of such adverse entries would amount to punishment which would invite the provisions of Article 311 of the Constitution.

Speaking of the facts of this case I find that though the the Government have in their return merely alleged that the Petitioner was not reverted solely on account of the adverse entry for the year 1973-74 and that the reports in the character roll of the Petitioner were carefully examined before reverting him to his substantive post, I do not find from the return that apart from the adverse entry for the year 1973-74 there was any other material with the Government to revert the Petitioner and to continue his juniors in the promoted post of Assistant Engineers.

I find that the facts of this case are mostly similar to the facts stated by the Supreme Court in State of U.P. and Others Vs. Sughar Singh, . Since the facts of that case are, to great extent, similar to the facts of the present case, I propose to refer to this decision of the Supreme Court at some length. In the case dealt with by the Supreme Court, the Respondent was a permanent head constable. U.P. Police Force and was deputed for training as a cadet Sub-Inspectors at the Armed Police Training Centre, and was appointed as officiating Platoon Commander. An adverse entry in his service record was made when he was working as Platoon Commander, and after more than one year he was reverted to his substantive post of Head Constable. The Respondent of that case then filed a writ petition in the Allahabad High Court which was initially dismissed by a Single Judge but was allowed by a Division Bench of that Court which quashed the reversion order. The State went in appeal before the Supreme Court. The Supreme Court, after discussing the case law on the point, and thereafter considering the facts of the case, found that out of the 200 officers who were working in the same manner as the Respondent was working, only the Petitioner was reverted. On behalf of the Respondent his counsel challenged the order of reversion by contending that atleast 200 head constables who had taken the training as cadet Sub-Inspector of Armed Police after the Respondent, and who were juniors to the Respondent, were allowed to retain their present status as Sub-Inspector and were not reverted to their substantive post of head constable. It was further contended that unless this could be justified as a measure of punishment, the re-version of the Respondent would amount to discrimination in contravention of the provisions of Articles 14 and 16 of the Constitution. This contention found favour with the Supreme Court. Mathew J. speaking for the Court has pointed out in paragraph 19 of the reported judgment that looking to the facts of the case the Government faced a dilemma. The dilemma was that if the reversion of the Respondent was not by way of punishment the Respondent could claim equal treatment with his other 200 head constables who were juniors to him, and could successfully contend that his reversion infringed the equality clause enshrined in Article 16 of the Constitution. But if the reversion of the Respondent was by way of punishment then Article 311 of the Constitution was attracted, and in that event also the reversion of the Respondent could be successfully challenged as void and invalid. This will be evident from the following observations of Mathew J. contained in the same judgment:

Indeed, it appears from the judgment of the third learned Judge who heard the petition in the High Court that in answer to a question put by him, the standing Counsel appearing for the State clearly stated that the order of reversion was a result of the adverse entry made in the Appellant''s confidential character roll. If this statement of the learned standing counsel has to be accepted, it is impossible to resist the suggestion that the Respondent''s order of reversion was really an order of punishment in disguise in which event the order must be struck down for non-compliance with the requirements of Article 311 of the Constitution. The Appellant in fact faces a dilemma. If it was not a case of punishment, it becomes difficult to explain why this discrimination was made against the Respondent vis-a-vis at least 200 other officers who were junior to him in the substantive cadre. That would make the order liable to be struck down as violative of Article 16 of the Constitution. Reference may be made to State of Mysore Vs. P.R. Kulkarni and Others, etc., , where an order of reversion was struck down by this Court on the ground of "unjustifiable discrimination" which brought the order within the mischief of Articles 14 and 16 of the Constitution. If, on the other hand, the order has to be justified with reference to the adverse entry in the character roll, it becomes not merely a case of double punishment, but also a case of infringement of Article 311 of the Constitution. It is true that the order ex-facie does not show anything which can suggest the contravention of Article 311 of the Constitution. We have already analysed the order and discussed that aspect of the matter. But the compelling logic of the totality of circumstances at ending the order of reversion indicates that if the order is not discriminatory and has to be justified with reference to the proceedings against the Respondent and the earlier order regarding his character roll, it is impossible to avoid the critisism that it was really a punishment in the garb of an order of reversion. In the The State of Bihar and Others Vs. Shiva Bhikshuk Mishra, this Court was called upon to consider the effect of an order of reversion passed on a member of the Bihar Police Force who, while holding the substantive post of Sergeant, Was promoted to officiate temporarily as Subedar Major in 1948 but was subsequently in 1950 reverted to his substantive post. The High Court of Patna found that the reversion was not in the usual course or for administrative reasons but it was after the finding on an enquiry about some complaint against the Plaintiff and by way of punishment to him. The matter having come on appeal to this Court, this Court held that the form of the order is not conclusive of its true nature and might often be a cloak or camouflage for an order founded on misconduct. This Court further observed:

It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the over riding test will always be whether the misconduct is a mere motive or is the very foundation of the order.

I find that the facts of the present case are completely covered by the above observations because it is an admitted position in this case that many colleagues of the Petitioner who were juniors to him were retained on the higher post of Assistant Engineer. Many others who were still junior to him were promoted to that post on ad hoc basis while the Petitioner and one other were reverted. If the Petitioner was reverted without having consideration for the adverse remark passed against him, his reversion obviously infringed the equality clause of Article 16 of the Constitution. But if he was reverted on account of this adverse remarks then the said reversion amounted to punishment which was inflicted before his opportunity to show cause against the said remarks was exhausted. In that case, there was an infringement of Article 311 of the Constitution.

On behalf of the State it was strenuously urged that the impugned order shows nothing on the face of it to suggest that he was reverted as matter of punishment. The contention was that the impugned order is quite innocuous and attaches no stigma on the career of the Petitioner and, therefore, it cannot be treated as an order amounting to punishment. It is no doubt true that the impugned order found at Annexure P-6 is an innocuous order on the face of it, but it is now a well settled position that even an innocuous order may amount to punishment if it is found that its apparent innocuous character is a mere cloak and that the impugned action was taken purely for the purpose of inflicting punishment on the Petitioner. Looking to the facts of this case, and especially to the return filled by the Government, I find it impossible to escape from the conclusion that the reversion of the Petitioner has an element of punishment and was made mostly on account of the adverse entry made in his character roll for the year 1973-74. The authorities concerned could not have relied upon this adverse entry so long as the representation filed by the Petitioner against the said entry was pending. If the said representation has now been finally decided, there is nothing to prevent the Government to take appropriate action against the Petitioner on the subject of his reversion after the date of the said decision. But when the reversion order was passed the representation was pending and the authorities concerned were not in a position to know what would be the fate of that representation. In these circumstances, I have no hesitation in concluding that the Petitioner''s reversion amounted to punishment and attracted the provisions of Article 311 of the Constitution. Since these provisions were not complied with, his present reversion must be held as bad.

In view of the above finding, it is not necessary to consider several other contentions raised on behalf of the Petitioner by his learned Advocate. For instance it was contended on his behalf that this reversion results in penal consequences because thereby the Petitioner is deprived of higher post and consequential advantages which could have accrued to him had he been allowed to officiate in the higher post of Assistant Engineer. This contention is not available to the Petitioner in view of the decision given by the Supreme Court in Union of India (UOI) Vs. Jeewan Ram, It was also contended on behalf of the Petitioner that the mere fact that the other colleagues of the Petitioner, who were also officiating, were not reverted, results in a penal consequence. Even this contention is not available to the Petitioner in view of the decision given by the Supreme Court in case of Divisional Personnel Officer v. S. Raghavendrachar reported in AIR 1966 S.C. 1929.

Since I find that the Petitioner was reverted as a measure of punishment and that for this punishment the provisions of Article 311 of the Constitution were not complied with, I allow this writ petition and declare that the impugned order by which the Petitioner is reverted is illegal and void. It is further declared that the Petitioner continues on the post of Assistant Engineer till he is legally reverted to his substantive post according to law. The rule is accordingly made absolute with costs. Costs to be quantified at Rs. 200/-.