Shri Bansi Ram Sharma vs The State of Himachal Pradesh etc.

R.S. Pathak, C.J.—I agree with my brother C.R. Thakur that the appeal should be allowed.

The Appellant was an Assistant Police Prosecutor. By an order dated January 10, 1966, he was promoted as "officiating Police Prosecutor purely on ad hoc basis" by the then Inspector General of Police, Himachal Pradesh. On April 1, 1971, an order was made reverting him to his substantive post of Assistant Police Prosecutor. He had already served for over five years in the post of Police Prosecutor. According to the Respondents the promotion was of an ad hoc character and when the Appellant was reverted there was no right in him to continue in the post of Police Prosecutor and therefore he was not entitled to complain against the reversion. Now, according to the terms of the order of promotion the Appellant was promoted in the post vacated on account of the promotion of Police Prosecutor Hardyal Singh as officiating Deputy Superintendent of Police. An ad hoc appointment is made for a limited period of time, when an emergency or a sudden exigency of service calls for an appointment or in circumstances when it is not possible to make a regular appointment. See A.N. Bhoil v. Union of India and Ors. G.W.P. No. 70 of 1970 decided on June 28, 1973. When Shri Hardyal Singh, then officiating Police Prosecutor, was promoted as officiating Deputy Superintendent of Police it would have been in order if the Appellant had been appointed officiating Police Prosecutor in his place. But in order that the officiating appointment should be of an ad hoc nature the circumstances should have been such as to call for an ad hoc promotion. The material on the record does not sufficiently show any justification for making the officiating appointment on an ad hoc basis. The promotion of the Appellant was to an officiating appointment, and it could not have been anything less.

The Appellant continued to officiate all these years as Police Prosecutor. He could have been reverted as Assistant Police Prosecutor only if he was found unsuitable to continue in his officiating appointment. The order of reversion does not disclose the reasons why the Appellant was reverted. But a series of events preceding the reversion leads to the irresistible conclusion that the reversion was in substance an order of punishment. My learned brother has set out those circumstances in some detail, and I endorse the view taken by him that the reversion was by way of punishment. That being so it was necessary for the Respondents to provide the opportunity contemplated by Article 311(2) of the Constitution to the Appellant. The history of events culminating in the order of reversion amply demonstrates that they did not merely provide the motive for the reversion but constituted the very foundation of that order. The Appellant was punished by reverting him, and although he can be said to have been officiating merely he was entitled to the protection of Article 311(2). As he was deprived of that protection, the order of reversion is liable to be quashed.

In the circumstances it is not necessary, I think, to consider whether the reversion could be ordered with retrospective effect.

In the end, I would concur with the order proposed by my learned brother.

Chet Ram Thaku, J.

This Letters Patent Appeal arises out of a writ petition filed by Shri Bansi Ram for quashing the order of his reversion from the post of a Police Prosecutor to that of an Assistant Police, Prosecutor and also for arrears of pay from 8th November, 1970 to 28th February, 1971 as also salary for the month of April 1971 and onwards.

The Petitioner was appointed as Assistant Police Prosecutor on 8th June, 1957 and was promoted in officiating capacity as Police Prosecutor on 14th January, 1966. For some misconduct on the part of the Petitioner, on 3rd November, 1970, he was placed under suspension. Against that he filed a writ petition in the Delhi High Court which was allowed on the 28th December, 1970 and the suspension order was set aside. It appeases that the order of the High Court was not implemented by the department till February, 1971 and he was also not paid his arrears. Subsequently on the 28th April, 1971, another departmental enquiry was started against him alleging that the Petitioner disobeyed the instructions of his superior officers inasmuch as he did not remove the defects from the proposed challan of the case to be put up in the Court. Hence he was reverted to the post of Assistant Police Prosecutor in April, 1971. The Petitioner, therefore, filed the writ petition out of which this letters patent appeal has arisen challenging his reversion. Further he also prayed for a declaration that he may be held entitled to the pay for the suspension period which has been withheld by the department despite the order passed by the Delhi High Court. The further prayer made by him was that the department had reverted him with effect from 25-3-1971 although he had been on duty till 4-4-1971 and that this reversion with retrospective effect was also illegal. According to him the reversion was illegal inasmuch as he had acquired a right to the post of Police Prosecutor. The reversion amounted to a penalty and the order of reversion was bad inasmuch as there was no compliance with the provisions of Article 311 of the Constitution.

The Inspector General of Police as also the Superintendent of Police filed their returns. It was submitted by them that the appointment of the Petitioner as Police Prosecutor was purely on ad hoc basis and he did not derive any right to hold that post. The reversion as such did not result in any penal consequences so as to contravene the provisions of Article 311. It was further submitted that the Petitioner applied for leave on 25th February, 1971, although his leave was granted only upto 11th March, 1971, but he remained absent up to 25th March, 1971. On that date he reported back from leave only to apply for fresh leave which was first rejected but when he became adamant he was granted casual leave and station leave which was to expire on 4th April, 1971. The Petitioner, instead of reporting back, absented himself on 5th April, 1971, and did not return to duty. Thereafter, no option was left with the department but to revert the Petitioner with effect from 25th March, 1971, the date when he ceased to perform his duties as Police Prosecutor. It was submitted that the Petitioner was paid all the salary that could be found due to him. It was also stated that the Petitioner was a drunkard and habitually absented himself from duty. The Petitioner was asked by Shri Ram Kumar Jhanji, District Inspector, to remove certain defects in a forest case but the Petitioner without removing the defects put up the challan in the Court. In this manner, he was found guilty of gross negligence in the performance of official duty. The departmental enquiry, therefore, was started against him and could not be considered without any merit.

The learned single Judge held that the appointment of Shri Bansi Ram was purely on ad hoc basis and was not a regular appointment and that his conduct was found unsuitable and he was also found inefficient in the performance of his duties and was hence reverted. In view of this no stigma was attached and, therefore, the reversion did not amount to penalty so as to attract the provisions of Article 311 of the Constitution. With regard to the plea of reversion with retrospective effect, it was held that the Petitioner though was on leave from 24th onwards till 4th April but that leave was casual leave and he was required to perform certain duties which he did not and, therefore, that amounted to absence from the duty without any leave and, therefore, he was rightly reverted with effect from 25th March, 1971.

It was further held by the learned single Judge that the Petitioner had not been paid his salary from 25th January, 1971 to 24th February, 1971 and he has been treated as absent from duty. According to the learned Judge the Petitioner was under suspension order which was vacated on 25th February, 1971 with retrospective date. According to the affidavit of Shri K.K. Bhargawa the Petitioner was not paid for this period because he remained absent after the end of his leave and despite specific orders to report in the ''sick parade'' in Police Lines and to report in office for work, he defied the order and did not attend to his duties. With his return the Superintendent of Police had filed a detail containing leave account of the Petitioner. There was no reason to disbelieve this statement. The Petitioner had further stated that he had not been paid his salary for the month of April, 1971. The department was not vindictive against the Petitioner and to whatever he was entitled under the rules he shall be paid. No one had prohibited the Petitioner from applying to proper authorities for a settlement of his dues. This he can do even now. On these grounds, the learned single Judge held that the Petitioner had not made out a case that the order of his reversion was illegal and that the period for which he remained absent from his duties could be considered as a period of absence without pay and he, therefore, dismissed the petition.

In this appeal the first submission made by the learned Counsel on behalf of the Appellant is that the reversion order was without any material. In this behalf we have been taken through the writ petition as also the returns filed by the Inspector-General and the Superintendent of Police. Besides, the record from the police office through the Advocate-General was called for in order to ascertain the truth of the matter.

Before we deal with the reversion order it would be pertinent to determine as to what was the status of the Appellant. According to the findings of the learned single Judge the appointment of the Petitioner was of ad hoc officiating and he had no right to the post. The learned single Judge has given an extract of the appointment order and the perusal of the same discloses that the Petitioner was appointed in the vacancy caused due to the promotion of one Hardyal Singh Police Prosecutor as officiating Deputy Superintendent of Police. The order further shows that this promotion of the Petitioner was styled as purely on ad hoc basis. This order of promotion was passed on 10th January, 1966, whereas the reversion was made on 4th April, 1971, i.e. after five years.

The submission made by the learned Counsel for the Appellant is that the findings of the learned single Judge were wrong that he was an ad hoc appointee. Rule 13.18 of the Police Rules which governs the promotion of a police officer to the rank to which the Appellant was promoted does not contemplate any promotion on ad hoc basis. It contemplated a promotion against a substantive vacancy and on probation of two years and if the order had wrongly styled him ad hoc the same was of no consequence. After the expiry of two years he was deemed to have been confirmed and as such his reversion after the expiry of five years was wholly illegal. This plea did not find favour with the learned single Judge. The promotion order which is annexed to the return filed by the Inspector-General of Police would show that this order is not strictly in accordance with the Police Rules to which our attention has been invited. This promotion order terms the promotion as purely on ad hoc basis no matter the period has not been specified therein. The order prima facie shows that the appointment was only on ad hoc basis. However, it is a different matter whether such an appointment under the rules could be validly made or not.

According to the learned Counsel for the Appellant when there were specific rules governing the appointments and promotions of the police personnel, this ad hoc appointment was unwarranted and support is sought to be derived from Dr. Subharao v. State of Mysore 1970 S.L.R. 832. This authority lays down the rule that:

If there are rules governing the recruitment or promotion of officers to any post, the executive must abide by that Act or rule and it cannot exercise its executive power under Article 162 of the Constitution of India.

This authority is based on B.N. Nagarajan and Others Vs. State of Mysore and Others, In view of this authority we think that the appointment of the Appellant on ad hoc basis was really unwarranted being against Rule 13.18, Chapter 3 of the Punjab Police Rules, 1934 Vol. II, which was applicable in his case. According to this rule all the police officers promoted are to be placed on probation for a period of two years. But this appointment of the Petitioner has been made not in accordance with the rule although at the time of his promotion to the post the Police Rules were applicable to him. If there were no rules or Act then governing the terms and conditions of recruitment of a particular service then of course powers of the executive to act under Article 162 of the Constitution were not abridged in terms of Article 309 of the Constitution as would be apparent from B.N. Nagarajan and Others Vs. State of Mysore and Others, But if there are rules then the executive must abide by those rules and Act and it cannot in exercise of the executive power under Article 162 of the Constitution act contrary to that rule or Act. It appears that this authority was not placed before the learned single Judge.

The next question is as to what is an ad hoc appointment. In K.K. Vij, Principal, Higher Secondary School v. The Government of Himachal Pradesh and Anr. 1970 4 S.L.R. 8. It had been held that ad hoc appointment is for a particular purpose and as soon as the purpose is achieved the person holding the appointment can be reverted or his services could be terminated. Similarly in Som Math and Anr. v. Union of India and Ors. 1973 (1) S.L.R. 737 the meaning of the expression ''ad hoc'' was considered and it was held that when for instance consultation with the Union Public Service Commission is necessary for filling a particular post the Government has got power to make an ad hoc appointment for a fixed period of one year beyond which it cannot last without consultation with the Public Service Commission. Further, in Narendra Bahadur Srivastava v. Public Service Commission U.P. and Ors. 1971 S.L.R. 414, the scope of the world ad hoc was considered and it was held that ad hoc appointment is one where the incumbent knows that his appointment is for a specified period. Where no period has been specified and the appointment is for an unspecified period the incumbent expects to remain in service till the continuance of the temporary post which may last for an unspecified period.

Thus it follows that the Government has got the right to make an ad hoc appointment in the absence of any rule is 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. In the present case before us, the Petitioner-Appellant worked as Police Prosecutor for about five years before he was reverted.

The appointment order which has been given in the judgment of the learned single Judge would show that promotion of the Appellant was made in a vacancy consequent to the promotion of Shri Hardyal Singh as Deputy Superintendent of Police. Therefore, there is no question of any ad hoc appointment because it was a substantive vacancy and the Appellant was appointed against that post. Unless Hardyal Singh who had his lien against the post was reverted to his substantive post there was no point in reverting the Appellant who held the post in an officiating capacity. There was no such exigency, as referred to above, stated in the order so as to term the appointment as purely ad hoc.

The learned Advocate-General has cited Govind Dattatray Kelkar and Others Vs. Chief Controller of Imports and Exports and Others, to show that an ad hoc appointment could continue even for a longer period say for nine years even. There can be no dispute with that when that ad hoc appointment has been made for a particular purpose or with a particular condition that the appointment was subject to the approval of the Union Public Service Commission or it was to last till a particular incumbent was on leave and so on so forth. Moreover, the authority relied upon by the learned Advocate-General has got no direct bearing as in that case the question of ad hoc employees was not directly involved. It was a question of promotion on quota basis and it was in that context that the persons who were appointed on ad hoc basis and had put in nine years'' service were also considered but there was no question whether they were treated to be ad hoc or not. Hence the conclusion that can be drawn is that the appointment of the Appellant, as has rightly been argued by him, was not ad hoc because it was not warranted by the Police Rules which were in force at the time of his appointment. Once it is held that the appointment was not on ad hoc basis or not warranted by the Police Rules the necessary corollary that would follow is that the Petitioner was appointed in a substantive vacancy and, therefore, he had a right to the post.

Now the further question that would arise is whether in such circumstances when he was officiating on the post and had a right to the post he could be reverted save in accordance with the procedure as contemplated under Article 311(2) of the Constitution. It is not denied that the Petitioner was not given any notice before he was reverted to his substantive post. According to the returns filed by the Inspector-General of Police as also the Superintendent of Police, the reversion was not by way of punishment but it was a reversion simplicities and there was no necessity to serve him with notice under Article 311(2) of the Constitution. The learned Advocate-General has, however, submitted that he Appellant was reverted because of his unsuitability to the post to which he was appointed but the returns of the Inspector-General as also the Superintendent of Police are silent on the matter. On the contrary, the Inspector-General who passed the impugned order has taken up the stand that the Petitioner was given an officiating promotion in the rank of Police Prosecutor and was to continue as such till the reversion orders were made and as such the reversion was ordered in consonance with the provisions of law and was perfectly in order. He has not assigned any other reason for passing this impugned order. The Superintendent of Police has also in his return averred that he had no comments to make with regard to the reversion order passed by the Inspector-General for want of knowledge. Therefore, from the two returns nothing is known as to what were the reasons which impelled the Inspector-General to pass the impugned order. However, the learned Advocate-General as already stated, urged that the order was passed on the ground of unsuitability of the Appellant. But the officers have not taken any such stand in their returns. The records which have been called for do not show if there was any material before the Inspector-General before he passed the impugned order. The learned Advocate-General has made an endeavour to show that the report, Annexure ''G'', was before the Inspector-General before he passed the impugned order. The Annexure ''C'' reveals that the Appellant had made a representation to the Superintendent of Police regarding his arrears and about the redressed of some of his grievances. The Superintendent of Police made his comments on that representation and forwarded the same to the Inspector-General of Police for information. Apart from this there was no other material before the Inspector-General to enable him to come to a decision with regard to the suitability or otherwise of the Appellant and this material as a matter of fact was only by way of comments on the representation and which was ex-parte and it was, according to the learned Advocate-General, this material before the Inspector-General when he passed the impugned order, but the Inspector-General has not stated in his return with regard to the suitability or otherwise.

Now the question is whether this order in the absence of any material before the competent authority was simple order of reversion or it was passed by way of punishment. The submission made by the learned Counsel for the Appellant is that the Respondent had passed this order by way of punishment inasmuch as the Respondent had initiated a departmental enquiry against the Appellant and it was because of that enquiry that the Respondent had passed the order though the order was couched in quite a simple and harmless language. But it was not the form of the order. The Court had to look to the attendant circumstances preceding the passing of the order to find out whether the order is one passed by way of punishment or it was a simple order of reversion. Reliance has been placed on Appar Apar Singh v. The State of Punjab and Ors. 1971 S.L.R. 71 (S.C.). In the case before us it is admitted by the Superintendent of Police in his return that a departmental enquiry had been initiated against the Appellant. He has also stated that the Appellant was found grossly negligent in the performance of his official duty inasmuch as he sent the case to the court without ensuring compliance by the S.H.O. on some points raised by Shri Ram Kumar Jhanji, including the apprehension of prosecution of Sarvshri Dogar Singh and Sita Ram, Forest Guards and allowing Shri Sita Ram, Forest Guard, to remain in the list of prosecution witnesses and without obtaining the final orders of the Superintendent of Police for putting the case in the court as required under the Punjab Police Rules, Rule 27-1(2), for reasons best known to him. His explanation was found unsatisfactory and false. Therefore, in the face of this reply by the Superintendent of Police, no other conclusion is possible except that this reversion after five years of officiation was not passed merely because of the unsuitability but because of the fact that the Appellant was found grossly negligent in the performance of his official duty and his explanation in that behalf had been found to be unsatisfactory and false. The Superintendent of Police had ordered a regular departmental enquiry in the matter. Therefore, this reversion was by way of punishment, and this unsatisfactory and false explanation formed the ground and not a motive for the reversion.

The learned Advocate-General has relied on Smt. Malti Heera, Auxilary Nurse Midwife v. The State of Punjab and Ors. 1933 (1) S.L.R. 769 to show that the unsatisfactory conduct of a Government servant and the calling of explanation and making fact finding enquiry to assess quality of work of Government servant for purpose of retaining him or dispensing with his service does not amount to a legal departmental enquiry under Article 311(2), and the order of termination of service which is wholly innocuous cannot be labelled as penal unless there is conclusive proof to the contrary and that the normal presumption should be that there is no intent to punish. This authority has got no relevancy to the facts of the present case. Smt. Malti Heera was appointed for a period of six months in the first instance and it was provided in the appointment letter that if her services were retained beyond six months, her appointment could be terminated by a month''s notice on either side. It was in terms of her employment that her services were terminated with one month''s notice to take effect from the date the same was received by her. Therefore, the principle enunciated in this authority cannot be made applicable to the case in hand. In the face of these facts it will not be necessary to refer to the other authorities and we are of the view that the reversion of the Appellant from his officiating appointment after a period of five years was by way of penalty inasmuch as it cast a stigma on his conduct that he was grossly negligent and this reversion was further made by way of punishment because the explanation was found unsatisfactory and false in the departmental enquiry initiated against him by the Superintendent of Police.

The further question that requires consideration is whether the reversion could be made with retrospective effect. In the present case the Appellant was on leave upto the 4th of April, 1971, and he was reverted with effect from 25th of March, 1971. The reason assigned for this is that he failed to attend the parade, etc. It is an admitted fact that he was on leave and during leave a person cannot be forced or compelled to attend to any duty and as such his reversion from a back date when he was on leave cannot be held to be valid. In State of Haryana v. Dev Dutt Gupta and Ors. 1970 S.L.R. 776 which was a letters patent appeal it was held that the order of reversion must be effective from the date of communication. In the instant case the orders were communicated after the expiry of the leave of the Appellant in April, 1971, and, therefore, this reversion from a back date was untenable.

In view of the fact that I am inclined to accept the appeal the result that would follow would be that on his re-instatement after quashing the orders of reversion, the Petitioner would be entitled to all the consequential reliefs, including the quashing of the order reverting him with retrospective effect and he shall also be held entitled to all the arrears of pay, etc.

In view of the above the Petitioner-Appellant is entitled to succeed and I accordingly accept this appeal, reverse the order of the learned single Judge, and quash the order of reversion and hold the Appellant entitled to all the consequential benefits arising therefrom. He is also entitled to the emoluments for the suspension period. The Appellant is also allowed costs, assessed at Rs. 200.

For the reasons contained in our respective judgments, the appeal is allowed, the order of the learned single Judge is set aside and the order of reversion made against the Appellant is quashed. The Appellant is entitled to all consequential benefits arising from the quashing of the order of reversion. He is also entitled to his emoluments for the suspension period. We award costs, assessed at Rs. 200, in his favour.