The Government of Tamil Nadu and Others vs N.F.J. Ponnudurai

S. Ramalingam, J.—The respondent was working as a Statistical Inspector in the Department of Statistics. By G.O.Ms.No.105, Home,

dated 10.1.1979, he was temporarily appointed by transfer as Judicial Second Class Magistrate under Rule 13 of the Tamil Nadu State

Magisterial Service Rules. However, the respondent retained his lien in the parent Department.

By G.O.Ms.No.2256, Home, dated 24.9.1981, in exercise of the powers under Rule 13(3) of the said Rules, the Government of Tamil Nadu

terminated the service of the respondent as temporary Judicial Second Class Magistrate and the Registrar, High Court, Madras was requested to

revert him to his parent department. Accordingly, by orders made on 15.10.1981 the respondent was reverted to his parent Department.

Challenging the Orders made in G.O. Ms. No. 2256 Home, dated 24.9.1981, and the Order dated 15.10.1981, the respondent filed W.P. No.

11143 of 1981 for the issue of a writ of certiorari. He pleaded that the Order reverting him to his parent Department, though worded in innocuous

terms, if the veil is pierced, it would be found that the same was punitive in character and was intended to punish him for unfounded allegations

levelled against him. He contended that when disciplinary proceedings were taken against one D. Arunachalam before the Tribunal for Disciplinary

Proceedings, he was examined as a witness and in the course of acquitting the said D. Arunachalam, the Tribunal made certain observations

regarding the suitability of the respondent continuing in office as a Judicial Second Class Magistrate and suggested that he may be reverted to his

parent Department. He, therefore, contended that his reversion was based on the observations made by the Tribunal for Disciplinary Proceedings

which made serious allegations against him and since he had not been given an opportunity to refute those allegations and establish his innocence,

the Order of reversion is violative of the principles of natural justice.

The Writ Petition was allowed by Order dated 27.3.1986. The learned single Judge accepted the case of the respondent herein that the Order

of Reversion was by way of punishment and is also violative of articles 14 and 16 of the Constitution of India. In the appeal, the learned

Government Pleader contends that the conclusion of the learned single Judge is unwarranted, that the respondent has no right to be retained in the

borrowing department, that his original place is only in his parent department and before the respondent was sent back to his parent department,

an enquiry as envisaged under Article 311 of the Constitution is not coptemplated because it is not a punishment, that the Government is entitled to

assess at any time the suitability or otherwise of any candidate to be retained in the borrowing department and in proper exercise of the powers, if

they find that a particular officer may not be continued in the borrowing department, he may be sent to his parent department, and such an

innocuous order would never amount to a punishment. It is also contended that no question of juniority or seniority arises between persons who

are on deputation since each individual''s case has to be assessed on its own merits.

Most of the contentions urged in this appeal are covered by the well-considered judgment of this Court made in W.A.No.1647 of 1988 to

which one of us is a party - (vide The High Court represented by its Registrar, High Court, Madras, v. R. Periasamy and Anr.judgment dated

26.4.1986. In that judgment, while stating the fundamentals which should be borne in mind while dealing with a case of a reversion of an officer to

his parent department, it was held as follows:

Where a person is borrowed from one department and is asked to work in another department temporarily, if he is reverted back to the Original

department, there is no question of termination of any service in the proper sense of the term. In other words, his services in the transferred

department have come to an end. He goes back to the parent department. That is because he has a lien in the parent department. That lien

continues. So long as that lien continues, he has a right to go back to that department.

Reference to the judgment in W.P.Nos.259 and 308 of 1985 was also made in W.A.No.1647 of 1988. In those Writ Petitions, S. Natarajan, J.

(as he then was), after referring to Rule 13 of the Tamil Nadu Magisterial Service Rules and alsothe relevant rule under the Tamil Nadu Civil

Services (Classification, Control and Appeal) Rules, held that a person appointed temporarily shall not be regarded as a probationer in such

category or be entitled by any reason only of such appointment to any preferential claim to future appointment to such category, and the service of

a person so appointed shall be liable to be terminated by the appointing authority at any time without assigning any reason. Further the reversion of

a Government servant, appointed on probation, but in other service, grade or post, to his permanent service, grade, or post, during or at the end of

the period of probation, in accordance with the terms of his appointment or the rules and orders governing such probation will not amount to a

penalty. The learned Judge also held that such an argument can be accepted only if one closed his eyes to the realities of the case. However spread

out the branches may be, they go with the trunk of the tree. Similarly, however, longer Government employee may have served temporarily in

another department, his permanent place is in his parent department, and as such, a return to that department can neither be resisted nor decried.

This position is too fundamental in nature....'' Therefore, the position that emerges is that a person who is on deputation in another department has

no right to insist that he should be continued to be retained in that department or that he should not be reverted. Such reversion is a normal

exigency of service. It is equally fundamental that the borrowing department can assess the suitability of a person to be continued in the borrowing

department and when it finds that the service of a person who has come by way of transfer from another department was no longer required, then,

an administrative order would be made reverting him to his parent department. Such an order of reversion can never be attacked as one involving

civil consequences. No question of loss of seniority would arise and no question of loss of emoluments would arise, because, as stated earlier, his

roots are in the parent department and either the salary earned by him in the parent department or the seniority secured by him would ever be

altered by reason of transfer from the borrowing department to the parent department. In this case, no allegations of mala fides have been

specifically made and, therefore that question does not fall for consideration. The only allegation levelled against the order of reversion is that it

amounts to a punishment. The argument proceeds on the assumption that the respondent had been reverted to his parent department as a

punishment for the misconduct assumed by the appellants as having been committed by him. But a careful consideration of the averments in the

counter affidavit filed in this case shows that the Government as well as the High Court earnestly considered the question of the suitability of the

respondent to continue in the judicial service and found that his services may no longer be required and thereafter passed orders sending him back

to his parent department. While assessing the suitability of the 1st respondent to be continued in the Judicial Department the appellants herein have

taken relevant matters into consideration. At the risk of repetition, it may be stated that no mala files have been alleged against the appellants.

Where therefore, in the interest of the efficiency of the administration and as a matter of administrative exigency, the respondent had been reverted

to his parent department which action is well within the jurisdiction of the appellants herein, the conclusion of the learned single Judge that the order

amounts to a punishment cannot be supported. It is true that the Tribunal for Disciplinary Proceedings recommended that the 1st respondent may

be reverted to his parent department. It is equally true that the High Court and the Government had deliberations over this issue. The ultimate

conclusion arrived at by the Competent Authority was regarding the suitability of the respondent to be continued in the borrowing department. If

such deliberations had taken place before the order of reversion, was made, it would not be proper for this Court to conclude from those

circumstances alone that the order of reversion is by way of punishment.

The case of each individual whose services had been borrowed from departments to service in the Judicial Department was assessed and in

such process of assessment, some persons whose services were no longer required in the Judicial Department were sent back to their respective

parent departments. Such process of assessment of suitability may result in retention of some and reversion of others. No question of violation of

Article 14 of the Constitution of India would arise in the circumstances of the case, because, there was no capricious or arbitrary exercise of

powers. It is a power exercised by the Competent Authorities for administrative purpose, and the Order was passed on relevant and germane

considerations.

Supporting the judgment under appeal, the learned Counsel for the respondent relied on the judgment of the Supreme Court in Mohammed

Ibrahim v. The State of Andhra Pradesh and Ors. AIR 1970 S.C. 1939. In that case, after observing, ""In the view of the High Court the appellant

was reverted because his work was not found satisfactory and since the order on the face of it did not involve any penal consequences there was

no violation of Article 311 or Article 14 of the Constitution. The order reverting the appellant to the post of Supervisor does not involve any penal

consequences nor does it cast any stigma upon the appellant. There was no violation of the protection of Article 311 of the Constitution, merely

because the appellant was not given an opportunity to explain why he should not be reverted"", the Supreme Court allowed the appeal on the

ground that the plea of the appellant regarding mala fides had not been considered by the High Court in the judgment under appeal before it and,

therefore, the order of the High Court was set aside and the case was remanded for fresh disposal according to law. This case is hardly of any

assistance to the respondent.

The next case cited by the respondent''s Counsel is, K.H. Phadnis Vs. State of Maharashtra, . That was a case where the appellant was

reverted from the temporary post of Controller of Food grains Department to his parent department of Excise and Prohibition. This order of

reversion was attacked on the ground that it was in violation of Article 311 of the Constitution. In that case, after an examination of the facts of the

case, where it was found that when the appellant''s daughter was to be married, the appellant had forced his peons to do menial work at the

marriage and also that he had demanded cash and gifts from fair price shop owners and he had forced the staff to contribute cash for the marriage

of his daughter, the order of reversion had been made. Therefore, the Courts rightly held that when a person was made to face charges of receiving

money at the time of marriage of his daughter, and when he had denied those allegations, and when in an enquiry it was found that the appellant

was totally free from the blame and when the post which he was holding was quasi-permanent in character which post he was entitled to hold, and

when the matter was viewed as one of substance, it would be seen that the order of reversion was not a genuine accident of service or one which

would amount to a punishment. On the facts of that case, therefore, the Supreme Court came to the conclusion as follows:

In the present case, the facts and circumstances to which reference has already been made bring out in bold relief that the order of reversion was in

the nature of punishment. The order was not in compliance with the provisions of the Constitution.

In the case on hand, there are no such conclusive facts to sustain the plea of the respondent that he was reverted to his parent department on the

ground of misconduct or unproved allegations or charges. As stated earlier, the Government and the High Court had assessed the suitability of the

respondent to be retained in service and came to the conclusion that he should be sent back to his parent department in the interest of the

administration. There fore, the decision of the Supreme Court in K.H. Phadnis Vs. State of Maharashtra, is clearly distinguishable.

The next case on which the learned Counsel for the respondent seeks to rely on is, State of Mysore Vs. P.R. Kulkarni and Others, etc., . That

was a case where the Supreme Court after observing that the reversion of officiating civil service can be made without infringing Article 311 of the

Constitution, held that since the reversion orders were passed for extraneous purpose and resulted in unjustifiable discrimination, the Supreme

Court/interfered. But the present case, no question of misapprehension arises, nor is it the case of the respondent that the power of reversion had

been used for a collateral or legally extraneous purpose. The decisions in The Manager, Government Branch Press and Another Vs. D.B.

Belliappa, and S. Baliah v. The Government of Tamil Nadu 1984 T.L.N.J. 233 on which reliance is placed by the learned Counsel for the

respondent were considered by the Division Bench of this Court in the judgment rendered in WA.No.1647 of 1988 and they have been

distinguished. There is no need or necessity to reiterate the reasons for such distinction.

The reasoning of the learned Judge that there is a violation of Article 311 of the Constitution or that Article 14 and 16 of the Constitution stood

violated cannot be sustained. The writ appeal is allowed and the order made in W.P.No.11143 of 1981 is set aside. However, there will be no

order as to costs.