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Judgment
D. K. Seth, J.—By an order dated 921979, the petitioner was reverted to his original post front the post of Sales Tax Officer. The petitioner filed a Claim Petition against the said order of reversion before U.P. Public Services Tribunal, Lucknow, ( here in after referred to as the Tribunal). The Tribunal by its order, dated 1291984, rejected the claim of the petitioner. It is against this order, the present writ petition has been moved.
Sri Arun Tandon, learned counsel for the petitioner contends that since the junior of the petitioner were retained while reverting the petitioner, the order is bad. By reason of such reversion, the petitioner had suffered loss of opportunity of advancement in his service career. He further contends that a disciplinary proceeding was initiated on 1721978, which is Annexure2 to the writ petition, but the same was not proceeded with and instead order of reversion was passed, which is AnnexureRA 1 to the RejoinderAffidavit. There was an adverse entry, but the same was also set aside by the Tribunal, on being challenged in the year 1994. Therefore, the order of reversion though has been dressed up as a simple order of reversion, is in effect penalty in disguise and reversion with stigma. Such an order of reversion, therefore, cannot be sustained. He relies on the decision in the case of State of U.P v. Sugar Singh, AIR 1974 SC 423, in support of his contention.
Learned counsel for the respondents, on the other hand relied on the Claim Petition filed by the petitioner before the Tribunal with regard to the case made out and the written statement for supporting the action taken by the respondents and contends that the petitioner was reverted on the ground of nonsuitability. Therefore, he could not have any claim of officiating post when he is found unsuitable for the same. The disciplinary proceeding having not been proceeded with, the same do not cast any stigma. The reversion on the ground of nonsuitability is not a stigma.
Learned Tribunal in its finding has found that the reversion was not punishment, but was an order of reversion simpliciter and that no particulars were furnished to show that any of his juniors were still working as the Sales Tax Officer.
In the writ petition, the order of the learned Tribunal, filed as Annexure9 to the petition, has been challenged. In order to appreciate the arguments challenging the said order of the Tribunal, it is necessary to refer to the case made out by the parties in the pleading before the Tribunal. So far as the question that the juniors were allowed to officiate while the petitioner was reverted, as a fact, violation of Article 16 of the Constitution, is concerned, statement is made in para 12 of the application made by the petitioner before the Tribunal. The only averment that has been made is that "while the petitioner was reverted those juniors to him are allowed to officiate at the higher post. The said statement appears to be general and vague without any particulars. No particular having been disclosed it was not necessary for the respondents to contradict the same. Since the allegation was made by the petitioner it was incumbent on the petitioner to point out at least indicating the name of the persons or one such person junior to the petitioner, who were allowed to officiate on higher post, but the same has not been done. Therefore, the Tribunal was right in holding that the petitioner has not filed any statement to show that his juniors were still working as the Sales Tax Officer. The said point, therefore, cannot be assailed by the petitioner in absence of any material. Therefore, in my view there is no force in the submission of the learned counsel for the petitioner on this point.
In the written statement filed before the Tribunal, the respondents had admitted that no disciplinary proceeding was taken against the petitioner. The promotion was on ad hoc basis in officiating capacity. Therefore, he could be reverted if his work did not justify his retention on the post of Sales Tax Officer. The petitioner was reverted on the ground of general unsuitability.
In the case of State of U.P. and another v. Premlata Misra (Km) and others, (1994) 4 SCC 489, 1995(1) LBESR 45(SC) it has been held that even if service is terminated after serving chargesheet without proceeding with the disciplinary proceedings by making an assessment whether a person should be retained in service or not, when he is not a confirmed one the question is to be found out as to whether the misconduct was a foundation to the termination or a motivation only. If it is a motivation, in that event, such termination cannot be said to be bad if it is a termination simpliciter without proceeding with the disciplinary proceedings in respect of misconduct. In the said case, it has been held:
"It is settled law that the Court can lift the veil of the innocuous order to find whether it is the foundation or motive to pass the offending order. If misconduct is the foundation to pass the order then an enquiry into misconduct should be conducted and an action according to law should follow. But if it is motive, it is not incumbent upon the competent officer to have the enquiry conducted and the service of a temporary employee could be terminated in terms of the order of appointment or rules giving one month''s notice or pay salary in lieu there of. Even if an enquiry was initiated it could be dropped midway and action could be taken in terms of the rules or order of appointment. The same principle applies to the facts in this case. It is seen that the respondent was appointed by direct recruitment by Selection Committee constituted by the Government in this behalf and on finding about the suitability to the post as an Assistant Project Officer the respondent was appointed and was posted to" the place where she had joined. Thereafter her work was supervised by the higher officers and two officers have submitted their reports concerning the performance of the duties by the respondent. She was regularly irregular in her duties, insubordinate and left the office during office hours without permission etc. On consideration there of the competent authority found that the respondent is not fit to be continued in service as her work and conduct where unsatisfactory. Under these circumstances the termination is for her unsuitability or unfitness but not by way of punishment as a punitive measure and one in terms of the order of appointment and also the Rules."
The above view was taken by the Apex Court as back as in 1964 in the case of Cnampak lal Chiman Lal Shah v. Union of India and others, AIR 1964 SC 1854, while the application of Article 311 (2) was being considered. In the said case it was held Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists under the contract or the rules to terminate the service the motive operating on the mind of the Government is wholly irrelevant."
Even if as alleged by the learned counsel for the petitioner it is assumed that the disciplinary proceeding though initiated has not been proceeded with and instead the order of reversion was passed, but still then unless it is shown to the court that initiation of the disciplinary proceeding was the foundation in passing the order of reversion, the order cannot be assailed as invalid. Even if the initiation of the disciplinary proceeding is a motive, still then the order of reversion cannot be assailed. No where from the pleadings before the Tribunal it was ever shown that initiation of the disciplinary proceeding was the foundation to the order of reversion.
The general unsuitability is not a stigma. The promotion is given on the basis of suitability not by way of right acquired through seniority in order to continue in officiating capacity on the higher post, one has to be suitable. Therefore, unsuitability cannot be taken to be a stigma. In that view of the matter, the order of the learned Tribunal does not appear to suffer from any infirmity. The decision in the case of Sughar Singh (supra) cited by the learned counsel for the petitioner does not help the petitioner for the simple reasons that in the said case it was held that the reversion was effected due to adverse entry which was a fact admitted in the said case. But in the present case it was not a case of the respondents that reversion was affected due to any adverse entry. The reversion was effected only due to general unsuitability. The reversion on the ground of unsuitability does not attract equality clause and cannot be treated to be a punishment. Therefore, the said decision does not help the petitioner, in the facts and circumstances of the present case.
Over and above the findings arrived at by the learned Tribunal is a finding of fact on the basis of consideration of relevant material before it. No perversity, in the said finding could be pointed out by the learned counsel for the petitioner. While exercising revisional jurisdiction the High Court is not supposed to substitute its view even if it has different view with that of the finding of fact by the Tribunal, unless it is shown to this court that the said finding is perverse.
In that view of the matter I am not inclined to interfere with the finding of the learned Tribunal in absence of any infirmity or perversity, as observed above. The writ petition, therefore, fails and is accordingly dismissed. There will, however, be no order as to costs.