http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: R. S. SIAL

       Vs.

RESPONDENT: THE STATE OF U.P. & ORS.

DATE OF JUDGMENT25/03/1974

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ GOSWAMI, P.K.

CITATION:  1974 AIR 1317  CITATOR INFO :  RF         1976 SC2547  (16,17)  R          1979 SC 684  (7)  R          1980 SC  42  (20)  R          1984 SC 636  (11)

ACT: Constitution  of  India,  Art.  311(2)--Reversion  from   an officiating  higher  post to substantive  post--It  attracts Art. 311(2)

HEADNOTE: The appellant who was Assistant General Manager in the State Transport  Department was appointed as  officiating  General Manager  in the same department.  During the period  of  his officiating appointment he was reverted.  At the time of the appellant’s  reversion  there  were  two  letters  from  the Vigilance Department making certain allegations against  the appellant.    These  letters  show  that   the   authorities concerned  came to the conclusion that pending the  enquiry, the appellant should not be allowed to officiate in a higher post.  His writ petition challenging the order of  reversion was dismissed by the High Court. It  was contended in this court that the order of  reversion was by way of punishment and since it had been made  without complying   with  the  requirements  of  Art.  311  of   the Constitution the same was liable to be quashed. Dismissing the appeal, HELD   :-The  test  for  attracting  Art.  311(2)   of   the Constitution  is whether the misconduct or negligence  is  a mere  motive  for the order of reversion or  termination  of service  of the temporary employee.  The form of  the  order however, is not conclusive of its true nature.  The entirety of  circumstances  preceding or attendant  on  the  impugned order must be examined by the court and the overriding  test will always be whether the misconduct is a mere motive or is the very foundation of the order. [757E] A  perusal of the order showed that it contained no  adverse rem-,irks  against the appellant nor could it be  said  that any  stigma  attached  to the.. appellant  because  of  that order.   The post of General Manager which was held  by  the appellant   was  only  in  an  officiating  capacity.    The appellant had no vested right to retain that post.  In  case the  authorities concerned came to the conclusion  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

appellant should not be allowed to retain the post of  which he  was  officiating  they  could  pass  an  order  for  his reversion  without complying with the requirements  of  Art. 311 provided the order was not by way of punishment. [756H] Parshotam Lal Dhingra v. Union of India, [1958] S.C.R.  828. Union of India & Anr. v.  Gajendra Singh etc. etc., [1972] 3 S.C.R.  660  and  State of Bihar & Ors.  v.  Shiva  Bhikshuk Mishra, [1971] 2 S.C.R. 191, followed. State  of Punjab v. Shri Sukh Raj Bahadur, [1968]  3  S.C.R. 234, referred to. It is well settled that even though misconduct,  negligence, inefficiency or other disqualifications may be the motive or the  inducing factor which influence the Government to  take action under the express or implied terms of the contract of employment  or under the statutory rule. nevertheless  if  a right  exists, under the contract or the rules to  terminate the  services  the  motive  operating on  the  mind  of  the Government  is wholly immaterial.  The same rule would  hold good  if the order passed is not for termination of  service but for reversion of a Government servant from a higher post to  a lower post which he holds in a  substantive  capacity. [758H] Union  of  India  V. R.   S. Dhaba,  [1969]  3  S.C.R.  603, referred to.

JUDGMENT: CIVIL  APPELLANT  JURISDICTION : Civil Appeal  No.  1062  of 1971. Appeal  by Special Leave from the Judgment and  Order  dated the 12th January, 1971 of the Allahabad High Court  (Lucknow Bench) at Lucknow in Writ Petition No. 1073 of 1968. 755 S.  V.  Gupte,  J. P. Goyal and G. S.  Chatterjee,  for  the appellant. C. N. Dikshit, and R. Bana for the respondents. The Judgment of the Court was delivered by KHANNA, J.-This appeal by special leave is directed  against a  Full Bench decision of the Allahabad High  Court  whereby petition  under  article 226 of the  Constitution  of  India filed by the appellant was dismissed. The appellant was appointed Traffic Manager in the transport organization of the State of Uttar Pradesh on July 21, 1948. The office of Traffic Manager was subsequently designated as Assistant  General  Manager and the appellant  continued  to work  as  such.   On  December 1,  1955  the  appellant  was confirmed  as  Assistant General Manager  with  effect  from April 1, 1955.  On July 5, 1963 the appellant was  appointed Officiating  General Manager in the Gorakhpur region of  the Transport Department.  The appellant continued to  officiate as General Manager of Government Roadways till September  7, 1967  when he was reverted to the post of Assistant  General Manager.  The appellant filed writ petition No. 3167 of 1967 in  the  Allahabad High Court challenging the order  of  his reversion but the same was summarily dismissed by a Division Bench  of that court as per order dated September 12,  1967. Representation was made by the appellant against the,  order of his reversion but the representation too was rejected  by the  State Government as per letter dated October  7,  1968. The  writ petition which has given rise to this  appeal  was thereafter filed by the petitioner praying for quashing  the order  by  which  he  had been reverted  from  the  post  of Officiating  General  Manager to that of  Assistant  General Manager as well as the orders whereby his representation bad

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

been rejected. A  number  of  grounds  were set out  in  the  petition  for assailing  the  impugned orders, but at the hearing  of  the appeal only one ground has been pressed and it is only  that ground  with  which  we are  concerned.   According  to  the appellant,  the  order  of  his  reversion  was  by  way  of punishment  and as it bad been made without  complying  with requirements  of article 311 of the Constitution,  the  same was liable to be quashed. The petition was resisted by the State of Uttar Pradesh  and the affidavit of Shri Bhagwan Sarup Saxena, Deputy Secretary to  the Government in the Transport Department was filed  in opposition  to the petition.  Objection was taken that  the, present petition was barred because of the dismissal of  the earlier  petition.   On  merits  it  was  stated  that   the appellant  was merely officiating as a General  Manager  and had  no  right to that post.  According to  the  respondent- State,  the appellant could be reverted to  his  substantive post  of Assistant General Manager without the State  taking any disciplinary action or assigning any reason. When the petition came up for hearing before a single  Judge the  learned  Judge referred the matter to a  larger  Bench. Ultimately, the matter was heard by a Full Bench of the High Court.   The learned Judges held that the  present  petition was  barred  because  of the dismissal  of  the  appellant’s earlier petition.  On merits also, the learned 756 Judges  did not accept the contention advanced on behalf  of the  appellant and held that as he was only  officiating  as General Manager, he did not have any lien on that post.  The reversion  was  held to be not by way  of  punishment.   The Government,  in the opinion of the High Court, was  entitled in  exercise  of  its,  power to revert  a  person  who  was officiating  in a higher post.  Contention was  also  raised that the order of reversion was violative of the  principles of natural justice but this contention was repelled.  In the result the petition of the appellant was dismissed. In appeal before us Mr. Gupte on behalf of the appellant has argued. that as the previous petition No. 3167 of 1967 filed by the appellant had been dismissed summarily by means of  a non-speaking order, it cannot be said that the dismissal  of that  petition  was on merits.  As such,  according  to  the learned counsel, the present petition was not barred because of  the  dismissal  of the previous  petition.   The  second contention  of  Mr.,  Gupte is that  the  reversion  of  the appellant  from the post of Officiating General  Manager  to that  of Assistant General Manager was by way of  punishment and  as  the same had been ordered  without  complying  with article 311 of the Constitution, the order of reversion  was liable  to  be  quashed.  The above  contentions  have  been controverted  by  Mr. Dikshit on behalf of  the  respondent- State.  It is, in our opinion, not necessary to go into  the first contention of Mr. Gupte because we find that the order of  reversion of the appellant cannot be said to  have  been made by way of punishment. The material part of the order of reversion reads as under               "OFFICE OF THE TRANSPORT COMMISSIONER                         UTTAR PRADESH               No.  714/PAVS/67 Dated Lucknow,  September  7,               1967                            ORDER               In  pursuance  of  Government’s   instructions               contained  is  Deputy  Secretary,  Transport’s               D.O. letter No. 13060 S/XXXA-10/18/M/59, dated               September  5, 1967 the  following  reversions,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

             transfers and postings are hereby ordered               (1)  Sri  R.  S.  Sial,  officiating   General               Manager,  U.P. Government Road-ways,  Aligarh,               is   reverted  to  his  substantive  post   of               Assistant General Manager, and posted at Luck-               now as Assistant General Manager (Rural)  vice               Sri V. P. Gupta transferred." Perusal of the above order shows that it contains no adverse remarks  against the appellant, nor can it be said that  any stigma attaches to the appellant because of that order.   At the  time the above order was made the substantive  rank  of the  appellant was that of Assistant General  Manager.   The post of General Manager which was held by the appellant  was only  in  an  officiating capacity.  The  appellant  had  no vested  right to retain that post.  In case the  authorities concerned  came to the conclusion that the appellant  should not be allowed to 757 retain the post in which he was officiating, they could pass an  order  for  his reversion  without  complying  with  the requirements  of article 311 provided the order was  not  by way of punishment. Appointment  to a post on an officiating basis is, from  the nature  of employment, itself of a transitory character  and in  the 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 acquires no right to the post.   But if the order entails or provides for  forfeiture of his pay or allowance or the loss of his seniority in  the substantive  rank  or the stoppage or  postponement  of  his future  chances  of promotion, then  that  circumstance  may indicate that though, in form, the Government had  purported to exercise its undoubted right to terminate the employment, in truth and reality, the termination was by way of  penalty [see  Parshotam Lal Dhingra v. Union of India (1) and  Union of India & Anr. v. Gajendra Singh, etc. etc.(2)]. Officiating  and  temporary  Government  servants  are  also entitled  to  the  protection of article  311  as  permanent Government  servants if the Government takes action  against them  by meting out one of the punishments, i.e.  dismissal, removal  or reduction in rank [see Parshotam Lal Dhingra  v. Union of India, (supra), Champaklal Chimanlal Shah v.  Union of  India(3) and Appar Apar Singh v. The State of  Punjab  & Ors. (4) ]. The  test for attracting article 311(2) of the  Constitution is  whether  the misconduct or negligence is a  mere  motive for-the  order  of reversion or termination  of  service  or whether   it  is  the  very  foundation  of  the  order   of termination of service of the temporary employee.  The  form of the order, however, is not conclusive of its true nature. The entirety of circumstances preceding or attendant on  the impugned  order  must  be  examined by  the  court  and  the overriding  test will always be whether the misconduct is  a mere  motive  or is the very foundation of  the  order  [see State of Bihar & Ors. v. Shiva Bhikshuk Mishra(5)]. In  the case of State of Punjab v. Shri Sukh Rai  Bahadur(6) this Court enunciated the following propositions which  have to be borne in mind :               (1)  The services of a temporary servant or  a               probationer can be terminated under the  rules               of his employment and such termination without               anything more would not attract the  operation               of Art. 311 of the Constitution.               (2)  The circumstances preceding or  attendant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

             on the order of termination of service have to               be examined in each case, the motive behind it               being immaterial.               (3)  If  the order visits the  public  servant               with   any  evil  consequences  or  casts   an               aspersion against his (1) [1958] SCR 828.      (2)  [1972] 3 SCR 660. (2) [1964] 5 SCR 190.    (4)  [1971] 2 SCR 890. (5) [1971] 2 SCR 191.   (6)   [1968] 3 SCR 234. 758               character or integrity, it must be  considered               to  be  one by way of  punishment,  no  matter               whether  he  was  a  mere  probationer  or   a               temporary servant.               (4)  An  order of termination  of  service  in               unexceptionable  form preceded by  an  enquiry               launched  by the superior authorities only  to               ascertain whether the public servant should be               retained  in  service, does  not  attract  the               operation of Art. 311 of the Constitution.               (5)  If  there be  a  full-scale  departmental               enquiry envisaged by Art. 311 i.e. an  Enquiry               Officer   is   appointed,   a   charge   sheet               submitted,   explanation   called   for    and               considered,   any  order  of  termination   of               service  made  thereafter  will  attract   the               operation of the said article." Keeping  in  view the principles enunciated above,  we  have looked  at the facts of the case and are not satisfied  that the  order  of  reversion of the appellant  was  by  way  of punishment.   It  has already been mentioned above  that  no aspersion  was  cast  on  the  appellant  in  the  order  of reversion  and as a result of that order no stigma  attaches to  his  name.  The appellant was merely  officiating  in  a higher  post  and  the  impugned order  had  the  effect  of reverting  him  to  his  substantive  post.   The  attendant circumstances to which our attention has been invited with a view  to  show  that the order of reversion was  by  way  of punishment  are  two letters dated July 12,  1967.   One  of these  letters  was  addressed  by  the  Deputy   Secretary, Vigilance  Department to the Director of  Vigilance  wherein reference  was  made to the report of the  officers  of  the Intelligence and Evaluation Cell.  It was requested that  an open   enquiry  might  be  made  into  the  allegations   of involvement  of  the appellant in a matter relating  to  the supply of non-genuine and substandard motor parts by a Delhi dealer.   In the other letter addressed to the Secretary  to Uttar Pradesh Government, Transport Department a request was made  by the Deputy Secretary, Vigilance Department that  in case the appellant was not confirmed on the post of  General Manager,  he might be reverted since an enquiry made by  the CID into the allegations of corruption against the appellant had revealed that there was substance in those  allegations. The above letters would show that the authorities  concerned came to the conclusion that, pending the holding of an  open enquiry   into  the  charges  of  corruption   against   the appellant, he should not be allowed to officiate in a higher post.  It cannot, in our opinion, be inferred therefrom that the  reversion  of the appellant was by way  of  punishment. All  that can be said is that the contemplated enquiry  into the charges of corruption against the appellant provided the motive for the reversion of the appellant.  The existence of such a motive cannot, in our opinion, vitiate the order  for the reversion of the appellant.  It may be taken to be  well settled    that   even   though   misconduct,    negligence,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

inefficiency or other disqualifications may be the motive or the  inducing factor which influence the Government to  take action under the express or implied terms of the contract of employment  or under the statutory rule, nevertheless  if  a right  exists, under the contract or the rules to  terminate the services the 759 motive  operating  on the mind of the Government  is  wholly immaterial [see Union of India v. R. S. Dhaba(l).]. The same rule  would  hold  good  if the  order  passed  is  not  for termination  of  service but for reversion of  a  Government servant from a higher post to a lower post which he holds in a substantive capacity. Application  was filed during the pendency of the appeal  on behalf  of  the appellant that this Court  might  take  into account  additional  documents.   These  documents  were  in existence  at the time the appellant filed the  petition  in the  High  Court.  The petition in the High  Court  remained pending  for more than a year.  We are not impressed by  the plea  taken  on behalf of the appellant that  he  could  not trace  these documents with due diligence and has been  able to  trace  them now.  The documents in question are  not  of such  a nature as are needed to enable us to pronounce  this judgment.   In the circumstances, the application  filed  by the  appellant for taking on record additional documents  in appeal is rejected. The appeal fails and is dismissed with costs. P.B.R.                            Appeal dismissed. (1) [1969] 3 SCR 603. 760