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PETITIONER: REGIONAL MANAGER & ANR.

       Vs.

RESPONDENT: PAWAN KUMAR DUBEY

DATE OF JUDGMENT08/03/1976

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SINGH, JASWANT

CITATION:  1976 AIR 1766            1976 SCR  (3) 540  1976 SCC  (3)  44  CITATOR INFO :  RF         1976 SC2547  (21)  D          1980 SC1459  (7)  RF         1981 SC 965  (6)  R          1987 SC2408  (4)

ACT:      Constitution of  India, 1950,  Art. 16 and 311(2), when applicable.      Civil servant-Reversion  of-order apparently  innocuous when really punitive Art. attracting Art. 16 and 311(2).

HEADNOTE:      The respondent  was reverted  from the  higher post  in which he  was officiating,  to his  substantive post,  by an order which stated that he was ’not fit yet’ for  the higher post. His juniors continued to officiate in the higher post. Till some time before the order of reversion, the respondent was praised  by his  superior officers, but, during a period of about  six months before the reversion, there was a spurt of  warnings,  complaints,  and  adverse  remarks,  alleging disrespect,  disobedience   to  orders,  and  that  he  cast aspersions on his superior officer. the respondent asked for particulars to meet the allegations, but they were not given to him.  His representation  against the  last adverse entry was  pending   when  the  reversion  order  was  passed.  He challenged the  order and the High Court, following State of U.P. v.  Sughar Singh  [1974] 2  S.C.R. 333,    quashed  the order, holding  that the  reversion was  a punishment in the light of  the circumstances  preceding the  order, from  the terms of  the order,  and its  effect  on  the  respondent’s future-and that  there was  a violation  of rules of natural justice.      In appeal to this Court by special leave, the appellant contented that  the High  Court misunderstood Sughar Singh’s case.      Dismissing the appeal, ^      HELL): (1)  As the  reversion order  was  punitive  and passed contrary  to the rules of natural justice embodied in Art. 311(2),  it  must  be  quashed.  The  authorities  are, however, free  to take  action, either  in  accordance  with

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applicable rules  for a comparative assessment of the merits of the respondent and others who may be eligible, or to take disciplinary proceedings. [550A-B]      (a)  In  Sughar  Singh’s  case,  this  Court  was  only following the law on Art. 311(2) as laid down repeatedly. In that case  also the reversion of Sughar Singh was apparently not punitive, but, since it could not be explained except as a result  of an adverse entry made two years earlier, it was held to  be by  way of  punishment. On  this view it was not necessary to  consider whether there was a violation of Art. 16, but  this Court  held that  there was. What weighed with this Court  was not only that there was a sufficient element of punishment in reverting him so that Art. 311(2) had to be complied with, but that there was also enough of impropriety and unreasonableness  in the  action taken solely for a very stale reason  which had  become logically  disconnected  and extraneous, to  make out  a case  of ’malice  in law’ if not ’malice in fact’. [545H-546F]      (b) Whether  an apparently  innocuous order is punitive or amounts  to unjustifiable discriminatory action violating either Art. 311 or Art. 16 depends on the facts of the case. [549E]      (c) This  Court has,  in Shamsher  Singh  v.  State  of Punjab [1975]  1 S.C.R.  814, laid  down authoritatively the conditions necessary  in such cases for the applicability of Art. 311(2)  after considering  all the  previous cases  and there is no scope for any misapprehension of the law. [544C]      (d) As  regards Art. 16, before it is held to have been violated,  there   must  be   discrimination   between   one Government servant  and  another,  similarly  placed.  which cannot be  reasonably  explained  except  on  the  basis  of ’malice in  law’ or  ’malice in  fact’. But,  the person who alleges such malice in law must 541 satisfactorily establish  it on  proved or admitted facts as in State  of Mysore  v. A  Kulkarni (AIR 1972 SC 2170). When the allegations,  are of ’malice in fact’ which are disputed and require  a detailed adduction of evidence or examination of witnesses, the Court will leave the party aggrieved to an ordinary civil  suit and will not exercise its discretionary power under Art. 226. Reversion of an officer as a result of administrative exigencies,  without any suggestion of malice in law or in fact, is unaffected by Sughar Singh’s case, and is not  vitiated even if some Government servants, junior to him, have not been reverted. [547B-D, F-G]      (e) The  facts of the present case are similar to those of Sughar  Singh’s case  and the  High Court  was  right  in holding that  there was  a violation  of the  principles  of natural justice embodied in Art. 311(2). [548F-G]      There  were   no   administrative   reasons   for   the respondent’s reversion.  If there  had been  anything really serious against  him, proceedings  under Art.  311(2) should have been  instituted. The  sudden reversion  for the reason given in the order amounts to unjustified stigma which could not be  said to  be devoid  of the  element  of  punishment. [548G-H, 549D-L]      (f) If he was really unfit as compared with his juniors there could  have been a fair comparison with them at a time when such  assessment is  called for  under the rules (rules should be  made if there are none) and on such a comparative assessment of  merits, the juniors could have been preferred ensuring that there was no violation of Act. 16. Dealings of superior officers with their subordinates in Government must be shown  to be based on fair play and reason. But it is not necessary to  invoke the  aid of Art. 16 to quash the order.

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[549 C-D, E-, 550B]      (2) Even  if the High Court should not have interfered, it is  not a  fit ease  for interference by this Court under Art. 136,  as it is still open to the authorities to proceed in a just and legal way against the respondent if necessary. [549F-H]

JUDGMENT:      CIVIL  APPELLATE   JURISDICTION:   Civil   Appeal   No. 1844/1975.      (Appeal by  special leave  from the  judgment and order dated the  17-7-1974 of  the Allahabad High Court in special appeal No. 121 of 1974)      R. N. Trivedi and O. P. Rana, for the appellants.      S. C. Aggarwal and V. J. Francis, for the respondent.      The Judgment of the Court was delivered by      BEG, J.  This appeal  by special  leave granted  to the Regional Manager  of U.P.  State Road Transport Corporation, Allahabad, challenges  the  findings  of  a  learned  single Judge, affirmed  by a  Division Bench  of the Allahabad High Court holding  that the  respondent, Pawan  Kumar Dubey, was reverted from  the post  of a  Senior Station  Incharge,  in which he  was officiating,  to his  substantive  post  of  a Junior Station Incharge by means of an order dated 20-2-1973 passed as  a measure  of punishment  inflicted upon  him for alleged   misconduct   indicated   by   an   adverse   entry communicated to  him by  a letter  dated 25th January, 1973. His juniors,  it was  found, were still officiating in posts of Senior  Station Incharge.  The  respondent’s  chances  of promotion were  said to  be adversely affected by the reason given for  the reversion  in the  impugned order:  that  the respondent was "not fit yet" for the higher post.      The learned  single Judge and the Division Bench in the Allahabad High  Court were  referred to several decisions of this Court mentioned by the Division Bench These were: State of Bombay v. F. A. 542 Abraham(1); Champaklal  Chimanlal Shah  v. Union of India(2) Divisional  Personnel  Officer  v.  Raghavendrachar(3);  and State of U.P. & Ors. v. Sughar Singh(4).      The  Allahabad   High  Court   had  followed   what  it considered to  be the ratio decidendi of Sughar Singh’s case (supra), the  last case of this Court available at the time. Special leave  to appeal was sought in the case before us on the  ground  that  Sughar  Singh’s  case  (supra)  had  been misunderstood  by   the  High   Court  and   required   some elucidation by  this Court.  Special leave  was  granted  on condition that,  in any  event, the  costs of the respondent will  be  borne  by  the  appellants.  The  question  to  be determined was  assumed to  be one  of law  only. The appeal was, therefore, to be heard on the special leave paper ’Book with such  additional documents  from the record of the case as the parties may choose to file.      We find  that, although  a  number  of  documents  were filed, neither  side has chosen to- file a copy of the order impugned which  has been  interpreted by the single Judge as well as by the Division Bench of the Allahabad High Court as one amounting  to award  of a  punishment not  merely in the light of the circumstances preceding the order but also from the terms  of the  order itself  and  its  effect  upon  the respondent’s future. The question, therefore, arises whether we really  have before  us any point of law of such a nature as to  justify interference  in exercise  of the exceptional

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powers of this Court under article 136 of the Constitution.      Even though  we have  come to  the conclusion  that the question before  us is  substantially one  of fact, we would like to explain a little the law applicable to such cases in view of  the submission that Sughar Singh’s case (supra) had led to  some misunderstanding  of it. Not much clarification seems necessary  so far as conditions for the application of Article 311(2)  are concerned  as  this  question  has  been considered and  decided by  this Court  in a number of cases including the  recent decision by a bench of seven Judges of this Court  in Shamsher Singh & Anr. v. State of Punjab (5). It was pointed out in that case (at p. 937):           "No abstract  proposition can  be laid  down  that      where the  services of  a  probationer  are  terminated      without  saying   anything  more   in  the   order   of      termination than  that the  services are  terminated it      can never  amount to  a punishment  on  the  facts  and      circumstances  of   the  case.  If  a  probationer  is:      discharged   on   the   ground   of   misconduct,   or,      inefficiency, or  for similar  reason, without a proper      enquiry  and   without   his   getting   a   reasonable      opportunity of  showing cause against his discharge, it      may, in  a given  case, amount  to removal from service      within  the   meaning  of   Article   311(2)   of   the      Constitution."      (1) [1962] (2) Suppl. S.C.R. 92.   (2) [1964](5) S.C.R.                                                         190.      (3) [1966] (3) S.C.R. 106.     (4) [1974] 2 S.C.R. 335.                  (5) [1975] (1) S.C.R. 314. 543      Shamsher Singh’s  case (supra)  related to  an order of termination  of services of a probationer which, on the face of it,  appeared to  be innocuous. Nevertheless, this Court, after examining the facts and circumstances constituting the background of  the order and its consequences, held it to be substantially one  of punishment  and set  it  aside  for  a violation of  Article 311(2)  of the  Constitution.  It  was explained there (at p. 837):           "Before a  probationer is confirmed, the authority      concerned is  under an  obligation to  consider whether      the work  of the probationer is satisfactory or whether      he is  suitable for  the post.  In the  absence of  any      Rules governing  a  probationer  in  this  respect  the      authority may come to the conclusion that on account of      inadequacy for  the job  or for  any  temperamental  or      other  reason   not  involving   moral  turpitude   the      probationer is unsuitable for the job and hence must be      discharged. No  punishment is  involved  in  this.  The      authority may  in some  cases be  of the  view that the      conduct of  the probationer  may result in dismissal or      removal  on  an  inquiry.  But,  in  these  cases,  the      authority may  not  hold  an  inquiry  and  may  simply      discharge the  probationer with  a view to giving him a      chance to  make good  in other  walks of life without a      stigma at  the time of termination of probation. If, on      the other  hand,  the  probationer  is  faced  with  an      inquiry on  charges of  misconduct or  inefficiency  or      corruption, and, if his services are terminated without      following the  perversions of  Article 311(2),  he  can      claim protection.  In Gopi  Kishore Prasad  v. Union of      India A.I.R.  1960 S.C.,  689, it  was said that if the      Government proceeded  against the  probationer  in  the      direct way without casting any aspersion on his honesty      or competence,  his discharge would not have the effect      of removal  by may of punishment. Instead of taking the

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    easy course,  the Government  chose the  more difficult      one of  starting proceedings  against him  and branding      him as a dishonest and incompetent officer". It was also observed in Shamsher Singh’s case (supra) (at p. 838)           "The fact  of holding  an inquiry  is  not  always      conclusive. What  is decisive  is whether  the order is      really by  way of  punishment. (See: State of Orissa v.      Ramnarain Das  (1961) 1  S.C.R. 606.  If  there  is  an      enquiry, the  facts and  circumstances of the case will      be looked  into in  order to find out whether the order      is one  of dismissal  in substance (see: Modan Gopal v.      State of  Punjab (1963) 3 S.C.R. 716). In R. C. Lacy v.      State of  Bihar &  ors., (Civil  Appeal No. 590 of 1962      decided on  23 October, 1963) it was held that an order      of reversion  passed  following  an  enquiry  into  the      conduct of  the probationer in the circumstances of the      case was in the nature of preliminary inquiry to enable      the Government  to decide  whether disciplinary  action      should be  taken. A  probationer whose terms of service      provided that it could be terminated without any notice      and without any 544      cause being  assigned could not claim the protection of      Article 311(2).  [See: R. C. Banerjee v. Union of India      (1964) 2  S.C.R. 135]. A preliminary inquiry to satisfy      that there  was reason to dispense with the services of      a temporary  employee has  been  held  not  to  attract      Article 311  [see. Champaklal C. Shah v. Union of India      (1964 (5)  S.C.R. 190].  On the other hand, a statement      in the  order of termination that the temporary servant      is undesirable  has been  held to  import an element of      punishment [See:  Jagdish Mitter  v.  Union  of  India,      A.I.R. 1964 S.C. 449]".      We think  that  the  principles  involved  in  applying Article  311(2)   having  been   sufficiently  explained  in Shamsher  Singh’s  case  (supra)  it  should  no  longer  be possible to urge that Sughar Singh’s case (supra) could give rise to  some misapprehension  of the law. Indeed, we do not think that  the principles of law declared and applied so of have really changed. But, the application of the same law to the differing circumstances and facts of various cases which have come  up to  this Court  could  create  the  impression sometimes that  there is  some  conflict  between  different decisions of this Court. Even where there appears to be some conflict,  it   would,  we  think,  vanish  when  the  ratio decidendi of  each case  is correctly  understood. It is the rule deducible  from the application of law to the facts and circumstances  of   a  case   which  constitutes  its  ratio decidendi and not some conclusion based upon facts which may appear to  be similar.  One additional or different fact can make a  world of difference between conclusions in two cases even when  the same  principles are  applied in each case to similar facts.      We have examined the record of the case of Sughar Singh (supra). our  judgment in  the case  perhaps does  not fully bring out  the factual  background on  which the decision of that case  was based.  In that  case, the Government servant concerned had  been suspected of making an alteration in his own service  record. It  was not shown how he could possibly have had  access to  his service  record as  he was  not  in charge of  the record.  One of the alterations made meant an increase in  his age  so that  he would,  according  to  the altered state  of the  record, have  had to  retire earlier. Sughar Singh  complained, when  asked to  show cause against

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the alleged tampering, that it must have been manipulated by his enemies  interested in  injuring him.  It could  not  be determined  who   was  responsible   for  the   alterations. Nevertheless, the following adverse entry was made on Sughar Singh’s record:           "1966-Is suspected  to have got entries of date of      birth and  educational qualifications  altered  on  the      authority of  a fictitious  certificate which had to be      corrected later on. Severely warned".      Two years  later, as  a  result  of  this  entry  based expressly on  bare suspicion,  without further  inquiry into the question  whether Sughar  Singh could be responsible for tampering with  the record,  a reversion order, innocuous on the face  of it,  had been  made on  12th August  1968.  The effect of the reversion order was that Sughar Singh who, 545 apart from this entry, had an excellent record, was reverted from a   post  in which  he had  been officiating  from 16th March, 1961,  until the  reversion order  dated 12th August, 1968. It  was shown  that about 200 officers, junior to him, were still  officiating in the cadre from which Sughar Singh had been reverted to his substantive post of Head Constable. No administrative need or exigency could be shown to justify the reversion  order. All  officers, including Sughar Singh, who had  been officiating,  had been  selected after special training for  the  higher  cadre.  The  question,  naturally arose: Why was Sughar Singh selected for this discriminatory treatment ?      A single Judge of the Allahabad High Court held, acting on the Principle that a mere reversion, from a post to which the incumbent  had no  right, did  not amount  to punishment within the  meaning of  Article 311(2)  so that Sughar Singh had no  remedy. He  only took  the for  of the  action  into account. No  further probe  was considered  necessary by the learned Judge.  When the  case came before a Division Bench, in special-  appeal, one  of the  learned Judges agreed with the learned  single Judge  who had  dismissed Sughar Singh’s position merely on the ground that Sughar Singh had no right to  the   post  without   considering  the   impact  of  the surrounding facts  or the background of the order. The other learned Judge, however, carefully examined the background of Sughar Singh and the reversion order as revealed by facts on record. He  pointed out  that the averments of Sughar Singh, that he  had a splendid record, apart from the adverse entry in question, and that there was no inefficiency on his part, were not  controverted in  the counter-affidavit filed. This learned Judge found the reversion order against Sughar Singh to be  punitive. He,  however, added that, even if the order could not be held to be punitive, it was certainly violative of  the   guarantee  contained   in  Article  16(1)  of  the Constitution.      When  the  matter  was  heard  by  Verma,  C.J.,  on  a reference occasioned  by the  difference of  opinion between the two  learned Judges  on the Division Bench, it was again argued  that   both  Articles  16(1)  and  311(2)  had  been infringed. The learned Chief Justice did not find sufficient material to  uphold a  violation of  Article 16.  But, after taking into  account the  admission of the Counsel appearing for the  State that  the sudden  reversion of  Sughar  Singh could not  at all  be explained  or accounted  for unless it could be  linked with  the adverse  entry, the learned Chief Justice held  the action against Sughar Singh to be punitive and violative  of Article 311(2) of the Constitution. Sughar Singh had been held to have been punished for nothing beyond what had taken place two years before the reversion order so

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that it  could not  have been justly or reasonably connected with the delayed action based upon it. This Court could have dismissed the  appeal by  special leave solely on the ground that no  question of  law arose on the finding of fact, also upheld by  this Court  that Sughar  Singh was  punished,  in substance, so that Article 311 (2) was attracted.      This Court’s  judgment in  Sughar Singh’s  case (supra) shows that  it was  only following the law on Article 311(2) of the  Constitution as laid down repeatedly earlier by this Court. It specifically referred to 546 the following  cases: Purshotam  Lal Dhingra v. The Union of India(1); State  of Punjab  & Anr.  v. Sukh  Rai Bahadur(2); State of  Orissa v.  Ram Narayan Das(3); B. C. Lacy v. State of Bihar(4);  Jagdish Mitter  v. Union  of India(5);  A.  G. Benjamin v. Union of India(6); Ram Gopal Chaturvedi v. State of Madhya  Pradesh(7); Union  of India v. Gajendra Singh(8); Divisional Personnel  Officer  v.  Raghavendrachar  (supra); Union of  India v.  Jaswan  Ram  (9);  Madhav  v.  State  of Mysore(10); State  of Bombay  v. Abraham (supra),. In Sughar Singh’s case,  this Court summarised the propositions of law deducible  from   the  cases  mentioned  above;  and,  while considering the applicability of some of the propositions of law to  the facts  of the  case, it did observe that, on the face of  it, the  action against Sughar Singh did not appear to be  punitive. Nevertheless,  on a  total consideration of all the  facts, including  the admission  in the  High Court before Verma,  C.J., by  the Standing  Counsel appearing  on behalf of  the State,  that the reversion order could not be explained except  as a  result of the adverse entry made two years earlier, it had finally applied the ratio decidendi of the State  of Bihar  & Ors.  v. Shiva  Shukshuk  Mishra(11), where this Court had affirmed the opinion of the High Court, on facts, 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". On this view of the case, it was not really  necessary for this Court to consider whether the reversion of  Sughar Singh was contrary to the provisions of Article  16  also.  Nevertheless,  this  Court  held  there, alternatively, after  referring to  State of Mysore v. P. P. Kulkarni (19),  that the  action taken  against Sughar singh also resulted  in a  violation of the provisions of Articles 14 and  16 of  the Constitution. It seems to us to be clear, after examining  the record  of Sughar Singh’s case (supra), that what  weighed with  this Court  was not only that there was a sufficient "element of punishment" in reverting Sughar Singh: for  a supposed  wrong done,  from which the order of reversion could  not be divorced, so that Article 311(2) had to be  complied with,  but, there  was  also  enough  of  an impropriety and unreasonableness in the action taken against Sughar Singh,  solely for  a very  stale reason,  which  had become logically  quite disconnected,  to make out a case of "malice in  law" even  if it  was not  a case  of "malice in fact".  If  an  authority  acts  on  what  are,  justly  and logically viewed,  extraneous sounds,  it would  be  such  a case. All  these aspects  of the  case were kept in view. by this Court when it recorded the conclusion:           "In this view of the matter, we have no doubt that      the order  was passed  by way of punishment, though all      outward indicia  show the  order to  be a mere order of      reversion. Even  if it  were not  so, we  have no doubt      that the order would be      (1) [1958] S.C.R. 828.        (2) [1968] (3) S.C.R. 23.      (3) [1961](1) S.C.R. 606.      (4) C.A. No. 590 of 1962

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                                       decided on 23-10-63.      (5) A.I.R. 1964 S.C. 449.     (6) C.A. No. 1341 of 1966                                         decided on 13-12-66.      (7) [1970](1) S.C.R. 472.     (8) [1972](3) S.C.R. 660.      (9) A.I.R. 1958 S.C. 905.         (10) A.I.R. 1962 S.C. 811.                                (11) [1971](2) S.C.R.191      (12) A.I.R. 1972 S. C. 2170. 547      liable to  be quashed on the ground of contravention of      Articles 14 and 16 of the Constitution".      We do  not think  that Sughar Singh’s case, in any way, conflicts with  what  has  been  laid  down  by  this  Court previously on  Article 311(2) of the Constitution or Article 16 of the Constitution. We would, however, like to emphasize that, before  Article 16  is held  to have  been violated by some  action   there  must   be  a  clear  demonstration  of discrimination between  one Government servant’ and another, similarly  placed,  which  cannot  be  reasonably  explained except on  an assumption or demonstration of "malice in law" or "malice  in fact".  As we  have explained,  acting  on  a legally  extraneous  or  obviously  misconceived  ground  of action would  be a  case  of  "malice  in  law".  Orders  of reversion passed  as a  result of administrative exigencies, without any  suggestion of  malice in  law or  in fact,  are unaffected by  Sughar Singh’s  case (supra).  They  are  not vitiated  merely  because  some  other  Government  servants juniors in the substantive rank, have not been reverted.      This Court  has  held  in  S.  C.  Anand  v.  Union  of India(1), that  no question  of applying  Articles 14  or 16 could arise  where a  termination of  service takes place in terms of  a contract of service. Again, in Champaklal Chiman Lal Shah  (supra), this Court held that the motive behind an order of  termination of  service, in  accordance  with  the terms of a contract, would not be really relevant even if an enquiry had  been held  to decide  whether proceedings under Article 311(2)  should be  instituted or  the services  of a Government servant  terminated in  terms  of  his  contract. Champaklal Chimanlal Shah’s case (supra was not one in which any question  of mala fides arose. Protection of  Article 16 was claimed  there on  the ground that Rule 5, providing for termination of  services of  temporary servants,  was itself hit by  Article 16.  Such a  contention was repelled. On the other hand,  Kulkarni’s case  (supra), relied upon in Sughar Singh’s case  (supra), was one in which "misuse of power" or detournement  de   puvoir"  (as   it  is  called  in  French Administrative law),  had been proved. Another term for such use of power for an improper object is "malice in law".      We repeat  that, before any such case of "malice in law can  be   accepted,  the   person  who   alleges   it   must satisfactorily establish  it on  proved or admitted facts as it was in Kulkarni’s case (supra). Where the allegations are of malice  in fact,  which are generally seriously disputed, and the  case cannot  be satisfactorily  decided  without  a detailed  adduction  of  evidence  of  cross-examination  of witnesses, Courts  will   leave the  party aggrieved  to  an ordinary civil  suit. This  rule, relating  to  exercise  of discretionary  powers   under  Article  226,  is  also  well settled.      We have  tried to  gather, from  such materials  on the record of  the case before us as have been made available to us by  the parties,  the spirit  and substance",  to use the expressions employed  by this  Court in  Champaklal’s case e (supra), of the action taken against the contest-      (1) A.I.R. 1953 S.C. 250. 548

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ing respondent. We have examined the background of the order of reversion.  We find  that, on  the  one  hand,  there  is fulsome praise,  ill testimonials given to the respondent by his superior  officers, for meritorious work done by him. On the other  hand,  we  find  that,  preceding  the  order  of reversion,  passed  on  20th  February,  1973,  against  the respondent, there  is a  spurt of  warnings and  very  vague complaints and  adverse remarks of 30th September, 1972, and 4th October,  1972, 21st  October, 1972,  and 25th  January, 1973, presumably  all  by  a  particular  superior  officer, alleging disrespect shown, disobedience to orders given, and aspersions said  to have been cast by the respondent against the conduct  of the  superior officer.  The  respondent  was warned  by  this  superior  officer,  an  Assistant  General Manager, by  a letter  dated the 4th October, 1972. There is also  a  copy  of  an  order  on  a  complaint  against  the respondent that the respondent had misused the services of a Chowkidar. The detailed order of 2nd June, 1970, shows that, although,  the   complaint  was  dismissed  by  the  General Manager, yet,  he had  admonished  the  respondent  and  had advised him  to conduct  himself more  respectfully  towards superior officers  and to  be "sweet  tempered". There  were some old  adverse entries  also against the respondent. But, they must  be deemed  to have  been  washed off by orders of his promotion,  on an  "ad hoc"  or officiation basis, by an order of  7th March,  1972, which  had been  approved by the Deputy Transport  Commissioner  of  Uttar  Pradesh  on  18th March, 1972,  as required  by the rules. It appears that the respondent had  asked for  particulars  to  meet  the  vague allegations of  insubordination and  disobedience which  had found their way into his service record for 1972 to 1973. It has not  been shown  that the  respondent was  supplied with these particulars.  He professed  ignorance of  occasions on which he  had been  disrespectful or  of  existence  of  any orders which  had been  disobeyed by  him. These particulars could have  been easily  supplied to  him if the allegations against him  were justified  The respondent’s representation against the last adverse entry, of the kind indicated above, made on  25th January,  1973, was pending when the reversion order of  20th February,  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. In  these respects,  the facts of the case are similar  to   those  of  Sughar  Sungh’s  case  (supra).  In addition,  as   the  High  Court  points  out,  the  express condemnation of  the respondent  as "not fit" for the higher post, in  which  his  juniors  were  allowed  to  officiate, categories him  as inferior  to his  juniors even  if it was qualified by  the addition  of  the  word  "yet".  The  only possible justification  which  could  be  offered  for  this discriminatory treatment  were the sudden adverse entries of 1972-73 against the respondent which were quite vague.      If there  had been  anything really serious against the respondent,  proceedings   under  Article  311  (2)  of  the Constitution should  have been  instituted. Indeed, they can still be  taken if there are substantial grounds against the respondent. On  the other hand, if the action against him is due merely  to a  feeling of  pique or anger with him on the part of  his superior  officers, to  which the  respondent’s tactlessness 549 may have  contributed, it did not deserve anything more than the warnings  and the  adverse entry.  Indeed, even the bona fides of  the last  adverse entry  becomes doubtful  when we

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find that  the respondent  was not,  despite  his  requests, given particulars  of any  facts upon  which the  conclusion that he  was disrespectful  or  disobedient  was  based.  To allege such  misconduct against  him and  then to stigmatise the respondent  as "not  fit" for working in the higher post could  appear,   on  the  facts  and  circumstances  of  the particular case,  to be  more vindictive than just and fair. It may  mar or delay his chances of promotion in future. We, however, refrain  from commenting further on what may or may not have  been the real cause of the respondent’s reversion. If  the  respondent  is  really  unfit  or  inefficient,  as compared with  his juniors,  there is  no reason  why, on  a comparative assessment  of  merits,  at  a  time  when  such assessment may  be called  for under the rules (there should be rules  on the  subject if  there are  none so  far),  his juniors in  service should  not be  preferred  over  him.  A decision given after fair comparisons with records of others officiating in  the same  cadre would  have ensured  that no violation of  Article 16 took place. The sudden reversion of the petitioner,  for the  reason  given  in  tile  reversion order, could  be held  to amount  to an  unjustified  stigma which could  not be  said to  be "devoid  of an  element  of punishment".      As we  have indicated,  there is  no magic  formula  or uniform set  of facts which could convert even an apparently colourless or innocuous order into punitive or unjustifiably discriminatory action. It is, however, well established that even an apparently inoffensive order may fail to pass tested imposed by Articles 16 and 311 of the Constitution. Dealings of superior  officers with  their subordinates in Government service in  a Welfare  State must  be shown  to be  based on fair-play and  reason when  facts are  actually proved which indicate that these requirements may be lacking.      Even if  the case  before us  could be one in which the High Court  could have refrained from interfering, we do not consider it  to be  a fit case for invoking our jurisdiction under Article  136 of  the Constitution.  The High Court has only quashed  an order of reversion which was detrimental to the respondent  and was  passed in  violation  of  rules  of natural justice. It did not give the respondent any other or consequential relief.  And, as we have already indicated, it is still  open for  the authorities to proceed in a just and legal way  against the  respondent  if  there  is  really  a substantial case against him deserving punitive action.      As we  are leaving the authorities free to take action, in accordance with either applicable rules for a comparative assessment of merits of 550 the respondent  and others  who may be eligible to officiate in the  post of  a Senior  Station  Incharge,  or,  to  take disciplinary  proceedings,   it  considered   necessary   no observation made  that in this judgment or by the High Court will operate  as a  finding on  any question except that the quashed reversion  order was punitive and passed contrary to rules of  natural justice  embodied in Article 311(2). It is not necessary  to invoke  the  aid  of  Article  16  of  the Constitution at  all on  such a finding. This, we think, was also the position in Sughar) Singh’s case (supra) .      This appeal is dismissed with costs. V.P.S.                                     Appeal dismissed. 551