http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: S. P. VASUDEVA

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT08/10/1975

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. GOSWAMI, P.K. UNTWALIA, N.L.

CITATION:  1975 AIR 2292            1976 SCR  (2) 184  1976 SCC  (1) 236  CITATOR INFO :  D          1978 SC 363  (6,11)  R          1980 SC  42  (12,20)

ACT:      Constitution of  India-Art. 311-Appointment  on "ad hoc basis" against  a tenure post-Reversion to the parent office on  the  ground  of  unsuitability  for  the  post-Order  of reversion not meant as a measure of punishment.

HEADNOTE:      The appellant,  an Assistant  in the  P.W.D. office was appointed on  10-2-72 against  a  tenure  post  of  a  Legal Assistant in  the office  of the Deputy Commissioner, Karnal on an "ad hoc" basis. Finding him unsuitable to the post, on an assessment  of his  work, he  was reverted  to his parent office on  27-4-72. The order of reversion was challenged as violative  of  Art.  311  of  the  Constitution  by  a  Writ Petition, which was dismissed "in limine".      On an appeal by special leave the Court ^      HELD :  (i) Whether  the appointment,  was "ad  hoc" or temporary the  appellant had no right to the post from which he was reverted. [186F]      (ii) The order was not meant as a measure of punishment as it was passed on the ground of unsuitability to the post. [186 G]      (iii) Where  an order of reversion, of a person who had no right  to the  post does  not show "ex-facie" that he was being reverted  as a  measure of punishment or does not cast any stigma  on him,  the courts  will not normally go behind that order  to see,  if there  were any  motivating  factors behind that order. [187 D]      OBITER :      The theory  whether the reversion to a lower post, of a probationer  in   a  higher  post  or  the  discharge  of  a probationer the temporary servant, was meant as a punishment leads to a very peculiar situation and the whole position in law is  rather confusing. It is time that the whole question was considered  "de novo"  and it  would be  better for  all concerned to  avoid litigation if it should be held that the reversion of  a probationer from a higher to a lower post or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

the discharge of a probationer or the discharge from service of a  temporary servant  cannot be  questioned except on the basis of  "mala fide"  in the making of the order. [187 F-G, 188 B-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 640 of 1973.      Appeal by  special leave  from the  Judgment and  Order dated the  21st July 1972 of the Punjab & Haryana High Court in Civil Writ No. 1454 of 1972.      C. K.  Daphtary, N.  H. Hingorani and Mrs. K. Hingorani for the Appellant.      M. C.  Bhandare, R.  N. Sachthey  and M.  N. Shroff for Respondents Nos. 1-6 and 8-11.      The Judgment of the Court was delivered by      ALAGIRISWAMI, J. This is an appeal against the judgment of the  Punjab & Haryana High Court dismissing in limine the appellant’s writ  petition for  quashing an  order reverting him from  the post  of Legal  Assistant in the office of the Deputy Commissioner, Karnal to 185 his parent  office. The  appellant was working originally as an Assistant  in the  office of  the Chief Engineer, P.W.D., Irrigation Branch,  Haryana at  Chandigarh. On  8th  October 1971 the  Legal Remembrancer  and Secretary  to  Government, Legislative  Department,  Haryana  wrote  a  letter  to  all administrative departments  and Heads  of Departments in the State informing  them that  it had  been decided  to fill in some posts  in the  Law Department by selection of qualified candidates from  amongst the  Government servants working in other departments  and that  for the  present the  tenure of those posts  was one  year only  and the candidates would be appointed on  an ad  hoc basis.  In pursuance of that letter the appellant  applied for  the post and he was appointed on 10th February 1972 as Legal Assistant on ad hoc basis in the office  of   the  Deputy   Commissioner,  Hissar.   He   was transferred to the office of the Deputy Commissioner, Karnal on February  17, 1972. As already stated, he was reverted to his parent office on the 27th of April, 1972.      To the  writ  petition  questioning  his  reversion  he impleaded the following as parties:           1.   State   of    Haryana   through   the   Legal                Remembrancer and Secretary to Government, Law                and Legislative Department.           2.   The Secretary to Government of Haryana, Local                Government Department.           3.   The Advocate General of Haryana.           4.   The Deputy Advocate General of Haryana.           5.   The District Attorney, Karnal.           6.   Mr.  G.   L.  Nanda,   M.P.   and   Chairman,                Kurukshetra Development Board.           7.   The Secretary, Kurukshetra Development Board.           8.   Mr. Pritam Singh Jain, Advocate.           9.   Mr.  H.   V.  Goswami,  Deputy  Commissioner,                Karnal.           10.  The Office Superintendent, Dy. Commissioner’s                Office, Karnal.           11.  The Chief Engineer, P.W.D., Irrigation Works,                Haryana, Chandigarh. The appellant alleged in the writ petition that the order of reversion was the outcome of a conspiracy of respondents No. 2, 4,  5, 7,  8 and  10. The  circumstances which led to his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

reversion seem  to be  as follows: There was a writ petition No. 707 of 1972 against the Kurukshetra Development Board of which Mr. G. L. Nanda, M.P., was the Chairman. The appellant sent a  report to  Mr.  Nanda  making  insinuations  against certain officers  including the Secretary of the Kurukshetra Development Board. He also went and met Mr. Nanda 186 in person  without the  directions or  the permission of the Deputy Commissioner of Karnal under whom he was working. The Deputy Advocate  General wrote  to the  Secretary of the Law Department  that   the  appellant’s   work  was   not   only perfunctory but below average. Thereupon the Secretary spoke to the  Deputy Commissioner,  Karnal to  find out  his views about the  performance  of  the  appellant  and  the  Deputy Commissioner told him that he was dissatisfied with the work and performance  of the  appellant. It  is on  these grounds that the reversion was made.      In his  counter affidavit  the  Secretary  of  the  Law Department stated  that the  appellant had  been reverted on account of  his poor  performance  as  Legal  Assistant  and denied the  allegation of  conspiracy made by the appellant. The Advocate  General filed a counter affidavit denying that the appellant had brought to his notice the damaging portion of the  counter-affidavit filed  on behalf  of Mr.  Nanda in writ petition  No. 707  of 1972.  Mr. Lamba, Deputy Advocate General denied that the impugned order was made on the basis of his  personal grudge  against  the  appellant.  The  main allegation which  the  appellant  made  in  respect  of  the counter-affidavit filed  by Mr.  Nanda was  that the counsel for the Board, that is, Mr. P. S. Jain, and the Secretary of the Board  had colluded  to the  detriment of  the Board  in submitting  the   counter-affidavit.  The   Deputy  Advocate General in his counter affidavit has quoted a portion of the counter-affidavit prepared  by the  appellant in  that  writ petition  which   undoubtedly  shows  the  appellant’s  poor knowledge of  law. The Deputy Advocate General seems to have felt that  the appellant was unnecessarily running to Mr. G. L.  Nanda  and  without  rhyme  or  reason  criticising  the counter-affidavit and  making allegations  against Mr. P. S. Jain, counsel  for the Board and the Secretary of the Board, and that he was acting beyond the scope of his activities as a Legal  Assistant in the office of the Deputy Commissioner, Karnal and was over-reaching the Deputy Commissioner.      The appellant  was appointed on an ad hoc basis. It may not be  a correct  use of the phrase ’ad hoc’ because he was not appointed  for special or particular purpose, so that it could be  said that  till that purpose was over he could not be discharged.  The phrase  seems to  have been  used in the sense  of   ’temporary’.  Whether  the  appointment  of  the appellant was ad hoc or temporary it is clear that he had no right to the post from which he was reverted. The allegation of conspiracy  or grudge  has clearly  not been made out nor was it  pressed before  us. What  was urged  was  that  even temporary Government servants are entitled to the protection of Article  311 if the order of reversion was passed against them as  a measure  of punishment.  We are satisfied that in this  case   the  order  was  not  meant  as  a  measure  of punishment. It  was passed  on the ground that the appellant was unsuitable for the post. We have already referred to the fact that  the counter-affidavit  prepared by  the appellant showed a  very poor  knowledge of  law on  the part  of  the appellant. We  agree  with  the  contention  of  the  Deputy Advocate General in his counter-affidavit that the 187 appellant was  unnecessarily running  to Mr. G. L. Nanda and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

was over-reaching the Deputy Commissioner. The appellant was only an  Assistant to  the Deputy Commissioner and he had no business to  go and  see Mr. Nanda without either the Deputy Commissioner’s instructions  or his  permission. The  Deputy Advocate General  states that  the appellant  made  reckless allegations  against   the  Secretary   of  the  Kurukshetra Development Board  and its  advocate Mr.  Jain because after checking up  with the records he did not find anything wrong with the  counter-affidavit already  prepared  in  the  writ petition No.  707. The Deputy Advocate General took the view that the appellant’s work was not only perfunctory but below average. The  Deputy Commissioner also was dissatisfied with the  appellant’s   work  and  performance.  The  appellant’s reckless allegation  of a conspiracy amongst respondents No. 2, 4,  5, 7,  8 and  10  throws  a  food  of  light  on  his mentality.  We   are  not  surprised  that  the  authorities concerned did  not consider  the appellant  fit  and  proper person to be continued in service.      We may in this connection point out that where an order of reversion, as in the present case, of a person who had no right to  the post, does not show ex facie that he was being reverted as  a measure  of punishment  or does  not cast any stigma on  him, the  Courts will not normally go behind that order to  see if  there were  any motivating  factors behind that order.  Certain cases  of this  Court have  taken  that view. Certain  other cases  have taken  the view  that it is open to  the Court to go behind the order and find out if it was intended  as a  measure of  punishment and if so whether the formalities  necessary have  not been followed. In cases where enquiries have been held before orders of reversion of a probationer  to his  former lower  post or  discharge of a probationer or discharge from service of a temporary servant were passed,  certain decisions  have taken  the  view  that where the  enquiry  was  held  in  order  to  find  out  the suitability of the official concerned the order would not be vitiated. In  certain other  cases it has been held that the enquiry was  held with  a view  to punish and as the enquiry did  not   satisfy  the  requirements  of  Article  311  the punishment was  bad. It appears to us that this theory as to whether the  reversion to a lower post of a probationer in a higher post,  or the  discharge of  a  probationer,  or  the discharge from service of a temporary servant was meant as a punishment leads to a very peculiar situation. After all, if such an  order gives  no reasons the Court will not normally interfere because ex facie there is nothing to show that the order was  intended as  a punishment.  But if  the  superior official dealing with that case, in order to satisfy himself whether  the   official  concerned  could  be  continued  in service, makes  enquiries or  holds enquiries  there is  the risk of  its being held that the enquiry was really intended for the  purpose of  punishment. Thus a bona fide attempt to decide whether  the official  concerned should  be continued leads to  this risk.  There could  be no  greater punishment than discharge  from service  and it makes little difference to the Government servant whether he is simply discharged or discharged after  an enquiry  to find  out his  suitability. Therefore, if a 188 simple discharge  from service  is upheld  but  a  discharge after the  superior  official  concerned  satisfies  himself about the  official’s fitness  to be  continued  further  in service is  not upheld  on the  ground that  the  order  was intended as  a punishment  it is  a curious situation. After all no  Government servant, a probationer or temporary, will be discharged or reverted, arbitrarily, without any rhyme or

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

reason. If  the reason  is to  be fathomed  in all  cases of discharge or  reversion, it will be difficult to distinguish as to which action is discharge or reversion simpliciter and which is  by way of punishment. The whole position in law is rather confusing.  We  think  it  is  time  that  the  whole question was  considered de  novo and it would be better for all concerned  and avoid a lot of avoidable litigation if it should be  held that  the reversion  of a probationer from a higher to  a lower  post, or the discharge of a probationer, or the  discharge from service of a temporary servant cannot be questioned  except on  the basis  of mala  fides  in  the making of  the order. This Court will not be burdened with a lot of  work of a kind about which the feeling of almost all the Judges  has been that it is better that they do not come to this Court.      The appeal is dismissed without costs. S.R.                                       Appeal dismissed. 189