@JUDGMENTTAG-ORDER
H.G. Mishra, J.@mdashThis is a petition under Article 226 read with Article 227 of the Constitution of India for quashing the order of the petitioner''s reversion from the post of District and Sessions Judge to the post of Additional District and Sessions Judge.
2. Shortly put, the case of the petitioner is that be was appointed as a District and Sessions Judge (for short ''D.J.'') in substantive capacity by the Governor of Madhya Pradesh vide Order No. 3555-560-XXI-B, dated 31st January 1973, (Annexure P-1), published in the M.P. Rajpatra dated 30th March 1973. After his appointment, he worked as D.J. at Ambikapur. From there, be was transferred as D.J. to Jagdalpur. From Jagdalpur, it was on the basis of some complaints and reports that the petitioner was telegraphically and by wireless message transferred on 2-4-1978 to Bhind. There, the petitioner continued to function as D.J. till he was reverted to the post of Additional District and Sessions Judge (for short ''A.D.J.'') vide order (Annexure P-2) No. 12369/2-3-1/78 (Part I), Jabalpur, dated 24th July, 1978, passed in accordance with an order (Annexure R-II/3) passed by respondent No. 2 on 7th June 1978. Hence, this petition.
3. The facts and circumstances in which and the ground on which challenge to the impugned order has been given by the petitioner, are as under:
(a) that he was appointed as D.J. in substantive capacity;
(b) that in the matter of confirmation, the Rules for Special Direct Recruitment of District and Sessions Judges, 1964, (For short the ''1964 Rules''), be deemed to apply to cases of D. Js. appointed by promotion like him. As such, he should be deemed to have been confirmed on 20th July 1974 as there was nothing to suggest by that date that he was not suitable for confirmation;
(c) that D. Js. who were junior to him, were confirmed whereas confirmation of the petitioner was arbitrarily postponed. This was due to absence of a valid and fair criterion for dealing with the matters regarding confirmation;
(d) that in Sal-Seed preliminary inquiry nothing was found against him; that during the period of Sal-Seed inquiry he was attached as O.S.D. in the main Registry of the High Court of M.P. at Jabalpur, but after conclusion of the inquiry he was reposted as D.J. vide order dated 4/5-5-1975;
(e) that since his appointment as D.J. no adverse remarks were communicated to him;
(f) that sanction was granted for crossing Efficiency Bar vide order of the respondent No. 1, dated 28th February 1977 (Annexure P-3) which records satisfaction regarding his efficiency;
(g) that the order of his reversion is based on false and malicious reports, and, that the respondent No. 1 appears to have been misled and prejudiced thereby. These reports are the foundation of the order of reversion dated 7th June 1978 (Annexure R-II/3) as well as order dated 24th July 1978 (Annexure P-3);
(h) that the impugned order of reversion is void being violative of Articles 14, 16 and 311 of the Constitution of India; and
(i) that even the petitioner has been shown at serial number 12 as ''A.D.J.'' as on 17-8-1978, the date of his confirmation as A.D.J. being ''11-10-1967''. This entails loss of seniority and visits him with evil consequence including loss of pay.
4. The claim of the petitioner is resisted by the High Court of Madhya Pradesh through Registrar, respondent No. 1 essentially on the following grounds:
(a) that the petitioner was not appointed as D.J. in substantive capacity; that he was recommended for being appointed as officiating D.J.; that he was in fact appointed temporarily until further orders to officiate as D.J.; and, that he was first posted at Balaghat. Later on, the order of his posting was superseded vide Notification (Annexure P-1) dated 31st January 1973, published in M.P. Rajpatra, dated 30th March 1973, and thus the petitioner was first posted as D.J. at Ambikapur (Sarguja);
(b) that the petitioner cannot be deemed to have been confirmed on the post of D.J., as contended by him;
(c) that the grievance of the petitioner about his being discriminated in infraction of Articles 14 and 16 of the Constitution of India is unreal;
(d) that the 1964 Rules do not apply to the D. Js. appointed by promotion. In absence of any Rules, governing the situation, a Resolution was adopted in the Court meeting dated 1st October 1969 to the effect that in future the cases of those promotee D. Js., who have been officiating for a period of not less than two years, shall be considered to be ripe for confirmation. Accordingly, the case of the petitioner for confirmation was considered in the Court meeting held from time to time and it was found that he is unsuitable for confirmation;
(e) that no doubt, the petitioner was allowed to cross Efficiency Bar vide Order dated 28th February 1977, but it does not mean that he was fit for confirmation. In the Court meeting held on 29th/30th August 1977, the petitioner was not found fit to be confirmed, but he was allowed to continue to function as D.J. in the expectation that he may improve;
(f) that assessment of his work by Hon''ble Judges of the High Court between 17-4-1976 to 27-4-1977 shows that his work was that of ''averrable quality'';
(g) that on enquiry, Shri G.P. Dubey, Vigilance Officer of the Vigilance Cell of the High Court submitted a report dated 30-6-1977; that the Hon''ble Judges of the High Court on the basis of that report bad observed that the matter should be discussed in the Court meeting for suitable action. On the basis of those observations of the Hon''ble Judges, it was recorded in the Court meeting dated 29th and 30th August, 1977, that the petitioner was not found fit to be confirmed. Thus subsequent action of his reversion followed according to the decision in the Court meeting dated 6th and 7th May 1978;
(h) that misconduct was not the foundation of the impugned order of reversion. The recommedation to revert the petitioner to the post of A.D.J. was made as he was found unsuitable for confirmation on the post of D.J. in the Court meeting dated 6th and 7th May 1978; and
(i) that there has been no violation of Articles 14, 16 and/or Article 311 of the Constitution of India.
Along with their Return, the respondent No. 1 has produced Documents Nos. 1 to 11.
5. At the time of hearing of the petition, the respondent No. 1 was permitted, with consent of the petitioner, to place on record the recommendations dated 25-5-1978 which has been marked as Annexure R-I/1.
6. The State of Madhya Pradesh, respondent No. 1 has resisted the claim of the petitioner mainly on the grounds that
(a) the petitioner was appointed temporarily until further orders by the Governor vide Annexure R-2/1 dated 28th December 1972 and notification regarding his first posting was issued on 28-12-1972. This posting order was superseded by notification (Annexure P-1) dated 31st January 1973 published in M.P. Rajpatra dated 30th March 1973, whereby the petitioner was posted at Ambikapur (Sarguja);
(b) the petitioner cannot be deemed to have been confirmed as D.J., as contended by him;
(c) the order of reversion dated 7th June 1978 has been validly passed on the basis of the recommendation made by the High Court;
(d) the order of reversion is not arbitrary, illegal, unconstitutional or void; it does not cast any stigma on the petitioner; it is not punitive in nature; the order being merely of reversion from officiating post does not amount to reduction in rank within the contemplation of Article 311 of the Constitution of India; and,
(e) that the impugned order is not violative of Articles 14 and 15 and/or Article 311 of the Constitution of India.
Along with their Return copy of the appointment order of the petitioner dated 28th December 1972 (Annexure R-II/1) and copy of his first posting order dated 28th December 1972 (Annexure R-II/2) have been produced.
6A. At the time of hearing, the respondent No. 2 was permitted, with the consent of the petitioner, to place on record the order of reversion passed on 7th June 1978, which has been marked as Annexure R-II/3.
7. The petitioner claims to have been appointed D.J. in substantive capacity. His alternative claim is that he should be deemed to have been confirmed on that post. The contention of the petitioner on this hypothesis is that the order of reversion per se is ultra vires, more so, because it has been passed in violation of Article 311(2) of the Constitution of India. Now, the claim of the petitioner that he was appointed as D.J. in substantive capacity appears to be founded on Notification (Annexure P-I) No. 3555-560-XXI-B, dated 31st January 1973, published in M.P. Rajpatra, dated 30th March, 1973, the English version whereof runs as under:
No. 3555-560-XXI-B in supersession of this Department Notification No. 38366-7207-XXI-B, dated the 28th December 1972 and in exercise of the power conferred by Article 233 of the Constitution of India read with sub-section (1) of section 9 of the Code of Criminal Procedure, 1898, (V of 1898), the Governor of Madhya Pradesh, on consultation with the High Court, is pleased to appoint "Shri R.K. Tiwari to be the Judge of the District Court in Sarguja at Ambikapur Civil District & Judge of the Court of the Session in the Sarguja at Ambikapur Sessions Division with effect from the date he takes over charge of his duties.
The respondents on the other hand contend that the petitioner was appointed temporarily until further orders to officiate as D.J. vide Notification (Order) No. 38370/7207/XXI-B, dated 28-12-1972 (Annexure R-2/I) the English version whereof runs as under:
No. 38370/7207/XXIB, Shri R.K. Tiwari, Additional District and Sessions Judge, is, in consultation with the High Court appointed temporarily until further orders to officiate as District and Sessions Judge from the date he takes over charge of his duties.
By a separate Notification No. 38366/7207/XXI-B, dated 28-12-1972 (Annexure R-II/2) his first posting order was also issued, the English version whereof runs as under:
No 38366-7202/XXI-B, in exercise of the powers conferred by Article 223 of the Constitution of India read with sub-section (1) of section 9 of the Code of Criminal Procedure, 1898, (V of 1898), the Governor of Madhya Pradesh, in consultation with the High Court, is pleased to appoint Shri R.K. Tiwari to be the Judge of the District Court in the Balaghat Civil District and Judge of the Court of Session in the Balaghat Sessions Division with effect from the date he takes over charge of his duties.
On the basis of the aforesaid order and Notification it is contended by the respondents that the petitioner was not appointed as D.J. in substantive capacity, and that the Notification (Annexure P-1) produced by the petitioner (reproduced above) is merely his first posting order passed in supersession of earlier Notification (Annexure R-II/1) dated 28th December 1972.
8. A bare perusal of the aforesaid order and Notification will show that the claim of the petitioner that he was appointed as D.J. in substantive capacity is entirely misconceived. The petitioner appears to have been labouring under an erroneous assumption that the Notification (Annexure P-1) is an order of appointment. An order of appointment once made is not superseded. What can be and has been superseded is the order of his first posting. After being appointed vide order Annexure R/II/1, the petitioner was first posted at Balaghat vide Annexure R-II/2, reproduced above. Later on, this Notification was superseded. This is clear from the opening line of the Notification dated 31st January 1973 (Annexure P-1), reproduced above. No doubt, serial number of the Notification (Annexure R-II/2) has been given as ''38366/7207/XXI-B'' whereas that of the order (Annexure R-II/1) is 38370/7207/XXI-B''. However, merely on the basis of this fact, the Notification (Annexure R-II/2) cannot be treated to be the appointment Order. A posting order has to follow, and not to precede an ''order of appointment''. As such, the order, Annexure R-II/1, is the order of appointment of the petitioner and Notification as per Annexure R-II/2 is merely first posting order. The first posting order was superseded by another posting order (Annexure P-1) which stands in place of Annexure R-II/2 and as such, has to be taken as the first posting order of the petitioner.
9. In order to resist the aforesaid conclusion, Mr. A.B. Mishra, learned counsel for the petitioner, contended that the orders contained in Annexure P-1, and Annexure R-II/2, are in the nature of ''transfer orders''; and because power to transfer falls within the exclusive jurisdiction of the High Court by virtue of Article 235, the orders passed by the Governor are ultra vires. Reliance was placed on
In Article 233 the word ''posting'' clearly means ''assigning someone to a post'', i.e. a position or a job, specially one to which a person is appointed. This word occurs in association with the words ''appointment'' and ''promotion'' and takes its colour from them. These words indicate the stage when a person first gets a position or job and ''posting'' by association means the assignment of an appointee or promote to a position in the cadre of District Judges. That a special meaning may be given to a word because of the collocation of words in which it figures, is a well-recognised cannon of construction. The word ''posting'' cannot be understood in the sense of ''transfer'' when the idea of appointment and promotion is involved in the combination. In fact this meaning is quite out of place because ''transfer'' operates at a stage beyond appointment and promotion. If ''posting'' was intended to mean ''transfer'' the draftsman would have hardly chosen to place it between "appointment" and "promotion" and could have easily used the word ''transfer'' itself. It follows, therefore, that under Article 233, the Governor is only concerned with the appointment, promotion and posting to the cadre of District Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre. The latter is obviously a matter of ''control'' of District Judges which is vested in the High Court. This meaning of the word ''posting'' is made all the more clear when one reads the "provisions" of Articles 234 and 235. By the first of these articles the question of appointment is considered separately but by the second of these articles posting and promotion of persons belonging to the judicial service of the State and holding any post inferior to the post of a District Judge is also vested in the High Court. The word ''post'' used twice in the article clearly means the position or job and not the station or place and ''posting'' must obviously mean the assignment to a position or job and not placing in charge of a station or Court. The association of words in Article 235 is much clearer but as the word ''posting'' in the earlier article deals with the same subject-matter, it was most certainly used in the same sense and this conclusion is thus quite apparent. Maxwell "on Interpretation of Statutes" 11th Edn., P. 321, Ref.
The High Court is in the day to day control of Courts and knows the capacity for work of individuals and the requirements of a particular station or Court. The High Court is better situated to make transfers than a Minister. The High Court is, therefore, the authority to make transfer of a District Judge and there is no question of a consultation on this account. The State Government is not the authority to order the transfer. State of West Bengal v. Nripendra Nath.
(Emphasis supplied)
In this view of the matter, the contention of the petitioner that he was appointed as D.J. in substantive capacity does not merit acceptance.
10. This brings me to the further contention, namely, that the petitioner should be deemed to have been confirmed on the post of D. J. after expiry of 18 months'' period by extending the principles underlying Rule 10 of the 1964 Rules. The 1964 Rules do not apply to District Judges appointed by promotion. Confirmation is not an automatic phenomenon. No rule has been shown by virtue of which, the petitioner may be deemed to have been confirmed on the Post of D. J. No rules have been got framed under Article 309 of the Constitution of India either. In absence of any criterion governing the matter, confirmation still continues to be an uncertain phenomenon. In the absence of Rules framed under Article 309 of the Constitution of India, all other factors being equal, seniority of District Judges appointed by promotion as well as those appointed by direct recruitment, has to be reckoned from the date of their officiation. The law regulating powers of the District Judges in the State of M.P. does not make any distinction between the D.J. appointed directly and those appointed by promotion. As such, they form a single integrated cadre. This is what flows from the following observations made in
All other factors being equal continuous officiation in a non-fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear similar responsibilities. Saying anything beyond this will be trespassing on field which does not belong to the Courts. (Para 51)
11. The matter of confirmation of promotee D. Js. came to be regulated by Resolution of the Court meeting dated 1-10-1969, according to which a case is considered to be ripe for confirmation after lapse of two years from officiation on the post. At this stage, it is contended on behalf of the petitioner that Rule 10 of the 1964 Rules should have been followed by the High Court in the matter of promotee D. Js. like the petitioner also. The petitioner has not been able to show that on account of adopting and following the Resolution dated 1-10-1969, he was prejudiced in any manner in the matter of his confirmation. The case of the petitioner for confirmation was considered from time to time in the Court meetings, and as he was not found fit to be confirmed, the matter continued to be postponed for the next Court meeting.
12. In the light of the aforesaid discussion, the grievance of the petitioner that the order of his reversion is per se illegal, void and ultra vires, on the ground that he was either appointed as D.J. in substantive capacity or that he should be deemed to have been confirmed on the post, does not merit acceptance.
13. This brings me to the other contention of the petitioner, namely, that the impugned order of reversion, though couched in innocuous language, is punitive in character. It is law well established that the form of an order is not conclusive of its true nature. The entirety of the circumstances preceding or attending on the impugned order have to be examined by the Court, and the overriding test will always be whether misconduct is a mere motive or is the very foundation of the order. It is principle equally well established that all employees whether permanent, temporary officiating or probationers are equally entitled to protection of Article 311 of the Constitution of India. Case law on the point is amage. However, the law on the point has been laid down very lucidly, exhaustively and authoritatively by a seven member Bench of the Supreme Court in
62. The position of a probationer was considered by this Court in
63. 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 punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason 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.
64. 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 object 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 those 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 enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection. In State of Bihar v. Gopi Kishore Prasad AIR 1958 SC 36, 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 way of punishment. Instead of taking the easy course, the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer.
65. The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. See
66. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. The substance of the order and not the form would be decisive: See
67. An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptional in form is made following a report based on misconduct: See
In the same case, Krishna Iyer J. speaking for self and for P.N. Bhagwati J. observed as under:
157. The third contention, argued elaborately by both sides, turns on the scope and sweep of Article 311 in the background of the rules framed under Article 309 and the ''pleasure'' doctrine expressed in Article 310. The two probationers, who are appellants have contended that what purport to be simple terminations of probation on the ground of ''unsuitability'' are really and in substance by way of punishment and falling short of the rigorous prescriptions of Art. 311(2), they are bad. Their complaint is that penal consequences have been visited on them by the impugned orders and since even a probationer is protected by Article 311(2), in such situations the Court must void those orders. Naturally, the launching pad of the argument is Dhingra''s case. In a sense, Dhingra is the Magna Carta of the Indian Civil Servant, although it has spawned diverse judicial "trends, difficult to be disciplined applicable to termination of probation of into one single, simple, practical formula freshers and of the services of temporary employees. The judicial search has turned the focus on the discovery of the element of punishment in the order passed by Government. If the proceedings are disciplinary, the rule in Dhingra''s case is attracted. But if the termination is innocuous and does not stigmatise the probationer or temporary servant, the constitutional shield of Article 311 is unavailable. In a series of cases, the Court has wrestled with problem ''of devising a principle or rule to determine this question'' where non-punitive termination of probation for unsuitability ends and punitive action for delinquency begins. In Gopi Kishore, this Court ruled that where the state holds an enquiry on the basis of complaints of misconduct against a probationer or temporary servant, the employer must be presumed to have abandoned his right to terminate simpliciter and to have undertaken disciplinary proceedings bringing in its wake the protective operation of Article 311. At first flush, the distinguishing mark would therefore appear to be the holding of an inquiry into the complaints of misconduct.
Sinha, C. J. observed:
It is true that, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct............ Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and an incompetent officer. He had the right, in those circumstances, to insist upon the protection of Article 311(2) of the Constitution.
The learned Chief Justice summarised the legal position thus:
1. Appointment to a post on probation gives the person so appointed no right to the post and his services may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.
2. The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.
3. But if instead of terminating such a person''s service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency or for similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.
4. ... ... ...
5. But, if the employer simply terminates the services of the probationer without holding an enquiry and without giving him a reasonable chance of showing cause against the removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding on account of his misconduct, or inefficiency, or some such cause.
14. In
15. In
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 Article 311 of the Constitution.
2. The circumstances preceding or attendant 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 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 Article 311 of the Constitution.
5. If there be a full-scale departmental enquiry envisaged by Article 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.
After making a reference to the Constitutional position made crystal clear by the Bench of seven Hon''ble Judges of the Supreme Court in the case of Samsher Singh (supra) the judgment proceeds to observe as under:
20. The Division Bench judgment of this Court in P.S. Cheema''s case (supra) on which strong reliance has been placed by Mr. Garg is also clearly distinguishable and no help can be derived therefrom by the respondent. In that case, both the trial Court and the first appellate Court had come to a concurrent finding of fact that the impugned order of termination was by way of punishment. It would also be seen that in that case on a representation being made by the respondent to the then Chief Minister of the State, the latter after consideration of the matter had ordered that in view of the respondent''s previous good record, he did not deserve the "punishment of termination of service only on account of a few bad reports and that the respondent should continue in service and his case should be reviewed after he earned another report from the Excise and Taxation Commissioner for the year 1964-65.
21. In the recent decision of this Court in
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 often 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. 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 the following cases. Parshottam Lal Dhingra v. Union of India, (supra): State of Punjab v. Sukhraj Bahadur, (supra); State of Orissa v. Ram Narayan Das, (supra); R.C. Lucy v. State of Bihar C.A. No 590 of 1962 decided on October 23, 1963 (SC); Jagdish Mitter v. Union of India, (supra) A.C. Benjamin v. Union of India (1967) I LLJ 718 (SC);
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.
We do not think that Sughar Singh''s case (supra) in any way, conflicts with that has been laid down by this Court previously on Article 311(2) of the Constitution or Article 16 of the Constitution.
22. Thus on a conspectus of the decision of this Court referred to above, it is obvious that there is no real conflict in their ratio decidendi and it is no longer open to any one to urge with any show of force that the constitutional position emerging from the decisions of this Court in regard to cases of the present nature is not clear. "It is also to be borne in mind that even in cases where a High Court find any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India v. K.S. Subramanian Civil Appeal No. 212 of 1975, decided on July 30, 1976 : 1976 U J (S C) 717 to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.
(Parenthesis supplied)
15. The principles laid down on the point in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha Civil Appeals Nos. 1212 and 2237 of 1978 decided on 19-11-1979, by their Lordships of the Supreme Court are also illuminating:
The anatomy of a dismissal order is not a mystery, once we agree that substance not semblance, governs the decision. Legal criteria are not so slippery that verbal manipulations may outwit the Court. Broadly stated, the face is the index to the mind and an order fair on its face may be taken at its face value. But there is more to it than that, because sometime words are designed to conceal deeds by linguistic engineering. So it is beyond dispute that the form of the order or the language in which it is couched is not conclusive. The Court will lift the veil to see the true nature of the order.
** ** **
A rain of rulings merely adds to the volume, not to the weight of the proposition, and so we desist from citing all of them. A bench of seven Judges of this Court considered this precise point in Shamsher Singh''s case and Chief Justice Ray ruled:
The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the services may in "the facts and circumstances of the case established that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provisions of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside. (Parenthesis supplied.)
16. Shri Y.S. Dharmadhikari relied on cases noted hereinafter. From para 7 of
17. The principles which emerge from the aforesaid cases, shortly put, are:
(i) the form of the order is not conclusive of its true nature. The entirety of circumstances preceding or antecedent on the impugned order must be examined by the Court and the overriding test will always be whether a misconduct as a mere motive or is the very foundation of the order;
(ii) that in case, the misconduct is the very foundation of the order Article 311(2) of the Constitution of India will be attracted; and
(iii) that the aforesaid principles apply equally to cases of a
Government servant whether he is permanent, temporary, officiating or probationer.
18. Now I turn to examine the nature of the impugned order of reversion in the light of the aforesaid principles. The history of the judicial career of the petitioner given in para 1 of the Return of the respondent No 1 discloses a case of gradual and steady rise from the lowest rung in the Judiciary to the office of D.J. From it the efficiency of the petitioner is self-evident. That apart, the petitioner was allowed to cross Efficiency Bar vide order dated 28-2 1977 (Annexure-P-3). This order records satisfaction about the entitlement of the petitioner to cross Efficiency Bar The integrity of the petitioner appears to have come under shadow of suspicion for the first time when the Sal-Seed Preliminary Inquiry was initiated against him This inquiry was conducted by a Judge of no less eminence than Shri G.P. Singh J. (as he then was) but nothing turned out against the petitioner'' According to F.R. 25 of the Fundamental Rules of Madhya Pradesh Efficiency Bar is only lifted on sanction of the competent authority F.R. 25 provides that
25. Sanction to crossing efficiency bar.--Where an efficiency bar is prescribed in a time-scale, the increment next above the bar shall not be given to a Government servant without the specific sanction of the authority empowered to withhold increments.
19. In Ram Manoharlal Shrivastava v. Chief Conservator of Forests M.P. and another 1978 MPLJ 518 : 1978 JLJ 151 it ha s been held that
It is beyond doubt that unless there is specific satisfaction of the authority, the efficiency bar cannot be removed and removal of the efficiency bar depends on the satisfaction of the competent authority.
(Italics supplied.)
In the
14 In our view reports earlier than 1944 should not have been considered at all inasmuch as he was allowed to cross the efficiency bar that year. It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 they could have over-looked the same and recommended the case of the officer as one fit for corssing the efficiency bar in 1944.It will be noted that there was no specific complaint in either of the two years and at best there was only room for suspicion regarding his behaviour.
Accordingly, in the present case, phenomenon of crossing the Efficiency Bar vide order dated 28-2-1977 (Annexure P-3) is significant. Furthermore, on showing of the respondent No. 1, no adverse remarks were ever communicated to the petitioner throughout the relevant period.
20. It was on 2-4-1978 that the petitioner was transferred from Jagdalpur to Bhind telegraphically and by sending a wireless message. This transfer is obviously relatable to some complaint, of serious character against the petitioner. After the petitioner was so transferred, opinion of Hon''ble Judges was gathered on circulation proceedings (vide Document No. 7). The subject of the circulation proceedings as mentioned in Document No. 7 is as under:
Complaint against Shri R.K. Tiwari, District and Sessions Judge, Bastar (Jagdalpur). Report of the Investigation Officer (Vigilance Cell) dated 13-6-1977.
As per order of Hon''ble the Chief Justice, dated 14-7-1977 on report.
The reference to report dated 13-6-1977 in the subject above is mistaken and it has to be taken, as stated by Shri Dharmadhikari, to be a reference to report of ''30-6-1977''. The obvious purpose of circulation proceedings appears to seek opinion of Hon''ble Judges with regard to further action that may be taken against the petitioner. On the one hand, N.C. Dwivedi J. on 21-7-1977 opined thus:
In view of the report of the Vigilance Officer, he (the petitioner) should be transferred to a distant place at the earliest.
(Parenthesis & italics supplied.)
Sarvashri K.K. Dubey J., R.K. Tankha J., J.S. Verma J., M.L. Malik J., C.P. Sen J., S.S. Sharma J. and J.P. Bajpai J. recorded their agreement with N.C. Dwivedi J. On the other hand, Shri S.R. Vyas J. recorded his opinion on 25-7-1977 as under:
The mere transfer is not sufficient in the light of the Vigilance Officer''s report. The matter should be discussed in the Court meeting for suitable action.
(italics supplied.)
Shri G.G. Sohani, J., and B.R. Dubey J. expressed their agreement with the opinion of Shri S.R. Vyas, J. in the Court meeting held on 6/7-5-1978 the subject discussed and the resolution adopted were as under:
SUBJECT No. 23: To consider the complaint and the report of Investigation Officer against Shri R.K. Tiwari, the District and Sessions Judge, Jagdalpur (since transferred to Bhind) and the opinion of Hon''ble Shri Justice S.R. Vyas dated 25-7-1977 on the circulation proceedings.
RESOLVED that Shri R.K. Tiwari, Officiating District and Sessions Judge Bhind, be reverted on the ground of unsuitability to his substantive rank as Additional District and Sessions Judge and the Government be moved to issue orders accordingly.
(italics supplied)
Thus the matter to be considered at the Court meeting does not appear to be merely that of confirmation. Whenever confirmation is included as a subject for consideration at the Court meeting, the subject is described as is Document No. 2 dated 6-9-1975 and Document No. 3, dated 1-5-76:
Confirmation of Officiating District and Sessions Judges.
The nature of the matter to be considered under the subject No. 23 can well be gathered from the complaint and the report included therein which have been placed on record as Document No. 5, dated 31-7-1976, Document No. 6, 17-6-1977. The complaint as per Document No. 5 relates to alleged misbehaviour of the petitioner on 17-6-1977 at the Telephone Exchange, Jagdalpur. The Document No 5 indicates misbehaviour on the part of the petitioner while playing Carom Board on 17-6-1977 outside the Telephone Exchange Jagdalpur. The Document No. 4 is report dated 30-6-1977 of Shri G.P. Dubey, the Vigilance Officer of the Vigilance Cell of the High Court. It purports to be an outcome of enquiry conducted at Raipur and Jagdalpur and purports to show that the petitioner indulges in ''Wine-Women and Wealth'' inside and/or outside the Court premises. Thus the aforesaid complaints and the report relates to imputations of misbehaviour and misconduct, involving moral turpitude also.
21. Thus it appears that while considering the Subject No. 23 of the Agenda at the Court meeting dated 6/7-5-1978 action resolved to be taken was an outcome of consideration of the question of insufficiency of the Action of mere transfer, as if it was highly disproportionate to his misdoings and misconduct, referred to above.
22. No doubt, after setting up a Vigilance Cell, the High Court on its administrative side cannot be imputed with an act of self abnegation within the contemplation of
23. In the light of the circumstances preceding and antecedent on the Resolution adopted at the Court meeting dated 6/7-5-1978 on consideration of the Subject No. 23, referred to above, it appears to be directly and proximately founded on what the Investigation Officer reported about the petitioner''s conduct generally and in particular with reference to the incidents alluded to in his report (Document No. 4).
24. In pursuance of the aforesaid Resolution, the recommendations (Vide Annexure R-I/1) were made by the respondent No. 1. These recommendations copiously quote and rest on the facts appearing in the complaint and report referred to above. Respondent No. 2 appears to have passed the order of reversion dated 7-6-1978 (Annexure R-II/3) after accepting the aforesaid recommendations.
25. Thus viewed the impugned order of reversion in the ultimate analysis is based on documents which are self eloquent and reveal that misconduct of the petitioner is the very foundation of the order of his reversion. Consequently, simply of the factum of the impugned order will not give it any sanctity. It has its root in the misconduct imputed to the petitioner.
26. Undoubtedly, continued unimpeachability of character and integrity of personnel manning the Judiciary at all levels is essentially to ensure the imparting of fair and impartial justice. At the same time a resort to reversion, if in reality punitive in character, cannot be regarded as legally permissible in view of the principles discussed above.
27. At this stage, it has to be stated that an attempt was also made by Shri A.B. Mishra, learned counsel for the petitioner, to build up an argument with regard to the mala fides on the basis of the fact that the name of the petitioner on his reversion has been shown in the Gradation List (page 59 of the Paper-Book) at S. No. 12. Shri Y.S. Dharmadhikari, learned counsel for respondent No. 1, however, stated that the petitioner appears to have been shown as ''A.D.J.'' at S. No. 12 by mistake. The mistake appears to be obvious. A mistaken act, however, cannot be regarded to be of such an efficacy which may lead to an inference of mala fides as contended.
28. As a sequel to the aforesaid discussion, it is clear that here misconduct is not the mere motive but is the very foundation of the impugned order of reversion. Consequently, the impugned order of reversion dated 7-6-1978 (Annexure R-II/3) as well as dated 24-7-1978 (Annexure P-2) are ultra vires, null and void ab initio, inoperative and ineffective, having been passed infraction of Article 311(2) of the Constitution of India.
29. In result, the petition succeeds and is hereby allowed. The order of reversion passed by the respondent No. 2 on 7-6-1978 (Annexure R-II/3) and that passed by the respondent No. 1, in pursuance thereof on 24-7-1978 (Annexure P-2), are hereby quashed.
30. In view of the nature of controversy, I make no order as to costs. Outstanding amount of security, if any, may be refunded to the petitioner.
