G SAMUEL Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner had been the Head Clerk, Government Central Press, Trivandrum, and was provisionally promoted as Manager in the office of the Superintendent of Government Presses, Trivandrum by an order, Ext. P1, of the first respondent, the State of Kerala, dated, the 18th April, 1959. In the integration of the services, upon the formation of the State of Kerala, the first respondent approved on the 29th July. 1959, Ext. R-3 which is a preliminary integrated gradation list of the former Travancore-Cochin personnel, and the staff allotted from Madras in the ministerial line of the department of Printing as on the 1st November, 1956, prepared in, accordance with the general principles and the orders regarding equation of posts contained in the Government orders, Ext. P-2 dated the 29th December, 1956 and others; but Ext. R-3 was not final, and permitted appeals to be preferred by those who were aggrieved by it. According to Ext. R-3, the petitioners rank was fixed as the 5th, while that of the 2nd respondent, an officer allotted from Madras, was fixed as the 3rd in the substantive post. The second respondent had already made a representation on the 20th April, 1959, that is, within two days of Ext. P-1, that he, and not the petitioner had the legitimate claim for promotion; now that the relative ranks had been fixed by Ext. R-3, though provisionally, the first respondent by order Ext. P-6 dated the 6th August, 1959, reverted the petitioner, and appointed the second respondent as the Manager in the office of the Superintendent of Government Presses, Trivandrum. This original petition was therefore filed by the petitioner to quash. Ext. P-6, on the ground, that the reversion of the petitioner was a reduction in rank by way of punishment, and was made in violation of the guarantee provided by Art.311(2) of the Constitution; the contentions of his learned counsel in this respect were two-fold, first, that though the petitioners appointment as Manager on promotion was provisional, he had a right to hold that post until the integration of services was finalised, and secondly, that granting that he had no such right, his reversion to the 5th rank in his substantive post, which was lower than the rank which he had previously held in it, amounted in law to a reduction in rank by way of punishment. The learned counsel relied, for both these contentions, only on the principles formulated by the Supreme Court in the majority judgment in P. L. Dhingra v. Union of India AIR 1958 S. C. 36; it is therefore necessary to examine what this case has decided. Broadly speaking, Dhingras case has affirmed the view already held, that not every reduction in rank, but a reduction in rank by way of punishment only, can attract the operation of Art.311 (2), and to ascertain this, it has formulated two tests first, whether the government servant has a right to hold the post in which his service was terminated, and second, whether the termination of service carried with it penal or evil consequences. This may be examined more closely.

(2.) As pointed out by the learned Chief Justice, who delivered the majority judgment in Dhingras case, an appointment to a permanent post may be made in three ways, substantively or on probation or trial, whether for a fixed period or not, or on, an officiating basis. The petitioners promotion, having been ordered provisionally, falls under the third category, and the questions involved in this petition have to be decided in relation to that category. The learned Chief Justice observed thus, at page 42 of the report:

(3.) It cannot be doubted, that a termination of service in a post may take place otherwise than by way of punishment, but Art.311 (2) of the Constitution is not attracted to it. As observed by the learned Chief Justice in Khem Chand v. Union of India, AIR 1958 S. C. 300, the expressions dismissed, removed and reduced in rank occurring in Art.311 are technical words taken from the service rules, where they are used to denote the three major categories of punishment, these alone being considered by the makers of the Constitution to be entitled to the special protection under clause (2) of that Article. If a government servant is appointed to a post on probation, or on officiating basis, the service in that post being liable to be terminated, such termination of service does not per se amount to punishment, as a termination of service in the case of a servant who has a right to hold the post. But this is not to say, that there can be no termination of officiating service by way of punishment, for, as observed in Dhingras case at Para.27, .............Government may take the view, that a simple termination of service is not enough, and that the conduct of the servant has been such, that he deserves a punishment entailing penal consequences. In such a case the Government may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, renewal or reduction carrying with it the penal consequences. In such a case the servant will be entitled to the protection of Art.311 (2). The real test, as formulated, is to find out, whether the order for the reduction in rank visits the government servant with any penal consequences, such as the forfeiture of his pay and allowances in the substantive post or the loss of his seniority, or the stoppage or postponement of his future chances of promotion. As pointed out by the learned Chief Justice, these features may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty.