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PETITIONER: JAGDISH PRASAD SHASTRI

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT: 13/10/1970

BENCH: SHAH, J.C. BENCH: SHAH, J.C. HEGDE, K.S. GROVER, A.N.

CITATION:  1971 AIR 1224            1971 SCR  (2) 583  1973 SCC  (3) 631

ACT: Constitution  of India, Art. 226-Writ  jurisdiction-Disputed questions of fact arising in petition--Dismissal of petition on this ground not justified. Constitution  of India Art. 311(2)-Civil  Service-Reversion- Right  to  show cause-Whether right exists in a  case  where reversion is from a post held in "officiating" capacity  and not substantively. Evidence-Document  admitted  by Division  Bench  in  appeal- Refusal to consider its effect on the ground that it was not produced at earlier stage, not justified.

HEADNOTE: The  appellant was employed in the Department  of  Panchayat Raj, U.P. On January 7, 1959 the appellant was placed at the top  of the list of Panchayat Secretaries fit for  promotion to  the post of Panchayat Inspector.  On June 22,  1960  the appellant  was promoted to the post of Panchayat  Inspector. The  order  did  not specify  whether  the  appointment  was officiating  or  substantive.   On  August  20,  1960,   the District Panchayat Raj Officer passed an order reverting the appellant to the post of Panchayat Secretary; the order  was however  rescinded by the Director of Panchayat Raj who  re- instated  the appellant to the post of  Panchayat  Inspector making the appointment ’officiating’.  In January 1961 there was  a complaint against the appellant in connection with  a panchayat election and an enquiry was instituted against the appellant by the Director of Panchayat Raj.  On February 24, 1961,  the  District  Panchayat  Raj  Officer  reverted  the appellant  to the post of Panchayat Secretary.  Before  this order was made no opportunity was given to the appellant  to explain his conduct.  The appellant moved a petition in  the High Court of Allahabad for a writ quashing the orders dated August  20, 1960 and February 24, 1961.  In the petition  it was  urged that the appellant had been reduced in  rank  and penalised  without an opportunity to show cause,  that  Art. 311  of the Constitution had been contravened, and that  the impugned order was mala fide and was made because of  enmity between  the relatives of the Director of Panchayat Raj  and the family of the appellant.  The petition was dismissed  by

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the Single Judge.  The Division Bench dismissed the  appeal. By  special  leave  the  present  appeal  was  filed.    The questions that fell for consideration were : (i) whether the High  Court was right in declining, on the ground  that  the plea  raised disputed questions of fact, to investigate  the appellant’s  claim that by order dated June 22, 1960 he  was appointed Panchayat Inspector in a permanent capacity;  (ii) whether the appellant was entitled to the protection of Art. 311(2) (iii) whether the High Court was right in not  taking into  consideration the letter of the Director of  Panchayat Raj  recommending the appellant’s dismissal after  admitting the same on the ’record at the appellate stage. HELD  :  (i) If disputed questions of fact arise in  a  writ petition,  and the High Court is of the view that those  may not   appropriately  be  tried  in  petition  for   a   high prerogative writ, the High Court has jurisdiction to  refuse to try those questions and to relegate the party applying to his 5 84 normal remedy to obtain redress in a suit.  The order of the High  Court  rejecting  the  petition  on  the  ground  that disputed questions of fact fell to be determined was plainly illegal on the peculiar facts of the present case. [587 D] (ii) If by the order dated June 22 1960 the appellant  was promoted  ,substantively the impugned order  dated  February 24,  1961, was liable to be struck down as violative of  the guarantee  of Art. 311 of the Constitution.  The High  Court did  not reach any conclusion on that question.   The  order dated  December  13,  1960  posting  the  appellant  as   an officiating Inspector could not deprive the appellant of the protection of the guarantee under Art. 311(2). [587 E-G] An  order of reversion made due to exigenics of the  service in  consequence  of  which an officer  who  was  temporarily appointed or appointed in an officiating capacity may not be challenged.    But  the  order  passed  maliciously  or   on collateral  considerations  or which involves  penal  conse- quences, or denied to the civil servant the guarantee of the Constitution  or  of the rules governing his  employment  is always  open  to the challenge by  appropriate  proceedings. [588 G-H] (iii) The letter by which the appellant Was reverted to  the post of Panchayat Secretary and his name was also ordered to be  struck  off  the list  of  those  Panchayat  Secretaries maintained for promotion to the post of Panchayat Inspector, had a two fold significance (a) it tendered some support  to the plea of mala fides, and (b) it lent support to the claim of  the  appellant  that  it  involved  evil   consequences. Refusal  by  the  High Court to consider  the  letter  after admitting  it on the record was open to  serious  objection. The  High  Court  had  refused on  grounds  which  were  not relevant  to  consider  an important piece  of  evidence  in support of the case of the appellant, and had thereby denied the appellant a fair trial. [587 H; 588 D] The  direction that the appellant’s name be struck  off  the list of Panchayat Secretaries eligible for promotion to  the post   of   Panchayat  Inspector   involved   very   serious consequences  to the appellant.  Before such an order  could be made it was obligatory upon the appropriate authority  to give an opportunity to the appellant to explain his  conduct which  merited punishment.  Admittedly no  such  opportunity was given to the appellant. [588 B]

JUDGMENT:

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CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1988  of 1966. Appeal  by special leave from the judgment and decree  dated April  19,  1965  of the Allahabad  High  Court  in  Special Appeal.  No. 138 of 1961. G.   N. Dikshit for the appellant. S.   C. Manchanda and O. P. Rana, for the respondents. The Judgment of the Court was-delivered by Shah, J. The ;Appellant was appointed Panchayat Secretary in the Department of Panchayat Raj of the State of U.P. He  was eligible  for promotion to the post of Panchayat  Inspector. On  January 7, 1959 the appellant was placed at the  top  of the  list of Panchayat Secretaries fit for promotion to  the post of Panchayat 585 Inspector.   On June 22, 1960 the appellant was promoted  to the post of Panchayat Inspector.  The order did not  specify whether this appointment was officiating or substantive.  On August 20, 1960, the District Panchayat Raj Officer, Meerut, passed  an  order  reverting the appellant to  the  post  of Panchayat   Secretary.   But  on  protest  raised   by   the appellant,  the  Director of Panchayat  Raj  rescinded  that order and re-instated the appellant to the post of Panchayat Inspector making the appointment "officiating". On  January 22, 1961, election was ’held for the  office  of Pradhan  of the Simbhawali Panchayat.  A complaint was  made by  one  of  the  defeated candidates  to  the  Director  of Panchayat  Raj  that the appellant and  other  officers  had tampered  with the seal of the ballot box and had  cancelled certain  ballot papers.  An inquiry was  instituted  against the appellant by the Director of Panchayat Raj.  On February 24,  1961,  the District of Panchayat Raj  Officer,  Meerut, reverted  the appellant to the post of Panchayat  Secretary, and  directed that the name of the appellant "be struck  off from  the  list  of  Panchayat  Secretaries  maintained  for appointment  of officiating Panchayat  Inspectors".   Before this  order  was  made  no  opportunity  was  given  to  the appellant to explain his conduct. The appellant moved a petition in the High Court of  Allaha- bad  on March 9, 1961, for a writ quashing the orders  dated August  20, 1960 and February 24, 1961.  He claimed that  he could  not  be  reduced  in  rank  without  giving  him   an opportunity of showing cause since the reduction in rank  of the  appellant. amounted to imposing a penalty and  entailed evil consequences, that the appellant was not reverted under the  order of a competent officer: that the  order  violated the  service rules and the guarantee of Art. 311  under  the Constitution  of India; that the order was because of  empty between the family of the appellant and the relatives of the Director of Panchayat Raj; and that the appellant had reason to  believe  that  on account of  "strained  relations"  the Director of Panchayat Raj passed an order without giving him even an opportunity of being heard. The petition was dismissed in limine by order of Dwivedi, J. The  learned  Judge held that there was no evidence  on  the record to show that the appellant was permanently  appointed to  the post of Panchayat Inspector by order dated June  22, 1960,  and  that in reverting the appellant to the  post  of Panchayat  Secretary by order dated August 20, 1960  without an enquiry the guarantee under Art. 311 of the  Constitution was not violated, and that since the appellant was appointed by  order dated December 13, 1960 to officiate as  Panchayat Inspector the order was not in contravention of Art. 31  (2) of the Constitution.  The learned 586

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Judge   did  not  consider  whether  the  order   was   made maliciously or on collateral considerations. Against that order the appellant preferred a special  appeal to a Division Bench of the High Court.  By order of the High Court  the record of the Director of Panchayat Raj  and  the letter ,addressed by him to the District Magistrate, Meerut, were  called for and admitted in evidence.  The  letter  was issued  under  the signature of  Bhagwant  Singh,  Director, Panchayat Raj, U.P., intimating the District Magistrate that the  appellant  "be  reverted  to  ,his  original  post   of Panchayat Secretary and his name be struck off from the list of   those   Panchayat  Secretaries   maintained   for   the appointments of officiating Panchayat Inspectors.  For  this no  further  communication  is  necessary".   The  appellant relied upon this letter and contended in support of his plea that  the  order was, made because of  enmity  and  ill-will against him. The  High Court observed that there was controversy  whether by the order dated June 22, 1960 the appellant was appointed in  a  permanent capacity as Panchayat Inspector;  that  the burden of proving that the appellant had been appointed in a permanent  capacity  lay  upon  him  and  in  view  of   the controversy  between the parties it could not "be held  that he occupied the post in a permanent capacity"; that since by the  order  dated  February  24,  1961,  the  appellant  was appointed only "officiating Inspector" the appellant was not occupying  the post of Panchayat Inspector in  a  "permanent capacity;" and in the absence of any material on the  record a finding on the point whether "the appellant was holding  a substantive  post  of  Panchayat  Inspector  could  not   be recorded with any amount of certainty", and "the Court  must proceed  on  the  assumption that  the  appellant  was  only ,officiating as a Panchayat Inspector".  After referring  to the counter-affidavit,  filed  on  behalf  of  the   State (presumably  in  the  appeal) the Court  observed  that  the "appellant  had been given an officiating chance in a  local arrangement and the reversion took place because the  person holding  the  post of Panchayat Inspector in  a  substantive capacity  had  joined",  that  in  the  petition’  and   the affidavit filed in support of it the circumstances in  which the appellant was reverted were not explained and  therefore "even  though  there  was  no  material  to  show  that  the appellant  was  reverted  actually on the  ground  that  the person   for  whom  he  was  officiating  had  joined,   the possibility that he was reverted on that ground had not been excluded  by  the  averments made in the  petition  and  the affidavit filed in support of it".  In the view of the  High Court  the appellant could not rely upon the letter  of  the Director of Panchayat Raj, for, it "was brought on record at the appellate stage" and not at the trial before the  Single Judge  and no explanation was furnished by counsel  for  the appellant 58 7 why the letter was not called for or produced earlier.   The letter contained a direction to the effect that the name  of the  appellant be removed from the list of persons  eligible for promotion to the post of Panchayat Inspector, but  that, in the view of the High Court, by itself did not support the appellant’s  submission that the appellant was  entitled  to the protection of Art. 311(2) of the Constitution of  India, for,  it  was  not proved that  the  appellant  was  legally entitled  to have his name recorded in the list  of  persons eligible  for promotion to the post of Panchayat  Inspector. The appellant has appealed to this Court with special leave. The  judgment of the High Court prompts three  comments  (1)

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the  appellant claimed that he was by order dated  June  22, 1960,  appointed  substantively  to the  post  of  Panchayat Inspector   and  thereafter  he  was  unlawfully   reverted. Without investigating this grievance the High Court rejected the petition observing that on that plea disputed  questions of  fact  fell to be determined.  If disputed  questions  of fact arise in a writ petition, and the High Court is of  the view that those may not appropriately be tried in a petition for a high prerogative writ, the High Court has jurisdiction to  refuse to try those questions and to relegate the  party applying  to his normal remedy to obtain redress in a  suit. The  order of the High Court rejecting the petition  on  the ground that disputed questions of fact fell to be determined is  plainly  illegal; (2) that if by the first  order  dated June  22, 1960 the appellant was appointed substantively  as Panchayat  Inspector,  a subsequent  order  cancelling  that order  and  reverting  the  appellant  without  enquiry  was illegal.  If by the order dated June 22, 1960 the  appellant was promoted substantively the impugned order dated February 24,  1961, was liable to be struck down as violative of  the guarantee  of Art. 311 of the Constitution.  The High  Court did  not reach any conclusion on that question.   The  order dated  December  13,  1960,  posting  the  appellant  as  an officiating Inspector could not deprive the appellant of the protection of the guarantee under Art. 311 (2); and (3) that the appellant pleaded in paragraphs 23 & 24 of his  petition and in paragraphs 24, 25 & 26 of the affidavit in support of the  petition,  that  in making the order  the  Director  of Panchayat  Rai  was actuated by ill-will  and  malice.   The Single   Judge  summarily  rejected  the  petition   without considering  these averments.  The High Court also  did  not consider  the  plea that the Director of Panchayat  Raj  had acted maliciously. The  letter by which the appellant was reverted to the  post of Panchayat Secretary, and his name was also ordered to  be struck   off  the  list  of  those   Panchayat   Secretaries maintained for promotion to the post of Panchayat Inspector, had  a. two-fold significance-(i) it rend--red some  support to the plea of mala fides; 588 and (ii) it lent support to the claim of the appellant  that the  order  involved  evil  consequences.   The  High  Court apparently  allowed the letter to be brought on the  record, but thereafter declined to consider whether it prejudicially affected the appellant.  The direction that the  appellant’s name  be  struck  off  the  list  of  Panchayat  Secretaries eligible for promotion to  the post   of Panchayat Inspector involved very serious consequences to the appellant.  Before such  an  order  could be made it was  obligatory  upon  the appropriate   authority  to  give  an  opportunity  to   the appellant   to  explain  his  conduct  which  merited   that punishment.  Admittedly no such opportunity was given to the appellant.   The  order  prima  facie  supported  both   the branches  of the argument raised on behalf of the  appellant that it involved penal consequences and also that the  order was  made not due to the exigencies of the service,  but  to punish  the  appellant  because the  relations  between  the appellant  and the Director of Panchayat Raj were  strained. Refusal  by  the  High Court to consider  the  letter  after admitting  it  on the record is open to  serious  objection. The  High  Court  has  refused on  grounds  which  were  not relevant  to  consider  an important piece  of  evidence  in support of the case of the appellant, and has thereby denied the  appellant a fair trial.  The order of the  High  Court- suffers from serious infirmities.

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   We  set  aside the order of the High Court  and  of  the Trial Judge and direct that the Trial Judge do issue  notice to the officer is actuated by malice, the order is liable to be  set aside. to hear and decide the petition filed by  the appellant. It  may be observed that according to the decisions of  this Court the mere form of the order reverting an officer to his substantive  post even if he is appointed temporarily or  in an officiatin- capacity to a superior post, is not decisive. If  the  order is made for a collateral purpose,  or  if  in making  the  order the officer is actuated  by  malice,  the order  is  liable  to  be set aside.   Again  if  the  order involves a penalty, even if on the face of it the order does not  bear  any such impress, the Officer prejudiced  by  the making  of that order is entitled to prove that he has  been denied the protection of the guarantee under Art. 311 of the Constitution,  or of the protection of the  rules  governing his  appointment.   An  order  of  reversion  made  due   to exigencies of the service in consequence of which an officer who was temporarily appointed or appointed in an officiating vacancy  may  not  be  challenged.   But  the  order  passed maliciously   or  on  collateral  considerations  or   which involves penal consequences, or denied to the civil  servant the guarantee of the Constitution or of the rules governing his employment, is always open to challenge by  appropriate. proceedings. 58 9 The  appellant will be entitled to his costs in  this  Court and  in the High Court.  Costs before the Single Judge  will be costs in the petition. G.C.                                                  Appeal allowed. 5 9 0