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A B c D F G H 583 -.JAGDISH PRASADSHASTRI v. STATE OF U.P. & ORS. October 13, 1970 [J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.] Constitutionnf India, Art. 226--Writiurisdiction-Disputedquestions of fact arising in petltion-Dismissal of petition on this ground not iustl· fied. Constitution of lndia Art. 311(2)...,..Civil Service-Reversion-Right to show cause-Whether right exi•ts in a ca.re where -reversion is from a postheldin "officiating" capacityand not substantively. Evlclence-Document admitted by DivisionBench in appeal-Refusal toconsiderits ~ffect on the ground ihat it was not producedat earli.r stage, not justified. The appellantwas employedin .the Departmentof Panfhayat Raj,. U.P: On January 7, 1959the appellantwas placedat thetopof thelist of Panchayat Secretariesfit forpromotionto thepost of PaochayatInspec tor. On June 22, 1960the al'pellantwas promoted to the postof Pancha· yat Inspectar.The order did not specifywhetherthe appointmentwas officiatingor substantive. On August 20,1960, the Distric~ Panchayat Raj Officer passedan order revertingthe appellantto thepost of Paochayat Secretary;the orderwas howeverrescinded by the Director of Panchayat Rajwhore-instatedthe appellantto the· .post of Panchayat·Ins· pector makingthe appointment'officiating'. In January 1961 there-. was a complaintagainst the appellantin connectionwith a paochayat ~lection andan enquirywas jnstitutedagainst the appellantby theDirectorof Panchayat Raj. On February 24, 1961, the District Panchayat Raj Offi· cer revertedthe appellantto thepostof Panchayat Secretary. · Beforethis order was!llade no opportunitywas given to the appellantto explainhis conduct.The appellantmoved a petitionin theHighCourtof. Allahabad fora writ quashin' the orders datedAugust 20, 1960 and February 24, 1961. In th. epetihonit wasurgedthat the appellanthad beenreducedin rankand penalisedwithout an opportunityto showcause,that Art.311 of the Constitutionhad beencontravened,and thatthe impugnedorder was ma/a fide andwasmadebecauseof enmitybetweenthe relatives of theDirector of Panchayat Rajandthe familyof theappel)aot.The peti· tion was dismissedby theSingleJudge.The DivisionBench d.ismissed the appeal. By specialleave the presentappeal was filed.The questions thatfell for considerationwere : (i)whetherthe HighCourtwas right indeclining,on thegroundthat the plearaiseddisputedquestions of fact, to investigatethe appellant'sclaim that by orderdated June 22, 1960he wasappointed Panchayat·In..,ector in a permanentcapacity; (ii) whether the appellant was entitledto theprotectionof Art.311(2)(iii) whether the High Courtwas right in not takinginto considerationthe letterof the Directorof Panchayat Raj recommendingthe appellant'sdismissal after admiitingthe sameon therecordat theappellate stago. HELD: (i) If disputedquestions of fact arisein a writpetition,and the High Court is of theviewthat thosemay not appropriatelybe tried inpetitionfor a highprerogativewrit. the High Court hasjurisdiction torefuseto trythosequestionsand to relegatethe partyapplyingto his 5S4 SUPREME COUR'I · '" • ·'CTS [1971] 2 •S.C.R, normal remedyto obtainredressin a suit.The orderof the Higll (,.,.,,.;: rejectingthe petitionon thegroundthat disputedquestionsof factfell to bedetermined was plainlyillegal on thepeculiarfacts of the presentcase. [587 DJ (ii) rf by theorderdated June 22, 1960 the appellant was promoted substantivelythe impugnedorder datedFebruary24, 1961, was liable to be struckdown as violative of the guarantee of Art. 311 of the Constitu tion.The HighCourtdid notreachany conclusionon that question. Theorderdated December13, 1960 posting the appellant as an officiating Inspectorcould not deprivethe appellantof the protection of the guaranteeunder Art. 311(2).[587 E-G] · An order of reversionmade due to exige!l>'ies of theservicein conse· quenceof whichan officerwho was temporarilyappointed or appointed inanofficiatingcapacity may not be challensed.But the orderpassed maliciouslyor oncollateralconsiderationsor whichinvolvespenal conse quences,or deniedto thecivilservantthe guaranteeof theConstitution or of therulesgoverningbis employment is. alwaysopen to the challenge by appropriateproceedings. [588 G-Hl (iii) The letterby whichthe appellantwas reverted to the post di · PancbayatSecretary and bis namewas alsoorderedto bestruck off the list of thOSe PancbayatSecretariesmaintainedfor promotion to thepost of Panchayat Inspector,bad a twofoldsignificance (a) it renderedsome support to theplea of mala fides; and (b) it lentsupport to the claim of theappellantthat it involvedevil consequences. Refusal·by the High .Courtto canside'rthe letterafter admittingit ontherecordwas opento seriousobjection.The HighCourthad -refused on groundswhich were not relevantto consider an importantpiece of evidence in support of tl>e case of the appellant,and hadtherebydenied the appellanta fairtrial. [587 'P.; 588 DJ Thedirectionthat the appellant'sname be struckoff thelist of PanchayatSecretarieseligible for promotionto the post ofPanchayat Inspectorinvolved very seriousconsequencesto theappellant. Be'fore suchan ord.er could be madeit wasobligatoryupon the appropriate authorityto givean opportunity to the appell~nt to explainhis conduct whichmerited punishment. Admittedlyno suchopportunity WI! given totheappellant.[588 BJ C1v1L APPELLATE JuR1smct10N : 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 o!' 1961. G. N. Dikshit for the appeUant. 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 '''as eligible for promotion to the post of Panchayai Inspector. On January 7, 1.959 the appellant was placed at the top of the list of Pnnchayat Secretaries fit for promotion to the post of Panchayat A B c D E F G H A B c D E J. P. SHASTRI v. U.P. STATE (Shah, J.) 585 Inspector.On June 22, 1960 the appellant was promotedto the post of PanchayatInspector.The orderdid notspecifywhether thisappointment was officiatingor 獵扳瑬ੴ楶攮On August 20, 1960, theDistrictPanchayatRaj Officer, Meerut, passed an order revertingthe appellantto thepost of PanchayatSecretary.But onprotestraised by the appellant,the Directorof PanchayatRaj rescindedthat orderand re-instatedthe appellantto thepost of PanchayatInspector making th~ appointment "officiating". On January22, 1961,election was held forthe office of Pradhan of the SimbhawaliPanchayat.A complaint was made by oneof thedefeatedcandidatesto theDirector of Panchayat Rajthatthe appellantand other officers hadtamperedwith the seal of theballot b<;ix andhadcancelledcertain ballot papers. An inquiry was institutedagainst the appellantby theDirector ofPanchayatRaj. On February 24, 19~1, the District of Pan chayatRaj Officer, Meerut,revertedthe appellantto thepostof PanchayatSecretary, and directedthat the name of theappellant "be .struck off fromthe list of P anchayat Secretaries maintained forappointmentof officiatingPanchayat Inspectors". Before this order' was made no OF'Ortunity was given to theappellantto ex plain his conduct. Theappellantmoved a petitionin the.HighCourt of Allaha bad on March 9, 1961,for a writquashingthe ordersdated August 20,1960 andFebruary24, 1961.He claimedthat he could not bereduced in rankwithout giving him an opportunity ofshowingcause since the reductionin rankof theappellant &llOUnted to imposinga peinalty and entailed evil consequences, thatthe appellantwas not revertedunder the orderof a competent officer; thatthe orderviolatedthe servicerules and the guarantee of Art. 311 underthe Constitution of India;thatthe order was m:;ide because of enmitybetweenthe family of theappellantand therelativesof theDirector of Panchayat Raj;and thatthe appel lanthad reasonto believethat on account of "strainedrelations" the Directorof PanchayatRaj passedan orderwithoutgiving him even anopportunity of beingheard. G The petition was dismissed in Ii mine by order of Dwivedi, J. The learnedJudge held that there was no evidenceon therecord to show thatthe appellant was pennanentlyappointed to thepost ofPanchayatInspector by order datedJune 22, 1960, and that inrevertingthe appellant to thepost of Panchayat Secretary by orderdatedAugust 20, 1960 withoutan enquirythe guarantee H · underArt. 311 of theConstitution was notviolated,and that since the appellant was appointedby orderdated December13, 1960 to officiate as Panchayat Inspector the order was notin con traventionof Art. 311 (2) of theConstitution.The learned 586 SUPREME COURT REPORTS [1971] 2 S.C.R. · Judge did not considerwhether the order was mademaliciously or on collateralconsiderations. Againstthat order•the appellantpreferreda specialappeal toa DivisionBench of theHighCourt. By orderof the High -Court the recordof theDirectorof PanchayatRaj andthe letter addressedby himto theDistrictMagistrate,Meerut, were c~lled for andadmittedin evidence.The letter was issuedunder the signatureof BhagwantSingh, Director,PanchayatRaj, U.P., inti- . mating the DistrictMagistratethat the appellant. "be reverted to hisoriginalpost of PanchayatSecretary and. his name be struck ·Off from thelist of thosePanchayatSecretariesmaintainedfor the appointmentsof officiatingPanchayatInspectors.For this no further'communication is necessary". The appellantrelied upon thisletterand contendedin supportof his plea that the order was madebecauseof enmityand ill-willagainsthim. TheHigh.Courtobservedthat there was controversywhether bytheorderdatedJune 22, 1960 the appellantwas appointedin a p~rmanent capacity as PanchayatInspector; that the burden of provingthat theappellant ·had beenappointedin a permanent capacitylay uponhim and in view of the controversybetween A B c D the partiesit couldnot "be held that he o.ccupied ·the postin a permanent capacity"; that s.ince bytheorderdated.February24, 1961,the appellant was appointedonly "officiatingInspector" the appc:l.lant was not occupyingthe postof P~nchayat Inspectorma "permanentcapacity;" and in theabsence of anyE materialon therecorda findingon thepointwhether "the appel· lant was holdinga substantivepost of PanchayatInspector could notbe recordedwith any amountof certainty", and "the Court · must proceedon the assumption· thattheappellant was only officiating as aPanchayat Inspector" After ·referring· to the counter-affidavit filed onbehalf of theState(presumablyin the appeal) the Courtobserved .that the "appellant had beengivenan officiatingchance in a localarrangementand the reversiontook place becau~e thepersonholding !he post of PanchayatInspector -in a su.bstantivecapacity had joined", that in thepetitionand theaffidavit filed in supportof it the circumstancesin whichthe appellantwas revertedwere not explainedand therefore "even thoughthere was no material IQ show thatthe appellant was revertedactually on thegroundthat the personfor whom ·he was officiatinghad joined,the possibilitythat he was revertedon that groundhad not beenexcludedby theavermentsmade in the petitionand the affidavit filed in supportof it". In the view of theHighCourtthe appellantcould not relyuponthe letterof theDirectorof PanchayatRaj, for, it "was broughton record at theappellate stage" andnot at thetrialbeforethe Single Judge and no explanation was furnishedby counselfor theaprellant F G. H . . 8 c D E F G H J. P. SHASTRI V. U.P. STATE (Shah, J.) 58 7 why the letterwas not calledfor or producedearlier. The letter containeda directionto theeffectthat the name of. theappellant be removedfrom the listof persons eligiblefot promotionto the postof PanchayatInspector, but that,in the viewof theHigh Court,by itselfdid not supportthe appellant'ssubmissionthat the appellant was entitledto theprotectionof Art.311 (2) of the Constitutionof India,for, it was not proved thaf theappellant was legallyentitled to have his namerecordedin the list ofpersons eligiblefor promotionto thepost of'Panchayat Inspector.The appellanthas app.~aled to thisCourtwith specialleave. Thejudgmentof theHighCourtpromptsthree comments: (I) the appellantclaimed that he wasby orderdatedJune 22; 1960, appointedsubstantivelyto thepostof Panchayat Ins11ector andthereafterhe was unlawfullyreverted. Without investigating thisgrievancethe HighCourtrejected.the petitionobservingthat onthatpleadisputed questionsof factfell to be.detennined. If disputedquestionsof factarisein a writpetition,and the High Court is ofthe view thatthose may not appropriatelybe tr.ied in a petitionfor a highprerogativewrit, the HighCourthas jurisdic tionto refuse to try.thosequestionsand to relegatethe party applying to his normalremedy to obtain redressin a suit.The orderof theHighCourtrejectingthe petitionon thegroundthat disputedquestionsof fact foll to be determined is plainlyillegal; .(2)thatifby thefirstorderdatedJune 22, 1960 the appellant wasappointedsubstantively as PanchayatInspector, a sub~equent order cancellingthat orderand revertingthe appellantwithout enquiry was illegal. If bytheorderdatedJune 22, 1960 !he appellant was promotedsubstantivelythe impugnedorder dated February24, 1961, was liableto be struckdown as violative oftheguaranteeof Art.311 of theConstitution.The High (!:ourt did not reachany conclusionon thatquestion.The order dat~d December13, 1960, pos.ting the appellant as an officiatingInspec torcouldnot deprivethe appellantof theprotectionof the guaranteeunder Art. 311 (2); and(3) thatthe appellant pleaded inparagraphs23 & 24 of hispetitionand in paragraphs24, 25 & 26 of theaffidavitin supportof thepetition,that in makingthe or refusedon groundswhich were notrelevant to consideran importantpiece of evidencein supportof thecase oftheappellant,and has therebydenied the appellanta fairtrial. Theorder of the HighCourtsuffersfrom seriousinfim1ities. We set asidethe orderof theHigh Court and of the Trial Judgeand directthat the Trial ·Judge do 'issuenoticeto the officer. is actuated oy malice,the order is l'iable ·to be set aside. tohearand decidethe petitionfiled by theappellant. l t may beobservedthat accordingto thedecisionsof this Courtthe mereform of theorderrevertingan officer to his subs tantivepost evenif he is appointed t~mporarily orin an officiat· ingcapacityto a superiorpost, is not decisive. If the order is madefor a collateralpurpose, or if inmakingthe · order the officer is actuated by malice, theorder is liable.to be set aside' Againif theorderinvolvesa penalty,even if onthefaceof ii the orderdoes not bearany suchimpress,the Officer prejudiced bythemakingof thatorder is entitledto provethat he hasbeen deniedthe protectionof theguaranteeunder Art. 311of the Constitution, cir oftheprotectionof therulesgoverninghis .appointment. An orderof reversionmade due to exigenciesof theservicein consequenceof which an officerwho was temporari ly appointedor appointedin anofficiatingvacancy may not be challenged.But the orderpassedmaliciouslyor oncollateral consid~rations or whichinvolvespenal oonsequences, cir denied tothecivilservantthe guaranteeof theConstitutionor of the rules governing hisemployment, is always. opento challengeby appropriateproceedings, A B c E F G H A J, P. SHASTRI V. U.P. STATE (Slzaft, J.) The appellant will be entitledto his costs in this Court and intheHigh Court.Costs before the Single Judgewill be cosB in thepetition. G.C. |
