# JAGDISH PRASAD SHASTRI v. STATE OF U.P. & ORS

- **Citation:** [1971] 2 S.C.R. 583
- **Court:** Supreme Court of India
- **Decided:** 1970-10-13
- **Bench:** J. C. Shah, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jagdish-prasad-shastri-v-state-of-u-p-ors-5191
- **Pages:** 7

## Headnote

Constitution nf India, Art. 226--Writ iurisdiction-Disputed questions
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
post held in "officiating" capacity and not substantively.
Evlclence-Document admitted by Division Bench in appeal-Refusal
to consider its ~ffect on the ground ihat it was not produced at earli.r
stage, not justified.
The appellant was employed in .the Department of Panfhayat
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 Paochayat Inspector.
On June 22, 1960 the al'pellant was promoted to the post of Pancha·
yat Inspectar. The order did not specify whether the appointment was
officiating or substantive.
On August 20, 1960, the Distric~ Panchayat
Raj Officer passed an order reverting the appellant to the post of
Paochayat Secretary; the order was however rescinded by the Director of
Panchayat Raj who re-instated the appellant to the· .post of Panchayat ·Ins·
pector making the appointment 'officiating'. In January 1961 there-. was a
complaint against the appellant in connection with a paochayat ~lection
and an enquiry was jnstituted against the appellant by the Director of
Panchayat Raj.
On February 24, 1961, the District Panchayat Raj Offi·
cer reverted the appellant to the post of Panchayat Secretary. · Before this
order was !llade 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 quashin' the orders dated August 20, 1960 and February 24,
1961. In th. e petihon 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 ma/a fide and was made because of enmity between the relatives of
the Director of Panchayat Raj and the family of the appel)aot. The peti·
tion was dismissed by the Single Judge. The Division Bench d.ismissed
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 ·In..,ector 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
admiiting the same on the record at the appellate stago.
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
5S4
SUPREME COUR'I
· '" • ·'CTS
[1971] 2 •S.C.R,
normal remedy to obtain redress in a suit.
The order of the Higll (,.,.,,.;:
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 DJ
(ii) rf 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 exige!l>'ies of the service in conse·
quence of which an officer who was temporarily appointed or appointed
in an

## Text

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583
-.JAGDISH PRASAD SHASTRI
v.
STATE OF U.P. & ORS.
October 13, 1970
[J. C. SHAH, K. S. HEGDE
AND A. N. GROVER, JJ.]
Constitution nf India, Art. 226--Writ iurisdiction-Disputed questions
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
post held in "officiating" capacity and not substantively.
Evlclence-Document admitted by Division Bench in appeal-Refusal
to consider its ~ffect on the ground ihat it was not produced at earli.r
stage, not justified.
The appellant was employed in .the Department of Panfhayat
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 Paochayat Inspector.
On June 22, 1960 the al'pellant was promoted to the post of Pancha·
yat Inspectar. The order did not specify whether the appointment was
officiating or substantive.
On August 20, 1960, the Distric~ Panchayat
Raj Officer passed an order reverting the appellant to the post of
Paochayat Secretary; the order was however rescinded by the Director of
Panchayat Raj who re-instated the appellant to the· .post of Panchayat ·Ins·
pector making the appointment 'officiating'. In January 1961 there-. was a
complaint against the appellant in connection with a paochayat ~lection
and an enquiry was jnstituted against the appellant by the Director of
Panchayat Raj.
On February 24, 1961, the District Panchayat Raj Offi·
cer reverted the appellant to the post of Panchayat Secretary. · Before this
order was !llade 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 quashin' the orders dated August 20, 1960 and February 24,
1961. In th. e petihon 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 ma/a fide and was made because of enmity between the relatives of
the Director of Panchayat Raj and the family of the appel)aot. The peti·
tion was dismissed by the Single Judge. The Division Bench d.ismissed
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 ·In..,ector 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
admiiting the same on the record at the appellate stago.
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
5S4
SUPREME COUR'I
· '" • ·'CTS
[1971] 2 •S.C.R,
normal remedy to obtain redress in a suit.
The order of the Higll (,.,.,,.;:
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 DJ
(ii) rf 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 exige!l>'ies of the service in conse·
quence of which an officer who was temporarily appointed or appointed
in an officiating capacity may not be challensed. 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 bis employment is. always open to the challenge
by appropriate proceedings. [588 G-Hl
(iii) The letter by which the appellant was reverted to the post di
· Pancbayat Secretary and bis name was also ordered to be struck off the
list of thOSe Pancbayat Secretaries maintained for promotion to the post
of Panchayat Inspector, bad a two fold significance (a) it rendered 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 canside'r 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 tl>e
case of the appellant, and had thereby denied the appellant a fair trial.
[587 'P.; 588 DJ
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.
Be'fore
such an ord.er could be made it was obligatory upon the appropriate
authority to give an opportunity to the appell~nt to explain his conduct
which merited punishment. Admittedly no such opportunity WI! given
to the appellant. [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
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J. P. SHASTRI v. U.P. STATE (Shah, J.)
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 substl\ntive.
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 th~ 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 b<;ix and had cancelled certain ballot papers.
An inquiry was instituted against the appellant by the Director
of Panchayat Raj.
On February 24, 19~1, 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 P anchayat Secretaries maintained
for appointment of officiating Panchayat Inspectors". Before this
order' was made no OF'Ortunity was given to the appellant to explain his conduct.
The appellant moved a petition in the. High Court of Allahabad 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
&l\lOUnted to imposing a peinalty 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
m:;ide because of enmity 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.
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The petition was dismissed in Ii mine by order of Dwivedi, J.
The learned Judge held that there was no evidence on the record
to show that the appellant was pennanently 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
H · 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. 311 (2) of the Constitution. The learned
586
SUPREME COURT REPORTS
[1971] 2 S.C.R. ·
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 c~lled
for and admitted in evidence.
The letter was issued under the
signature of Bhagwant Singh, Director, Panchayat Raj, U.P., inti-
. mating 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 p~rmanent 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
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the parties it could not "be held that he o.ccupied ·the post in a
permanent capacity"; that s.ince by the order dated. February 24,
1961, the appellant was appointed only "officiating Inspector"
the appc:l.lant was not occupying the post of
P~nchayat
Inspector m a "permanent capacity;" and in the absence of any
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material on the record a finding on the point whether "the appel·
lant 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 becau~e the person holding !he post of Panchayat Inspector
-in a su.bstantive 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 IQ 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 aprellant
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J. P. SHASTRI V. U.P. STATE (Shah, J.)
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 fot 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 thaf 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 app.~aled to this Court with special leave.
The judgment of the High Court prompts three comments :
(I) the appellant claimed that he was by order dated June 22;
1960, appointed substantively to the post of Panchayat Ins11ector
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 .detennined. If
disputed questions of fact arise in a writ petition, and the High
Court is of the view that those may not appropriately be tr.ied 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 foll 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 sub~equent
order cancelling that order and reverting the appellant without
enquiry was illegal. If by the order dated June 22, 1960 !he
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 (!:ourt
did not reach any conclusion on that question.
The order dat~d
December 13, 1960, pos.ting 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
or<i~r the Director of Panchayat Raj was actuated by ill-will and
malice.
The Single Judge summarily rejected the petition with·
out 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 !Je struck
~II the list of those Panchayat Secretaries maintained for promot10n to the post of Panchayat Inspector, had a two-fold significance-(i) it rendered some support to the plea of mala -{ides;
SSS
SUPREME COURT REPORTS
(1971] 2 S.C.R.
and (ii) it lent support to the claim of the appellant that the
order involved evil consequences.
The High Court apparently
allo\\'ed 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 rela-
\o(pns 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 ha> 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 infim1ities.
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 oy malice, the order is l'iable ·to be set aside.
to hear and decide the petition filed by the appellant.
l t 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 t~mporarily or in an officiat·
ing 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 ii
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, cir 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
consid~rations or which involves penal oonsequences, cir 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,
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J, P. SHASTRI V. U.P. STATE (Slzaft, J.)
The appellant will be entitled to his costs in this Court and
in the High Court.
Costs before the Single Judge will be cosB
in the petition.
G.C.