# R. S. SIAL v. THE STATE OF U.P. & ORS.·

- **Citation:** [1974] 3 S.C.R. 754
- **Court:** Supreme Court of India
- **Decided:** 1974-03-25
- **Bench:** H. R. Khanna, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-s-sial-v-the-state-of-u-p-ors-6073
- **Pages:** 6

## Headnote

Constitution of India, Art. 311(2)-Reversion from _an officiating higher
post to substantive post-If attracts Art. 311(2)
. B:
_The appellant wh~ was Assis~t. General Manager in the State Transport
Department was appointed as offic1at:J.ng General ~ianager in the same departmei;tt:
During the period of his .officiating appointment he was reverted.
At
the llme of the appellant's reversion there were two letters from the Vigilance
Department making certain allegations against the appellant. These letters show
that the authorities concerned came to the conclusion that pending the enquiry.
C
the app~llant should not be allowed to officiate in a higher post. His writ petition
challenging the order of reversion was dismissed by the High Court.
· !t was contellded in this court that the order of reve~ion -was by way of
punishment and since it had been made without complying with the requirements
of Art. 311 of the Constitution the same was liable to b~ quashed.
Dismissing the appeal,
HELD :-The test for attracting Art. 311(2) of the Constitution is whetli.er
D·
the misconduct or negligence is a mere motive for the order of reversion or
termination of service of the temporary employee. The form of the
order
ho\';·ever, is not conclusive of its true nature.
The entirety of
circumstances
preceding or attendant on the impugned order must be examined by the court
and the overriding test will always be whether the misconduct is a mere motive
· or is the very foundation of the· order.
[757E]
A perusal of the order showed that it contained no adverse remarks against
r~.
the appellant nor could it be said that any stigma attached to the
appellant
i:...
because of that order. The post of General itanager which was held by the
appeIIant was only in an officiating capacity. The appellant had no vested right
to retain that post.
In case the author_ities concerned came to the conclusion
that the appellant should not b~ allowed to retain the post. of which he was
officiating they could pass an order for his reversion without complyin~ with
the requirements of Art. 311 provided the order was not by way of punishment.
[756H)
Parshotam Lai Dhi11gra v. Union of India, [1958] S.C.R. 828, Union of India
& Anr. v. Gajendra Singh etc. etc .• [1972] 3 S.C.R. 660 and State of Bihar &
Ors. y. Shi~'a Bhik.shuk-Mishra, [1971) 2 S.C.R. 191, followed.
State of Punjab v._Shri Sukh Rai Bahadur, [1968] 3 S.C.R. 234, referred to.
--
.,,,--: It is wen -sC-ttled that even ihough misconduc4 negligence, inefficiency ot
-other disqualifications may be the motive or the inducing factor -which influence
the Government to take action under the express or implied terms of the contract
of employment or under the statutory rule. nevertheless if a tight exists. under
the contract or the rules to terminate the services the motive operating on the
mind of the Governmen-:: is \vhollv immaterial.
The same rule would bold
good if the order passed is not for termination of service but for reversion '?f
a Government servant from. a higher post to a lower post \\"-hich he holds tn
a substantive cap~city.
[758H]
Union of India v. R, S. Dhaba, [1969] 3 S.C.R. 603, referred to.
CIVIL APPELLANT JURISDICTION: Civil Appeal No. 1062 of 1971.
Appeal by Special Leave from the Judgment and Order dated the ·
12th January, 1971 of the Allahahad High Court (Lucknow Bench)
~t Luck;now in Writ Petition No. 1073 of 1968.
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R. s. SIAL v. u. P. STATE (Khanna, I.)
755
S. V. Gupte, I. P. Goyal and G. S. Chatterjee, for the appellant.
C. N. Dikshit, and R. Ba11a for the respondents.

## Text

754
R. S. SIAL
v.
THE STATE OF U.P. & ORS.·.
March 25, 1974
[H. R. KHANNA AND P. K. GOSWAMI, JJ.)
Constitution of India, Art. 311(2)-Reversion from _an officiating higher
post to substantive post-If attracts Art. 311(2)
. B:
_The appellant wh~ was Assis~t. General Manager in the State Transport
Department was appointed as offic1at:J.ng General ~ianager in the same departmei;tt:
During the period of his .officiating appointment he was reverted.
At
the llme of the appellant's reversion there were two letters from the Vigilance
Department making certain allegations against the appellant. These letters show
that the authorities concerned came to the conclusion that pending the enquiry.
C
the app~llant should not be allowed to officiate in a higher post. His writ petition
challenging the order of reversion was dismissed by the High Court.
· !t was contellded in this court that the order of reve~ion -was by way of
punishment and since it had been made without complying with the requirements
of Art. 311 of the Constitution the same was liable to b~ quashed.
Dismissing the appeal,
HELD :-The test for attracting Art. 311(2) of the Constitution is whetli.er
D·
the misconduct or negligence is a mere motive for the order of reversion or
termination of service of the temporary employee. The form of the
order
ho\';·ever, is not conclusive of its true nature.
The entirety of
circumstances
preceding or attendant on the impugned order must be examined by the court
and the overriding test will always be whether the misconduct is a mere motive
· or is the very foundation of the· order.
[757E]
A perusal of the order showed that it contained no adverse remarks against
r~.
the appellant nor could it be said that any stigma attached to the
appellant
i:...
because of that order. The post of General itanager which was held by the
appeIIant was only in an officiating capacity. The appellant had no vested right
to retain that post.
In case the author_ities concerned came to the conclusion
that the appellant should not b~ allowed to retain the post. of which he was
officiating they could pass an order for his reversion without complyin~ with
the requirements of Art. 311 provided the order was not by way of punishment.
[756H)
Parshotam Lai Dhi11gra v. Union of India, [1958] S.C.R. 828, Union of India
& Anr. v. Gajendra Singh etc. etc .• [1972] 3 S.C.R. 660 and State of Bihar &
Ors. y. Shi~'a Bhik.shuk-Mishra, [1971) 2 S.C.R. 191, followed.
State of Punjab v._Shri Sukh Rai Bahadur, [1968] 3 S.C.R. 234, referred to.
--
.,,,--: It is wen -sC-ttled that even ihough misconduc4 negligence, inefficiency ot
-other disqualifications may be the motive or the inducing factor -which influence
the Government to take action under the express or implied terms of the contract
of employment or under the statutory rule. nevertheless if a tight exists. under
the contract or the rules to terminate the services the motive operating on the
mind of the Governmen-:: is \vhollv immaterial.
The same rule would bold
good if the order passed is not for termination of service but for reversion '?f
a Government servant from. a higher post to a lower post \\"-hich he holds tn
a substantive cap~city.
[758H]
Union of India v. R, S. Dhaba, [1969] 3 S.C.R. 603, referred to.
CIVIL APPELLANT JURISDICTION: Civil Appeal No. 1062 of 1971.
Appeal by Special Leave from the Judgment and Order dated the ·
12th January, 1971 of the Allahahad High Court (Lucknow Bench)
~t Luck;now in Writ Petition No. 1073 of 1968.
F·
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R. s. SIAL v. u. P. STATE (Khanna, I.)
755
S. V. Gupte, I. P. Goyal and G. S. Chatterjee, for the appellant.
C. N. Dikshit, and R. Ba11a for the respondents.
The Judgment of the Court was delivered by
KHANNA, J.-This appeal by special leave is directed against a
Full Bench decision of the Allahabad High Court . whereby petition
under article 226 of the Constitution onndia filed by the appellant was
dismissed.
The appellant was appointed Traffic Manager in the transpnrt
organization of the State of Uttar. Pradesh on July 21, 1948. The
office of Traffic Manager was subsequently designated
a~ Assistant
General Manager and the· appellant continued ·to work as such.
On
December 1, 1955 tl)e appellant was confirmed as Assistant General
Manager with effect from April 1, 1955. On July 5, 1963 the appellant
was appointed Officiating General Manager in the Gorakhpur region
of the Transport Department The appellant continued to officiate as
General Manager of Government Roadways till September 7,
1967
when he.was reverted to the post of Assistant General Manager. The
appellant filed writ petition No. 3167 of 1967 in the Allahabad High
Cqurt challenging the order of his reversion but the same was summarily
dismissed by a Division Bench of that court as per order dated
Se?tember 12, 1967. Representation was
made by the appellant
against the order of his reversion but the representation too was rejected by the State Government as per letter dated October 7, 1968.
The writ petition which has given rise to this appeal was thereafter
filed by the petitioner praying for quashing the ordei by which he had
been reverted from the post of Officiating General .Manager to that of
Assistant General Manager as well as the orders whereby his representation had been rejected.
A number of grounds were set out in the petition for assailing the
impugned orders, but at the hearing of the appeal only one ground
has been pressed and it is only that ground with which we are concerned. According to 1the appellant, the order of his reversion was by
way of p\mishment and as it had been made wiihout complying with
requirements of article 311 of the Constitution, the same was liable to
be quashed.
The petition. was resisted by the State of Uttar Pradesh and the
affidavit of Shri Bhagwan Sarup Sl\Xena, Deputy Secretary to the
Government in the· Transport Department was filed in opposition to
the petition. Objection was;taken that the present petition was barred
because of the dismissal of the earlier petition.
On merits it was stated
that the appellant was merely ,officiating as a General Manager and bad
no right to that post. According to the respondent-State, the appellant
could be reverted to his substantive post of Assistant G~neral Manager
withO\lt the State takipg any disciplinary action or assigning anv reason.
When the petition can1e up for hearing ~fore a single Judge the
learned Judge referred the matter to a farger Bench. Ultimately, the
matter was heard by a Full Bench of the High Court. The learned
Judges held that the present l;>etition was barred because of the disJDissal of lhe appellant's earlier petition. On merits also, the learned
7'56
SUPREME COURT REPORTS
[1974] 3 S.C.R.
Judges did not accept the contention· advanced on behalf of the appelA
·)ant and held that as he was only officiating as General Manager, he
did not have any lien on that post. The reversion was held to.be not
by way of punishment. The Government, in the opinion of the High:
Court, was entitled in exerci~ of its power to revert a person who was:
officiating in a higher post. Contention was also raised that the order
of reversion was violative of the principles of natural justice but this
contention was repelled.
In the result the petition of the appellant
B
was dismissed.
In appeal before us Mr. Gupte on behalf of the appellant has argued
that as the previous petition No. 3167 of 1967 filed by the appellant had
been dismissed summarily by means of a non-speaking· order, it cannot
b~ said that the dismissal of that petition was on merits. As such,
according to the learned counsel, the present petition was not barred
C
because of the dismissal of the pre·;ious petition. The second conten·
tion of Mr. Gupte is that the reversion. of the appellant from the post of
Officiating General Manager to that of Assistant General Manager was
by way of punishment and as the same had been ordered without complying with article 311 of the Constitution, the order of reversion was
liable to be quashed.
The above contentions have been controverted
by Mr. Dikshit on behalf of the respondent-State. It is, in our opinion,
D
not necessary to go into the first contention of Mr. Guptc because we
find that the order of reversion of the appellant cannot be said to have
been made by way of punishment.
The material part of the order of reversion reads as under :
"OFFICE OF THE TRANSPORT COMMISSIONER
E
UTT AR PRADESH
No. 714/PAVS/67 Dated Lucknow, September 7, 1967
ORDER
In pursuance of Government's instructions contained is
Deputy Secretary, Trausport's D.0. letter No.
13060
S/XXXA-10/18/i'vl/59, dated September 5, 1967
the
F
folJowing reversion~, transfers
and
postings
arc
hereby
crdcred :-
(1) Sri R. S. Sial, officiating General Manager, U.P.
Government Roadways, Aligarh, is reverted to his substantive post of Assistant General Manager, and posted at Lucknow as Assistant General Manager (Rural) vice Sri V. P.
G
Gupta transferred."
Perusal of the above order shows that it contains no adverse remarks
against the appellant, nor can it be said that any stigma attaches to the
appellant because of that order. At the time the above order was
made the substantive rank of the appellant was that of Assistant
General Manager.
The post of General Manager which was held by
H
the appdlant was only in an officiating capacity. The appellant had
no vcst.,d right to retain that post. In case the authorities concerned
came to the conclusion that the appellant should not be allowed to
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R. s. SIAL v. U.p. STATE (Khanna. /,)
151
retain the post in which he was officiating, they could pass an order for
his reversion without complying with the requirements of article 311
provided the ord~r was not by way of punishment.
Appointment to a post on an officiating basis is, from the nature of
employment, itseH of a transitory character and in the absenee of any
contract or specific rule regulating the conditions of service to the contrary, the implied term of such an appointment is that it is terminable
at any time.
The Government servant so appointed acquires no right
to the post. But if the order entails or provides for forfeiture of bis
pay or allowance or the loss of his seniority in the substantive rank or
the stoppage or postponement of bis future chances of promotion, then
that circumstance may indicate that though, in form, the Government
had purported to exercise its undoubted right to terminate the employment, in truth and reality, the termination was by way of penalty [see
Parshotam Lal Dhingra v. Union of India (I) and Union of India &
Anr. v. Gajendra Singh, etc. etc.( 2 )].
Officiating and temporary Government se~vants are also entitled to
the protection of article 311 as permanent Government servants if the
Government takes action against them by meting out one of the punishments, i.e. dismissal, removal or reduction in rank [see Parshotam Lal
Dhingra v. Union of India, (supra), Champaklal Chimanlal Shah v.
Union of India(') and Appar Apar Singh v. The State of Punjab &
Ors.(<)].
The test for attracting article 311 (2) of the Co1istitution is whether
the miscpnduct or negligence is a mere motive for the ~order of reversion or termination of service or whether it is the very foundation of the
order of termination of service cif the temi;><>rary employee.
The form
of the order, however, is not conclusive of its true nature.
The entirety
of circumstances pre~eding or attendant on the impugned order must
be examined by the court and the overriding test will always be whether
the misconduct is a mere motive or is the very foundation of the order
[sec State of Bihar & Ors. v. Shira Bhikshuk Mishra(')].
In the case of State of Punjab v. Shri Sukh Raj Bahadur(6)
this
Court enunciated the following propositions which have to be borne in
mind:
"(!) 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 Art. 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) lf the order visits the public servant with any evil
consequences or casts an aspersion against his
(I) [1958] SCR 828.
(2) [1972] 3 SCR 660.
(3) [196415SCR190.
(4) [1971] 2 SCR 890.
(5) [1971] 2 SCR 191.
(6)
[19681 3 SCR 2J4.
758
SUPREME COURT REPORTS
(1974] 3 S.C.R.
character or integrity, it must re considered to be one
A
(4)
(5)
by way of punishment, no matter whether he was a
mere probationer or a temporary servant.
An oruer 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 Art. 311 of the Constitution.
If there be a full-scale departmental enquiry envisaged by Art. 311 i.e. an Enquiry Officer is appointed, a
charge sheet subm;tted, .explanation called (or and
considered, any order of termination of service made
thereafter will attract the
operation of the said
article."
-
Keeping in view the principles enunciated above, we ha\-C looked
at the facts of the case and are not satisfied that the order of reversion
of the appellant was by way of punishment. It has already been mentioned above that no aspersion was cast on the appellant in the order
of reversion and as a result of toot order no stigma attaches to his name:
The appellant was merely officiating in a higher post and the impugned
order had the effect of reverting him to his substantive post.
The
attendant circumstances to which our attention has been invited with a
view to show that the order of reversion was by way of punishment are
two letters dated July 12, 1967.
One of these letters was addressed
by the Deputy Secretary, Vigilance Department to the Director of
Vigilance wherein reference was made to the report of the officers of
the Intelligence and Evaluation Cell.
It was requested that an open
enquiry might be made into the allegations of involvement of the
appellant in a matter relating to the supply of non-genuine and substandard motor parts by a Delhi dealer. In the other letter addressed
to the Secretary to Uttar Pradesh Government, Transport Department
a request was made by the Deputy Secretary, Vigilance Department
that in case .the appellant was n6t confirmed on the post of General
Manager, he might be reverted since an enquiry made by the CID into
the allegations of corruption against the appellant had rewalcd that
there was substance in those allegations.
The above kiters would
show that the authorities concerned came to the conclusion that, pending the holding of an open enquiry into the charges of corruption
against the appellant, he should not be allowed to officiate in a higher
post. It cannot, in our opinion, be inferred therefrom that the reversion of the appellant was by way of punishment. All that c:i.n be said
is that the contemplated enquiry into the charges of corruption against
the appellant provided the motive for the reversion of the appellant.
The existence of such a motive cannot, in our opinion, vltiale the order
for the reversion of the appellant.
It may be taken to l>o well settled
that even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influence the
Government to take action under the express or implied terms of the
contract of employment or under the statutory rule, nevertheless if a
right exists, under the contract or the rules to terminate the services the
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R. s. SIAL v. u. P. STATE (Khanna, J.)
759
motive operating on the mind of the Government is whoUy immaterial
[see Union of India v. R. S. Dhaba( 1) .]. The same rule would hold
good if-the order passed is not for termination of service but for reversion of a Government servant from a higher post to a lower post which
he holds in a substantive capacity.
Application was filed .during the pendency of the appoal on behalf
of the appellant that this Court might take into account additional
documents.
These documents were in existence at the time the appellant filed the petition in the High Court.
The petition in the High
Court remained pending for more than a year.
We are not impressed
by the plea taken on behalf of the appellant that he coulct not trace
these documents with due diligence and has been able to trace them
now. 1be documents in question are not of such a nature as arc
need·od to enable us to pronounce this judgment. In the circumtances, the application filed by the appellant for taking on record additional documents in appeal is rejected.
The appeal fails and is dismissed with costs .
•
P.B.R.
,4ppeal dismissed.
(I) [1969] 3 SCR 603.