ORDER
R.B. Mehrotra, J.
1. The abovementioned two writ petitions, filed under Article 226 of the Constitution of India, have been heard together with the consent of the parties, as some overlapping questions arise in the two writ petitions. However, the two writ petitions are being dealt with separately.
2. In Writ Petition No. 25786 of 1990, the petitioner namely, Ashok Kumar Bajpai has challenged the order dated September 25, 1990, reverting the petitioner from the temporary post of Stenographer in the grade of Rs. 1200-2040 to the post of Junior Clerk in the grade of Rs. 950-1500 mainly on the ground that the said order has been passed by way of punishment without holding any departmental enquiry against him and without affording him proper opportunity to defend himself. The facts in brief are as under.
3. The petitioner was inlially appointed as Junior Clerk as a general candidate by the Additional Labour Commissioner, U.P. Kanpur Region on June 28, 1984, against a substantive vacancy in the grade of Rs. 354-550. It seems that later on the grade has been revised to Rs. 950-1500, but revision of grade is wholly immaterial for the purpose of decision of the case. Thereafter some posts of Stenographer fell vacant under the control of Additional Labour Commissioner, U.P. Kanpur Region and applications were invited from the persons, working in the department and a Departmental Selection Committee was constituted. The petitioner appeared before the Departmental Selection Committee and a list was prepared of 10 successful candidates. The petitioner was placed at SI. No. 6. However only three posts were required to be filled. The petitioner was appointed as third incumbent on the basis that one post is reserved for ex-serviceman, and the petitioner being an ex-serviceman, was selected for the third post. The appointment of the petitioner to the post of Stenographer was made on temporary basis against a substantive vacancy. The vacancy was caused, as Sri Shyam Narain Dixit, Stenographer was promoted in the Head Quarters as Stenographer in the higher grade and on his vacancy the petitioner was temporarily appointed, subject to tine condition that the petitioner shall be reverted back to his original post, if the original incumbent comes back to his original post. It was stated in the appointment letter of the petitioner dated March 20, 1989 that the petitioner is being appointed as a selected candidate, being an ex-servicemen. However, the petitioner was subsequently reverted back to his original post by an order September 25, 1990. The order of reversion dated September 25, 1990 has been filed as Annexure-2 to the writ petition. The said order has been passed by the Additional Labour Commissioner, U.P. Kanpur Region, Kanpur. In the said order, it has been stated that in pursuance of the letter of the Government dated September 17, 1990 and the letter of the Labour Commissioner, U.P. dated September 24, 1990, the petitioner (temporary Stenographer) is reverted to his original post of Junior Clerk with immediate effect. In his writ petition, the petitioner has stated that the said order is wholly arbitrary and has been passed without affording any opportunity of hearing to the petitioner, neither any show cause notice has been served before passing of the said order. It is also stated that the said order has been passed in violation of Article 311(2) of the Constitution of India, as it reduces petitioner’s rank, without affording opportunity to him.
4. This Court issued notice to the opposite parties. In reply whereof the State Government has not filed any counter affidavit. However, one Sri Asit Kumar Maclay filed an application in this Court for being impleaded as respondent in the writ petition. The said application was allowed and Sri Asit Kumar Maclay filed counter affidavit and contested the writ petition.
5. In the conter affidavit, filed by Sri Asit Kumar Maclay, it has been contended that a complaint was made against the petitioner to the effect that the petitioner was not an ex-servicemen and he had secured the appointment in the deparfment on the basis of forged certificate and a full-fledged enquiry was held by the Additional Labour Commissioner, U.P. Kanpur, who had submitted his report to the Government, saying inter alia that the petitioner has secured the appointment in the department in the quota of an ex-serviceman on the basis of a forged certificate. It is also revealed in the counter affidavit that a question arose in the U.P. Assembly regarding appointment of the petitioner on the basis of the said forged certificate which has also resulted in holding of an enquiry and in the preliminary enquiry it has been found that the petitoner was not an ex-serviceman and his appointment has been wrongly made on the basts of the said forged certificate. In the supplementary counter affidavit, filed by Asit Kumar Maclay, the said preliminary report has also been filed in the case. In the preliminary report, the petitioner was also questioned and the conclusion drawn in the preliminary report is that the petitioner should not have been treated as an ex-serviceman. The preliminary report only recommended that a regular departmental enquiry should be held against the petitioner for obtaining the appointment in the quota of an ex-serviceman, by filing a forged certificate.
6. At the admission stage, the matter came up before me and it was argued on behalf of Sri Maclay that no interim order should be passed in favour of such an undersirable person, against whom there is a specific charge of obtaining the appointment on the basis of a forged certificate. This allegation was refuted by the petitioner, who stated that sheerly out of the malice, this charge has been fabricated against the petitioner and the petitioner has been reduced in rank by way of punishment without affording proper opportunity to defend himself. As such, the order of reversion is liable to be quashed. However, by way of an interim arrangement, I directed that:
7. Three months period has expired and no counter affidavit has been filed in pursuance of my order. The enquiry has also not been completed as directed by me. The writ petitions have been listed for admission with the consent of the counsel for the parties the writ petitions are being finally disposed of.
8. I have heard Sri. S.N. Misra, Senior Advocate for the petitioner and Sri Mool Behari Saxena, Counsel for the respondent at great length.
9. Sri Misra in his submission stated that it is clear from the record that the order of reversion has been passed against the petitioner on the basis of complaint and by way of punishment without affording any proper opportunity to the petitioner and without holding any departmental enquiry in accordance with C.CA. rules for punishing a Government servant. Sri Misra has submitted that the said order has been passed in violation of Article 311(2) of the Constitution of India.
10. It is not disputed that protection of Article 311(2) is available even to a temporary Government servant and a temporary Government servant cannot be either reverted or terminated by way of punishment without affording him a proper opportunity of hearing. Sri Mool Behari Saxena appearing for Asit Kumar Maclay, has made three submissions before me. Firstly that the petitioner was appointed only as a temporary Stenographer and has been reverted to his original post after holding a preliminary enquiry, in which, the petitioner was afforded opportunity of hearing also. As such, the order of reversion cannot be questioned in the present writ petition. Secondly, that it is established from the record of the writ petition that the petitioner was not an ex-serviceman, as such, no indulgence can be granted in favour of the petitioner who has been appointed on the post of Stenographer out-of-turn only on the basis of being an ex-serviceman, the writ petition is liable to be rejected on thisground alone. Thirdly, that in exercise of jurisdiction under Article 226 of the Constitution of India, no relief should be granted to a person, like the petitioner, who has obtained appointment on the basis of a forged certificate.
11. I have given careful consideration of the submissions made by the counsel for the parties. From the record of the case, it is apparant that the order of reversion has been passed on a complaint by way of punishment on a charge that the petitioner has obtained the appointment on the basis of a forged certificate, as an ex-serviceman. It is established that such an order of punishment should not have been passed without holding a regular departmental enquiry against the petitioner and that too without affording sufficient opportunity to the petitioner to defend himself. In the present case, admittedly no such departmental enquiry has been held. The law on the question is well settied that even a temporary government servant cannot be punished without affording due opportunity, benefit of Article 311(2) is availale even to a temporary government servant (see Kanhaiya Lal v. District Judge, (AIR) 1983 SC 351). The present petitioner has undoubtedly been reduced in rank by way of punishment without affording proper opportunity of defending himself and without holding departmental enquiry, as such, the order of reversion is patently illegal and liable to be quashed.
12. The three objections raised by Sri Mool Behari Saxena also deserve to be negatived. Even in case where a prima facie satisfaction has been reached in a preliminary enquiry a person cannot be punished, unless a departmental enquiry is held and he is found guilty in the said departmental enquiry. In the present case, in the preliminary enquiry only a prima facie satisfaction has been reached against the petitioner, wherein it has been decided that a regular departmental enquiry should be held for punishing the petitioner for obtaining appointment on the basis of forged certificate. The petitioner could not have been punished unless such an enquiry was completed and the petitioner was found guilty of the charge of obtaining appointment by filing forged certificate. Preliminary enquiry conducted against the petitioner did not afford any proper opportunity to the petiloncr to defend himself. It was just a cursory and oral enquiry in which the petitioner denied the charges. On the basis of several circular letters, preliminary enquiry concluded that a regular departmental enquiry should be conducted against the petitioner. Unless in the said regular departmental enquiry, the petitioner is found guilty for the charge the petitioner cannot be punished for the same and the order of reversion passed against the petitioner on the basis of such a charge was patently illegal and the same cannot be sustained on the ground that in the preliminary enquiry prima facie case has been found against the petitioner. Such a preliminary enquiry can only form basis of holding a departmental enquiry but merely on the basis of the said preliminary enquiry a Government servant cannot be punished and the order of reversion cannot be passed against a Government servant on the basis of such a preliminary enquiry. The first objection has no substance and is rejected.
13. The second objection of Sri Mool Behari Saxena that on the basis of record itself, the petitioner is not entitled for being treated as an ex-serviceman is based on the record of the writ petition and on the basis of the rejoinder affidavit, filed by the petitioner. In the rejoinder affidavit, filed by the petitioner, the petitioner has filed a certificate of discharge or transfer to the reserve and recommendation for civil employment Combatants and Non-combatants. The said document has been filed as Annexure-7. In the said certificate it has been mentioned at page-4 that the petitioner has been discharged by order of IAFY-1948 A sanctioned by Commissioner MPSVV Area on January 5, 1979. In the column-‘dismissed’, the word ‘dismissed’ has been struck off and following words are noted. “Discharged from service as services no longer required”. Then in column, ‘in consequence of’, the words, “unsuitable under item-3(v) of table annexed to 13(3) of Army Rules, 1954,” are noticed. Then in the column below it is mentioned that under item-III(v) of the table annexed to Army RuIe-13AA the words “after serving 11 months 21 days,” are noted. In Annexure-5 to the rejoinder affidavit (U.P. Reservation of Vacancies for Ex-serviceman in Class -III and Class IV Services and Posts) Rules, 1973 have been filed. In the definition clause of the aforesaid rules ex-serviceman has been defined in Rule 2’C’. The definition is being reproduced hereinbelow:-
“Ex-Serviceman’ means a person who had served in any rank (whether as a combatant or non-combatant) in the Armed Forces of the Union for a continuous period of not less than six months, and
(i) has been released, otherwise than by way of dismissal or discharge on account of misconduct or inefficiency, or has been transfered to the reserve pending such release, or
(ii) has to serve for not more than six months for completing the period of service requisite for becoming entitled to be released or transferred to the reserve as aforesaid.”
14. A 1962 edition of Army Rules of 1954 has been produced before me by Sri Mool Behari Saxena, wherein under table annexed to Rule 30, Item 3(v) is as under:-
” III (v) All other
classes of discharge.
Brigade/Sub Area Commander.
The Brigade or Sub Area Commander before ordering the discharge shall, if the
circum-stances of the case permit, give to the person whose discharge is
contemplated, an opportunity to show cause against the contemplated
discharge.”
15. Sri Mool Behari Saxena has placed reliance on item-IV to the said rules. It is wholly misplaced in the sense that the certificate of service produced by the petitioner refers to Item 3(v) and not Item 4, as relied upon by Sri Saxena. Item 3(v) does not make out that the petitioner was discharged either for misconduct or for inefficiency. However, the petitioner is facing departmental enquiry on the said charge. Prima facie no case has been made out on the basis of the record available with him that the petitioner was discharged from service either for misconduct or for inefficiency. As such, second objection raised by Sri Mool Behari Saxena that it is established from the record that the petitioner was not an ex-serviceman, has no force and is rejected.
16. The third objection of Sri Saxena also deserves to be negativated. From the record of the case it is clear that charge against the petitioner that he has filed forged certificate is not made out. The petitioner has filed his certificate of service which establishes that the petitioner was in service of the Army. Only question for consideration is whether under the Rules, the petitioner is to be treated as an ex-serviceman or not? It is not a situation where the petitioner can be thrown out of Court on the ground that he has obtained job on the basis of a forged certificate apparent on the record of the case . There is nothing on the record of the case to dislodge the petitioner from approaching the Court, on the other hand, the petitioner has demonstrated that he was in the Army service. The question whether the petitioner was an ex-serviceman in accordance with the relevant rules is subject matter of regular departmental enquiry, on which I do not want to comment at this stage, as it may prejudice either side. So far as the departmental enquiry proposed against the petitioner is concerned, it is open to the department to complete enquiry as expeditiously as possible, but pending enquiry, the petitioner is entitled to continue on the post of Stenographer and the order of reversion, passed against the petitioner, is patently illegal and is liable to be quashed.
17. Now, I will deal with the writ petition filed by Sri Asit Kumar Maclay, being Writ Petiton No. 6114 of 1989.
18. In this writ petition Sri Asit Kumar Maclay has challenged the appointment of Sri Ashok Kumar Bajpai (who is petitioner in Writ Petition No. 25786 of 1990) as Stenographer in the office of Additional Labour Commissioner, U.P., Kanpur Region, Kanpur.
19. The only grievance raised in this writ petition is that in the selection held that for the post of Stenographer Sri Maclay was at SI. No. 3, whereas Sri Ashok Kumar Bajpai was at SI. No 6, still Sri Ashok kumar Bajpai has been appointed and Sri Maclay has been by-passed.
20. As already stated in the facts of the writ petiton of Sri Ashok Kumar Bajpai, Sri Bajpai was appointed as third incumbent on the post of Stenographer being an ex-serviceman and one post was reserved for the ex-serviceman. The petitioner has nowhere whishpered in his writ petition that there was no such reservation. If a post was reserved for an ex-serviceman and the appointment of Sri Ashok Kumar Bajpai-respondent No. 3 was made on the basis of his being an ex-serviceman, Sri Maclay was rightly by-passed and Sri Bajpai was rightly appointed on the basis of reservation for ex-serviceman. No other ground has been raised in the writ petition, challenging the appointment of Sri Ashok Kumar Bajpai, even this ground that the post was not reserved for ex-serviceman, has not been raised in the writ petition. Only ground of challenge of the appointment in the writ petition is that the petitioner being placed in the selection list at SI. No. 3, could not have been by-passed for appointment to the post of Stenographer. These grounds are not sustainable, as Sri Bajpai was appointed in a reserved category. There being no challenge in the writ petition that such a category was not reserved for ex-serviceman, the writ petition has no merit.
21. The second submission raised by Sri Mool Behari Saxena that Sri Ashok Kumar Bajpai was not an ex-serviceman and should not have been given preference for the reserved post, has already been dealt with in the writ petition, filed by Sri Ashok Kumar Bajpai.
22. In this view of the matter, the writ petition filed by Sri Asit Kumar Maclay has no force and is liable to be rejected.
23. Accordingly I allow Writ Petition No. 25786 of 1990 and quash the order of reversion dated September 25, 1990, filed as Annexure-2 to the writ petition and I dismiss the Writ Petition No. 6114 of 1989. Parties will bear their own costs.