Anant Vasantrao Kirkase vs The State Of Maharashtra Through … on 8 August, 2003

JUDGMENT

A.B. NAIK, J.

l. By this petition the petitioner is seeking relief to quash and set aside the order dated 24.2.1993 issued by the learned District and Sessions Judge, Osmanabad by which the petitioner was reverted as Superintendent and posted in the Court of Civil Judge (Senior Division), Osmanabad from his post as officiating Registrar,District Court, Osmanabad. By the same order Shri D.D.Waghmare, working as Superintendent, District Court, Osmanabad came to be promoted as Registrar (Gaz. II) and posted in District and Sessions Court, Osmanabad, the post which has become vacant on account of posting of petitioner to the post of Superintendent. After the impugned order is served on the petitioner, he made representation to the High Court on ll.3.1993 which were accordingly rejected. The rejection of the representations came to be communicated to him on 8.7.1994. On these backdrop of the facts the petitioner seeks writ of mandamus or any other appropriate writ or direction in the nature of mandamus against the respondent to command them to promote and appoint the petitioner to the post of Registrar, District Court by quashing the impugned order

2. To appreciate the challenges to the impugned orders/actions it is necessary to state few facts emerging from record. The petitioner joined judicial department as a Junior Clerk in District Court, Osmanabad on 1.4.1959. In due course the petitioner passed higher grade departmental examination on 22.7.1982. On successful completion of the departmental examination the District and Sessions Judge, Osmanabad promoted the petitioner as Senior Clerk from l.6.1983. It is contended by the petitioner that he worked as Senior Clerk with his best of ability and with satisfaction of his superiors. He has not been served with any adverse remarks etc. Inspite of good record it is alleged by the petitioner that the learned District and Sessions Judge without any cause denied the promotion to him to the post of Assistant Superintendent. As one Shri S.M.Dixit, was promoted to Assistant Superintendent, he filed appeal before this Court on Administrative side by challenging the order of promotion of Shri S.M.Dixit, and by order dated l5.5.1987 the appeal came to be allowed and consequent thereof, he was promoted and appointed as Assistant Superintendent on 20.5.1987

3. In the meantime, the High Court has upgraded the post of clerk of the Court of District Court and designated it as Registrar, District Court. Shri Raut A.B. who was working as Superintendent at the relevant time and he was promoted designated to the post of Registrar, District Court. Shri Raut, was promoted to the post of Registrar, ignoring the claim of petitioner so petitioner again made representation pointing out that Shri Raut has never appeared for higher grade departmental examination and therefore, appointment of Shri Raut, to the post of initially Superintendent and then Registrar was improper and it cause great injustice to him. He stated that the claim of Shri Raut, should have been rejected but however, representation made by the petitioner against promotion of Shri Raut did not receive favourable response

4. Shri Raut, retired on superannuation on 3l.8.1992. On retirement of Shri Raut, from the post of Registrar there arose an occasion to fill up the said post. According to the petitioner, the petitioner was senior qualified and fit for promotion, as such he was promoted to the post of Registrar initially for a period of six months. The petitioner contended that appointment of the petitioner as Registrar as officiating for a period of six months was on administrative exigencies faced by the respondent No.2. He submitted that the post of Registrar was vacant at that time and the posting of the petitioner was to the substantive vacant post. It is stated that no rules of promotion were framed either by the State Government or by the High Court and promotion should not have been granted on officiating post but he should have been promoted on regular permanent basis appointing him as officiating Registrar was itself contrary to promotion policy. It is contended that during that period he worked as a Registrar to the satisfaction of his superiors. He submitted that no adverse remarks were there in Confidential roll during that six months period. If such remarks existed, the same were not communicated

5. The petitioner was promoted to the post of Registrar by the order dated 9th September 1992 on regular basis though officiating. It is contended by the petitioner that when he was working as a Registrar with satisfaction of his superiors, he was shocked to receive the order dated 20.2.1993 by which he was reverted to the post of Superintendent and Shri Waghmare, was promoted to the post of Registrar. The petitioner has contended that the reversion of the petitioner from the post of Registrar to the Superintendent was illegal and consequent promotion given to Shri D.D.Waghmare, was contrary to the seniority list. It is contended though, initially Shri Waghmare, entered into service prior to the petitioner but considering the fact that the petitioner has passed departmental examination earlier and was promoted as Senior Clerk on l.6.1983 he became senior to respondent No.4 Shri D.D.Waghmare, who came to be promoted to the post of Senior Clerk on l.ll.1983. Thereafter, he was promoted to the post of Assistant Superintendent on 20th May 1987 while respondent No.4 was promoted as Assistant Superintendent on 27th October 1987. Therefore, the petitioner submitted that petitioner was senior in all respect and had experience of six months as officiating Registrar, therefore, he should have been promoted and posted to the post of Registrar in preference to Respondent No.4. The petitioner also relied on the seniority list prepared by the District Court. The petitioner challenged the order of reversion as well as the promotion of respondent No.4 on the ground that the said order dated 24.2.1993 is based on Confidential letter issued by the High Court on 29.8.1992. The said letter or contents of it were not disclosed and the petitioner therefore, submitted that his reversion or reduction from the post of Registrar to the post of Superintendent is on the documents which were not supplied. Therefore, it is contended that the reversion of petitioner and promotion of respondent No.4 is contrary to principles of natural justice. The material which was relied on by the High Court was never disclosed to the petitioner, therefore, he contended that the procedure that is adopted by the High Court is contrary to the principles of natural justice

6. The petitioner averred that the order dated 24.2.1993 being punitive one and it has resulted in Civil consequences and therefore, an enquiry should have been conducted against the petitioner departmentally and then the order should have been passed. He submitted that the enquiry should have been conducted as per the procedure laid down in Maharashtra Civil Services (Discipline and Appeal) Rules 1979. The petitioner therefore, submitted that he has been reverted without following due process of law therefore, the reversion order and the promotion to respondent No.4 being contrary to the service rules. The petitioner submitted that on receipt of the impugned order he made representation (Departmental appeal) to second respondent on 11.3.1993 but without hearing the petitioner the representation came to be rejected, the rejection was informed to the petitioner by the letter dated 4.7.1994 the rejection thus without giving him an opportunity of being heard either in person or through an advocate. On these averments raised in the petition the petitioner seeking the relief which we have quoted above

7. The main grounds of challenge raised by the petitioner can be summarised in nut shell as under : Reduction of rank or reversion to the post of Superintendent being punitive one and as no enquiry is conducted as contemplated by the rules before reversion and thereby action is contrary to rule 49 of the . According to the petitioner reversion of the petitioner being punitive one and is a sort of punishment is imposed without following the procedure established by Rule 8 of the Rules. The punishment imposed in flagrant violation of the principles of natural justice. Reduction in rank from Registrar to Superintendent is in violation of Articles 14 and 16 of the Constitution of India. The impugned order thus is illegal, malafide and unjust which is passed without considering the seniority and the merit of the petitioner. The promotion given to respondent No.4 being without any guidelines and the Rules framed for that purpose, the action therefore, is without any basis or supported by any rules or procedure or rules framed for the purpose of awarding promotion. Hence, the order is required to be set aside

8. This writ petition initially contested by filing reply on behalf of the respondents Nos.2 and 3 which is verified by the Additional Registrar (Legal), High Court Appellate Side, Bombay. The affidavit reply is dated 24th September 1997 is in general terms as we were not satisfied the way the affidavit was filed, by our order dated l4.7.2003 directed the respondents Nos.2 and 3 to file fresh affidavit. Accordingly, additional affidavit came to be filed on 23.6.2003. Before referring to the averments made in both the affidavits, we will clear of one aspect. By our order dated l4.7.2003 we expressed our displeasure the way the first affidavit was filed. Shri B.D.Kadam, Additional Registrar (Legal) has filed IInd affidavit. At the cost of displeasure we must mention that though two affidavits were filed by the Additional Registrar (legal), Those are not verified in the manner provided by Chapter III of the High Court Appellate Side Rules; namely Rule 10, the verification is not, as required under Rule 10 Chapter III of the High Court Appellate Side Rules. We hope and trust that in future such type of verification and affidavits shall not be filed at least by the Registry of this Court which is bound by the Appellate Side Rules framed by this Court and are made equally applicable to all the litigants. The affidavit which is filed on 23.7.2003 explaining the procedure for preparing the affidavits by the High Courts or its officers are parties. When we passed an order it was not our intention to disclose this Court the detail procedure as stated in the affidavit, we were of the opinion that to support the impugned order the designated senior advocate was representing the High Court and no one from the Registry was present in the Court to instruct the learned senior advocate. When we heard the writ petition on 14.7.2003, we noticed that the affidavits so filed were prepared and verified at Mumbai and were sent to this Bench. With this background, we have directed the Additional Registrar to remain present before this Court but it appears that due to lack of communication between this Bench and the Principal seat at Mumbai, some statements have been made which we have not expressly noted in our order. Be as it may, we accept the statement and notice the presence of the Additional Registrar (Legal) on the date of hearing. In the affidavit it is stated that the learned senior advocate was consulted on telephone. Giving instructions to the senior advocate on telephone, it sounds strange when the High Court has engaged designated senior advocate to represent its case more courtesy should have been shown by the Registry and personally instructions should have given to him at the time of Conference. We hope and trust in future that whenever the petitions pertaining to the High Court or subordinate Courts are being heard at this Bench, the Registry always should depute the responsible senior officer to remain present in the Court alongwith relevant record to instruct the advocate representing the High Court or its officers. We have noticed that this writ petition was heard by us on 4.6.2003. The learned senior counsel appearing for the High Court was not having the record. On 12.6.2003 again we heard the matter and adjourned it to 30.6.2003. On 30.6.2003 the senior counsel requested for adjournment for filing additional affidavit and to produce the record. Accordingly, the matter was heard on 14.7.2003, where we gave directions noticing that the affidavit was filed without consulting the senior advocate appearing in the matter. We have to say with regret that no attention is being paid to the matters which are heard at this bench by the Registry of the High Court. We hope and trust that this will be the last instance and hereinafter, there will be no occasion for us or our brother Judges to make any comment. Accordingly, we accept the statement made in the affidavit and we expunge para l of our order dated l4.7.2003

9. The first affidavit which was filed in this petition on 24th September 1997, it is denied that the reversion of the petitioner was in breach of promotion Rules or against the principles of natural justice. It is accepted that the petitioner was appointed on officiating capacity in the post of Registrar and that too for a period of six months. It is contended that the petitioner was not entitled for promotion as of right. It is submitted that the contentions regarding seniority of the petitioner vis-a-vis Shri Waghmare, is not correct. It is submitted that inspite of contentions raised in para ll of the petition that it was not necessary to disclose to the petitioner the Confidential Letter of the High Court dated l9.8.1992 at the time of passing order of reversion. It is denied that the order dated 24.2.1993 was punitive in nature which attracts Civil consequences and therefore, it was necessary to hold enquiry. It is submitted that discipline and appeal rules are not applicable. It is contended that question of reversion of the petitioner was taken by the Administrative side of respondent No.3, hence it is not necessary to follow the procedure prescribed by Rule 8. Coming to the second affidavit filed by Shri B.D.Kadam, Additional Registrar (legal), it was stated that before issuance of orders to promote the petitioner a complaint was received from Magas Karmachari Sangh, making certain allegations against the petitioner and two other senior clerks about their behaviour, which was under consideration of the High Court, and the same was brought to the notice of the Honble the Chief Justice and the Honble the Chief Justice directed the District Judge, Osmanabad to transfer the petitioner alongwith the other two persons to any other Court during the enquiry in that complaint. It was noticed by the District Judge after receipt of the communication from the High Court that the petitioner cannot be transferred to a taluka Court in District as there was no post of Superintendent in Taluka Court. The District Judge has reported this fact to the High Court, that as per the seniority of the petitioner he was due for promotion to the post of Registrar, as the post has become vacant on account of retirement of Shri Raut, from lst September 1992. The District Judge,therefore, submitted a proposal to the High Court to consider the petitioner to the post of Registrar. The papers were placed before the Honble the Chief Justice and the Honble the Chief Justice considering the record directed the District Judge, to promote the petitioner to the post of Registrar on officiating basis for six months and the District Judge was further directed to submit report every three months to the High Court regarding work, conduct etc. of the petitioner. In view of the directions of the Honble the Chief Justice, the promotion order was issued and the petitioner was appointed as officiating Registrar for a period of six months. [Though, in the affidavit the word probation is used, in our view the petitioner was never appointed on probation but on officiating for six months that too as per the directions of the the Honble the Chief Justice). It is further submitted that the work of the petitioner was noticed by the learned District Judge and the reports were submitted indicating that work of the petitioner was found unsatisfactory. Accordingly, after completion of six months, the petitioner was sent back to the post of Superintendent which he was holding substantively with effect from 20.2.1993. It is submitted that the petitioners working as Registrar was noticed and his work was observed during the period of six months as he was not suitable to the post of Registrar, he was sent back to his post of Superintendent. It is submitted that the petitioner was given an opportunity to work as Registrar and he has not justified his promotion as his performance and conduct was not satisfactory. Hence, the action taken against the petitioner was proper and justified

10. Shri Pradeep Deshmukh, instructed by Smt.Smita Deshpande, contended before us that the order dated 24.2.1993 reverting the petitioner from the post of officiating Registrar to the post of Superintendent being punitive in character cannot be passed unless the proper departmental enquiry is conducted under the rules. He submitted that by the impugned order the petitioner was not only punished but also denied the claim for promotion to the post of Registrar, District Court. He submitted that while promoting respondent No.4 comparative merit was not considered. Not only service record was considered but also the reports submitted by the District Judge who observed the performance of the petitioner as a Registrar was considered which was not supplied to the petitioner. Therefore, the learned advocate contended that the order has resulted into civil consequences (i) reversion (ii) denial of promotion. Therefore, he submitted that the impugned order not only contrary to the principles of natural justice but also the guarantee given to the citizen of India by Article 16 of the Constitution of India. He submitted that by single order two punishments were inflicted which is not contemplated under the service jurisprudence. Shri Pradeep Deshmukh, learned advocate further submitted that the representation which were filed before the High Court have been disposed of without issuing any notice or affording any opportunity of being heard and therefore, he submitted that rejection of the representation thus improper. The learned advocate lastly submitted that as there are no rules prescribed for promotion to the post of Registrar then in such case only the criteria of seniority should have been followed. In the present case undisputedly the petitioner was promoted as Superintendent before respondent No.4 and petitioner was senior in all respect of respondent No.4 and therefore, the legitimate right of promotion of Registrar is denied to him. He therefore, submitted that entire action in passing order dated 24.2.1993 is thus smacks arbitrariness and be set aside by issuing appropriate writ. Shri Deshmukh, in order to support his contention has relied on the following judgments :

(i) Anoop Jaiswal Versus Government of India and another ;

(ii) Dipti Prakash Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and others ;

(iii) V.P. Ahuja v. State of Punjab and others reported in 2000 AIR SCW 792;

(iv) Full Bench judgment of this Court in the case of Anil Amrut Atre Vs. District and Sessions Judge, Aurangabad reported in 2002 (3) Maharashtra Law Journal 750

11. Per contra, the learned senior advocate Shri P.R.Deshmukh, representing the respondents Nos. 2 and 3 justified the action by contending that the petitioner has no right to the post of Registrar. The petitioner was in fact, considered for promotion to the post of Registrar of District Court and his performance was judged for six months and after considering the periodical reports submitted by learned District Judge, the petitioner was posted to his substantive post of Superintendent. The learned senior counsel contended that posting of petitioner to his substantive post as Superintendent cannot be called as reversion, reduction in rank or punitive one. The petitioner who was posted as officiating Registrar in order to find out his ability to that post and for six months, his performance was judged and on considering positively the performance of the petitioner on the post of Registrar which carries responsibility as is a key administrative post and when it is found that the petitioner cannot be confirmed on the post of Registrar, he was posted to his substantive post of Superintendent. Therefore, the learned senior counsel contended that asking officiating officer to go back to a substantive post is neither reversion nor punitive action. By the impugned order the petitioner was sent back to his parent post which he was holding substantively. The post of officiating Registrar was not the substantive post of the petitioner though, at the relevant time the post of Registrar fallen vacant on account of retirement of Shri Raut who was holding the post then. The learned senior counsel accepted that there are no rules framed for appointment or promotion of the post of Registrar and therefore, the post was offered to the petitioner as officiating Registrar, as per the directions of the Honble the Chief Justice and this direction was given by the Honble the Chief Justice only to find out whether the petitioner is suitable to the post of Registrar. Accordingly, his performance was judged by the District Judge who sent his periodical reports as per the directions issued by the Honble the Chief Justice and accordingly it was found that the petitioner was not suitable to the post of Registrar, he was sent back to the post of Superintendent. The learned senior counsel further submitted that for six months the performance of the petitioner was judged and then the impugned order came to be passed. So far as granting of promotion to respondent No.4, the learned senior counsel submitted that the record of petitioner as well as respondent No.4 was considered by the High Court and considering the report of the learned District Judge and the Confidential reports of petitioner and respondent No.4 it was found that respondent No.4 was suitable and accordingly he was promoted as he was next below to the petitioner in the seniority of the Superintendent, his case was considered. While promoting respondent No.4 the record of the petitioner was also considered and respondent No.4 was promoted as Registrar. The learned senior counsel submitted that to award promotion to incumbent is not as of right but to consider a person for promotion is a right vested in the incumbent. In the present case the case of petitioner was considered for promotion and as a matter of fact, he was given an opportunity to work as an officiating Registrar and his performance was judged. As an opportunity was given to the petitioner, the petitioner cannot make any grievance, as his case was considered at appropriate time. Shri Deshmukh, learned senior counsel contended as there are no rules framed for appointment of Registrar either by promotion or by nomination. It is not strictly on the basis of seniority but it is always based on merit cum seniority. The learned senior counsel further submitted that the impugned order is not a reversion, as contended by the petitioner but it is only posting of the petitioner to his substantive post which the petitioner was holding prior to his posting as officiating Registrar and therefore, no stigma, on the petitioner as contended. The learned senior counsel contended that while passing the impugned order, the reports submitted by the learned District Judge about his performance as a Registrar were taken into consideration and no other aspects were considered. It is submitted that as the learned District Judge has recommended the case of the petitioner for promotion, which, was taken into consideration by the Honble the Chief Justice and considering that fact that in past there were some complaints against the petitioner and the learned District Judge was making an enquiry, the petitioner was directed to be promoted on officiating basis as Registrar for six months. Therefore, he submitted that the order under challenge being not punitive nor there is any stigma attached on the petitioners character. The learned senior counsel submitted that as there are no rules framed in respect of appointment and or promotion to the post of Registrar, then as per the directions of the Honble the Chief Justice the posts are to be filled. He submitted that in absence of any statutory rule it is the prerogative of the Honble the Chief Justice to issue appropriate direction. Therefore, he submitted that the action taken by the learned District Judge in passing impugned order is on the basis of the directions issued by the Honble the Chief Justice being proper. He submitted that the action being proper one and needs no interference by this Court

12. Shri Deshmukh, learned senior counsel submitted that the representation which was filed by the petitioner was considered and disposed of on merit. He submitted that the representation which was made by the petitioner was neither under any rules or on the basis of any statute permitting to make representation and as such there was no necessity for giving hearing to the petitioner while considering the representation. Shri Deshmukh, learned senior counsel contended that the authorities which are relied on by the learned counsel for the petitioner are distinguishable and not applicable in the present case. The learned counsel submitted that the petitioner was not on probation but he was officiating in the post of Registrar and he has no right to the said post, there is no question of affording hearing while rejecting the representation. Shri Deshmukh, learned senior counsel made available the file pertaining the service record of the petitioner. While considering the submissions of the learned counsel we will make reference to some of the documents contained in the file. Shri Deshmukh, learned senior counsel therefore, submitted that there is no substance in the petition and the petition requires to be rejected

13. From the rival submissions, following points emerges for our consideration :

A) Whether the order dt.9th September 1992 (Exh.A) was made in violation of Article 311 of the Constitution of India;

B) Whether that order is in violation of any right of the petitioner under Article 16 of the Constitution of India;

C) Whether the posting of the petitioner to his substantive post as Superintendent was punitive in nature, reduction in rank or reversion.

D) Whether the respondent denied the petitioners right of promotion; E)Whether petitioner was entitled for personal hearing in respect of his representation.

14. We will now consider the points. The order of promotion of the petitioner dated 9th September 1992 is annexed at Exh.A which reads thus :

“ORDER

The District and Sessions Judge, Osmanabad, is pleased to pass the following orders of transfers and postings on account of retirement and promotions of Class II and Class III officials with immediate effect—

Sr. No. Name of the employees New Postings present place and postings;1.2. 3.

—————————————————

l. Shri A.V.Kirkase,Promoted as an officiat- Superintendent,ing Registrar District Civil Court,and Sessions Court, S.D.OsmanabadOsmanabad, vice Shri A.B. Raut, retired on 3lst August 1992 AN, for a period of (6) months w.e.f. l.9.92 or until further orders from the Honble High Court, Bombay in this behalf. (underlines ours) —————————————————-”

In the second affidavit the direction issued by the Honble the Chief Justice is quoted which reads thus :

“Let him be appointed to officiate for six months. Report every three months to be submitted to High Court, regarding work, conduct etc.”

(underlines ours)

From the above said orders, it is clear that the petitioner was not appointed as Registrar in substantive capacity. From the record produced before us which contains the report dt.13.4.1992 by the then District Judge, Shri Bamnodkar, who was asked to make enquiry against allegations of the petitioner and other two officials of the District Court, Osmanabad, on the basis of complaint filed by Magas Vargiya Karmachari Sangh

15. The learned District Judge found no substance in the complaint filed against the petitioner and he submitted that complaint applications against the petitioner needs to be filed. He further assured that the petitioner will not be entrusted with inspection work. This report is submitted on 13.4.1992 and the petitioner came to be promoted in officiating capacity on 9th September 1992 i.e. after the report of the learned District Judge. We have seen from the record that even after the said report some anonymous complaints were received and on that basis the Honble the Chief Justice has directed that the petitioner to be posted to the post of Registrar on officiating basis it is from the report of the learned District Judge the petitioner was due for promotion to the post of Registrar. Before issuing the promotion order dated 8th September 1992 the entire record of the petitioner was placed before this Court and the Additional Registrar (Adm.) on 20.8.1992 submitted report to the Honble the Chief Justice and considering that report and in particular the recommendation of the District Judge and his opinion, the Honble the Chief Justice considering this report and has directed the District Judge to appoint the petitioner to officiate as Registrar for six months. The petitioner in fact worked as officiating Registrar for six months, during this period the work of the petitioner was observed and ultimately from the reports as submitted by the District Judge as per directions of the Honble the Chief Justice the work of the petitioner was not satisfactory, as the post of Registrar being chief post of ministerial staff and the incumbent is expected to attend important correspondence particularly and considering the reports of the learned District Judge, the work of the petitioner was not satisfactory and he is not fit for continuation to the said post and accordingly, he was sent back to the post of Superintendent

16. With the above backdrop, we will consider points A and B. From the order dt.9th September 1992, it is apparent that order passing describes him as “promoted as officiating Registrar, District and Sessions Judge,Osmanabad” the order reads that he being promoted as “officiating Registrar”. It is not disputed that the petitioner was holding the post of Superintendent substantively and he was senior in that cadre. It is also not disputed that from post of Superintendent, the next higher post in hierarchy i.e. Registrar, which is a promotional post. It is also not disputed that no rules are framed for the purpose of promotion and appointment of Registrar in the District Court. Therefore, the posting and promotion of Registrar in absence of any statutory rules, it is by the direction of the Honble Chief Justice. In order to consider the point, two tests are required to be applied ;

(i) the right to the post;

(ii) whether the impugned order is punitive. The motive operating in the mind of superior authority is not material so long as the action is founded on the right flowing from contract or service rules. This case is not case of a contract of service, nor it is based on service rules. We will find out how the petitioner has made out a case in the petition and how the respondents have contradicted it:

“9.The petitioner states that, the petitioner was promoted as Registrar on 9th September, 1992. It appears that, this promotion of the petitioner was initially of officiating basis. The cause of promoting on officiating basis appears to be that although the respondents created post of Registrar, the petitioner was promoted no proper rules for promotion were framed and for that matter no rules or guidelines are framed till this date for the post of Registrar by the Respondents. 10.The petitioner states that considering the above mentioned circumstances, the initial order of promotion in favour of the petitioner was, in fact, on clear vacant post and of a permanent nature. This submission of the petitioner will get force from the order dated 24th February, 1993, annexed herein above at Exhibit E when the respondents instead of cancelling the officiating promotion, have issued order of reverting the petitioner from the post of Registrar to the post of Superintendent.”

The reply reads thus :

“9. Contents of para 9, so far as they relate to the appointment of the petitioner to the post of Registrar on officiating basis, are true and correct. However, it is wrong to say that no proper rules or guidelines are framed by the respondent. 10.Contents of para 10 of the petition are denied, since they are not true and correct. It is wrong to say that the initial order of promotion in favour of the petitioner was on clear vacant post and was of a permanent nature. Petitioner is trying to interpret the order of his reversion in an erroneous manner so as to ment and bent the same in his favour. In view of the order of the Honble the then Chief Justice, the District Judge has issued orders regarding appointment of the petitioner as Registrar for a period of six months or untill further orders w.e.f. l.9.1992. Thereafter, as per the aforesaid directions, the District Judge has observed his work during the probation period and submitted his report about the work and conduct of the petitioner. The District Judge has found that the work of petitioner was not satisfactory. Hence, the District Judge was compelled to revert the petitioner to the post of Superintendent w.e.f. 28.2.1993 A.N.”

As this case is of reversion of an officer, from officiating post to a substantive post, we will find out whether the petitionerhas a right to the post of Registrar. From the report of the District Judge, Osmanabad, referred to by us in foregoing paragraphs, one thing is clear that the petitioner was entitled and eligible to the post of Registrar, and in fact it was accepted by the respondents by appointing him to the post of officiating Registrar, two undisputed facts emerges from the above narration i) petitioner was eligible and due for promotion to the post; ii) Though he was due and eligible he was posted on that post as officiating and not substantively. With this backdrop we will now refer to some judgments of Apex Court dealing with the right of a probationer or officiating officer. The first one is the Constitution Bench pronouncement in Purshottam Lal Dhingra Vs. Union of India where the Apex Court (majority view) has considered the right of public servant as guaranteed by Article 311(2) of the Constitution of India. The right conferred by Article 311(2) makes no distinction between permanent and temporary government servant. The Apex Court dealt with the question of termination of service or reduce in rank when amounts to punishment. The majority view as stated in para 26 and 28 which reads thus :

“The foregoing conclusion, however, does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not. It has already been said that where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Art. 311(2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servants rights and brings about a premature end of his employment. Again where a person is appointed to a temporary post for a fixed term of say five years his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, in. efficiency or other disqualifications and appropriate proceedings are taken under the rules read with Art. 311(2). The premature termination of the service of a servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Art. 311(2). Further, take the case of a person who having been appointed temporarily to a post has been in continuous service for more than three years or has been certified by the appointing authority as fit for employment in a quasi permanent capacity, such person, under rule 3 of the 1949 Temporary Service Rules, is to be deemed to be in quasi-permanent service which, under rule 6 of those Rules, can be terminated (i) in the circumstances and in the manner in which the employment of a Government servant in a permanent service can be terminated or (ii) when the appointing authority certifies that a reduction has occurred in the number of posts available for Government servants not in permanent service. Thus when the service of a Government servant holding a post temporarily ripens into a quasi-permanent service as defined in the 1949 Temporary Service Rules, he acquires a right to the post although his appointment was initially temporary and, therefore, the termination of his employment otherwise than in accordance with rule 6 of those Rules will deprive him of his right to that post which he acquired under the rules and will prima facie be a punishment and regarded as a dismissal or removal from service so as to attract the application of Art. 311. Except in the three cases just mentioned a Government servant has no right to his post and the termination of service of a Government servant does not, except in those cases, amount to a dismissal or removal by way of punishment. Thus where a person is appointed to a permanent post in a Government service on probation, the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment, for the Government servant, so appointed, has no right to continue to hold such a post any more than the servant employed on probation by a private employer is entitled to do. Such a termination does not operate as a forfeiture of any right of the servant to hold the post, for he has no such right and obviously cannot be a dismissal, removal or reduction in rank by way of punishment. This aspect of the matter is recognised in the Explanation to rule 49 of the 1930 Classification Rules which correspond to the Note to rule 1702 of the Indian Railway Code and rule 3 of the 1955 Rules and rule 13 of the 1957 Rules, for all those rules expressly say that the termination of such an appointment does not amount to the punishment of dismissal or removal within the meaning of those rules. Likewise if the servant is appointed to officiate in a permanent post or to hold a temporary post other than one for a fixed term, whether substantively or on probation or on an officiating basis, under the general law, the implied term of his employment is that his service may be terminated on reasonable notice and the termination of the service of such a servant will not per se amount to dismissal or removal from service. This principle also has been recognised by the Explanations to rule 49 of the 1930 Classification Rules corresponding to the Note to rule 1702 of the Indian Railway Code and rule 5 of the 1949 Rules and rule 3 of the 1955 Rules and rule 13 of the 1957 Rules. Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post as where be is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Art. 311. In other words and broadly speaking, Art. 311(2), will apply to those cases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the Government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisions of Art. 311, 28.The position may, therefore, be summed up as follows:

Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. The Union of India (supra). Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. The State of Uttar Pradesh (I). In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive, operating on the mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh v. Union of India (supra), wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Art. 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art. 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a Punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or, the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government bad purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression ” terminate ” or ” discharge ” is not con, elusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.”

(underlines ours)

The appellant Purshottam Lal was working as officiating as signal Tele communication Engineer in Class II service to his substantive post in Class III service. The Apex Court has quoted the facts in that case in para 2 and 3 of the report. We now refer to another judgment of the Apex Court in State of Utter Pradesh and others Vs. Sughar Singh . The case which the Apex Court was dealing was a case of reversion and the Apex Court considered and applied different circumstances in which the order of reversion may be made. The Apex Court dealt the questions in following way : 8.We now turn to the question whether the order of reversion of the respondent was either a reduction in rank in contravention of Article 311 of the Constitution or a contravention of the respondents fundamental right under Article 16 of the Constitution. Though the law in this matter has been laid down in a large number of decisions of this Court, considerable difficulty arises in applying the various principles enunciated by those decisions to the facts of any particular case

Thereafter, the Apex Court quoted the principles stated in Purshottam Lals case (supra) in para 13 of the report the Apex Court considered the case of reversion which reads thus : 13.Since we are concerned in this case with a case of reversion- we propose to confine our attention to the different circumstances in which an order of reversion may be made. An order of reversion is, in its immediate effect bound always to a reduction in rank. Even a reversion from a higher but temporary or officiating rank to a lower substantive rank is in a sense a reduction. But such orders of reversion are not always reduction in rank within the meaning of article 311. If the officer is promoted substantively to a higher post or rank, he gets a right to that particular post or rank and if he is afterwards reverted to the lower post or rank which he held before, it is a “reduction in rank” in the technical sense in which the expression is used in article 311. The real test in all such cases is to ascertain if the officer concerned has a right to the post from which he is reverted. If he has a right to the post then a reversion is a punishment and cannot be ordered, except in compliance with the provisions of article 311. If, on the other hand, the officer concerned has no right to the post, he can be reverted without attracting the provisions of article 311. But even in this case, he cannot be reverted in a manner which will show conclusively that the intention Was to punish him. The order itself may expressly state that the officer concerned is being reverted by way of punishment In fact the order may in various other ways cast a stigma on the officer concerned. In all such cases, the order is to be taken as a punishment. Sometimes again the order of reversion may bring upon the officer certain penal consequences like forfeiture of pay and allowances or loss of seniority in the subordinate rank, or the stoppage or postponement of future chances of promotion: in such cases also the government servant must be regarded as having been punished and his reversion to the substantive rank must be treated as a reduction in rank. In such a case article 311 will be attracted

14. In State of Punjab and Another v. Sukh Raj Bahadur(1), Mitter, J.. after analysing the decisions of this Court in Purshottam Lal Dhingra v. Union of India(2), State of Orissa v. Ram Narayan Das(3) R. C. Lacy v. State of Bihar(4), Madan Gopal v. State of Punjab(5), Jagdish Mitter v. Union of India(6) and A. G. Benjamin v. Union of India(7), has formulated the following propositions :

(1) 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 article 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) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.

(4) An order 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 article 311 of the Constitution.

(5) If there be a full-scale departmental enquiry envisaged by article 311 i.e. an Enquiry Officer is appointed, a charge. sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.

” The next case on the subject is Radhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Ltd. and another in this case the Apex Court has scrutinised all the cases dealing with the topic from Purshottam Lal Dhingra till 1999. This judgment is material for two aspect (i) nature of right of a probationer/temporary; ii) the test to determine the nature of order i.e. simpliciter and punitive the Apex Court noticing second judgment concluded :

“26. If there was any difficulty as to what was “motive” or “foundation” even after Samsher Singh case the said doubts, in our opinion, were removed in Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha again by Krishna Iyer, J. No doubt, it is a labour matter but the distinction so far as what is “motive” or “foundation” is common to labour cases and cases of employees in the government or the public sector. The learned Judge again referred to the criticism by Shri Tripathi in this branch of law as to what was “motive” or what was “foundation”, a criticism to which reference was made in Samsher Singh case. The clarification given by the learned Judge is, in our opinion, very instructive. It reads as follows (SCC pp. 617-18, paras 53-54) ”

53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used.

54. On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here.

27. In other words, it will be a case of motive if the master, after gathering some prima facie facts, does not really wish to go into their truth but decides merely not to continue a dubious employee. The master does not want to decide or direct a decision about the truth of the allegations. But if he conducts an enquiry only for the purpose of proving the misconduct and the employee is not heard, it is a case where the enquiry is the foundation and the termination will be bad.”

33. It will be noticed from the above decisions that the termination of the services of a temporary servants or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed – if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.” By applying the test enunciated by the law declared by the Apex Court which we have noted above. We have to note following facts of this case.

(i) Petitioner was holding substantive post of Superintendent;

(ii) No statutory rules of appointments/promotions are framed ;

(iii) Appointment for six months as officiating Registrar (though on a clear vacant post);

(iv) His performance was judged during six months.

(v) Report from District Judge about his performance was considered only to the extent to find out whether he should be continued or confirmed to the promotional post of Registrar, District Court;

(vi) When he was not found suitable he was sent back to his parent/substantive post;

(vii) In substantive post, petitioner neither lost his seniority or pay and allowances. By applying the law declared to this case we come to the conclusion :

(I) The petitioner has right to the post of Registrar.

(2) No statutory rules are framed or in existing in respect of promotion to the post of Registrar.

(3) Petitioner was promoted to the post of Registrar as officiating as per the directions and prerogatives of the Honble the Chief Justice.

(4) His performance to that post was positively judged, on the basis of the report of the District Court.

(5) The reports were considered only to find out whether the petitioner can be continued on the post of Registrar and for no other purpose.

(6) His reposting as Superintendent of District Court was neither reversion nor reduction in rank.

(7) In substantive post of Superintendent the petitioner has not lost his seniority or any monetary benefits etc.

(8) The order dt.9th September 1972 was not punitive nor a punishment.

(9) As the appointment of the petitioner was only for a period of six months and on completion of that period he has no right to that post. In our judgment the order dt.9th September 1992 Exh.A does not attracts article 311(2) nor the right of the petitioner under Article 16 is violated. Accordingly, we answer points A and B in negative.

17. As the petitioners performance was judged for six months and when it was found that he is not fit for the said post, no further confirmation or continuation was issued and as the appointment/promotion order itself was for six months, at the end of six months, the petitioner was sent back to the post of Superintendent. We find no fault in the said order. In our judgment the order of appointment was only for officiating period of six months and sending back to the petitioner to his substantive post cannot be called as punitive or stigmatic. In our judgment therefore, the order dated 9th September 1992 promoting the petitioner to the post of officiating Registrar was for fixed period of six months, it cannot be said to be a substantive appointment to the post of Registrar though, the post of Registrar was became vacant on account of retirement of Shri Raut, the petitioners appointment cannot be termed to be a substantive appointment. We find no substance in the contention of the learned advocate for the petitioner that petitioner was appointed on the substantive post, though, the post was substantive but appointment was officiating and that too for a limited period of six months

18. After concluding that the promotion of the petitioner was temporary for a period of six months and that too officiating, we have to find out whether the judgments relied on by the learned advocate for the petitioner can be made applicable. The first case on which the petitioners counsel relied on is Anoop Jaiswal (supra). Anoop Jaiswal was selected for appointment in I.P.S. was undergoing training as probationer. On a particular day all the trainees arrived at 22 minutes late at the place where P.T./unarmed combat practice was to be conducted, although prior intimation has been sent to them in that regard. The delay was considered as an incident which called for enquiry. Anoop was considered to be ringleaders who was responsible for delay. Explanation was called from all the probationers. Anoop in his explanation sincerely regretted the lapse but denied the charges of instigation others in reporting late. After receiving the explanation of the probationers including Anoop were individually interviewed in order ascertain the facts. On the basis of explanation and the interview but without holding any proper enquiry the Director recommended to the Government of India that Anoop should he discharged from service. The only ground that ultimately prevailed upon the Director while making the recommendation was that Anoop has not shown any sign of repentance, without informing him that his case would be dealt with leniently if he had shown any sign of repentance. On the basis of the recommendation the Government of India passed the impugned order of discharge under Rule 12(b) of the I.P.S. (Probation) Rules, 1954 on the ground of his unsuitability for being a member of the I.P.S. This action was challenged by filing a writ petition under Article 226 of the Constitution of India before Delhi High Court, challenging the impugned order on the ground of violation of Articles 311(2) and 14 of the Constitution of India, which was dismissed. The main contention which was raised before the Apex Court that the order discharging the petitioner though on the face of it appears to carry no stigma is in the reality and order of terminating his service on the ground of misconduct alleged to have been committed by him on June 22, 1981. In acting as one of the ringleaders who was responsible for the delay of about 22 minutes in the arrival of the probationers at the gymnasium and that such an order could not have been passed without holding an enquiry as contemplated under Article 311(2) of the Constitution of India. On the facts of Anoop Jaiswals case, the case cannot be applicable to the present case. It was found by the Apex Court that a memo was given to the appellant on 22.6.1981 and the appellant submitted his reply but the Director without holding an enquiry into alleged misconduct recommended to the Government of India that he should be discharged from the service. On the basis of the report the Government of India passed an order discharging him from service on 9.ll.1981. On the facts the Apex Court found that the order was punitive one though, the case was of a probationer. The Apex Court found that the order has attracted Article 311(2) of the Constitution of India and the order amounts to termination of service by way of punishment. In the present case admittedly, the petitioner was appointed to officiating as Registrar for a period of six months which does not carry with it any right in favour of the petitioner and after judging his suitability the petitioner was sent back to his substantive post and therefore, in our opinion the law declared by the Apex Court in Anoop Jaiswals case is not applicable. The other two authorities relied on by the learned counsel reiterates the same view. We have considered the record produced before us and in our judgment the impugned order is not at all punitive nor it bears any stigma on the character of the petitioner. Coming to the next judgment relied on by the petitioner in case of V.P.Ahuja (supra). That was also again a case of probationer and his services were terminated on the ground that he has failed to perform his duties administratively and technically. In case at hand is not the case of an appointment as the petitioner was appointed to officiate as Registrar for six months and he was sent back to his parent post at the end of six months. V.P.Ahujas case has reiterated the principle that is laid down by the Apex Court in Dipti Prakash Banerjees case (supra). In Diptis case the Apex Court has considered various facets of termination of service of probationers. The facts in Diptis case reads thus :

“4.The appellant was appointed on ll.l.1995 as Office Superintendent in the respondent organisation, namely Sri Satyendra Nath Bose National Centre for Basic Sciences, Calcutta. The order of appointment dated ll.l.1995 stated that the appellant would be on probation for one year and that he might be confirmed after one year provided the administration was satisfied with the quality of the appellants service. His pay scale was to be in the scale of Rs.1400-1600-2300-2600 with allowances. The appellant joined on 2.5.1995. As we are concerned with the question of validity of the appellants termination of probation, it is necessary to refer to the events that took place during the period of probation. 5.On ll.12.1995, the Director of the respondent organisation informed the appellant that the appellants work was not satisfactory on several counts. The points mentioned in this letter are as follows :-

“(i)Your handling of the movement to the new campus was good till the good impression was spoiled by your refusal to handle the furniture in the Directors room and your statements about other administrative staff members, which were not corroborated by academic members present. Later movement to the JD Block by Prof. A.Mookerjee and the Directors office found you non-cooperative.

(ii) Your have been preparing false bills; the fact that they were passed by your immediate superior does not mitigate your guilt.

(iii) Your handling of quotations about cleaning agencies, xerox machines, purchases of stationery etc. were faulty and several times your were told to redo the whole job. Unfortunately your performance has not improved even after repeated advice.

(iv) You have misbehaved with women academic staff members; one of them has even submitted a written complaint.

(v) Your are rather frequently absent from office premises and the faculty members complained about your absence. Your handling of the room allocations in the guest house, confirmatory reply to people asking for accommodation, and general supervision have been unsatisfactory, in general your attitude to office work leaves much to be desired. It is expected that you would rectify the faults noted above and improve your performance in the coming months, so that your confirmation could be favourably considered.”

6. On 30.4.1996, the appellant was informed that he was on probation and his confirmation would be considered soon. On l5.4.1996, the Director wrote another letter stating as follows :

“l. It appears that your attitude concerning the guests for the guest house has not shown any improvement. When Dr.R.Bhat fell sick with chicken pox and was in quarantine for three weeks, you were nowhere to be seen, and the A.O. was also not seen to take any interest, similarly when a Canadian professor (Professor Dragland) fell sick, you were not to be found. Most of the time, you left the work to be done by others, who had to do extra work for your inefficiency. 2.You have not done a proper job of releasing the houses at DB 17 and CD 85. It is known that the date 3l.l.1996 is not the actual date of release of DB 17 and the landlord showed us proof that this was so. 3.You have not explained how the revenue stick verification was done by you and the A.O. Please refer to SNB/DIR/ADM/95-96/84 dated 20.2.1996 about stock verification (especially numbering and locating new furniture). Has any progress been made? No activity on this important job has been noticed by me. Please report to me on point 3 by April 16, 1996. Your performance leaves a lot to be desired and you must show evidence of good work to the academic staff members to merit confirmation.”

7. The appellant submitted an elaborate reply of five pages denying all the allegations and giving his version of the incidents mentioned against him, and also sought for a copy of the Written Complaint given by the woman academic staff member. He pointed out that though as per the order of the Director, he was to report to the Administrative Officer, the Director was perhaps sending the above letters without consulting the said Administrative Officer.” The appellant submitted elaborate reply and the said reply was considered. The Apex Court considered three points which was noted in para 19 of the report. So far as point No.l the Apex Court answered the question in following manner :

“20. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah,J. (as he then was) in Madan Gopal Vs. State of Punjab, , there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in R.S.Gupta Vs. U.P. State Agro Industries Corporation Ltd., and reference was made to the development of the law from time to time starting from Parshottam Lal Dhingra Vs. Union of India, , to the concept of purpose of inquiry introduced by Shah J. (as he then was) in State of Orissa V. Ram Narayan Das, and to the seven Bench decision in Samsher Singh V. State of Punjab and to post Samsher Singh case-law. This Court had occasion to make a detailed examination of what is the motive and what is the foundation on which innocuous order is based.

21. This Court in that connection referred to the principles laid down by Krishna Iyer, J. in Gujarat Steel Tubes Ltd. and Ors. v. Gujarat Steel Tubes Mazdoor Sabha and Ors.

, . As to foundation, it was said by Krishna Iyer, J. as follows (Paras 53 and 54 of AIR):

“….. a termination effected because the master is satisfied of the misconduct and of the desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case, the grounds are recorded in different proceedings from the formal order, does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the inquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used,”

and as to motive :

“On the contrary, even if there is suspicion of misconduct, the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or pecuniary cut back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge.”

As to motive one other example is the case of State of Punjab Vs. Sukh Raj Bahadur, , where a charge memo for a regular inquiry was served, reply given and at time stage itself the proceedings were dropped and a simple termination order was issued. It was held, the order of simple termination was not founded on any findings as to misconduct. In that case, this Court referred to A.G. Benjamin Vs. Union of India (Civil Appeal No.1341 of 1966 dt. 13.12.1966) (SC) (reported in 1967 (15) Fac LR 347) where a charge memo was issued, explanation was received, an inquiry officer was also appointed but before the inquiry could be completed, the proceedings were dropped and a simple order of termination was passed, the reason for dropping the proceedings was that “departmental proceedings will take a much longer time and we are not sure whether after going through all the foundation, we will be able to deal with the accused in the way he deserves. The termination was upheld.

22. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as founded on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not the foundation and the simple order of termination would be valid.”

Applying the principle stated by the Apex Court to the facts of this case, we are of the view that the order dated 24.2.1993 is neither punitive or motivated. The order appointment was only for six months and after judging the performance of the petitioner, the petitioner was sent back to his original post and according to us reverting the petitioner to his substantive post cannot be stigmatic nor it is a punitive. From the impugned order it is apparent that the order is passed at the end of six months. As per the directions of the Honble the Chief Justice the petitioner was appointed/promoted for a period of six months, the direction of the Honble the Chief Justice (quoted elsewhere in the judgment) are self speaking. After six months the petitioner do not get any right to the post. Had it been a case of premature termination of promotion, something could be said in favour of the petitioner. As the fixed period promotion is terminated or brought to an end, the petitioner has no grievance to make. Hence, in our judgment therefore, the contention of the learned advocate is not correct. Shri Pradeep Deshmukh, learned advocate for the petitioner laid emphasis on point No.2 decided by the Apex Court in Dipti Prakash Banerjees case and contended that the order dated 24.2.1993 cast a stigma. The Apex Court considered this aspect of stigma in Diptis case and considered thus :

“27. There is however, considerable difficulty in finding out whether in a given case where the order of termination is not a simple order of termination, the words used in the order can be said to contain a stigma. The other issue in the case before us is whether – even if the words used in the order of termination are innocuous, – the Court can go into the words used or language employed in other orders or proceedings referred to by the employer in the order of termination? 28.As to what amounts to stigma has been considered in Kamal Kishore Lakshman Vs. Pan American World Airways, . This Court explained the meaning of stigma as follows (P.150) (of SCC) (at P.231 of AIR):

“According to Websters New World Dictionary, it (stigma) is something that detracts from the character or reputation of a person, a mark sign etc., indicating that something is not considered normal or standard. The Legal Thesaurus by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Websters Third New International Dictionary gives the meaning as a mark of label indicating a deviation from a norm. According to yet another dictionary stigma is a matter for moral reproach.”

Similar observations were made in Allahabad Bank Officers Association Vs. Allahabad Bank .”

What we find from the record produced before us that the performance of the duties of the petitioner as officiating Registrar was not satisfactory and this record was considered only to find out whether he can be confirmed and continued in the post of Registrar. Therefore, in our opinion posting of the petitioner to the post of Superintendent on his unsatisfactory work as Registrar cannot be called as stigmatic order. We therefore, find no substance in this contention also. We also answer point C in negative

19. Coming to the grievance of the petitioner regarding promotion of Shri Waghmare, to the post of Registrar, we find no substance in the this contention as the petitioner was in fact, considered for promotion to the post of Registrar and he was given an opportunity to show his metal in the said post and when it is found that he is not fit to the said post, the case of Shri Waghmare, was considered and it was found that Shri Waghmare, was fit to be promoted and appointed on the post of Registrar, the order came to be passed. In our view the order of promotion of Shri Waghmare, respondent No.4 being just and valid, no interference is called for. As the petitioner was considered for the post of Registrar he was appointed to that post on officiating basis and he was found not suitable to that post hence, there is no question of denial of opportunity of promotion to the petitioner. Accordingly, we answer point D in negative

Point E :

20. Coming to the last case relied on by learned counsel for the petitioner is the judgment of the Full Bench of this Court. The Full Bench of this Court in Anils case was dealing with a question of appeal filed by the delinquent against the order of punishment. On August 10, 1990 the petitioner was appointed as Peon by the District and Sessions Judge, Aurangabad, respondent No.l herein, after following due process of selection. It was the case of the petitioner that he was duly elected as the President of Class IV Employees Association in the District Court. As the President of the Association, he was required to place grievances of members of the Union before the first respondent to take steps for bringing awareness in respect of working conditions of the employees in the department. As averred by the petitioner, it caused inconvenience to respondent No.l, who, in connivance with other judicial officers, attempted to pressurize the petitioner asking him to tender apologies from time to time. It is also his case that certain judicial officers developed grudge against him, and even false complaints filed by them. An enquiry was instituted, and one V.V.Shahapurkar, Vth Joint Civil Judge, Senior Division, Aurangabad, was appointed as Enquiry Officer. A charge-sheet was served upon the petitioner on November 29, 1996 making several allegations therein. The petitioner filed his reply on December 7, 1996, and also submitted a list of witnesses whom he wanted to examine in his defence. It is the say of the petitioner that the Department examined witnesses in support of the allegations levelled against the petitioner, but the petitioner was not permitted to examine witnesses in his defence which had caused material prejudice to him. On March 14, 1997, the Enquiry Officer submitted his report to the Disciplinary Authority respondent No.l. Respondent No.l issued a show cause notice along with a copy of the enquiry report and petitioner filed his reply controverting the findings recorded by the Enquiry Officer, as also making complaint against not allowing him to examine witnesses in his defence. Finally, on August 6, 1998, the incharge District and Sessions Judge, Aurangabad, held the charges levelled against the petitioner proved and imposed penalty of removal from service upon the petitioner

21. Against the order of District and Sessions Judge, the petitioner preferred an appeal before the High Court and the Registrar of High Court communicated to the petitioner vide communication dated June 25, 1999 that the High Court does not see any reason to interfere with the finding recorded by the Disciplinary Authority and accordingly, the appeal was dismissed. The Full Bench was considering the provisions of Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which deals with imposing penalty, procedure for imposing of major penalties, action to be taken on enquiry report and further Rule l7 enumerates orders against which appeal lies. It was not disputed before the Full Bench that the appeal lies against the order of removal and hence, the appeal was filed. Rule 23 deals with consideration of appeal which mandates appellate authority to consider clauses (a), (b), (c) of the said Rules. Therefore,the question before the Full Bench was whether the appellate authority had followed the mandate of sub-rule (2) of Rule 23 of the Rules. Accordingly, the Full Bench found that the order passed by the appellate authority is not in consonance with law and accordingly, it was set aside. In case at hand undisputedly there are no Rules framed regarding awarding promotion or making appointment to the post of Registrar of the District Court. In absence of any Rules, providing the representation, the representation was made to the High Court being highest authority controlling the subordinate judiciary vide Article 235 of the Constitution as there are no statutory provisions for making representation, there was no right vested in the petitioner either to file appeal or to make representation. The representation was made by the petitioner to the High Court to ventilate his grievance, which was considered accordingly. As the learned advocate for the petitioner is not in a position to show any statutory provision either under any act or rules and in such situation, we hold that it was not necessary for the High Court to give him personal hearing. Therefore, in our judgment the law declared by Full Bench in Anils case is not applicable on the facts of this case. The Full Bench was dealing with a case of appeal provided under the statute and the Full Bench found that while considering the appeal filed under Rule 23 the appellant or the aggrieved party must be heard before passing the order. That is not the case at hand. The representation was filed to ventilate the grievance and the grievance was considered by the High Court and it was found that there is no basis for the said grievance and accordingly, the said representation was turned down and communicated to the petitioner. We find no irregularity or illegality in turning down the representations. No other contentions besides noted by us are made before us by both the learned advocates

22. For the above stated reasons, we find no substance in the contentions of the petitioner. The petition being devoid of merit it required to be dismissed. Accordingly, Rule discharged. However, there will be no order as to costs