- (1.) SRI M. C. Goel has filed this petition against the notified order dated 8th January, 1971 issued under the hand of the Registrar by order of the High Court which runs as follows: "Sri M. C. Goel, Civil and Sessions Judge. Orai to be Civil Judge, Hardoi, vice Pri S. D. M. Shahi." According to the petitioner this order amounts to an order of reduction in rank within the meaning of Art. 311 of the Constitution and since it was passed without giving him an opportunity to show cause the order was illegal and void.
(2.) THE petitioner was working on the substantive post of Civil Judge in the U. P. Civil Service (Judicial Branch). In December, 1961 he was appointed on an officiating post of temporary Civil and Sessions Judge. Subsequently the names of certain persons working as Civil and Sessions Judges were recommended by the High Court for promotion to the post of Additional District Judges/District Judges. The name of the petitioner was not included. The State Government agreed with the recommendations and further feeling that the petitioner was not suitable to continue even as a Civil and Sessions Judge consulted the High Court about the suitability of the peti tioner to continue in that capacity. The High Court, through the Registrar, com municated to the petitioner certain notices regarding the petitioner's work ing as Civil and Sessions Judge during the period 1961-69 and the petitioner was asked to explain the same. After the explanation was received from the petitioner, a recommendation was sent by the High Court to the State Govern ment to the effect that the petitioner was not suitable for continuing as Civil and Sessions Judge but should be re verted to his substantive post of Civil Judge. The State Government after, considering the recommendation, decided that the petitioner should be reverted to his substantive *post and the impugned notification was issued transferring him as Civil Judge, Hardoi. Although the petitioner had alleged that he had been selected to the cadre of Higher Judicial Service, he ad mitted in the rejoinder affidavit that every person is appointed a Sessions Judge originally in officiating capacity. The assertion of the opposite parties in the counter affidavit thus stands esta blished that the petitioner was holding the post of Civil and Sessions Judge only in officiating capacity. As such his trans fer to his substantive post of Civil Judge cannot, without anything else be held to be an order of reduction in rank with in the meaning of Art. 311.
(3.) THE contention -of the peti tioner is that this order was passed by way of penalty and is not an order of transfer simpliciter to the substantive post of Civil Judge. Reliance has been placed by learned counsel for the peti tioner on Appar Apar Singh v. State of Punjab, (1971 Ser LR 71) (SC) and Sughar Singh v. State of U. P., (1970 All LJ 1083). In the case, the Supreme Court reasserted the five propositions laid down by the Court in State of Punjab v. Sukhraj Bahadur, ((1968) 3 SCR 234) = (AIR 1968 SC 1089). The relevant propositions are as follows:- (3) If the order visits the public ser vant with any evil consequences or casts an aspersion against the character or integrity, it must be considered to be one by way of punishment, no matter whe ther he was a mere probationer or a temporary servant. (4) An order of termination of ser vice in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in ser vice does not attract the operation of Art. 311 of the Constitution. (5) If there be a full scale depart mental enquiry envisaged by Art. 311 that is. an enquiry officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service may thereafter will attract the operation of the said Article. It was further held in this case that the circumstances preceding or attend ing on the impugned order have to be examined in each case. The motive behind it being immaterial and if the order visits the public servant with any evil consequence, it must be considered to be one by way of punishment whe ther he was a mere probationer or a temporary servant. These propositions will apply with equal force to a case of reduction in rank. The question to be considered, therefore, would be whether the order visits the petitioner with any evil consequence or casts an aspersion against his character or integrity. As the order on the face of it is an innocuous order and obviously casts no aspersions, the answer to the question will in the present case depend on the answer to the question whether the enquiry was only an enquiry to ascertain whether the public servant should be retained in the post or not.;