Chakravartti, J. - (1.) This appeal involves a question of some importance under Article 311(2) of the Constitution of India which has been considered in some previous cases in certain of its aspects, but not in the aspect which calls for consideration here. The question is whether reversion of a Government servant to his substantive post from a higher post in which he was officiating is reduction in rank within the meaning of Article 311(2), when such reversion is on the ground of the Government servant's unsuitability for the higher post, disclosed in the course of his performance of its duties.
(2.) The appellant Rabindra Nath Das entered service under what was then t he East Indian Railway as a clerk on the 16th of November, 1913. Apparently he shaped well and by 1946 rose to be the chief clerk in the Coal Office of the Railway. By that time, the management of the Railway had been taken over by the State. In 1948, the appellant was appointed by way of a stop-gap arrangement to officiate in a Gazetted post as Assistant Superintendent (Coal) and served in that capacity for about a month. Thereafter, he reverted to his substantive post of Chief Clerk, but again officiated as Assistant Superintendent (Coal) for a short term in 1949. In October, 1951, when the Office Superintendent of the Operating Department was about to proceed on leave, preparatory to retirement, the authorities held a test for the purpose of forming a panel of officers from amongst whom Office Superintendents could be drawn. Three persons were chosen, the selections in order of preference being one Mr. R. K. Nandy the appellant and one Mr. K. Banerjee Mr. R.K. Nandy was already officiating in a Gazetted post as Assistant Superintendent (Goods I). Accordingly when the Office Superintendent of the Operating Department, Mr. S.D. Chowdhury, proceeded on leave with effect from the 19th October, 1951, the appellant was appointed to officiate in his place with effect from the same date. The order of appointment which was dated the 22nd October, 1951, stated that the appellant was being appointed "to officiate as Office Superintendent on pay Rs. 350 in Grade Rs. 360-20-500/350-25-450 Vice Sri Chowdhury." On the retirement of Mr. Chowdhury four months later. Mr. R.K. Nandy was appointed substantively to the post, but as he was still serving as Assistant Superintendent (Goods I), the appellant continued to officiate. We were somewhat surprised to learn that no fresh order was passed, because, quite obviously. the original order of appointment exhausted itself as soon as Mr. Chowdhury retired. Be that as it may, the appellant continued to officiate as Office Superintendent and was allowed the usual increment in the time scale at the end of a year of service. Then, in August, 1953, after he had served in the officiating post for about two years, he was served with a communication from the Deputy General Manager (Personnel), dated the 6th of the month and containing extracts from what was stated to be the confidential report regarding him for the year ending on the 31st March, 1953. The ex tracts consisted in adverse remarks on every aspect of the appellant's abilities and work and the last of them was to the effect that the appellant was not fit for confirmation in the post but should be given a month or two more to show if he could improve himself, failing which he should be reverted. How any question of confirmation could arise is not clear, because a substantive appointment to the post had already been made in the person of Mr. R. K. Nandy. The author of the Confidential Report was one Mr. N. C. Kapoor, Chief Operating Superintendent and Head of the Department. On the 9th October, 1953, the appellant submitted a representation as to the adverse remarks in the Confidential Report, but on the very next day, the 10th October, an order was made by the Deputy General Manager (Personnel), reverting him to his substantive post of Chief Clerk on a pay of Rs. 340 and appointing Mr. K. Banerjee, the next man on the panel, to officiate as Office Superintendent. On the 12th October, 1953, the appellant submitted a further representation to the Deputy General Manager (Personnel), praying that his case might be reconsidered and the order of reversion cancelled. No reply to either of his representations having been received, the appellant made over charge of the post of Office Superintendent on the 26th October, 1953, and on that very day preferred an appeal to the General Manager. On the 2nd November, 1953, he sent a reminder as to the appeal. Thereafter he received a communication from the Deputy General Manager (Personnel), dated the 14th November, 1953, which informed him that the Chief Operating Superintendent had passed an order on his appeal of the 26th October, and set out the text of the order. The order consisted of a number of observations, addressed to the appellant in the second person singular and stated that he had been found unsuitable for the post of Office Superintendent, that his faults had been pointed out to him, that as he had been reverted for inefficiency, he was not entitled to any notice to show cause against his reversion, nor entitled to prefer an appeal to the General Manager and that it had been highly reprehensible of him to make ill-founded personal accusations, as he had done. The Deputy General Manager's communication added that the order passed by the Chief Operating Superintendent disposed of the appellant's representations of the 9th and the 12th October, 1953, as well. The appellant then made a further representation to the General Manager on the 20th November, 1953, in which he denied that he had made any ill-founded personal accusations in his appeal and stated that, on the other hand, Mr Kapoor had subjected him to abusive language and gross insults on several occasions after the Confidential Report He added that, under the rules, his appeal should have been disposed of by the General Manager himself and he requested the Deputy General Manager to obtain the orders of the General Manager. The Deputy General Manager replied to the communication by a letter dated the 14th December 1953, in which he stated that since the appellant's reversion from the officiating post did not constitute a penalty no appeal to the General Manager lay.
(3.) Thereafter on the 14th February 1954, the appellant moved this Court under Article 226 of the Constitution and obtained a Rule on the General Manager, Deputy General Manager and Chief Operating Superintendent to show cause why an order in the nature of a writ of mandamus should not be is sued to them, directing them to forbear from giving effect to the order of reversion or why the said order should not be directed to be withdrawn or quashed. At the final hearing of the Rule, it was sought to be argued before the learned trial Judge that the order of reversion had not been made bonafide and that it had been brought about by Mr. Kapoor for a certain purpose of his own. Reference was made to the appellant's record of service, an alleged recommendation by Mr. Kapoor himself at an earlier stage for the creation of a graded post of Chief Clerk for the appellant's benefit which was done and the unusualness of the drawing up in August of a Confidential Report for the year ended in the month of March. The learned Judge, however, held that no adequate materials had been placed before him on which he could find mala-fides. The only point seriously urged before him was that in as much as proper facilities had not been afforded to the appellant for showing cause against his reduction in rank, the provisions of Article 311(2) of the Constitution had been violated. The learned Judge repelled that contention by holding that reduction in rank contemplated by Article 311(2) was reduction by way of a penalty and not reduction in the normal course. Although reversion from even an officiating post to a lower post, held substantively would come within the Article, if such reversion was directed as a measure of punishment, reversion on the ground of incapacity for the duties of the officiating post did not, in the learned Judge's view, involve any penalty and was therefore outside the contemplation of the Article.;