KASHINATH PATNAIK Vs. P K KAPILA I A S

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution. The petitioner was a permanent lower division clerk of Puri Collectorate on a scale of pay of Rs. 50 -2 -70 -2 -90 per month. On the 20th May 1946, he was appointed temporarily as Head Assistant of the Puri District Civil Supply Office on a pay of Rs. 100/ - per month, plus the usual dearness allowance - -Vide Annexure A attached to the petition. On or about the 20th May 1948, he was deputed to act as Head -Clerk -cum -Ac -countant in the Civil Supply Office at Dhenka -nal - -Vide Annexure B. On the 12th July 1951, all of a sudden, he was reverted to his permanent post, that is, lower division clerk in Puri Collectorate, by Order No. 27201 ST., of the same date, passed by the Secretary to the Government of Orissa in the Department of Supply and Transport - -VideAnnexure C. Feeling aggrieved by this order of reversion the petitioner filed a representation, first to the Secretary, Supply and Transport Department, and then to the Hon'ble Minister in charge of that Department. Both the representations were rejected. The reason given by the Hon'ble Minister for rejecting the representation may be gathered from letter No. 35872 dated 20th September 1951, from the Secretary, Supply & Transport Department to the District Magistrate, Dhenkanal, material portions of which are as follows :

(2.) THE main contention of the petitioner may be stated as follows. He was holding Sub -stantively the temporary post of Head -clerk -cum -Accountant in the Civil Supply Office at Dhenkanal. Consequently, his reversion to the post of a lower division clerk in Puri Collecto - rate amounts to 'reduction in rank' and that under Article 311, Clause (2) of the Constitution he was entitled to be given a reasonable opportunity of showing cause, against such reduction in rank. It was admitted by the learned Advocate -General that no formal proceeding was drawn up for reducing the petitioner in rank and that he was given no opportunity at all to show cause why he should not be reverted to his permanent post in the Puri Collectorate. But an attempt was made to justify the order of reversion on the ground that the order, in effect, does not amount to punishment and that consequently the Government could revert him. to his permanent post in the Puri Collectorate without drawing up a regular proceeding. It was further urged that Clause (2) of Article 311 has no application to the present case. The petitioner's work in the Supply and Transport Department was reported to be unsatisfactory and the Government, therefore, thought it undesirable to keep him in that Department any longer.

(3.) THE next question for consideration is what was meant by the words 'Substantive/ Temporary'. The expression 'Temporary Posts' has been defined in Rule 45 of the Orissa Service Code as 'a post carrying a definite rate of pay and sanctioned for a limited time'. It has been admitted before us by the learned Advocate -General that all the subordinate posts in the Supply Department of the Government of Orissa are temporary inasmuch as they have been sanctioned for a limited period only though that sanction may be extended from time to time. This explains why the post of the Head Assistant of the Puri District Supply Office and the post of the Head Clerk -cum -Accountant in the Dhenkanal Civil Supply Office were shown as temporary posts. The definition of 'temporary post' in Sub -rule (30) of Rule 9 of the Fundamental Rules is identical with the definition given in Rule 45 of the Orissa ServiceCode. While construing the aforesaid sub -rule of the Fundamental Rules, the Auditor -Generaldecided that temporary post can be held either substantively or in' an officiating capacity : (see Auditor -General's letter No. 828/Code/117 -22 dated 11 -12 -22). On the 15th July, 1938, theGovernment of India in Finance Department Memorandum No. F.8(10)/Ex -1/38 dated 15 -7 -1938, gave the following decision : 'Government have decided, in consultation with the Auditor -General, that substantive appointment to a temporary post should be made in a limited number of cases only, as for example when the posts are, to all intents and purposes, quasi -permanent, or when they have been sanctioned for not less then, or there is reason to believe that they will not terminate within a period of, three years. In all other cases, appointment to temporary posts should be made in an officiating capacity only.'