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Writ Petition No. 18 of 1954, decided on 6th October, 1954.
Government of India Act, 1935, S. 240‑Reduction in rank, or reverting, covered by section.
The applicant was appointed for an indefinite period, and for no particular period. His rank was therefore that of an officiating Upper Division clerk, and he would normally have continued to officiate in that rank, as he did in fact for four years. The order reverting him was admittedly passed on ground of unsatisfactory work. Just as dismissal and removal occurring in subsection (3) of section 240 of the Government of India Act are penalties so also reduction in rank is a penalty, and in the present case the reduction in rank was inflicted as a penalty.
The duty imposed upon officers empowered to reduce in rank by way of penalty to give an opportunity to the applicant to show cause against an action proposed to be taken against him, was not carried out.
Writ of mandamus therefore was directed to be issued to the Postmaster‑General that he should give an opportunity to the applicant to shear cause way be should not be reduced in rank as provided for in section 240 (3) of the Government of India Act.
A. Zaidi, for Petitioner.
H. T. Raymond, for Opponents.
‑The applicant is an employee in the Post anti Telegraph Department. Annexure A to the respondent's affidavit, so far as it is relevant, reads as fol lows :‑
23rd May, 1950.
"Mr. Muhammad Mukhtar Ahmed, temporary L. D. clerk of Karachi Engineering Division, pay Rs. 64, is temporarily appointed to officiate as Upper Division clerk, Circle Office, Engineering section, with effect from 11th May, 1950, forenoon.
On 13th February, 1952, an order was passed, Exh. A, to the applicant's affidavit.
"Mr. Muhammad Mukhtar Ahmad clerk on deputation to the office of the P. M. G. S. & B. Circle, Karachi, is hereby appointed as a permanent clerk with effect from 15th August, 1947."
This refers to his confirmation in the "parent" office of the Divisional Engineer.
We then find by Exh. B attached to the applicant's affidavit an order which the parties state was passed by the Postmaster‑General, dated 11th June, 1954.
"Since the work of Mr. Muhammad Mukhtar Ahmed Offg. U. D. C. (Engg. Br.), was not found to be satisfactory, he is reverted to his parent office. His name is struck off the strength of this office, and he is directed to report him self for further duties to the D: E. T., Karachi, with immediate effect."
The applicant's case is that this order amounted to imposing a reduction in rank, and was in contravention of section 240 of the Government of India Act.
Subsection (3) of section 240 of the Government of India Act states :‑
"No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."
Mr. Raymond for the respondent relied on proviso (b) to this section which enacts that the subsection shall not apply where an authority empowered to dismiss a person or reduce him in rank, is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause.
It is perfectly true that the Post and Telegraphs Manual, Vol. 2 considered that in cases of reversion, no notice should be given, but the proviso requires reasons to be recorded by the particular authority in writing with reference to the particular person, and it is admitted that there is no such record.
The main point in this case is whether a reduction in rank within the meaning of section 240 (3) Government of India Act, has occurred. Mr. Raymond brought to our notice a cabinet decision that when a person reverts from an officia ting appointment, no reduction in rank occurs. With respect, we think that this is not correct in the present case. No doubt where a person has been appointed to officiate in a leave vacancy, and the permanent incumbent returns from leave, his reversion involves no reduction in rank for his appointment in the first instance was dependent upon the return of the permanent incumbent. Similar considerations apply where a post is created for a particular period. But in the present case the applicant was appointed for an indefinites period, and for no particular period. His rank was therefore that of an officiating Upper Division clerk, and he would normally have continued to officiate in that rank, as he did ink fact for four years. The order reverting him was admittedly passed on ground of unsatisfactory work. Just as dismissal and removal occurring in the said subsection of the Govern ment of India Act are penalties so also we think reduction in rank is a penalty, and in the present case the reduction in rank has been inflicted as a penalty.
We consider, therefore, that the duty imposed upon officers empowered to reduce in rank by way of penalty to give an opportunity to the applicant to show cause against an action proposed to be taken against him, has not been carried out.
Mr. Raymond pointed out that there were adverse remarks against the applicant in the annual report and that his had been brought to his notice, and that the applicant had made .representations against these remarks, but even so, no action had been proposed to be taken against him.
We, therefore, consider that a writ of mandamus should issue to the Postmaster‑General that he should give an opportunity to the applicant to show cause why he should not be reduced in rank as provided for in section 240 (3) of the Government of India Act.
We certify under section 205 of the Government of India Act that the case involves a substantial question of law as to the interpretation of section 240 (3) of the Government of India Act. The applicant had in his application raised scandalous allegations against the officers of the department which seem totally unjustified. In these circumstances we pass no order as to costs.
A. H. Mandamus issued.
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