The impugned order reverting the petitioner from the post of an assistant to that of junior assistant amounted to reduction in rank and was illegal. The order cast a stigma on the petitioner and stated that he was incompetent, inefficient, and grossly deficient, which amounted to reduction in rank. As no reasonable opportunity to show cause as contemplated by Art. 311 (2) of the Constitution had been given to the petitioner before the impugned order was passed, the same cannot be supported and has to be set aside.

( 1 ) IN this petition under Art. 226 of the Constitution of India, the petitioner prays that government order dated 30 September, 1965 (annexure D), reverting him from the post of an assistant to that of junior assistant, be quashed. The petitioner joined service in 1947 as III grade clerk in the erstwhile State of Hyderabad. After the reorganization of States, the petitioner was allotted to the new State of Mysore. The post of III grade clerk of Hyderabad had been equated with that of the junior assistant in the Mysore Government Secretariat. On 22 September, 1962 the petitioner was promoted as officiating assistant and posted in charge of the Historical records Section. By the impugned order dated 30 September, 1965 (annexure D), the petitioner was reverted as junior assistant on the ground that he was incompetent, inefficient and was wanting in knowledge of English and Kannada and not fit for being continued as assistant any longer.

( 2 ) SRI Datar, learned counsel appearing on behalf of the petitioner, has contended that the impugned order of reversion of the petitioner amounts to reduction in rank and as such Art. 311 of the Constitution is attracted. He also argues that under the

( 3 ) MYSORE Secretariat Services Recruitment Rules of 1957, 50 per cent of the posts of

( 4 ) ASSISTANTS are to be recruited by promotion from the cadre of junior assistants. The said rules do not prescribe in the case of promotees that they should have passed any Kannada test. He also contends that in the case of persons promoted in the posts of assistants, the rules do not provide for any period of probation. When a person is appointed by promotion to the post of an assistant. It is not open to treat him as a probationer. Under sub-rule (2) of rule 18 of the

( 5 ) MYSORE Civil Services (General Recruitment) Rules, 1957, all appointments by

( 6 ) PROMOTION shall be on officiating basis for such period as may be provided for under the rules specially made for the purpose. The order of promotion of the petitioner states that he is promoted on trial for a period of one year subject to review at the end of the year. The petitioner has continued in the post of assistant for more than three years. Sri Datar, therefore, contends that the reversion of the petitioner clearly amounts to punishment and is illegal and deserves to be quashed.

( 7 ) SRI U. L. Narayana Rao, learned counsel appearing on behalf of the respondent State of mysore, has argued that the Government was competent to pass the order of reversion as the petitioner was only officiating in the post of assistant and had no right to that post. As the petitioner was promoted as officiating assistant purely on trial, subject to his work being satisfactory, and on review as his work was found to be unsatisfactory, he was reverted. He argues, in a case like this no question of reduction in rank of the petitioner arises and Art. 311 of the Constitution is not attracted. Sri Narayana Rao has relied on Clause (iv) of explanation to rule 8 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, which states that reversion to a lower service, grade or post of a Government servant officiating in a higher post on the ground that he is considered, after trial, to be unsuitable for such higher post, shall not amount to a penalty within the meaning of this rule.

( 8 ) THE first contention of Sri Datar is that the impugned order expressly casts a stigma on the petitioner and his reversion amounts to a punishment and therefore, Art. 311 of the Constitution is attracted. Sri Datar has strongly relied on Jagadish Mitter v. Union of India [1964 - I L. L. J. 418]. In the said case, their lordships were considering the question of discharge of a temporary government servant. The order of discharge in that case read as follows (at p. 427) :

"sri Jagadish Mitter, a temporary second division clerk of this office, having been found undesirable to be retained in Governme