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HIGH COURT OF ORISSA
S. Barman, C. J. And A. Misra, J.
PRASANTA MOHAPATRA - Appellant
Versus
STATE OF ORISSA - Respondent
O. J. C. 141 Of 1968
Decided On : JULY 17, 1968
CONSTITUTIONAL LAW - ARTICLE 311 - TEMPORARY APPOINTMENT - PREMATURE TERMINATION - RIGHT TO POST - PUNISHMENT - ARTICLE 311 (2) - APPLICABILITY - ORISSA SERVICE CODE, VOL. I, RULE 31 - INTERPRETATION.
Fact of the Case:
The petitioner, Prasanta Mohapatra, was appointed temporarily as Director of Fisheries, Orissa, for a period of six months or till the return of the permanent incumbent, Sri G. N. Mitra, whichever was earlier. Before the expiry of this period, the petitioner was reverted to the post of Joint Director of Fisheries. The petitioner challenged this order, arguing that it amounted to a punishment without following the procedure under Article 311 (2) of the Constitution.
Finding of the Court:
The court held that the petitioner had acquired a right to hold the post of Director of Fisheries till the expiry of the period specified in the order of November 2, 1967, and his service could not be terminated before the expiry of that period unless he had been guilty of some misconduct, negligence, inefficiency, or other disqualifications and appropriate proceedings were taken under the rules read with Article 311 (2) of the Constitution.
Issues: Whether the premature termination of the petitioner's services as officiating Director of Fisheries amounted to a punishment requiring the procedure under Article 311 (2) of the Constitution.
Ratio Decidendi: The court relied on the principle that when a servant has a right to a post or rank under the terms of the contract of employment or the rules governing the conditions of service, the termination of such service or reduction to a lower post is prima facie a punishment. In this case, the petitioner had been allowed to continue to act as Director of Fisheries for a fixed period, and he had acquired a right to hold the post till the expiry of that period.
Final Decision: The court quashed the impugned order of the Government dated February 27, 1968, and allowed the writ petition with costs.
BARMAN, C. J.
( 1 ) THE petitioner challenges the order of his reversion from the post of Director of fisheries, Crissa to which post he was temporarily appointed to act for specified period to the post of Joint Director of Fisheries, by an order dated February, 27, 1968 passed by the Government of Orissa,
( 2 ) THE permanent incumbent of the post of Director of Fisheries, Orissa was one sri G. N. Mitra who since September, 1963 has been and still is, on deputation to most Deputy Director of Fisheries Sri G. B. Mohanty was promoted to officiate in the said post of Director of Fisheries in the place of Sri G. N. Mitra. In June, 1964 Sri G. B. Mohanty died. Thereafter the petitioner Sri Prasanta Mohapatra was appointed temporarily to act as Director of Fisheries in the vacancy caused by Sri mitra's deputation, for periods of six months successively by a series of orders. The last of these orders dated November 2, 1967 which is relevant for the purpose of this writ petition, reads as follows: government of Orissa. Agricultural Department. Notification: dated Bhubaneswar 2nd November, 1967. No. 3 FY-OA-7/36-33797/ag. Sri Prasanta Mohapatra, who was appointed temporarily to act as Director of Fisheries, Orissa, is allowed to continue as such till 25th May, 1968, or till the return of Sri G. N. Mitra, Director of Fisheries, under deputation to Government of India, whichever is earlier. By order of the Governor. Sd. B. K. Mohanty deputy Secretary to Government"
( 3 ) BY the impugned order dated February 27, 1968 the petitioner was reverted and appointed temporarily as Joint Director of Fisheries which is lower in rank than that of Director of Fisheries for the period specified in that order. The order reads as follows:
"government of Orissa. Agricultural Department: notification, bhubaneswar, 27th February, 1968. No. 6558-Ag. On relief by Sri P. Misra, I. A. S. , Sri Prasanta Mohapatra, who was last appointed temporarily, as Director of Fisheries in Notification No. 33797 AG dated 2-11-67 is reverted and appointed temporarily as Joint Director of fisheries for a period of six months or till a selection is made in consultation with the Public Service Commission, Orissa, whichever is earlier. The headquarters of the Joint Director will be at Cuttack. By order of the Governor. Sd. B. K. Mohanty, deputy Secretary to Government". The petitioner challenges this order of reversion to a lower post after premature termination of his services as officiating Director of Fisheries, as amounting to a punishment as this was done obviously without giving him an opportunity to represent against such reversion in contravention of Article 311 (2) of the constitution. His point is that the impugned order, in so far as it brings about the termination of his services as temporary Director of Fisheries from a date prior to the date specified in the order of appointment dated November 2, 1967, operates as a punishment for which the procedure under Article 311 should have been followed and this not having been done the order is liable to be quashed.
( 4 ) IN support of the order of reversion, the argument urged on behalf of the State, in substance, is this: In case of probationary, officiating or temporary appointments the persons appointed have no right to the posts; their services can be terminated at any time according to the rules and service conditions if any; article 311 has no application. The State relied on Rule 31 of the Orissa Service code, Vol. I which provides that a Government servant officiates in a post when he performs the duties of a post -on which another person holds a lien; a government servant may, however, be appointed to officiate in a vacant post, on which no other person holds a lien, by the authority competent to make a substantive appointment to that vacant post; it was submitted that the petitioner's appointment as Director of Fisheries was an officiating appointment in that he was appointed temporarily to act in place of the p
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