JUDGMENT

Jagmohan Lal, J. - This special appeal has been filed by a petitioner whose writ petition had been dismissed by a learned single Judge of this Court. The appellant was holding the post of Reference Clerk in a substantive capacity in the office of Inspector General of Prisons, U. P., Lucknow. Thereafter he was promoted in an officiating capacity as a Routine Grade Noter and Drafter and later on he was given an officiating chance to work as Head Clerk in the office of the Principal, jail Training School, Lucknow. While he was officiating on that post he was dismissed from service under an order dated 21-7-1959 by the Inspector General. He filed an appeal against that order. The appellate authority set aside the punishment of dismissal and in its place awarded him the punishment of stopping his increment for two years. The appellant was then reinstated as an officiating Noter and Drafter.

2. In the meantime, some other Reference Clerks who are respondents No. 3 to 9 in this appeal and who were junior to him were confirmed as Noters and Drafters. After the appellant was reinstated his work was also assessed for confirmation as Noter and Drafter but he was not confirmed on that post till 25-11-1967 when he was reverted under an order of that date (vide Annexure 8) to his substantive post of Reference Clerk.

3. Feeling aggrieved, the appellant filed a writ petition alleging that respondents Nos. 3 to 9 who were junior to him and who had been confirmed as Noters and Drafters during the period he was out of employment under the dismissal order passed against him, should have been deconfirmed under Rule 198-A of the Subsidiary Rules contained in Financial Hand Book, Volume II, and thereafter he should have been confirmed first on this post and then he persons junior to him. His further grievance was that so far as the order of reversion is concerned, it was illegal as not having been passed after complying with the provisions of Article 311 though it was an order of punishment. Both these pleas of the appellant were rejected by the learned single Judge.

4. In this appeal the same two points there re-agitated. As regards the first point. We are in agreement with the learned single Judge that Rule 198-A has no application to the facts of the present case. That rule provides that posts vacated by Government servants who are dismissed or removed from service may be filled substantively subject to the condition that the arrangement thus made will be reversed if the Government servant is reinstated on appeal. In the present case, there were several posts of Noters and Drafters on which substantive appointments had to be made which in the parlance of Government service is known as confirmation. The rule of promotion to this post, as contend-ed by the learned counsel for the appellant, was seniority subject to rejection of unfit. The respondents Nos. 3 to 9 who were junior to the appellant on their substantive posts of Reference Clerks were found fit for promotion and confirmed as Noters and Drafters. Evidently at that time the appellant who had already been dismissed from service could not be considered and was not considered for that confirmation. But according to the counter-affidavit filed on behalf of the State, a vacancy was left unfilled. After his appeal succeeded and he was reinstated his suitability for confirmation to this post was also judged but he was not found fit for confirmation. Had he been found fit then only the question of adjusting his seniority vis-a-vis respondents Nos. 3 to 9 would have arisen by the application of Rule 192-A. But in view of his unfitness no question of application of that rule arises.

5. The learned counsel for the appellant also did not seriously press this point and he laid emphasis only on the second point.

6. He contended that the reversion order in this case is ex facie an order of punishment and it is liable to be struck down for non-compliance with the mandatory provisions of Article 31