IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8380 of 2005 UPENDRA PRASAD SINGH Versus THE STATE OF BIHAR & ORS ----------- 6 16.7.2008 Heard Counsel for the petitioner and Counsel for the State. The petitioner is aggrieved by an order dated 6.11.2004 whereby and whereunder he has been reverted and reduced in rank from the post of driver to peon and his pay- scale consequently has also been lowered down from Rs. 3550 – 4590/- to Rs. 2550 – 3200/-. Apart from each and every issue which can be raised by the parties either against or in defence of the action taken, one thing is absolutely admitted that it was not on any misrepresentation on the part of the petitioner that he got appointed as a driver. The petitioner was appointed on compassionate ground on the recommendation of the District Compassionate Appointment Committee on the basis of which the Civil Surgeon had issued appointment letter to the petitioner on the post of driver. The petitioner was in fact having also a driving licence which had weighed upon the Civil Surgeon while considering his case of appointment against a post of driver. The petitioner thereafter having been appointed on the post of driver and continued for a period of 2 more than four years was however sought to be reverted unceremoniously by the impugned order even without giving any notice and/or opportunity of show-cause and hearing. The ground which now been taken for his reversion on the post of peon is that the District Compassionate Appointment Committee had recommended for appointing the petitioner only against Class-4 post and since the post of driver was a Class-3 post, the petitioner could not have been appointed on such Class-3 post of driver by the Civil Surgeon. In the opinion of this Court, this explanation of the respondents in the impugned order may be their own defence for not allowing the petitioner to continue on the post of driver but as soon as the respondents took a decision to take away the vested right in him by seeking him to reduce from the post of driver to the post of peon and also lowering down the pay scale, they were required at least to comply the principles of natural justice which is nothing else but a guarantee to a fair play in action. There being no dispute that the petitioner was never given any show-cause before being reverted to the post of peon from the post of driver, this Court has no option but to hold that the impugned order is bad both on fact and in law. It has to be noted that in the counter affidavit while all justification has been given that it was the 3 Civil Surgeon who while appointing the petitioner on a post of driver, a class-3 post, had gone beyond recommendation of the District Compassionate Appointment Committee which according to the respondents had recommended for appointment of the petitioner on compassionate appointment of class-3 post, not a word has been said as to what action has been taken against the Civil Surgeon for making such an appointment of the petitioner contrary to the recommendation of the District Compassionate Appointment Committee. It is strange that while no action has been taken against the Civil Surgeon who is said to have appointed the petitioner on the post of driver contrary to the rules and recommendation of the committee but the petitioner who admittedly did not commit any mistake much less had made a misrepresentation has been sought to be punished without being even provided with an opportunity to explain his case. There is no dispute that on account of such impugned order or reversal, the petitioner has not only lost his desire in rank and post of driver but his salary and emoluments has also been substantially slashed by bringing him down from the pay- scale of Rs. 3550 – 4590/- to Rs. 2550 – 3200/-. Such order casting civil and evil consequences on the petitioner could not have been passed without complying the principles of 4 natural justice and for all reasonable cause. In this context, the petitioner’s explanation in the writ application in paragraph no.14 and 15 claiming that the post of driver is a post of inferior or menial service and cannot be equated with the post of superior service as provided in Rule 24 read with appendix 4 of the Bihar Service Code having been not controverted by the respondents in their counter affidavit, it would be difficult for this Court to accept that the petitioner could have been reduced both in rank and pay-scale without complying the principles of natural justice. There is also no denial to the accepted proposition in law that an order of demotion/reversion is a major punishment and as per the discipline and control rules, such major punishment cannot be inflicted without making recourse to a regular departmental proceeding. Admittedly, in the present case, no such departmental proceeding was conducted and the petitioner as indicated above was straightway reverted to a lower post with the downgraded pay-scale. This Court in fact cannot approve of the impugned order for yet another reason inasmuch as initially if the post of driver is a class-3 post as has been stated in the 5 counter affidavit and the petitioner under the recommendation of the District Compassionate Appointment Committee was to be appointed only on a class-4 post including that of peon, the respondents were not entitled to revert the petitioner to post of which he was never appointed. It is well settled by now that reversal of an employee can be made only if he was initially appointed on a lower post and got promoted to higher post. On the own showing of the respondents, the petitioner’s initial appointment was against the post of driver and therefore he could not have been reduced by way of reversion to a lower post to peon. This aspect of the matter in fact is well settled by the judgment of the Apex Court in the case of Nyadar Singh Vs. Union of India & Ors. Reported in 1988 (4) SCC 170 wherein the Apex Court had hold that a person initially recruited to a higher time scale grade or service or post cannot be reduced by way of punishment to a post of lower time scale grade service or post which never held. Yet again, the Apex Court in the case of P.V. Srinivasa Sastry & Ors. Vs. Comptroller and Auditor General & Ors. Reported in 1993(1) SCC 419 after relying the aforementioned judgment of Nyadar Singh (supra) had held that “The expression “reduction in rank” in Article 311(2) has an obvious reference to different grades 6 in service. Whenever there is a reduction in rank it implies reversion from a higher post to a lower post. Reversion from a higher post to a lower post may be under exigencies of situation or by way of punishment. The expression “reduction in rank” occurring in Article 311(2) covers only such reversions which are by way of punishment. The expression “reduction in rank”, within the meaning of Article 311(2) as the expression itself suggests, means reduction from a higher to a lower rank of post. But the question is whether in this process an officer can be reduced from a higher rank or a post to a rank to which he never belonged and to a post which he never held” If the power to reduce an officer by way of punishment to a rank which was never held by such officer is conceded, then a person directly appointed as Upper Division Clerk cannot only be reverted to the post of Lower Division Clerks, but even to the post of a Peon, an Engineer to the post of a Fitter, a Headmaster of a School to the post of an Accountant or Clerk in the said School. As such even while imposing the punishment of reduction in rank, the order must have nexus with the post held by the delinquent officer concerned, from which he had been promoted to the post from which he is being reverted. If such an officer had not held that post or was not member of that cadre then he cannot be reverted to a lower cadre to which he did not belong or to a lower rank which he did not hold any stage.” Consequently, this Court cannot approve the reversion and/or reduction on the rank of the petitioner from 7 the post of Driver to the post of Peon and as such, the impugned order dated 6.11.2004 as contained in Annexure-3 to this writ application is hereby quashed. In the result, this writ application is allowed to the extent indicated above. Rsh (Mihir Kumar Jha, J.)