Nandan Bhargava v. State of Rajasthan — 1965 DIGILAW 73 (RAJ)

KAN SINGH, J.—The writ petition before us is by Shri Nandan Bhargava who is at present Conservator of Forests, Planning and Demarcation, Rajasthan, and by it he seeks to challenge an order of the State Government reverting him from the post of the Chief Conservator of Forests with effect from 5.11.62, when he had already held that post since 4.9.1961 from which date he was appointed to officiate as Chief Conservator of Forests on the expiry of the tenure of one Shri N. N. Sen. The petitioner has also made grievance of the successive two appointments to the post of Chief Conservator subsequent to his reversion; first Shri K. B. Mohan Lal respondent No. 4, was appointed and subsequent to that Shri R. K. Chaturvedy, respondent No. 3, was appointed on that post. The petitioner also seeks a direction for expunction of certain adverse entries said to have been made in the confidential report of the petitioner. The case that he has set out in his writ petition is briefly this:— The petitioner who was Chief Conservator of Forests in the former United State of Rajasthan came to be fixed up as a Conservator of Forests in the integrated set up of the new United State of Rajasthan. He says that he was appointed to officiate as Chief Conservator of Forests on several occasions, but lastly he was appointed to officiate as Chief Conservator of Forests on 4.9.61*, on the vacancy caused when the tenure of appointment of Shri N. N. Sen came to an end on 3.9.61. The matter of appointment to the post of Chief Conservator of Forests, the petitioner maintains, was governed by the Rajasthan Forest Service Rules, 1961, hereinafter to be referred to as the "Rules", and under Rule 7(ii) the Government was bound to promote the petitioner who alone fulfilled the required qualifications for being promoted to the post of Chief Conservator of Forests in substantive capacity. Taking his stand on Rule 7(ii) the petitioner submits that there was no provision for making an officiating appointment and to all intents and purposes, according to him, he was a substantive appointee to the post. He points out that Rule 28, which provides for emergent temporary appointments could not govern his case as the vacancy against which he was appointed was not a temporary, but a permanent one. He points out that Rule 28, which provides for emergent temporary appointments could not govern his case as the vacancy against which he was appointed was not a temporary, but a permanent one. The petitioner claims that as he had acquired a right to hold the post of the Chief Conservator of Forests, the Government could not have reverted him and the reversion, as it has visited him with evil consequences, was rendered to be one in the nature of reduction in rank within the meaning of Art. 311 of the Constitution and as this was ordered in contravention of the Rules, without affording him an opportunity to have his say against the action, it was violative of Art. 311 of the Constitution. Shri K.B. Mohan Lal, respondent No. 4, who was retired Conservator from Assam, was appointed to the post of Chief Conservator of Forests with effect from 5.11.62 and this, according to the petitioner, was in clear violation of the provisions of the Rules, as the Government had not made the recruitment through the agency of the Rajasthan Public Service Commission. Nor, had the Government come to hold any definite opinion that during that year no member of the Forest Service was suitable for promotion. Further, the petitioner proceeds to say, the terms for direct recruitment in such a contingency have to be prercribed by the Government after obtaining the concurrence of the Public Service Commission thereto and this was not done in the present case. Thus, the petitioner urges that Shri K. B. Mohan Lals appointment was ultra-vires and he had no title to hold the post. The petitioner further suggests that there had been manipulations to put Shri K. B. Mohan Lal as Chief Conservator of Forests by reducing the petitioner and for this the petitioner imputes mala fides to Shri R.K. Chaturvedy who was then Revenue Secretary, in charge of the Forest Department. He avers that Shri Chaturvedy had made adverse remarks in his confidential report (Document No. 6) without any justification whatsoever in clear contravention of the Government Circular dated 8.2.62 and Memorandum dated 30.11.62. He, therefore, prays for expunction of these remarks as well. 2. The writ petition has been contested by respondents Nos. 1 to 3. He avers that Shri Chaturvedy had made adverse remarks in his confidential report (Document No. 6) without any justification whatsoever in clear contravention of the Government Circular dated 8.2.62 and Memorandum dated 30.11.62. He, therefore, prays for expunction of these remarks as well. 2. The writ petition has been contested by respondents Nos. 1 to 3. Shri K.B. Mohan Lal, respondent No. 4, has, however, not appeared in this Court and that was for the obvious reason that he had since retired and is no longer in the service of the State of Rajasthan. Traversing the averments made in the writ petition it is submitted by the contending respondents that the petitioner was appointed only in an officiating capacity as a stop-gap arrangement and it is not correct on his part to claim that he was a substantive holder of the post. As regards the applicability of Rule 7(ii) of the Rules, it is pointed out that the proviso thereunder gives a discretion to the Government to examine the suitability of persons in the next below cadre and there could be no promotion until and unless a member of the service was found suitable according to the criterion laid down in the Rules and particular reference is made to Rule 24 in this behalf. It is further submitted that the petitioners case for promotion, he was considered according to the criterion laid down in Rule 24 of Rules and, as he was not found suitable for promotion he was reverted to his substantive rank. It is further said that there is a Departmental Promotion Committee for assessing the suitability of the candidates for promotion and as the Departmental Promotion Committee, after going through the record of service of the petitioner, did not recommend him for promotion as Chief Conservator of Forests, the Government did not approve of his appointment according to the recommendations of the Departmental Promotion Committee. As regards the appointment of Shri K. B. Mohan Lal, it is submitted that his appointment was made after the Departmental Promotion Committee had sent its recommendation that the Govt. should consider the desirability of having a direct recruit as the petitioner was not suitable and when the recommendation had been accepted by the Government. It is denied by the respondents that the reversion of the petitioner, in the circumstances, involved any violation of Art.311 of the Constitution. should consider the desirability of having a direct recruit as the petitioner was not suitable and when the recommendation had been accepted by the Government. It is denied by the respondents that the reversion of the petitioner, in the circumstances, involved any violation of Art.311 of the Constitution. It is also denied that Shri Chaturvedy was actuated with any malice against the petitioner in making the adverse remarks in the confidential reports submitted by him. It is also urged on behalf of the respondents that the instructions regarding preparation of confidential reports are purely administrative in character and they are liable to be changed from time to time and they are not justiciable and consequently this Court should not take any notice of them. It is also stated that the writ petition has been filed after a good deal of delay. 3. It will be observed from the above narration that the main question that falls for consideration is whether the appointment of the petitioner as Chief Conservator of Forests on 4.9.61, could be regarded as one in substantive capacity though the Government had expressly ordered that he was appointed officiating Chief Conservator of Forests. Allied to this is the question whether in the facts and circumstances brought out before us the petitioners reversion could be regarded to be one in violation of Art.311 of the Constitution. We may, therefore, direct our attention to these two questions first. 4. It will be convenient here to refer to the relevant provisions of the Rules. The Rules were made by the Governor of Rajasthan in exercise of his power under Art 309 of the Constitution and they regulate the recruitment to posts borne on the Rajasthan Forests Service and also lay down the conditions of service of persons who are the members of that service. The service consists of senior posts as well as junior posts. It is not disputed that the posts of Chief Conservator of Forests and those of Conservators of Forests are senior posts. Part III of the Rules provides for recruitment. Rule 7, which occurs in that Part and which provides for recruitment to senior posts runs as follows— "Rule 7. The service consists of senior posts as well as junior posts. It is not disputed that the posts of Chief Conservator of Forests and those of Conservators of Forests are senior posts. Part III of the Rules provides for recruitment. Rule 7, which occurs in that Part and which provides for recruitment to senior posts runs as follows— "Rule 7. Sources of recruitment—(1) Recruitment to the post of Assistant Conservator of Forests in the service after the commencement of these rules shall be made by direct recruitment and by promotion from amongst the Rangers grade I through the agency of the Commission. The ratio of direct recruitment and promotion shall be 3:1; Provided that— (a) the total number of posts filled up by promotion at any time shall not exceed 25% of the total number of the sanctioned posts in the grade. (b) there shall be no direct recruitment to the post of sub-Divisional Forests Officer. The present incumbent will, however, continue 5 till they are promoted in due course as Assistant Conservators of Forests. (ii) Recruitment to the senior posts shall be made by promotion from amongst the members of the service in the next below cadre and who are eligible for promotion under the provisions of these rules : - . Provided that if the Government after consultation with the Commission is satisfied that during a particular year no member of the service is suitable for promotion in a particular category, direct recruitment may be made to that category through the agency of the Commission on such terms regarding qualifications, experience and age etc. as may be prescribed by the Govt." 5. Part V provides the procedure for recruitment by promotion and the relevant rules thereunder namely, Rules 24 and 25 run as under: — "Rule-24. Criteria far promotion. — (1) For purposes of recruitment to the service by promotion, a selection strictly on the basis of seniority -cum-merit shall be made from among all the persons, eligible for such promotion under the provisions of these rules. (2) In selecting the candidates for promotion regard shall be had to their:— (a) technical qualifications and knowledge ; (b) tact, energy and intelligence ; (c) integrity, and (d) previous record of service." "Rule-25. (2) In selecting the candidates for promotion regard shall be had to their:— (a) technical qualifications and knowledge ; (b) tact, energy and intelligence ; (c) integrity, and (d) previous record of service." "Rule-25. Procedure for selection— As soon as it is decided that certain number of vacancies in the category of Assistant Conservator of Forests is to be filled up by promotion, the Chief Conservator shall prepare a list, not exceeding 5 times the number of vacancies, out of all the seniormost members of the Rajasthan subordinate Forests Service, who are eligible for promotion under the Rules and shall forward it together with character rolls and personal files to the Secretary to Government in the Forest Department. (b) A committee consisting of:— (i) The Chairman of the Commission or a member thereof nominated by him as Chairman; (ii) The Secretary to Government in the Forest Department; (iii) The Special Secretary to Government in Appointments Department or his representative not below the rank of Deputy Secretary; and (iv) The Chief Conservator of Forests shall consider the cases of all the persons included in the list interviewing such of them as they deem necessary and shall, select a number of candidates twice the number of vacancies likely to be filled by promotion, and shall arrange their names in a list in order of seniority and the Deputy Secretary to the Government in the Forest Department shall be the non-member Secretary. (c) The list prepared by the Committee after examination by Government shall be forwarded by the Government to the Commission together with the character rolls and the personal files of the candidates included in the list as also of persons superseded, if any, for advice on their suitability for promotion. The Commission shall then consider the cases of the persons included in (he list and those superseded, if any, and subject to their suitability, approve as many of them as the number of vacancies likely to be filled by promotion. The names shall be arranged in the same order in which they were placed in the list and the same shall be forwarded to the Govt. The names shall be arranged in the same order in which they were placed in the list and the same shall be forwarded to the Govt. (II) As soon as it is decided that certain number of vacancies in the senior posts are to be filled by promotion, the Chief Conservator of Forests shall prepare a list containing names of candidates eligible for promotion, not exceeding 5 times the number of vacancies, in each category, out of all the senior most members of the service eligible for promotion and forward it together with the character rolls and personal files to the Secretary to Government in the Forest Department. The Committee referred to in Rule 25-I (b) shall consider the cases of all the persons included in the list interviewing such of them as they deem necessary. It shall select a number of candidates equal to the number of vacancies in each category and prepare a list to be forwarded to the Govt. The Secretary to Government in the Forest Department shall put up the list prepared by the Committee to the Government together with the character rolls and personal files of the candidates included in the list as also of persons superseded, if any. (III) The final selection in respect of the lists received from the Commission under rule 25-I(c) and from the Committee under the rule 25(11) shall be made by Government and the names of the persons selected shall be arranged in the order of seniority." 6. The appointments to senior posts are made by the Government under Rule 27, which runs as under:— "Rule 27. Appointments to senior posts—All substantive appointments to the higher categories shall be made by Government on occurrence of vacancies by graded promotion within the service as provided in rule 24 on the basis of criteria of seniority-cum-merit." 7. Rule 28 which provides for the making of emergent temporary appointments may also be reproduced as it will also come up for consideration. Rule 28. Rule 28 which provides for the making of emergent temporary appointments may also be reproduced as it will also come up for consideration. Rule 28. Emergent temporary appointments— A temporary vacancy in any category of the service may be filled by Government by appointing thereto in an officiating capacity an official eligible for promotion to the post or by direct appointment of persons eligible for selection under the rules, provided that if the duration of the appointment actual or probable is more than six months, the Commission shall be consuited as soon as possible after the appointment is made and in any case before the expiry of six months from the date of appointment regarding the suitability of the candidates appointed." 8. The learned counsel for the petitioner submits that R. 7(ii) is mandatory and the Government are bound to make the promotion from amongst the members of the service in the next below cadre and as the petitioner was the only person who was eligible for appointment as Chief Conservator of Forests the Government had no option but to promote him and, in these circumstances, the learned counsel urges, the Government were not justified in characterising the appointment as an officiating one. In this respect he points out that in the Rule 28, and that was not attracted in the present case, as the vacancy caused on the expiry of the term of Shri N. N. Sen could not be characterised as a temporary one within the meaning of the Rules. The learned counsel has placed reliance on the dictionary meaning of the term "temporary" to which we will refer hereinafter in the course of our discussion. 9. Rule 7(ii) on which strong reliance is placed by the petitioner for showing that he had a right to be promoted to the post of Chief Conservator of Forests and for ignoring the use of the expression officiating in characterising the appointment of the petitioner has, in our view, to be read in conjunction with Rule 27 of the Rules. Rule 7 which embodies a principle of recruitment is not the provision under which a substantive appointment is made. Part VI of the Rules deals with appointments, probation and confirmation. For making appointments to senior posts in substantive capacity the source of authority lies in rule 27. Rule 7 which embodies a principle of recruitment is not the provision under which a substantive appointment is made. Part VI of the Rules deals with appointments, probation and confirmation. For making appointments to senior posts in substantive capacity the source of authority lies in rule 27. This rule clearly enjoins that all substantive appointments to the higher categories shall be made by the Government from within the service as provided in R. 24 on the basis of criteria of seniority-cum-merit. It is nobodys case that the procedure contained in Rule 24 or R. 25 was followed when the petitioner was first appointed as officiating Chief Conservator of Forests on 4-9 1961. The learned counsel for the petitioner, however, wanted us to presume that these requirements of procedure were followed as official acts should be presumed to be performed regularly. We are, however, unable to subscribe to this view. In the first place the very fact that the appointment has been characterised as officiating shows that the Government had not made any substantive appointment within the meaning of Rule 27 of the Rules, At that stage, therefore, they would not follow the provisions of Rule 24 or Rule 25 of the Rules. Secondly, the manner in which the Government had dealt with the case of Shri Bhargava shows that his appointment was never, in fact, intended to be substantive. A letter of the Deputy Secretary to the Government of Rajasthan in the Revenue A Department, to the Rajasthan Public Service Commission dated 12.10.61, at page 116 of the Paper Book, clearly mentions that the question of securing the services of a suitable officer from outside was receiving the consideration of the Government and in the meantime the appointment of Shri Nandan Bhargava as officiating Chief Conservator of Forests was to be treated as an ad hoc arrangement. Again, the Government in their letter dated 9.5.62, to the Public Service Commission which is at page 118 of the Paper Book, reiterated that Shri Nandan Bhargava was appointed as officiating Chief Conservator of Forests on an ad hoc basis with effect from 3.9.61, and the Government were watching his work. In this letter the Government desired the Public Service Commission to give its concurrence to the continuance of Shri Nandan Bhargava as officiating Chief Conservator of Forests. In this letter the Government desired the Public Service Commission to give its concurrence to the continuance of Shri Nandan Bhargava as officiating Chief Conservator of Forests. In its letter dated 5.7.62, at page 119 of the Paper Book, the Commission pointed out to the Government that the concurrence of the Commission should have been sought before the expiry of the six months period. In these circumstances the Public Service Commission declined to give its concurrence to the continued officiation. of Shri Nandan Bhargava as Chief Conservator of Forests and called upon the Government to take steps immediately for filling this post according to the Rules. Thereafter, it appears that a meeting of the Departmental Promotion Committee was held and that Committee consisted of the Chairman, Rajasthan Public Service Commission, the Forests Secretary and the Special Secretary (Appointments). The minutes recorded by that Committee are at page 125 of the Paper Book. These documents do not leave any doubt in our mind that the appointment of Shri Bhargava was never intended to be made in a substantive capacity and the suggested presumption of the regularity of official acts cannot carry us any far in the present case. 10. Rule 7(ii), to our mind, only deals with the amplitude of the principle of recruitment by promotion. Recruitment to the senior posts by promotion is the normal rule, but the proviso appended thereto reserves discretion to the Government that, if they find that in a particular year no member of the service is suitable for promotion in any particular category, then, according to the procedure laid down therefor, direct recruitment may be made through the agency of the Public Service Commission. But one thing is very clear from Rule 27 itself that the only way in which substantive appointments by promotion to posts in the higher categories could be made is in accordance with Rule 24 on the criteria of seniority-cum-merit. It is true that Rule 28, the heading of which provides for emergent temporary appointments is not happily worded and it is susceptible of the interpretation that officiating appointments for a limited period could be made only on the occurrence of a temporary vacancy. 11. We may pause here to refer to the dictionary meaning of the term "temporary". It is true that Rule 28, the heading of which provides for emergent temporary appointments is not happily worded and it is susceptible of the interpretation that officiating appointments for a limited period could be made only on the occurrence of a temporary vacancy. 11. We may pause here to refer to the dictionary meaning of the term "temporary". The Law Lexicon gives the meaning of the term "temporary" as lasting for a time only, existing or continuing for a limited time, not of long duration, not permanent, transitory, changing, lasting for a short time. The same meaning is found in other dictionaries and it is not necessary to multiply reference to dictionaries. Similarly, the term "vacancy" has been defined to mean an unoccupied office or post. 12. Assuming that Rule 28 could not have been resorted to for making an officiating appointment, in the present case the question still is as to what will be the position if the appointment made is not shown to have fulfilled the requirements of Rule 27 of the Rules, under which alone a substantive appointment could be made and that too in accordance with Rule 24. To our mind, there can be only two ways in which the order of officiating appointment of the petitioner can be looked at: (i) that it is not in accordance with any provision of Rules and consequently bad; and (ii) that as the making of officiating appointment for a limited period against a non-temporary vacancy has not been dealt with by any provision of the Rules, the power to make such an appointment can be taken to reside in the Governor under Art.310 of the Constitution. The Rules have only come into force in 1961, but even prior to that, appointments where made on the posts of the Chief Conservators or Conservator of Forests and such appointments could be made only under Article 310 of the Constitution. The question, therefore, immediately arises whether a complete go by is given to Article 310 even for making appointments in contingencies not expressly dealt with by the Rules. We have given our anxious consideration to this aspect of the matter and our answer is that to the extent the Rules are silent only on any particular matter resort can certainly be had to the constitutional powers of the Governor as contained in Art.310 of the Constitution. We have given our anxious consideration to this aspect of the matter and our answer is that to the extent the Rules are silent only on any particular matter resort can certainly be had to the constitutional powers of the Governor as contained in Art.310 of the Constitution. To our mind, assuming that Rules 28 of the Rules only deals with the contingency of making officiating appointments against temporary vancancies, undoubtedly there is no provision about making immediate arrangements on the occurrence of a permanent vacancy not necessarily always by retirement, but sometimes suddenly by unexpected resignation of an incumbent or even on account of his death. In such a case if the thesis of the learned counsel for the petitioner were to be accepted, then as soon as the permanent vacancy occurs on account of the death or resignation of the holder of a senior post, then the Government are either bound to leave the post vacant till they make a substantive appointment, after going through the procedure laid down in the Rules, or they will have to promote the officer in the next below cadre. It could not be the intention to take away the power of the Government to make immediate arrangements by ordering some one to officiate against the non-temporary vacancy till all the required formalities under the Rules are undergone for making a substantive appointment. We are persuaded to think that on matters for which no provision is made in the Rules the general power of making appointments under Art. 310 of the Constitution can be resorted to. As pointed out by their Lordships of the Supreme Court in State of Uttar Pradesh vs. Babu Ram Upadhya (1), Art. 310 of the Constitution is only subject to the limitations contained in Art. 311. The relevant observations of their Lordships were as follows: "In India every person who is a member of a public service described in Art. 310 of the Constitution holds office during the pleasure of the President or the Governor, as the case may be, subject to the express provisions therein. The power to dismiss a public servant at pleasure is outside the scope of Art. 154 and, therefore, cannot be delegated by Governor to a subordinate officer, and can be exercised by him only in the manner prescribed by the Constitution. The power to dismiss a public servant at pleasure is outside the scope of Art. 154 and, therefore, cannot be delegated by Governor to a subordinate officer, and can be exercised by him only in the manner prescribed by the Constitution. This tenure at pleasure is subject to the limitations or qualifications mentioned in Art.311 of the Constitution. The Parliament or the Legislatures of States cannot make a law abrogating or modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Art.310, as qualified by Art.311 The Parliament or the Legislatures of States can make a law regulating the conditions of service of such a member which includes proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Art.310 of the Constitution read with Art.311 thereof. The Parliament and the Legislatures of States also can make a law laying down and regulating the scope and content of the doctrine of reasonable opportunity embodied in Art.311 of the Constitution; but the said law would be subject to judicial review. If a statute could be made by Legislatures within the foregoing permissible limits, the rules made by an authority in exercise of the power conferred thereunder would likewise be efficacious within the said limits. Under Art.313, the Police Act and the Police Regula tions made in exercise of the powers conferred on the Government under sec. 243 of the Government of India Act, 1935, continue to be in force after the Constitution so far as they are consistent with the provisions of the Constitution." Though these observations were made in connection with the taking of disciplinary proceedings the ambit of Article 310 of the Constitution fell to be considered in that case. To our mind, therefore, Article 310 can be resorted to the extent it is not inconsistent with any rule made under Article 309 of the Constitution regulating the conditions of service. We may not, however, consider in that case whether rules made under Article 309 of the Constitution can, or cannot override the provisions of Article 310 of the Constitution, as that question does not directly arise before us. We may not, however, consider in that case whether rules made under Article 309 of the Constitution can, or cannot override the provisions of Article 310 of the Constitution, as that question does not directly arise before us. Consequently we are of the opinion that as the making of an officiating, appointment against a permanent vacancy which may occur in several ways, such as on account of death, resignation or retirement of an incumbent, is not clearly provided in the Rules, such an officiating arrangement can be ordered in exercise of the powers of the Governor under Article 310 of the Constitution. That being so, we are unable to accept the contention that even though the appointment of the petitioner was characterised as an officiating one, it has to be taken to be one in substantive capacity. 13. Turning now to the other question namely, whether in the facts and circumstances of the case the reversion of the petitioner from the post of the Chief Conservator of Forests to that of Conservator of Forests was in violation of the Article 311 of the Constitution, the principles on which it has to be determined whether any reversion or termination is violative of Article 311(2) or not have been authoritatively settled by their Lordships of the Supreme Court in Parshotam Lal Dhingra vs. Union of India(2). Shri Parshotam Lal Dhingra who was officiating on the post of Signal and Tele-comnunication Engineer, (Telegraphs) in Class II, was reverted to his substantive post in Class III. He challenged the order of his reversion. By a majority judgment their Lordships were pleased to lay down the following tests for saying whether in any particular case Article 311 of the Constitution would be attracted. Their Lordships observed as follows: — "Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot; therefore, by itself be a punishment." One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post, the termination of his service will by itself be a punishment and he will be entitled to the protection of Art. 311. In other words and, broadly speaking, Art. 311(2) will apply to those cases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the Government has, by contract, express or implied, or, under the rules the right to terminate the employment at any time,then such termination in the manner provided by the contract or the rules is prima facie and per se, not a punishment and does not attract the provisions of Art.311." "Where, however, the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Art. 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 31 i must be complied with." "A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences The use of the expression "terminate" or "discharge" is not conclusive." "Thus in each case the Court has to apply the two tests namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind herein before referred to ? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which give protection to Government servant have not been complied with, the termination of service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant." 14. Applying the above tests to the case of Shri Dhingra (2) their Lordships held that as the petitioner was appointed to the higher post on an officiating basis he had no right to continue on that post and, therefore, his reduction did not operate as a forfeiture of any right and could not be described as reduction in rank by way of punishment. The provisions of Article 311 (2) were consequently not attracted to the case. We have not been able to discover as to how the case of the petitioner can be distinguished from that of Shri Dhingra (2). The petitioner was appointed only in an officiating capacity as Chief Conservator of Forests and he had not acquired any lien or right to hold that post. We have not been able to discover as to how the case of the petitioner can be distinguished from that of Shri Dhingra (2). The petitioner was appointed only in an officiating capacity as Chief Conservator of Forests and he had not acquired any lien or right to hold that post. Thus, one of the two tests for seeing whether the servant had a right to the post or rank has not been satisfied in this case. The other test namely, whether the servant has been visited with evil consequences of the kind, too, in our opinion, is not satisfied for the simple reason that the reversion was not ordered as a punishment. The fact that the servant stands to suffer loss of higher salary is not the test for seeing whether the order of reversion is one passed under the Rules or that by way of penalty. We had occasion to deal with this question in a recent case decided by us and it is reported as Ishwari Prasad Atri vs. State of Rajasthan (3). We had observed:— "The mere fact a civil servant loses his employment and consequently suffers loss of salary is not the test for seeing whether an order is one under the Rules only, or reality in the nature of penalty. Loss of employment with loss of of income is a common attribute of both. The true test, to our mind, is the underlying intention of the Government." In that case we were dealing with a cass of termination of the service of a temporary employee and for our support we had relied on Shri Dhingras case (2). 15. A very recent case of their Lordships of Supreme Court reported as Champaklal Chimanlal Shah vs. The Union of India(4), confirms our view. In that case their Lordships had pointed out a clear distinction between the enquiries that the Government might make for ascertaining the suitability of Government servants who are temporary or officiating for the purpose of seeing whether they should be retained on such posts and enquiries that are made with view to making penal action against them. The following observations may be quoted with advantage— "A preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused. The following observations may be quoted with advantage— "A preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused. Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work or mis-conduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for government does not usually take action of this kind without any reason. Therefore when a preliminary enquiry of this nature is held in the case of a temporary employee or a government servant holding a higher rank temporarily it must, not be confused with the regular departmental enquiry (which usually follows such a preliminary enquiry) when the government decides to frame charges and get departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant. Therefore, so far as the preliminary enquiry is concerned there is no question of its being governed by Art. 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporarily to which he has no right. Such a preliminary enquiry may even be held ex parte, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. It is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the Government servant gets the protection of Art. 311 and all the rights that that protection implied as already indicated above. That is why the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant. That is why the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant. The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule (e.g. R.5 in this case) would not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of Art.311 (2). Whether such termination would amount to dismissal or removal within the meaning of Art.311 (2) would depend upon facts of each case and the action taken by government which finally leads to the termination of service." From this passage it will be quite evident that if the Government, after considering the suitability of a particular incumbent who had not by then acquired the right to hold the post, reverts him to his substantive rank or terminates his services, in case he is temporary, in accordance with the service rules, then that action cannot attract the provisions of Art.311 of the Constitution. The crux of the matter is whether it can be inferred that the Government really intended to take disciplinary action against the Government servant concerned. Their Lordships had also pointed out that whether a particular termination or reversion would amount to punishment within the meaning of Art.311 (2) of the Constitution would depend upon the facts of each case and such determination will ultimately depend upon the action taken by the Government which finally leads to the order of termination or in a case like the present one, the order of reversion. 16. We have already referred to the correspondence that was exchanged between the Government and the Public Service Commission about the continuance of the period of officiation of the petitioner. We have also pointed out that the public Service Commission declined to give concurrence to the petitioners further officiation. Thereafter on 25.9.62, the Departmental Promotion Committee met and after allotting some marks to the petitioner as also to the other officer namely, Shri Ram Pratap Sharma, whose case was also considered, came to the conclusion that neither of the two officers was suitable for promotion as Chief Conservator of Forests. We have also perused the Secretariat notes which have been brought on this record. We have also perused the Secretariat notes which have been brought on this record. On 7.3.61, the Assistant Secretary noted that Shri Bhargava had completed six months as Chief Conservator of Forests and hence reference to Public Service Commission had become overdue consequently the Revenue Secretary put up a proposal to the Government that the Public Service Commissions concurrence may be sought for continuing the officiating arrangements. The proposal was put up to the Forest Minister and the Chief Minister and both of them signified their approval to it. Thereafter, the Public Service Commission was addressed, but it refused its concurrence. In the light of the comments offered by the Public Service Commission, a proposal was submitted on 4.8.62 by the Revenue Secretary to the Government for constituting the Departmental Promotion Committee. On this proposal the Chief Secretary noted that this must be done urgently and to it the Minister Incharge agreed. As it appears from the note of the Revenue Secretary dated 20.10.62, the Committee was constituted in accordance with Rule 25. The Secretariat notes are available from pages 126 to 134 of the Paper Book. We are thus satisfied that the Government had no intention to take any penal action against the petitioner within the meaning of Art.311 of the Constitution. A Departmental Promotion Committee consisting of the Chairman of the Rajasthan Public Service Commission, Special Secretary to the Government in the Appointment Department and the Secretary to the Government in the Forest Department made a unanimous recommendation to the effect that the petitioner was not found suitable to be promoted to the post substantively and, therefore, they recommended the making of a direct recruitment from outside the Rajasthan Forest Service. On the facts and circumstances of the case, therefore, we are unable to hold that the reversion of the petitioner was violative of Article 311 of the Constitution. 17. We may now briefly refer to the various cases cited by the learned counsel for the petitioner. 18. We have already referred to Shri Dhingras case (2). The learned counsel for the petitioner argued on the basis of the observations in Shri Dhingras case (2) that the petitioner had been visited with evil consequences inasmuch as the future prospects of his promotion were marred and he has also suffered a loss of salary. 18. We have already referred to Shri Dhingras case (2). The learned counsel for the petitioner argued on the basis of the observations in Shri Dhingras case (2) that the petitioner had been visited with evil consequences inasmuch as the future prospects of his promotion were marred and he has also suffered a loss of salary. The learned counsel also points out that as the confidential report, which was adverse to the petitioner, had been taken into consideration behind his back that showed that the action against him was penal in character. We are unable to accept this contention. As pointed out by their Lordships in the Supreme Court case reported as Champaklal Shah vs. The Union of India (4), the crux of the matter is whether the Government intended to take a penal action. Any enquiry made for the purpose of ascertaining the suitability of a particular incumbent will not necessarily involve an element of punishment. Rule 24 of the Rules permits the perusal of the previous record of the service, amongst other things, while making selection of candidates for promotion. The observations made in Shri Dhingras case (2), therefore, cannot be pressed in service by the petitioner for making out a case of punishment. 19. The learned counsel then placed reliance on P. C. Wadhwa vs. The Union of India(5). Wadhwas case is clearly distinguishable as in that case Shri Wadhwa, who was officiating in the senior time-scale of Indian Police Service as Additional Superintendent of Police, was served with a charge-sheet, but thereafter the enquiry was not held and he was reverted to his substantive rank as Assistant Superintendent of Police in the junior scale of Indian Police Service. At the time the appellant was reverted, officers junior to him in the Indian Police Service cadre of the State were officiating in the senior scale. The order not only entailed loss of pay, but also loss of seniority and postponement of future chances of promotion. So, the main consideration with their Lordships in holding that reversion to be in the nature of punishment was that the junior officers were allowed to continue as officiating Superintendents of Police and this entailed a loss of seniority of Shri Wadhwa. 20. So, the main consideration with their Lordships in holding that reversion to be in the nature of punishment was that the junior officers were allowed to continue as officiating Superintendents of Police and this entailed a loss of seniority of Shri Wadhwa. 20. Champaklal Chimanlal Shah vs. The Union of India (4), to which we have referred to above, is a latter decision of their Lordships and to our mind clarifies the principles further and it is laid down that whether any particular reversion or termination is, or is not penal will depend upon the facts of each case and on the action taken by the Government which finally leads to the termination or reversion as the case may be. We have already discussed the obvious intention of the Government in ordering the reversion of the petitioner. Wadhwas case (5), therefore, is of no help in deciding the present case. 21. The learned counsel then invited our attention to Ram Chandra Chaudhuri vs. Secretary to Government of West Bengal (6). In that case following observations were made: "A mere reduction in the physical sense viz., demotion to a lower post from a higher post is not sufficient to attract the operation of Art.311 (2). What is required is that such degradation must be by way of penalty. If the Government servant had a right to a particular rank then the very reduction from rank will operate as a penalty so as to attract Art.311 (2). Where the Government servant had been promoted to a higher post on an officiating basis and thereafter reverted to his substantive lower post Art.311 (2) will not be attracted. The motive or the ground such as inefficiency, misconduct etc, behind the reversion is immaterial in such a case. But Art.311 (2) may be attracted if besides the physical degradation or reversion to the lower post, the order of reversion also visits the servant with some penal consequences. One of the penal consequences sufficient to attract Art.311 (2) is the stoppage or postponement of future chances of promotion. But Art.311 (2) may be attracted if besides the physical degradation or reversion to the lower post, the order of reversion also visits the servant with some penal consequences. One of the penal consequences sufficient to attract Art.311 (2) is the stoppage or postponement of future chances of promotion. Thus, if there is anything in the order of reversion which would stand inway of the Government servant earning future promotion even by subsequent display of merit it is certainly a penal consequence which would attract Art.311 (2)." These observations, to our mind, do not go contarary to the passages from the two Supreme Court judgments which we have extracted above. We do not find anything in the order of reversion to indicate that even by subsequent display of merit the petitioner will not be able to earn future promotion. The order of reversion as such does not attach any stigma to the petitioner. 22. Lastly, the learned counsel for the petitioner invited our attention to A., J. Patel and others vs. The State of Gujrat (7). It is laid down in that case that the power of the Governor of a State under Art.309 of the Constitution to make rules regulating the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the State cannot be treated differently from the power of the Legislature to do so by an Act under Art.309. The rules framed under the proviso to Art.309 would be statutory rules and would have force and effect as such and would confer rights which could be enforced in a Court of law so long as they did not impinge the provisions contained in Art.310 and did not deal with the tenure of office of such persons as provided by Art.310. These rules were held to confer rights on Government servants which they could enforce. There can be no quarrel with these observations, but as we have already held above the petitioner was not substantively appointed as a Chief Conservator of Forests and consequently he had not acquired any right to hold the post. The Government could order his reversion, if it was not their intention to take any penal action, without complying with Art.311 of the Constitution. The second contention of the petitioner too has thus no force and has to be repelled. 23. The Government could order his reversion, if it was not their intention to take any penal action, without complying with Art.311 of the Constitution. The second contention of the petitioner too has thus no force and has to be repelled. 23. Turning now to the contention of the petitioner that Shri Chaturvedy was actuated with malice, we may observe that it has not been shown as to what personal ill will Shri Chaturvedy had against the petitioner, besides Shri Chaturvedy being the Secretary to the Government in the Forest Department to which the petitioner belongs. Moreover, the making of entries in the confidential record of an officer is governed by instructions which are purely administrative in character having not been issued under any statute. They, therefore, do not have the force of law and are not justiciable. As we have already observed Shri K.B. Mohanlal has already retired from service and consequently the prayer for a writ in the nature of quo warranto against him has become infructuous. At the same time we cannot help observing that, as pointed out by the Public Service Commission in its correspondence to the Government, rules have not properly been observed in making the appointment of Shri K.B. Mohanlal. It cannot be over-emphasised that it is necessary for the Government to follow the statutory rules made by the Governor so as to inspire confidence in the administration not only amongst the Government servants, but in the public at large. In the course of the arguments the learned Government Advocate submitted before us that in filling up the existing vacancy of the Chief Conservator of Forests the rules will be complied with both in letter an in spirit and the case of the petitioner will also be examined once again before any final action is taken. We have no reason to think that the Government will act in violation of the rules. It is needless to say that under Rule 7(ii) of the Rules recruitment to the senior post is required to be made by promotion unless a case for the application of the proviso is made out. For this the Government, after consultation with the Public Service Commission have to be satisfied that during a particular year no member of the service is suitable for promotion in a particular category. For this the Government, after consultation with the Public Service Commission have to be satisfied that during a particular year no member of the service is suitable for promotion in a particular category. It is only on this satisfaction that the further action by way of direct recruitment could be taken through the agency of the Commission on such terms regarding qualifications,, experience and age, as may be prescribed by the Government. The order regarding the holding of the charge of the post of Chief Conservator of Forests by Shri R. K. Chaturvedy who is the Revenue Secretary to the Government and held the charge at the time as he was the Secretary Incharge of the Forest Department also. This, to our mind, was a temporary arrangement and but for the claim put forth by the petitioner that merely on account of his being appointed in officiating capacity he should be deemed to be substantive on the post of Chief Conservator of Forests, the Government might have done the normal thing of giving the officiating chance to the petitioner again. Anyway, since the matter is going to be dealt with afresh according to the rules, we are not disposed to interfere with the temporary arrangements for the carrying on of the duties of the office of the Chief Conservator of Forests. 24. With these observations we hereby dismiss the present writ petition, but in the circumstances order the parties to bear their own costs.