S. K. Kapur,. ( 1 ) BY this petition under Article 226 of the Constitution the petitioner has asked f or quashing of the order described by him as order of reversion dated 2nd February, 1965. The petitioner joined as Clerk in the Assam Rail Link Project on 11th October, 1948. On 1st October, l951 he was appointed in the East Punjab Railway as Clerk in the grade of Rs. 55-130. On 19th July, 1958 the Goverment of India, Railway Department, by letter dated 17th July, 1958, addressed to all Heads of Departments, invited recommendations to fill vacancies of Vigilance Inspectors in the grade of Rs. 300--400 as well as in the grade of Rs. 260- 350. A large number of recommendations were sent by the various Departments and the petitioner was one sf them. The order dated 16th August, 1960, appointing the petitioner as Vigilance Inspector in the grade of Rs. 260-350 was in the following terms :- "northern RAILWAY Headquarters Office, Baroda House, New Delhi. Notice 1. Shri S. C. Misra. Section Controller grade Rs. 200-300 at present officiating as Vigilance Inspector grade Rs. 300-400 (an ex- cadre post) is reverted to his parent Department with immediate effect. ( 2 ) SHRI B. K. Dass Malhotra, Vigilance Inspector grade Rs. 260.-350, to be promoted as Vigilance Inspector grade Rs. 300-400 vice item No. 1. ( 3 ) SHRI Jasbir Singh, Clerk grade Rs. 60-130. F. \andcao s Office is promoted as Vigilance Inspector grade Rs. 263 -350 vice item No. 2. These orders have the approval of S. D. G. M. and S. P. 0. III. (Sd.) B. L. MADHOK, A. P. O. I. No. 759. E/162/eiiia, dated August 16, 1960. Copies for information and necessary action : - 1. A. P. 0. II. He will please issue posting orders of Shri S. C. Misra. 2. Head Clerk Bills. 3. S. A. 0. (Admn.), The Mall, Delhi. 4. Vigilance Officer. , An order was issued on 2nd February, 1965 inter alia stating that "shri Jasbir Singh Bedi, officiating Vigilance Inspector in scale of Rs. 335- 425 (AS) is reverted to his parent department with immediate effect. . . " In the writ petition no reasons had been given leading to the alleged reversion of the petitioner. The petitioner made an application dated 28th July, 1965, for permission to rely on certain additional facts. 335- 425 (AS) is reverted to his parent department with immediate effect. . . " In the writ petition no reasons had been given leading to the alleged reversion of the petitioner. The petitioner made an application dated 28th July, 1965, for permission to rely on certain additional facts. Three additional facts were stated in the said application: (1) in the requisition made from the various heads of the Departments to recommend names for appointment as Vigilance Inspectors, no mention had been made of the fact that the vacancies were temporary or on tenure basis (2) the Additional Member (Vigilance), Railway Board passed some adverse remarks against the petitioner in his inspection note of December, 1964, and suggested that the petitioner should be reverted to his parent department as early as possible and it was pursuant to that that the petitioner had been reverted to Accounts Department without making any enquiry into the allegations and without giving the petitioner an opportunity to rebut the same and (3) there were standing instructions to the effect that a person who had officiated for 18 months or more in a higher grade post satisfactorily would not be liable to reversion without resorting to Discipline and Appeal Rules. This application for permission to urge additional grounds was allowed by me by my order dated 20th September, 1965. A reply affidavit was filed to the said application for introducing additional facts and the position taken up therein by the respondent was (1) the petitioner was not recoin mended against regular vacancy. His was an ad hoc selection and not selection through regular channel; (2) sub-para (b)of paragraph 3 could not be replied as the contests were based on a confidential and secret doument, disclosure of which would be prejudicial to the interest of the State. It may be pointed out that sub-para (b) of paragraph 3 of the application related to the adverse remarks alleged to have been made against the petitioner by a Member of the Railway Board as mentioned bereinabove and (3) the instructions referred to by the petitioner regarding reversion without resort to Discipline and Appeal Rules were not statutory and the petitioner could not avail of the same. An application was also made under section 124 of the Indian Evidence Act claiming privilege with respect to the remarks mentioned in sub-para (b) of paragraph 3 referred to above. An application was also made under section 124 of the Indian Evidence Act claiming privilege with respect to the remarks mentioned in sub-para (b) of paragraph 3 referred to above. There has been a lot of controversy at the Bit with respect to the scope of section 124 and the validity of the claim of privilege by the respondents but it is unnecessary in the circumstances of the case to pronounce upon the same since I am of the opinion that the petition must fail even assuming the contents of the said para (b) of paragraph 3 to l)e correct. No objection was taken by the respondents to the inspection of the said documents by me since the argument proceeded on the basis that the Court could inspect the documents to find out whether the communications in question were made in official confidence within the meaning of section 124 of the Alt. I, therefore, examined the notes, and cannot help observing that it was one of the most inapt cases for claim of previlege. ( 2 ) THE first question that arises for consideration in this case is whether or not the petitioner was permanent, for the effect of not holding an enquiry, would, in the circumstances, depend largely on my answer thereto. If it be held that the petitioner s appointment was against a permanent vacancy he would be entitled to rely on Article 311 of the Constitution and say that his reversion was a punishment within the meaning of the said provision. On the other hand if the conclusion be that he was appointed temporarily or in an officiating capacity then the other question would arise, namely, whether or not the impugned order was by way of punishment. The petitioner has mainly relied on the following:- (1) Copy of letter dated 17th July, 1958, annexure x to the supplementary petition inviting recommendations for appointment as Vigilance Inspectors; and (2) Order dated 16th August, 1960, appointing the petitioner as Vigilance Inspector. The said order has already been quoted above. On the basis of these two documents it has been contended that no mention had been made that the petitioner was beingappointed temporarily or in an officiating capacity. According to the petitioner s learned counsel the appointment was permanent and therefore the petitioner was entitled to continue in the service so long as the department continued. The respondents on. On the basis of these two documents it has been contended that no mention had been made that the petitioner was beingappointed temporarily or in an officiating capacity. According to the petitioner s learned counsel the appointment was permanent and therefore the petitioner was entitled to continue in the service so long as the department continued. The respondents on. the other hand relied mainly on their reply affidavit aid particularly paragraphs 5, 6, 9 and II. The case set up by the respondents in their reply-affidavit briefly was that the Vigilance Department itself being temporary the petitioner s promotion, in the very nature of things, was also temporary and it was for this reason that the words officiating capacity were not used in the order of appointment. The learned counsel for the respondents also places reliance on the order of appointment dated the 16th August 1960 and contends that the contents thereof lend support to the view that the appointment was temporary and was in an officiating capacity. His argument is that B. K. Dass Malhotra shown at item No. 2 of the said letter was appointed in an officiating capacity in place of S. C. Misra who was officiating Vigilance Inspector and therefore the appointment of the petitioner who was appointed in place of B. K. Dass Malhotra must also be taken as an appointment in an officiating capacity, ( 3 ) MR. Vohra the learned counsel for the petitioner has referred me to rules 2 and 3 governing the promotions of subordinate staff as contained in the Indian Kailway Establishment Manual, Chapter II and contends that there are only two categories of posts, namely, non-selection posts and selection posts and there is no such category known as ex-cadre post as is sought to be intoroduced by the respondents in their reply to the supplementary petition. Relying on rule 3 Mr. Vohra says that the post of Vigilance Inspector was a selection post and the petitioner having been selected thereto should be presumed to have been appointed permanently in that vacancy. He then refers to rule 2003 in Chapter 20 of Indian Railway Establishmnet Code, Vol. II and particularly to sub-rule (3) which defines the term cadre . According to Mr. Vohra the Account section in which, the petitioner was working was one cadre and the Vigilance Department another. He then refers to rule 2003 in Chapter 20 of Indian Railway Establishmnet Code, Vol. II and particularly to sub-rule (3) which defines the term cadre . According to Mr. Vohra the Account section in which, the petitioner was working was one cadre and the Vigilance Department another. The petitioner s appointment was, therefore, from one cadre to another and it was of no avail to the respondents to say that the post should be taken as temporary since it was an ex cadre post . The learned counsel for the respondents on the other band has referred to the valious annexures filed with the reply-affidavit in support of the plea that the appointment of the petitioner was purely on temporary basis. He has first referred to letter dated the 21st August, 1961 enclosing copy of the speech delivered by a Member of the Railway Board in the Vigilance Officers meeting held on 15th July, 1961, wherein it was inter alia stated :- "it is also necessary that you do not have Vigilance lnsoe;tors in the Vigilance Organisation for very long periods. You should have them for a period of about three years and send them back to their parent departments. "i may straightaway point out that I am extremely doubtful whether this speech can be looked into at all and no statute or authority has been shown to me justifying the placing of reliance on a speach like this. The learned counsel then refers to letter dated the 9th March 1965, annexure R/10 to the return wherein it was inter alia. stated :- "sanction has been accorded by C. P. O. with concurrence of F. A. and C. A. 0. (F) to the duration of the following temporary posts last extended up to 13th March, 1965. . . . . . . . . . "one of the categories of posts mentioned therein was that of Vigilance Inspectors. Relying on this docament thalearaei councel the respondents says that the posts of Vigilance Inspectors were being sanctioned for a limited period and the said sanction was extended from time to time. This, according to the learned counsel, showed that all the appointments as Vigilance Inspectors were temporary. Relying on this docament thalearaei councel the respondents says that the posts of Vigilance Inspectors were being sanctioned for a limited period and the said sanction was extended from time to time. This, according to the learned counsel, showed that all the appointments as Vigilance Inspectors were temporary. To the same effect are the letters dated the 24th June, 1963, annexurer-9 to the retarn extending the posts beyond 30th Jane 1983 and dated the 28th February 1961, annexare R-7 to the return also giving extension to the posts of Vigilance Inspectors. He then relies on rule 2033 (22) of the Indian Railway Establishment Code, Vol. II which provides permanent post means a post carrying a definite rate of pay sanctioned without limit of time. The argument proceeds that reference to the above- mentioned annexures shed a considerable light on the nature of the post and in fact conclusively show that they had not been sanctioned without limit of time. The learned counsel also relies on Chapter II, rule 7 of the Indian Railway Establishment Manual and says that selection to a permanent post could be made only by a regularly constituted Selection Board. Mr. Vohra seeks to over-come this difficulty by twofold contentions : (1) even if the Vigilance Department was temporarily constituted it did not necessarily mean that the appointment of each individual was also temporary in the sense that such employees could be sent back to their original department even though the Vigilance Department continued and (2) reference to paragraph 158 of the Establishment Code, Vol. I and the Indian Railway Establishnent Manual, Chapter II, rules 4, 6 and 7 showed that the constitution of the Selection Board was not indispensable for selection to a permanent vacancy. I have considered the rival contentions at the Bar and am of the opinion that it is not possible to determine the issue in a writ petition under Article 226 of the Constitution This is a matter which will have to be elaborately considered on the basis of evidence; and the materials before me are not adequate enough to enable me to answer the question, In these circumstances I have to proceed on the assumption that the petitioner has not been able to show that he was appointed permanently to the post of Vigilance Inspector. Mr. Mr. Vohra then submits that even if the petitioner be assumed to have held the post in a temporary or officiating capacity the impugned order could not have been passed without an enquiry as envisaged by Article 311 of the Constitution and rule 1707 of the Indian Railway Establishment Code, Vol. 1. There are two branches of Mr. Vohra s argument under this head. He says that in view of clause (iv) Explanation I of the said ruts in the ladiin Railway Establishment Code, Vol. I, only reversion on administrative grounds unconnected with the conduct of an employee could be made without resorting to the regular procedure by way of enquiry. The argument proceeds that even if Article 311 of the Constitution be not applicable to the case, the petitioner s reversion being connected with his conduct as stated in paragraph 3 (b) of the supplementary petition, an enquiry was necessary. According to the learned counsel every reversion, if it Is connected with the conduct of the employes amounts to punishmentwithin the meaning of the said rule and must, therefore, be preceded by a regular enquiry. He further says that the distinction that obtains under Article 311 of the Constitution between cases where reversion is made by way of punishment and reversion on administrative grounds is not fully recognised by rule 1707 and even in cases where reversion is made in terms of the contract of employment or the rules but due to the conduct of the employee an enquiry is contemplated and secondly as a matter of fact the reversion of the petitioner was by was of punishment because of the aforesaid adverse remarks made against him and consequently Article 311 was fully applicable. He places strong reliaace on paragraph 8 of the petition wherein it was stated that the petitioner s record of service had been very satisfactory and he had received commendations from his officers. ( 4 ) SO far as the argument based on rule 1707 is concerned the position appears to be that penalty as specified in clauses (iv) to (vii) of subrule (1) of rule 1707 can be imposed only after an enquiry in the manner provided underrules 1709 to 1715 of the Railway Code. ( 4 ) SO far as the argument based on rule 1707 is concerned the position appears to be that penalty as specified in clauses (iv) to (vii) of subrule (1) of rule 1707 can be imposed only after an enquiry in the manner provided underrules 1709 to 1715 of the Railway Code. When clause (iv) of explanation I provides that reversion in certain cases will not amount to imposition of penalty it cannot mean that even where reversion is made in terms of the conditions of service because the employer does not want to retain the employee in the post, an enquiry must be held. In my opinion the scope and ambit of the said rule is more or less similar to Article 311 of the Constituiton. The appropriate authority in case of temporary employees possesses two powers (1) power to revert the employee to his parent Department in the exercise of its powers under the terms of employment or the relevant rules aid (2) to revert him by way of punishment. In the former case neither rule 1707 nor Article 311 would be attracted. The words "unconnected with his conduct" in clause (iv) of explanation I must, therefore, mean reversion due to misconduct or in other words reversion by way of punishment Some time while exercising its powers to revert a temporary servant under the contract or the relevant rule, the authority may decide to enquire whether or not the servant should be continued in the post held by him Such enquiry may be necessitated by reason of certain allegations made against an employee. Even in such a case the authority may not be inclined to punish him, but still in fairness to the employee, hold an enquiry only with a view to finding out whether or not the employee should be reverted. When as a result of such an enquiry the employer reverts an employee in terms of the conditions of service it cannot always be termed as punishment. The form given to the employer s action is not decisive and the substance of the matter has to be looked into. Where such scrutiny shows that the action was in fact , punitive the order of reversion without an enquiry as provided in) Article 311 or rule 1707 would be had in law. The form given to the employer s action is not decisive and the substance of the matter has to be looked into. Where such scrutiny shows that the action was in fact , punitive the order of reversion without an enquiry as provided in) Article 311 or rule 1707 would be had in law. In taking a decision the employer may be influenced by the fact that there are reports against an employee which, if true, would render him unsuitable for the past held. Yet it does not follow that a decision influenced by such reports, would without exception be punishment It is only when action is sought to be taken to punish an employee that resort to Article 311 or rule 1707 may be called for. Reference may be made to Jagdish Mittar v. The Union of India In paragraph II of the return filed by the respondents it has been specifically stated that the petitioner s reversion was in accordance with the rules and not by way of penalty. I am unable to find any material on the record indicative to the contrary. In the circumstance I must hold that the reversion of the petitioner was not by way of punishment. Mr Vohra then contends that the impugned order dessrves to be struck down because the petitioner had been subjected to discriminatory and hostile treatment. He refers to paragraph II of the petition to show that various persons who joined as Vigilance Inspectors had been absorbed in other better posts and that four persons had been confirnaed as Vigilance Inspectors on the North-Eastern Railway, I see no force in the contention raised. If an employer be held entitled to revert a particular employee on the ground of unsuitability arising in the various circumstancas already discussed, I fail to see how Articles 14 and 16 of the Constitution can be invoked. Such an employee cannot be said to be equally placed and circumstanced with other employees. This contention is, therefore, without merit. ( 5 ) MR. Vohra lastly relies on certain letters annexures Y/l to Y/4 to the supplementary petition and says that in view of the standing instructions contained therein an employes who had officiated for 18 months or more in a higher post satisfactorily could not be reverted without resort to the Discipline and Appeal Rules. ( 5 ) MR. Vohra lastly relies on certain letters annexures Y/l to Y/4 to the supplementary petition and says that in view of the standing instructions contained therein an employes who had officiated for 18 months or more in a higher post satisfactorily could not be reverted without resort to the Discipline and Appeal Rules. Apart from the fact that the documents are merely departmental instructions and do not confer any ius- ticiable right on the employees, they are of no assistance to the petitioner. These documents merely show that the authorities concerned had been issuing departmental instructions to detarmine the suitability of an officiating employee within a period of 18 months and revert him without resort to the Discipline and Appeal Rules if found unsuitable. There is no law which requires that if unsuitabi ity in case of a temporary employee is detected after the expiry of 13 months resort to such rules becomes necessary, even in case of reversion which is not by way of punishment. ( 6 ) IN the result the petition fails and is dismisssd but the parties will bear their own costs.