JUDGMENT The judgment of the Court was as follows :- The petitioner has been holding a permanent post in the Railways and was posted as clerk in 1967 under Electrical Foreman (South), KGP. At a suitability test held on December 28, 1968 for the post of Head Clerk in scale of Rs. 210-380, the petitioner was declared passed by the Divisional Personnel Officer. The petitioner, then a senior clerk in scale of Rs. 130-300, was promoted to officiate as Head Clerk in the scale referred to above. At the material time he was working as officiating Head Clerk under Divisional Electrical Engineer (RS) Tikiapara, Respondent No.4. On may 13, 1969 the said respondent wrote a letter to the petitioner informing him that he was indifferent to the instructions issued by the said respondent and was not complying with the same, and thereby caused great inconvenience to certain staff coming on transfer who did not get their pay in time. The petitioner was severely warned and was informed that on failure to comply with the directions severe disciplinary action would be taken. No explanation was called for from the petitioner nor was he charged as being unsuitable in his post. 2. The said respondent soon thereafter on May 16, 1969 wrote a letter to the Divisional Personnel Officer, S. R. Rly., Kharagpur. The said letter (Annexure E) in extracts is set out as below: "Sri N. G. Chakraborty, Sr. Clerk working previously under BF (S)/KGP transferred on promotion as Head Clerk with effect from 31.1.69 proved unsuitable to continue to work as Head Clerk even in spite of giving a number of chances to improve and maintain the office. Hence, he is reverted with immediate effect and is directed to report to you for necessary posting order, since there is no vacancy of Sr. Clerk available at car-shed and it is not possible to accommodate him as Sr. Clerk after reversion since there is no existing vacancy at present. It is also not desirable to retain him as a Sr. Clerk in order to maintain decorum of office...... ..." The said letter was followed by the following order dated May 17, 1969 (Annexure F) issued to the petitioner by the respondent No.4 :- "Sri N. G. Chakravarty, officiating as Head Clerk at TPKR carshed under DEE/RS, is hereby reverted as Senior Clerk in scale of Rs. Clerk in order to maintain decorum of office...... ..." The said letter was followed by the following order dated May 17, 1969 (Annexure F) issued to the petitioner by the respondent No.4 :- "Sri N. G. Chakravarty, officiating as Head Clerk at TPKR carshed under DEE/RS, is hereby reverted as Senior Clerk in scale of Rs. 130-300/- as with effect from 19. 5. 69. On reversion he will be given the pay and allowances due to him in his substantive post on that date or such higher pay and allowances as may be attached to the post he may occupy thereafter. He will be eligible to be considered for promotion to another higher post which was open to him but for such reversion". The petitioner thereafter on May 29, 1969 wrote a letter to the Divisional Superintendent, S. E. Railway, Kharagpur, refuting the allegations against him and challenging the above order as being illegal and without jurisdiction and prayed for setting aside the same. As no reply was received the petitioner in the Slid circumstances moved in this Court under Art. 226 (1) of the Constitution and this Rule was issued on August 20, 1969 calling upon the respondents to show cause why a Writ in the Nature of Mandamus should not issue commanding them to candle or withdraw the impugned order of reversion Annexures E and F to the petition and for a Writ in the Nature of Certiorari quashing the same. An interim order was passed to the effect that any appointment if made to the post the petitioner was holding would be subject to the final orders as would be passed in the Rule. 3. On an application for amendment of the petition the petitioner was granted leave to add two grounds and a prayer. The grounds challenged the withholding from the petitioner his salary in grade of Rs. 210-380/- to which, it was contended, he was entitled and the prayer related to a direction on the respondents to pay all amounts to which he would be found legally entitled. 4. The Rule was opposed by the respondent Nos. 3 and 4 and an affidavit-in-opposition was filed on their behalf. All material allegations in the petition were denied and it was submitted that there was no illegality in the order of reversion. 4. The Rule was opposed by the respondent Nos. 3 and 4 and an affidavit-in-opposition was filed on their behalf. All material allegations in the petition were denied and it was submitted that there was no illegality in the order of reversion. The letter of May 13, 1969 was merely a warning which is not a penalty and was issued for improving the work of the staff concerned. There is no rule that a charge-sheet should be given for warning. The respondent No. 4 reverted the -petitioner and directed the Divisional Personnel Officer, Kharagpur for his necessary posting order as would appear from Annexure E. This letter was handed over to the petitioner who took the stand, that a formal transfer order was necessary. The formal order was Annexure F. It was further stated that the respondent No. 4 was the competent authority to pass the order and the petitioner having been tried in the officiating post from which he has reverted is not entitled to be posted in the same capacity in any other Division or District immediately after reversion. It was not necessary under the rules to hold an enquiry or to give opportunity for explanation as he was not charged for any offence under the Discipline and Appeal Rules, 1968. In view of the High Court's order, the order of reversion was not enforced. It was further stated that the petitioner was selected for promotion but there is no rule that he cannot be reverted if his performance in the higher post is not found to be satisfactory or upto mark in discharging duties and responsibilities of the post. There was no stigma in the order of reversion and reversion from officiating post on ground of unsuitability is not a penalty. The respondents complained of the objectionable remark to the letter written by the respondent No.4 to the petitioner and it was submitted that in these circumstances the petitioner's application should be rejected and the Rule be discharged. 5. There was a supplementary affidavit-in-opposition by the respondent No.4 who stated further that the petitioner deliberately and repeatedly disobeyed his instructions, stopping a junior clerk to carry out the work entrusted to him by the said respondent causing great inconvenience to the staff. 5. There was a supplementary affidavit-in-opposition by the respondent No.4 who stated further that the petitioner deliberately and repeatedly disobeyed his instructions, stopping a junior clerk to carry out the work entrusted to him by the said respondent causing great inconvenience to the staff. When called to explain, the petitioner seemed unwilling to obey orders or to follow directions of respondent No.4 which led him to conclude that the petitioner was not suitable to work further as Head Clerk as he was not prepared to carry out instructions of his superior officer. Accordingly, it was decided to revert him when warning had no effect. 6. The petitioner filed an affidavit-in-reply to both the affidavit filed by the respondents denying all allegations made therein. It was stated that there was never any complaint against him nor he was ever unwilling to obey any order or direction issued by the respondent No.4, The petitioner reiterated that an alleged breach of discipline was utilised as penalty without affording him an opportunity of defending himself. 7. The points for consideration in the rule are : (a) Is a reversion from officiating post on ground of suitability a penalty and can be made without disciplinary proceedings, (b) Is such order in violation of the rules or Article 311(2) of the Constitution, (c) Is there any stigma in the impugned reversion orders Visiting penal consequences on the petitioner. 8. Mr. Arun Kumar Dutta (S.r.), learned Counsel appearing for the petitioner, has contended that the reversion from officiating post on the express- ground of unsuitability is a penalty and cannot be made without following the procedure laid down under Article 311 (2) of the Constitution. It was further contended that the order itself contained stigma which visited penal consequences on the petitioner's career and vitiated his prospects for promotion in service. Mr. Ajoy Kumar Basu, learned Counsel for 1he Railway Administration, has, on the other hand, contended that reversion on the ground of unsuitability is not a penalty and accordingly the provisions of Article 311(2) of the Constitution were not attracted. Further, the order itself did not contain any stigma as the petitioner's prospect and promotion were not affected and accordingly, the order impugned was a legal and valid order. The learned Counsels for both the parties in support of their respective contentions, have referred to several decisions to which I shall presently refer in seriatum. Further, the order itself did not contain any stigma as the petitioner's prospect and promotion were not affected and accordingly, the order impugned was a legal and valid order. The learned Counsels for both the parties in support of their respective contentions, have referred to several decisions to which I shall presently refer in seriatum. In the case of (1) Ramendra Nath Das v. G. M., Eastern Railway, (1954-55) 59 CWN 859 (67), it was observed that it is implicit in the very nature of officiating appointments that they are of provisional character and liable to be terminated any moment if the person appointed proves unfit or ceases to be fit. No penalty is involved in passing such order and accordingly there was no question of following the procedure prescribed in Article 311(2) of the Constitution. 9. In the case of (2) Purushottam Lal Dhingra v. Union of India, AIR 1958 SC 36 , it was held that Article 311 (2) applies not only to persons in permanent service but also to those' holding temporary posts which include officiating posts. When termination or reduction in rank is brought out otherwise than by way of punishment Article 311 (2) is not attracted. Such order of termination or reduction may be innocuous thing or it may visit the incumbent with penal consequences, like forfeiture of pay, loss of seniority, chance of promotion, indelible stigma affecting his future career and in such cases the order would be in reality by way of penalty and Article 311(2) would be attracted. The two tests which were laid down are that the incumbent must have a right to the post or the order impugned must visit him with evil consequences and if either of the tests are satisfied, Article 311 (2) comes in operation. 10. In the case of (3) State of Bombay v. F. A. Abraham, AIR 1962 SC 794 , it was observed that it is implied term of officiating appointment that if an incumbent is found unsuitable he will be reverted. If such reversion takes place on the ground of suitability and does not' affect the condition and prospect of his service, it is not a punishment nor a reduction in rank. If such reversion takes place on the ground of suitability and does not' affect the condition and prospect of his service, it is not a punishment nor a reduction in rank. In this case it would appear that in the order passed there was no imputation against the incumbent and the order merely recited that the incumbent Deputy Superintendent of Police was reverted to the rank of Inspector. 11. The next case referred to is the decision of (4) Champaklal v. Union of India, AIR 1964 SC 1854 (62) in which the same principle enunciated in Dhingrass Case was reiterated •in respect of temporary servant. It was further held that there may be a preliminary enquiry ex-parte or on explanation by the incumbent to satisfy the authority for retention of the incumbent in his post but such enquiry should not be confused with departmental-enquiry as contemplated in Article 311 (2) of the Constitution. Action following such preliminary enquiry is not a Punishment per se but if the enquiry is for inflicting the punishment indicated in Article 311 the Government servant would be entitled to protection under that article. It will be a penalty if either of the two 'tests, as stated above, are 'satisfied. Further, misconduct or inefficiency may be a motive for action but if termination is made without any action being taken against him to punish for bad work or misconduct, the motive will be irrelevant. In this case also in the order of termination of service there was no imputation against the Officer concerned. 12. In the case of (5) State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089 (95), it was observed that if the order of reversion visits public servant with any evil consequence or casts aspersion against his character or integrity order must be considered to be one by way of punishment. It was further observed that an order of reversion in service in unexceptional form preceded by an enquiry launched by the superior authorities only to ascertain whether he should be retained in service does not attract operation of Article 311 of the Constitution. 13. It was further observed that an order of reversion in service in unexceptional form preceded by an enquiry launched by the superior authorities only to ascertain whether he should be retained in service does not attract operation of Article 311 of the Constitution. 13. In the case of (6) Debesh Chandra Das v. Union of India, AIR 1970 SC 77 , it was held that reversion per se Was not stigma but if on evidence it appears that reversion was accompanied by stigma, as the demotion of the Officer was due to unsatisfactory work and not exigency of service the provision of Article 311 has to be followed. 14. In the case of (7) K. H. Phadnis v. State of Maharastra, AIR 1971 SC 998 , it was held that the matter has to be viewed as one of substance and all relevant factors are to be taken into consideration in ascertaining whether the order is a genuine one of "accident of service" in which a person sent from substantive post to a temporary post has to go back to the parent post without aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be stigma but if there is evidence that the order is not a pure accident of service but an order in the nature of punishment, Article 311(2) would be attracted. In this case the Officer was informed that there were complaints against him and that there could be no smoke without fire and that he would be repatriated and this was followed by seizure of files of fair price shop owners by the Anti-corruption Branch for scrutiny. The order simply repatriated the Officer to his parent department with immediate effect. It was held that the order of reversion in the circumstances brought out in hold relief that the order of reversion was in the nature of punishment but was not in compliance with the provisions of the Constitution. 15. In (8) Union of India and Another v. Gajinder Singh, AIR 1972 SC 1329 , it was held that a reversion for not passing departmental examination, though not provided in the standing order does not attract Article 311 (2) as the order was not attended with penal consequences. 16. 15. In (8) Union of India and Another v. Gajinder Singh, AIR 1972 SC 1329 , it was held that a reversion for not passing departmental examination, though not provided in the standing order does not attract Article 311 (2) as the order was not attended with penal consequences. 16. The above decisions Jay down the following principles ;Article 311 (2) applies to permanent or temporary or officiating holders of civil posts. If the officer either has the right to the posts or if the order of reversion or termination casts indeliable stigma, affects future Career of the incumbent thus visiting him with penal consequences Article 311 (2) would be attracted. An enquiry about the Suitability of the officer in the officiating or temporary post is always inevitable as the Government has always the right and duty to consider the propriety of his retention in such post and the motive of the Government in passing the reversion order is irrelevant provided however the action taken is not by way of punishment and the order of reversion does not contain any stigma on the integrity character or even the ability of the officer and does not visit him with penal consequences and such order would then be in unexceptionable form. Further in considering the nature of the order the matter has to be viewed as one of substance and all relevant facts have to be taken into consideration. 17. In the case before me, the order of reversion is contained in Annexures E and F. extracts whereof are quoted above. Annexure F by itself may be in unexceptionable form but if considered in the light of Annexure E and the relevant portions of affidavit-in-opposition, particularly paragraph 7, it would appear that the order in Annexure E is the real order of reversion. On perusal of this order and the affidavit it would appear that the petitioner was reverted because of his failure to work as Head Clerk in the office by proper management and use of the available staff. The relevant facts which ha ve been stated by respondent No.4 in his supplementary affidavit are that the petitioner disobeyed his orders and appeared unwilling to obey his orders and to work according to his own liking without interference. These led the respondent No.4 to the conclusion that the petitioner was unsuitable to hold the post of Head Clerk. The relevant facts which ha ve been stated by respondent No.4 in his supplementary affidavit are that the petitioner disobeyed his orders and appeared unwilling to obey his orders and to work according to his own liking without interference. These led the respondent No.4 to the conclusion that the petitioner was unsuitable to hold the post of Head Clerk. The real reason for reverting the petitioner was, it is obvious, the alleged disobedience of the orders of the said respondent and in such circumstances the order cannot but he held as and by way of punishment. Even the order itself (Annexure E describes the petitioner as unsuitable for the post of Head Clerk which on the basis of the decisions cited above, particularly in Debesh Chandra Das' case, must be held as stigma on the petitioner which visits the petitioner with penal consequences. In paragraph 8 of the affidavit-in-opposition it is stated that the petitioner being reverted for unsuitability is not entitled to be posted in the same capacity in any other Division or District immediately after reversion. In these circumstances this order in absence of any proceedings against the petitioner as envisaged in Article 311 (2) of the Constitution cannot be sustained. 18. The order is also in violation of the relevant Rule 6 of the Discipline and Appeal Rules, 1968 referred to in paragraph 9 of the affidavit-in-opposition. Explanation 1 (iv), Rule 6 is as to the following effect :- "Explanation 1. The following shall not amount to penalty with the meaning of this Rule, viz. * ** (iv) reversion of a railway servant officiating in higher service grade or post to a lower service or post, on the ground that he is considered to be unsuitable for such higher service, grade or post on any administrative ground unconnected with his conduct." 19. If, for instance, the reversion takes place on the ground of health of the incumbent or due to a physical incapacity, he is reverted from higher post with out-door duty to an inferior post with in door duty, such reversion would be one for administrative reason unconnected with his conduct. But reversion on the express ground of unsuitability of the incumbent to the post is not be one unconnected with his conduct and on the contrary it would be one vitally connected with his conduct in discharging of his duties. But reversion on the express ground of unsuitability of the incumbent to the post is not be one unconnected with his conduct and on the contrary it would be one vitally connected with his conduct in discharging of his duties. Accordingly, the above explanation has no application to the facts of the case and does not save the impugned orders. 20. In the above view of the matter, this Rule succeeds and is made absolute without however any order as to costs. Let a Writ in the Nature of Mandamus issue directing the respondents to forbear from giving effect to the impugned orders, being Annexures E and F to the petition and also to withdraw and cancel the same. Let also a Writ in the a Nature of Certiorari issue quashing the said impugned orders and the respondents are further directed to make all payments to the petitioner as may be due to him in accordance with Taw. As prayed for by Mr. Basu, there will be a stay of operation of the above order till one week after the long vacation.