Judgement ORDER:- The petitioner Kalam Dass was employed in the office of the Director of Welfare Department in the year 1958. Thereafter he was promoted and appointed as Teacher in the Tibetian Refugees Camp Kasumpti. While the petitioner was working as teacher in that camp he applied for the post of Election Kanungo. He was selected and was given a letter of appointment, dated 31st July 1965. He was appointed as a temporary hand and his services were likely to be terminated, after giving one month's notice without assigning any reason. It was. however, mentioned, that he would be considered against a permanent Post whenever such post was available, subject to his satisfactory work end conduct The petitioner continued to serve as Election Kanungo up-till 10th December. 1971, when the impugned order was pawed reverting him to the Welfare Department, as his services were no longer required by the Election Department. 2. The petitioner contends that Under Rule 8 of the Himachal Pradesh Election Department Subordinate Class III Services (Recruitment. Promotion and Certain Conditions of Service) Rules, 1966, three years was the maximum probationary Period and since this period expired on 31st July, 1968, he should be deemed confirmed with effect from that date. As he was reverted from a substantive post, the order of reversion, according to him amounted to punishment under Art.311(2) of the Constitution. 3. The petitioner further contended that one Jagdev Singh (respondent No.3) made a complaint against him and as a result to that complaint his work and conduct was not found satisfactory and he was reverted. As such the order of reversion was made without enquiry or show-cause notice, as required under Art.311(2). Such an order of reversion amounted to punishment and should be quashed. According to the petitioner the order of reversion was thus illegal and without jurisdiction and should be set aside. He has further demonstrated that certain officials junior to him in rank are retained in service. As such Arts.14 and 16 are attracted and the petitioner could not be reverted. The petitioner has, therefore, sought that the impugned order reverting him should be quashed and that he should be declared permanent Election Kanungo. 4. The respondents contend the petition on the allegations, that the petitioner was purely a temporary hand and was never appointed against a permanent post. As such according to them. Rule 8 did not apply to him. The petitioner has, therefore, sought that the impugned order reverting him should be quashed and that he should be declared permanent Election Kanungo. 4. The respondents contend the petition on the allegations, that the petitioner was purely a temporary hand and was never appointed against a permanent post. As such according to them. Rule 8 did not apply to him. He never started his probationary period and so he could not be deemed automatically confirmed after the expiry of three years, as claimed by him. It is further pleaded by the respondents, that whatever complaint of misconduct was made against the petitioner, that amounted to a motive to consider the work and conduct of the petitioner unsatisfactory and so he was not considered fit to be posted against the permanent vacancy for which option was given to him in the appointment letter. Whatever misconduct was alleged against the petitioner was never the foundation for the order of reversion. In this manner Art.311(2) was not attracted and no enquiry was called for. It was alleged that Arts.14 and 16 were also not attracted and the petitioner was rightly reverted to his permanent department. 5. Before adverting to the contentions submitted, by the respective parties, it would be appropriate to set out the relevant rule as well as pertinent letters and orders for sake of elucidation. Rule 8 relied upon by the petitioner exists in the following terms:- "Rule 8:- Probation and confirmation of Members of the Service. (i) Members of the service who are appointed against permanent vacancies shall, on appointment to any post in the service, remain on probation for a period of two years in the case of direct-recruitment and on trial for a period of one year in case of promotion;............ Provided always that the total period of probation including extensions, shall not exceed three years". It would be noticed that the appointment is to be made "against permanent vacancies" and it would be a question of fact as to whether the appointment of the petitioner was, at all made against a permanent vacancy. The appointment letter issued to the petitioner contained as follows:- "Reference interview held on 30th June, 1965, in the office of the Deputy Commissioner, Mahasu, for the post cited as subject. 2. The appointment letter issued to the petitioner contained as follows:- "Reference interview held on 30th June, 1965, in the office of the Deputy Commissioner, Mahasu, for the post cited as subject. 2. Shri Kalam Dass, teacher Tibetian Refugee Camp (Welfare Department) Kasumpti is hereby offered a post of Election Kanungo on the following terms and conditions:-• (i) Pay in the scale of Rs.60-4-80/ 5-120/5-175 plus Rs.10/- p.m. as special pay and other allowances admissible from time to time. (ii) His appointment shall be temporary and his confirmation against a permanent post when available will be subject to his work and conduct being satisfactory. (iii) His services can be terminated at any time after giving one month's notice without assigning any reason thereof. If he may desire to leave the service, he shall also give one month's notice to the competent authority before quitting the service". The order of reversion existed in the following form:- "OFFICE ORDER. Shri Kalam Dass presently working as temporary Election Kanungo of Mahasu District is hereby reverted to his parent department viz. Welfare Department as his services are no longer required by this department. Shri Kalam Dass shall stand reverteded after the expiry of one month's period from the date of receipt of this order by him. Sd/- L. Tochhawng, Chief Electoral Officer, Himachal Pradesh Govt. 10th December, 1971." 6. The contention of the petitioner has been, that he became automatically confirmed after the expiry of three years from 31st July, 1965 when he took over his Election Kanungo's post. It is more than clear from the letter of appointment that he was appointed against a temporary post and his appointment against a permanent post was to be considered only when such a post was available and after his work and conduct was found satisfactory. It is admitted that no order has been passed by the Government considering him for appointment against a permanent post or ascertaining his work and conduct as satisfactory or otherwise for such appointment. Unless an order is passed by the Government appointing him against a permanent post and thereafter considering his suitability for such post, he cannot be deemed to be appointed against a permanent post. The contention of the petitioner is that he was shown in the seniority list as officiating Election Kanungo and that he was drawing his pay against a permanent post. The contention of the petitioner is that he was shown in the seniority list as officiating Election Kanungo and that he was drawing his pay against a permanent post. According to him he was shown in the office record as one of the incumbent holding permanent post. Despite this being so, in my opinion, he could not be considered to be appointed to a permanent post until a specific order to that effect was passed by the Government. For sake of office convenience, his pay was drawn against a permanent post and for that end he was shown in the list of permanent hands. This office practice alone could not give him the appointment against a permanent post. This is so because under the very terms of his employment, he was to be considered subsequently against a permanent post whenever such post was available and that too was subject to his work and conduct being found satisfactory. A permanent post might be available subsequently, but no order was made appointing him against such post. At no time the Government made an order that he would be considered against a permanent post and for that purpose his work and conduct was being considered. It is, therefore, evident that the petitioner was never appointed against a permanent post and that being so Rule 8 which came to apply in 1966 was not relevant to his case. When he did not start any probationary period, no question arises for termination of such period and automatic confirmation after such termination. In a recent decision of the Supreme Court Kedar Nath Bahl v. State of Punjab, 1972 Serv LR 320 : (AIR 1972 SC 873), the question regarding automatic confirmation was considered. It was held that unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. In the present case, neither the terms of the appointment indicate that confirmation would follow automatically at the end of the probationary period nor any specific service rule to that effect is available. Therefore, the petitioner has really no case for automatic confirmation. 7. In the present case, neither the terms of the appointment indicate that confirmation would follow automatically at the end of the probationary period nor any specific service rule to that effect is available. Therefore, the petitioner has really no case for automatic confirmation. 7. It is well settled that the temporary Government servants are also entitled to the protection of Art.311(2) in the same manner as the permanent Government servants, if the Government takes action against them by meeting out one of the punishments, i.e. dismissal, removal or reduction in rank. It is urged by the learned counsel that misconduct alleged against the petitioner was the foundation of the order of reversion and, therefore, Art.311(2) was attracted. At the instance of the petitioner the office records were summoned. A perusal indicates that on 2nd August 1971, a report was made by Jagdev Singh Election Naib-Tehsildar that the work and conduct of the petitioner was unsatisfactory. He narrated several incidents from which he concluded that the petitioner was defying office orders and was inefficient or unfit to hold the post of Election Kanungo. The Tehsildar Election agreed with that report and similarly the Deputy Commissioner gave his concurrence. He reproduced the report of the Naib-Tahsil-dar in his letter, dated 18th August. 1971 which he sent to the Chief Electoral Officer (respondent No.1). On the basis of that letter some noting was made on the files of the Office of the Chief Electoral Officer. The allegations made in the letter were reproduced in such noting and the officer who made the noting even formed an opinion calling the petitioner as an "unwilling, mischievous and dishonest person". With these remarks the note was submitted to the higher authorities and the Chief Electoral Officer passed the impugned order, dated 10 the December,1971, reverting the petitioner to his parent department. In this order of reversion, of course, no stigma was made on the petitioner. It was simply stated that his services were no longer required and that he was reverted to his parent department. 8. The form of order is not conclusive of its true nature as it might merely be a cloak or camouflage for an order founded on misconduct. It was simply stated that his services were no longer required and that he was reverted to his parent department. 8. The form of order is not conclusive of its true nature as it might merely be a cloak or camouflage for an order founded on misconduct. It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is mere motive or is the very foundation of the order (See State of Bihar v. Shiva Bhikshuk Mishra. 1970 Serv LR 863 : (AIR 1971 SC 1011). The same view was approved by the Supreme Court in Appar Apar Singh v. State of Puniab, (1971 Serv LR 71 (SC) v In Madan Gopal V. State of Punjab, (AIR 1963 SC 531), a similar question arose regarding a temporary Government servant. It was observed:- "Where the employment of a temporary Government servant, even though liable to be terminated by notice of one month without assigning any reason, is not so terminated, but instead the superior officer chooses to hold an enquiry into his alleged misconduct, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case he is entitled to the protection of Art.311(2) of the Constitution". This being the legal position I have to ascertain if the allegations of misconduct were only the motive for making the order of reversion or these were the very foundation of that order. It is evident that no enquiry was conducted in this case. In order to find out the suitability of a temporary hand some reports are always obtained from superior officers. While making reports the superior officer make enquiries not of any elaborate type but of administrative routine. Even some witnesses are examined so that the facts narrated in any complaint are ascertained to be true or false. In order to find out the suitability of a temporary hand some reports are always obtained from superior officers. While making reports the superior officer make enquiries not of any elaborate type but of administrative routine. Even some witnesses are examined so that the facts narrated in any complaint are ascertained to be true or false. The superior officer naturally makes his own estimation of the work and conduct although he does not hold any enquiry worth the name because the intention is all along absent for taking any punitive action against the Government servant. It is difficult to conceive of a case where neither any report is called for nor any enquiry is held upon allegations imputed against, but still a decision is taken on departmental level to revert a temporary Government servant. In my opinion, the matter went only thus for in the present case. Jagdev Singh was the immediate officer of the petitioner. He gave an estimate regarding the work and conduct of the petitioner and he submitted his report to his next superior officer. That report was the foundation of the subsequent letter which the Deputy Commissioner wrote to the respondent No.1 and also of the subsequent noting made on the Secretariat file. The report cannot be stated to have been improved in any manner even though the official of the Secretariat noted down by way of his opinion that the petitioner was "unwilling, mischievous or dishonest". These were inferences drawn on the basis of the report at the source and no improvement upon that report could be stated to have been made by that official of the Secretariat. It is apparent that the petitioner was not called upon to explain and nothing went out of, the office to cast aspersion upon him or to put stigma upon his career. The entire thing was done in a legitimate manner so that the officer could make a decision as to the suitability of the petitioner for being retained in the post. His work and conduct was found unsatisfactory and he was reverted. It is thus obvious to me that the order of reversion was not made by way of punishment. The allegations regarding misconduct were only the motive for considering the suitability of the petitioner to retain him against a permanent post. These allegations of misconduct were not the foundation of the order of reversion. It is thus obvious to me that the order of reversion was not made by way of punishment. The allegations regarding misconduct were only the motive for considering the suitability of the petitioner to retain him against a permanent post. These allegations of misconduct were not the foundation of the order of reversion. The circumstances preceding or attendant on the order are indicative of one inference alone that the work and conduct of the petitioner was judged with the idea of retaining him in the department or reverting him to his parent department. It was never the intention to award him a punishment. Article 311(2) was thus never attracted and no enquiry was to be held. 9. Yet another plea was put forward by the petitioner to the effect that his juniors were retained in the department and so Art.14 was attracted. When the work and conduct of the petitioner was found unsatisfactory and he could not be considered fit for a permanent post, he was reverted to the parent department. The cases of hiss juniors might be based on different footings. Merely because the petitioner was senior to them he could not be retained in service, when his work and conduct was found unsatisfactory. Art.14 will have no application in these circumstances. Similarly, Art.16 is also not attracted. No stigma is cast upon the petitioner and his future service career is not affected in any manner. 10. I must, therefore, hold that the petitioner was only a temporary Government servant. His work and conduct was not found satisfactory. According to his terms of employment, he could only be considered against a permanent post if his work and conduct was found satisfactory. As such he was not considered fit for absorption against a permanent post and he was reverted to his parent department. The order was not made by way of punishment and Art.311(2) of the Constitution is not attracted. In the result the petition is without any force and is hereby dismissed with costs. 11. Counsel's fee is assessed at Rs.100/-. Petition dismissed.