V K SINGH v. STATE OF M P — 1974 DIGILAW 69 (MP)

JUDGMENT : ( 1. ) THE present petition is filed under Article 226 of the Constitution of India. ( 2. ) DURING the course of arguments on behalf of the petitioner, the learned counsel Shri V. S. Dabir did not press for reliefs contained in prayers (a), (b) and (c) of the petition and concentrated his arguments on the grounds which are subsumed as under : (a) The order of reversion, dated 28-6-1972 (Annexure P-8), passed by Respondent No. 1 is liable to be quashed being violative of Article 311 of the Constitution and the principles of natural justice ; and (b) The date of commencement of the petitioners officiation on the post of the lnspectress mentioned in column 5 in the gradation list (Annexure P-4) to the petition is liable to be corrected as 15-8-1948 in accordance with the decision of this Court in Letters Patent Appeal No. 34 of 1958 (Annexure P-1 to the amended petition ). ( 3. ) IT would thus appear that the controversy is in very narrow compass, but in order to arrive at its proper determination, it is necessary to state the facts giving rise to this petition in some details. ( 4. ) IT would be useful here to mention that the petitioner had amended her petition after the return, dated 9-10-1972, was filed on behalf of respondent no. 1. ( 5. ) THE petitioner was initially appointed as Senior Montesary Mistress in the quondam State of Rewa in the pay scale of Rs. 150-10-210-15-300 (Gazetted) and was taken on the post of Head Mistress since 27-1-1947 on the same pay scale. The quondam State of Rewa when merged with the erstwhile state of Vindha Pradesh on 26th January, 1947, the pay scales were revised with effect from 1-4-1950. ( 6. ) THE petitioner having not been given the benefit of the aforesaid revised pay scale had filed Miscellaneous Petition No. 585 of 1956 in the Court of Judicial Commissioner, Rewa, which was allowed by this Court in Letters patent Appeal No. 34 of 1958 vide order, dated 27th November 1958 (Annexure p-1 to the amended petition) and she was held entitled to receive the pay of an lnspectress of Schools in the revised pay scale since 1-4-1950. ( 7. ( 7. ) THE respondent No. 1 published the final gradation list (Annexure p-4 to the amended petition) in the Gazette, dated the 20th January 1964, wherein the name of the petitioner is listed at Serial No. 16 and against her name, the date of commencement of officiation as Inspectress is shown to be 1-4-1950. Being aggrieved about her placement in order of seniority and date of commencement of officiation as Inspectress, the petitioner made representation to the Central Government. ( 8. ) DURING the pendency of the aforesaid representation, the respondent no. 1 promoted the petitioner to class I service as a Divisional Superintendent of Education vide its order, dated 4th September, 1968 (Annexure B to the amended petition) which was subjected to the condition that in case her representation was dismissed, she would be reverted back to her substantive class. The conditions and the petitioners acceptance thereof are contained in Annexure R-I and R-II to the initial return, dated 9-10-1972 of the respondent No. 1. ( 9. ) THE Central Government-respondent No. 4 rejected the aforesaid representation, the intimation memo whereof is, dated 22-11-1968 (Annexure r-III to the initial return of the respondent No. 1.) ( 10. ) THE respondent No. 1 vide its order No. 962/- 1954/ 20-1-69 dated 14-2-1969 (Annexure P-6 to the amended petition) reverted the petitioner to class II service as a Head Mistress (Principal), but superseding this order (Annexure P-6 to the amended petition), the petitioner was sent on deputation as Deputy Secretary to the Madhya Pradesh Board of Secondary Education, bhopal, which is a class I post vide order, dated 21-3-1969 (Annexure P-7 to the amended petition ). Thereafter, the respondent No. 1, vide its order, dated 28-6-1972 (Annexure P-8 to the amended petition), again reverted the petitioner to class II. ( 11. ) THE contentions of the learned counsel for the petitioner were: (i) that as per the averments in paragraph 11 of the initial return, dated 9-10-1972, and paragraph 4 of the supplementary return, dated 27-4-1973 of the respondent No. 1, the adverse remarks (Annexures R-III to R-VI to the supplementary return of the respondent No. 1) were the foundation for the impugned order ; (ii) that foundation for the impugned order was the adverse remarks and thus it was passed by way of penalty or punishment. The order is bad as it has been made without following the procedure guaranteed under article 311 of the Constitution; (iii) that the aforesaid adverse remarks were never communicated to the petitioner and, at any rate, prior to the date of the impugned order, whereas according to the Book Circular No. 381-26-1 (2), Bhopal, dated 17-1-1970, G. A. D. , the communication of adverse remarks affording an opportunity of explanation was necessary. The impugned reversion on the basis of the adverse remarks without an opportunity was in violation of principles of natural justice and the said circular; (iv) that no rules regarding the procedure for promotion have been framed under rule 13 of the Madhya Pradesh Civil Services (General Conditions of Service) Rules. The respondent No. 1 has in the return contended that the Promotion Committee had considered the case of the petitioner for promotion and found her unfit, but there is nothing on record to indicate that such promotion committee was ever constituted even by an executive order. The revision after five years of the promotion was unjustified and not warranted by the said rules; and (v) that the date in column 5 of the final gradation list (Annexure p-4 to the amended petition) is not correct, according to the formula-18 months service as a Head Mistress equivalent to 12 months service as an lnspectress- as laid down by this Court in its decision, dated 27-11-1958, in Letters Patent Appeal No. 34 of 1958. ( 12. ) THE Government Advocate, Shri L. S. Baghel, on behalf of the respondent No. 1, while controverting the arguments on behalf of the petitioner, contended: (i) that vide order, dated 4-9-1968 (Annexure B to the amended petition and Annexure R-I to the initial return of the respondent No. 1), the petititioner was not promoted to class I service. It was an ad hoc and provisional order. This ad hoc or provisional promotion was passed after a specific understanding with the petitioner that it was subject to the decision about her seniority by the Central Government; (ii) that on the rejection of the petitioners representation, she was reverted vide order, dated 14-2-1969 (Annexure P-6 to the amended petition) ; (iii) that the order, dated 21-3-1969, was not an order of regular promotion. It was an order of temporary nature passed in pursuance of certain policy decision taken by the State Government. It was an order of temporary nature passed in pursuance of certain policy decision taken by the State Government. According to him, that order did not cancel the reversion order dated 14-2-1969. It was merely an order cancelling the posting of the petitioner as a Principal, junior College and instead deputing her as Under Secretary, Board of secondary Education; (iv) that neither the petitioner was substantively promoted to class I nor she had got a right, as such there was no reduction in rank so as to attract the provisions of Article 311 of the Constitution ; (v) that the adverse remarks (Annexures R-III to R- VI were communicated from time to time to the petitioner and even if they were not communicated, there is neither any circular nor any rule requiring such communication; (vi) that the adverse remarks (Annexures R-III to R-VI) to the supplementary return of the respondent No 1) relate to the overall general impressions of the superior officers of the petitioner about her. These remarks about working efficiency do not relate to specific instances or to integrity or character of the petitioner, hence no useful purpose could be served by communicating them to the petitioner and calling for her explanation. Further, the promotion committee was not required to make an inquiry about them; (vii) that the adverse remarks were not the foundation for the impugned order. For determining the suitability, the service record had to be looked into. At any rate, the promotion has not been refused by way of penalty or punishment for those adverse remarks; and (viii) that the date in column 5 of the gradation list (Petitioners annexure P-4) against the name of the petitioner is correct according to the petitioners own admission and the decision of this Court, dated 27-11-1958, in Letters Patent Appeal No. 34 of 1958. The question of its correctness is not open to the petitioner. ( 13. ) WE now proceed to examine the rival contentions of the parties. ( 14. ) WE shall first deal with ground No. 2 which relates to the correction of the date from 1-4-50 to 15-8-1948 against the petitioners name in column 5 of the final gradation list which is petitioners Annexure P-4. ( 15. ) IN our opinion, the contention of the learned counsel for the petitioner is without any substance. ( 14. ) WE shall first deal with ground No. 2 which relates to the correction of the date from 1-4-50 to 15-8-1948 against the petitioners name in column 5 of the final gradation list which is petitioners Annexure P-4. ( 15. ) IN our opinion, the contention of the learned counsel for the petitioner is without any substance. This question is concluded by the judgment of this Court, dated 27-11-1958, in Letters Patent Appeal No. 34 of 1958 which is the petitioners Annexure P-1. The relevant portions of that judgment are reproduced below: "this seniority was given to the appellant on the basis of the principles which the government of Vindhya Pradesh evolved as stated in the quotation of the summary made by Bhutt, J. in paragraph 5 of his order (see paragraph 6 of this order ). Under that principle, 18 months service as a Head Mistress of a Girls High School equivalent to 12 months service as an Inspectress of Schools. The appellant contends that though she has been given the benefit of this formula in the matter of her seniority, she has not been given the same benefit in the matter of pay, thereby making the new scale of pay not applicable to her till she took over as Inspectress of Schools and making the new scales of pay illusory in her case. It is admitted that the appellant took over charge of the post of Inspectress of Schools on 7-3-1955. A notification (No. 77 dated 12-10-1955) was issued by which Government of Vindhya Pradesh fixed the appellant as Head Mistress of Girls High School in the revised scale of Rs. 200-10-300-E. B.-12 1/2-350 from 1-4-1950 to 6-3-1955. The appellants contention is that she was entitled to be fixed as an Inspectress of Schools with effect from 1-4-50 in the matter of both seniority and pay. 200-10-300-E. B.-12 1/2-350 from 1-4-1950 to 6-3-1955. The appellants contention is that she was entitled to be fixed as an Inspectress of Schools with effect from 1-4-50 in the matter of both seniority and pay. X X XX X the learned Single Judge did seem inclined to give this relief but for the fact that before him it was admitted that there were two posts of Inspectress of Schools from 1-4-1950 to 6-3-1955 and further that the one such post was vacant because the incumbent working on the post had been fixed against the post of a Head Mistress and a Head Master while the appellant was considered as having worked as Inspectress of Schools in the vacant post though actually she had worked as Head Mistress. In view of what we have said above, we think that the appellant was entitled to receive the pay of an Inspectress of Schools in the revised scale from 1-4-1950 to 6-3-1955 because she must be deemed to have been substantively appointed in that post, though in fact she was working as Head Mistress, not because of the operation of the rules but because of the actual circumstances created by the Government itself. " ( 16. ) THE argument of the learned counsel for the petitioner that the question involved in the Letters Patent Appeal was not about fixing the date of commencement of officiation in the post of Inspectress but about the revised pay scale. This is devoid of any force. First, as is evident from the portions of the judgment in the Letters Patent Appeal reproduced above, this point is covered by that judgment. Secondly, assuming that this question was not directly involved in the petition out of which that Letters Patent Appeal arose, still it cannot now be agitated on the principle of constructive res judicata. When the petitioner claimed the revised pay scale of Inspectress she should have claimed the relief for determining the date since when she was to be treated as lnspectress of Schools. Thirdly, the Central Government which has finalished the gradation list has also fixed the date and rejected the petitioners representation that the petitioner was not entitled to agitate this question afresh. Thirdly, the Central Government which has finalished the gradation list has also fixed the date and rejected the petitioners representation that the petitioner was not entitled to agitate this question afresh. The petitioner who by an amendment in her petition had made the Union government a party and claimed the relief claimed in the prayer clause (b)for quashing the order of the Central Government (Annexure R-III to the respondent No. 1s supplementary return) has given up that relief. For this reason also, this question is now not open to the petitioner. ( 17. ) FOR the foregoing reasons, the prayer of the petitioner for the correction of date of her officiation on the post of lnspectress in column 5 of the petitioners Annexure P-4 is rejected and we hold that the date 1-4-1950 is the correct date. ( 18. ) ON the question of reversion, we shall first deal with contention (iv)of the petitioner. This has a reference to rule 13 of the Madhya Pradesh Civil services (General Conditions of Service) Rules, 1961 which reads thus : "the Government shall determine in respect of each grade or service to which appointment may be made by promotion, the grade or service to which appointment maybe made by promotion, the grade or service from which such promotion may be made and the procedure to be followed for the purpose, and in particular whether such promotion shall be on the basis of seniority subject to the rejection of the persons considered unfit for promotion or whether the selection for promotion shall be determined on the basis of merit from among persons who had completed in the lower grade or service such minimum period of service as may be prescribed. " This rule talks of the powers of the Government to fix posts shall be filled in by promotion and their grade etc. and to lay down the procedure for such promotions and the norms. It is a common ground that there are no rules as such framed by the Government laying down the norms for promotion and for the constitution of departmental promotion committee. Hence in absence of statutory rules regulating promotions, the Government is competent to issue administrative instructions, as long as those are not violative of any rule or consiitutional provision. [see Lalit Mohan Deb and others v. Union of India and others, AIR 1972 SC 995 ]. Hence in absence of statutory rules regulating promotions, the Government is competent to issue administrative instructions, as long as those are not violative of any rule or consiitutional provision. [see Lalit Mohan Deb and others v. Union of India and others, AIR 1972 SC 995 ]. The aforesaid rule does not prohibit the constitution of promotion committee. Such prohibition even cannot be contemplated. The Government is not a living person. It acts through human agency. There must be some person authorised to consider the question of promotion. It may be one person or more. ( 19. ) THE petitioner was not promoted in substantive capacity in the regular course The respondent State has, in paragraph 11 of its initial return, dated 9-10-1972, averred this so specifically which has not been controverted even in the amended petition which was amended subsequent to the said return and wherein various other facts mentioned in the return have been controverted. Further, the same fact has been averred in paragraph 4 of the supplementary return of the respondent State, dated 27-4-1973, which has also not been controverted by the petitioner. The promotion of the petitioner being provisional, there was nothing illegal in the promotion committee considering her matter for promotion in substantive capacity. The ground that after five years of working on the promoted post, refusal of promotion was unjustified is devoid of legal force. Promotion cannot be claimed as of right. It was not contended on behalf of the petitioner, and rightly, that class i officer was her substantive rank. Therefore, five years working on the promoted post on account of the provisional ad hoc temporary promotion would not create a right to that rank. A Government servant occupying higher post in substantive capacity has alone a legal right to occupy the post and he cannot be reduced in rank without an opportunity of hearing as provided in Article 311 of the Constitution. For a promotee on provisional ad hoc temporary basis reversion is a concomittant. ( 20. ) THE grievance about the non-placing, on the records of this case, of the executive order constituting the promotion committee is of no consequence as nothing turns out on that. The only question for determination of the validity of the impugned order (Annexure P-8) is whether it was passed by way of penalty or punishment. ( 21. ( 20. ) THE grievance about the non-placing, on the records of this case, of the executive order constituting the promotion committee is of no consequence as nothing turns out on that. The only question for determination of the validity of the impugned order (Annexure P-8) is whether it was passed by way of penalty or punishment. ( 21. ) AS a result of the foregoing discussion, we repel the aforesaid contention of the learned counsel. ( 22. ) NOW, turning to the remaining contentions on behalf of the petitioner, i. e. Nos. (i) to (iii), we would deal with them together. ( 23. ) EVERY reversion from a higher rank, may it be temporary of officiating, is reduction in rank ; but each such order cannot be said to be invalid for the non-compliance of the procedure provided in Article 311 of the Constitution. This article steps in only when the reversion is by way of punishment. The consensus of judicial opinion is that an order of reversion simpliciter from a higher, but not a substantive, post does not amount to a reduction in rank by way of punishment. It is an accident of service. It is no doubt true that the form of the order is not conclusive and the matter has to be viewed as one of substance and the entirety of the circumstances, attendant on the impugned order have to be taken in consideration in ascertaining whether it is a genuine, one of accident of service without any aspersion against the petitioners character or intergrity or whether the order amounts to a reduction in rank by way of punishment. While so ascertaining, a clear line of demarcation has to be drawn in the foundation for the order and the motive for the order. This point has frequently come up for consideration before their Lordships of the supreme Court and there is a plethora of case law on the point. The basic case is Parshottam Lal Dhingra v. Union of India, AIR 1958 SC 36 . We find quite a large number of cases having a bearing on this question discussed and analysed in State of Uttar Pradesh and others v. Sughar Singh, AIR 1974 SC 423 . and as such, we would like to advert to this case ere we examine the merits of the contentions regarding the point in hand. We find quite a large number of cases having a bearing on this question discussed and analysed in State of Uttar Pradesh and others v. Sughar Singh, AIR 1974 SC 423 . and as such, we would like to advert to this case ere we examine the merits of the contentions regarding the point in hand. The relevant observations of this case are reproduced below: "since we are concerned in this case with a case of revision, we purpose to confine our attention to the different circumstances in which an order of reversion may be made. All order of reversion is in its immediate effect bound always to be a reduction in rank. Even a reversion from a higher but temporary or officiating rank to a lower substantive rank is in a sense a reduction. But such orders of reversion are not always reduction in rank within the meaning of Article 311. If the officer is promoted substantively to a higher post or rank, he gets a right to that particular post or rank and if he is afterwards reverted to the lower post or rank which he held before, it is a reduction in rank in the technical sense in which the expression is used in Article 311. The real test in all such cases is to ascertain if the officer concerned has a right to the post from which he is reverted. If he has a right to the post then a reversion is a punishment and cannot be ordered except in compliance with the provisions of Article 311. If, on the other hand, the officer concerned has no right to the post, he can be reverted without attracting the provisions of Article 311. But even in this case, he cannot be reverted in a manner which will show conclusively that the intention was to punish him. The order itself may expressly state that the officer concerned is being reverted by way of punishment. In fact the order may in various other ways cast a stigma on the officer concerned. In all such cases, the order is to be taken as a punishment. The order itself may expressly state that the officer concerned is being reverted by way of punishment. In fact the order may in various other ways cast a stigma on the officer concerned. In all such cases, the order is to be taken as a punishment. Sometimes again, the order of reversion may bring upon the officer certain penal consequences like forfeiture of pay and allowances or loss of seniority in the subordinate rank or the stoppage or postponement of future chances of promotion: in such cases also the Government servant must be regarded as having been punished and his reversion to the substantive rank must be treated as a reduction in rank. In such a case Article 311 will be attracted. Now, reverting to the instant case, we proceed to examine in the light of the aforesaid observations whether the impugned order (Annexure P-8) amounted to reduction in rank so as to attract the provisions of Article 311 of the Constitution. ( 24. ) EX-FACIE the impugned order is an order of reversion simpliciter. It is innocuous. We now refer to the petition as amended after the initial return, dated 9-10-1972, filed by the respondent No. 1 and on a critical scrutiny of the petition, we do not find any averment in the petition regarding the impugned order that substantially it is an order passed as a measure of punishment in the garb of an order of reversion simpliciter. All that has been said is that it is in violation of Article 311 of the Constitution, principles of natural justice and the Madhya Pradesh Civil Service (Classification, Control and appeal) Rules, 1966 ; that the case of the petitioner has always been treated with prejudice; and that if the rejection of the representation about seniority by the Central Government (Annexure R-III to the initial return) was the basis for the impugned order, the impugned order having been passed four years thereafter without any explanation is bad. The whole burden of the argument of the learned counsel for the petitioner was that the foundation, for the impugned order, was the adverse remarks. He drew support from paragraph 4 of the supplementary return of the State and contended that it contained a clear admission that the adverse remarks were the foundation for the impugned order and as a measure of punishment the impugned order was passed. ( 25. He drew support from paragraph 4 of the supplementary return of the State and contended that it contained a clear admission that the adverse remarks were the foundation for the impugned order and as a measure of punishment the impugned order was passed. ( 25. ) PARAGRAPH 4 of the said return runs as under : "it is true that the petitioner was promoted vide order dated 4-9-68, on the basis of her undertaking and was reverted vide order dated 14-2-1969, in accordance with the decision taken by the Central Government rejecting her representation. The order deputing her as deputy Secretary, Board of Secondary Education in the pay scale of Rs. 550-950 in pursuance of certain policy decision taken by the Government was an order of temporary nature and was not regular promotion. Thereafter when the Departmental Promotion Committee met for considering the cases and finalising the departmental promotion made so far and it did not consider the petitioner fit for promotion on the basis of records. The contention of the petitioner that she had been treated with prejudice and that contradictory orders were issued is denied. The adverse remarks communicated to her from time to time are filed as Annexures R-III to R-VI. " On the perusal of the aforesaid paragraph, we do not find any admission as contended by the learned counsel for the petitioner. On its true construction it means that the ground for the non-promotion of the petitioner was her unsuitability. In other words, the foundation for the impugned order was her unsuitability. The word record is a very broad term which includes not only the adverse remarks in question but also so many other things. It cannot be gainsaid that to decide suitability one has to look to the record, which would necessarily include the remarks in the personal file, how else can it be determined. If the argument of the learned counsel for the petitioner is accepted, it would mean that it should be recognised as an universal truth that whenever a person, in whose personal file there are adverse remarks, is refused promotion and/or reverted from a higher post which he/she was occupying provisionally, the foundation, therefore, was the adverse remarks and the order was by way of punishment which required the observance of the procedure provided in Article 311 of the Constitution. In our view, the argument of the learned counsel for the petitioner cannot be accepted. If an order is ex facie innocuous, the party contending that it is a camouflage and in reality it is by way of punishment has to so aver and prove but by this observation we should not be understood to say that in absence of the plea, the petitioner would not be entitled to take advantage of the clear admissions of the other side on record. ( 26. ) THE petitioner is reverted to her substantive class. It is not averred that due to the impugned reversion she has sufferred any loss of seniority or emoluments in her substantive post. In other words, the petitioner has not been visited with any penal consequences due to the impugned order in her substantive post. This fact also militates against the contention that the impugned order was by way of punishment. [see Dr. Kanwarchand Bhandari v. State of Madhya Pradesh, M. P. No. 36 of 1971, decided on the 16th July 1973 (1974 MPLJ Note 33.) ( 27. ) THE learned counsel for the petitioner had placed reliance on the decision in State of Uttar Pradesh and others v. Sughar Singh, but in that case the counsel for the State had admitted that the foundation of order of reversion was the adverse entry made in the character roll of the petitioner and there were other circumstances justifying it as would be evident from the following observation. The facts and circumstances of this case are quite distinguishable from the case in hand. "in the instant case we have no doubt in our mind that the peculiar circumstance that from out of a group of about 200 officers most of whom are junior to the respondent, the respondent alone has been reverted to the substantive post of Head Constable makes it absolutely clear that there was no administrative reason for this reversion. In fact there was no suggestion at any time made on behalf of the appellant that the post had been abolished or that the respondent was, for administrative reasons, required to go back to his own post of Head Constable. This circumstance only corroborates what the learned standing counsel for the State admitted before the High Court that the foundation of the order of reversion is the adverse entry made in his character roll. This circumstance only corroborates what the learned standing counsel for the State admitted before the High Court that the foundation of the order of reversion is the adverse entry made in his character roll. In this view of the matter, we have no doubt that the order was passed by way of punishment, though all outward indicia show the order to be a mere order of reversion. Even if it were not so, we have no doubt that the order would be liable to be quashed on the ground of contravention of Articles 14 and 16 of the constitution. " ( 28. ) AS a sequel to his argument on the aforesaid contention, the learned counsel for the petitioner mentioned Circular No. 381-26-1 (2), dated 17-1-1970, issued by the General Administration Department. This Circular is neither pleaded in the petition nor any contention has been raised on its basis in the petition nor it is annexed to the petition. The counsel for the State had denied any such circular, but we have seen it, calling for the record from the establishment section of the Registry, that there is such a circular. Strictly speaking, no averment having been made in the petition about this circular, the argument of the learned counsel for the petitioner based on this circular should be rejected on that ground alone. However, in the interest of justice we examine this question also. ( 29. ) ERE we deal with the legal effect of the aforesaid circular, we would like to spotlight the following facts as it has an important bearing with the question of effect of consideration of the remarks in question before its communication to the petitioner. ( 30. ) THE letters of communication of the remarks in question are : Ann. R-III, dated 25-1-1973 (for the year ending March 1967)Ann. R-1v, dated 14-8-1972 (for the year ending March 1968)Ann. R-V, dated 25-1-1973 (for the year ending March 1971)Ann. R-VI, dated 18 9-1972 (for the year ending March 1972) The impugned order (Annexure P-8) is, dated 28-6-1972. The petition was originally filed on 4-7-1972 and was subsequently amended on 16-3-1973 vide courts order, dated 15-3-1973. The return on behalf of the State was initially filed on 9-10-1972. R-V, dated 25-1-1973 (for the year ending March 1971)Ann. R-VI, dated 18 9-1972 (for the year ending March 1972) The impugned order (Annexure P-8) is, dated 28-6-1972. The petition was originally filed on 4-7-1972 and was subsequently amended on 16-3-1973 vide courts order, dated 15-3-1973. The return on behalf of the State was initially filed on 9-10-1972. Paragraph 11 of this return reads as under: "that without prejudice to the above it is asserted that the case of the petitioner according to her undisputed seniority was also considered by the Departmental Promotion Committee in April, 1972. The departmental Promotion Committee found the petitioner unfit in view of her service records for promotion to class I post and she could not, therefore, be recommended for promotion to class I. Under these circumstances also the conditional and provisional appointment was not liable to be continued and the petitioner has no right of promotion. " ( 31. ) FROM the aforesaid statement of facts, one thing is certain ; that out of the remarks in question, the remarks relating to years 1968 and 1972 were communicated even prior to the initial return of the State and the remarks relating to the years 1967 and 1971 were communicated prior to the filing of the amended return and one thing more is certain that vide paragraph 11 of the return reproduced above it was indicated that on the basis of record, the petitioner was found unsuitable for promotion. Thus, when the petitioner amended her petition she had known about the remarks in question; but still she made no reference about it in her petition either challenging their justification or that she had made any representation against it to the competent authority. The whole burden of the argument of the learned counsel for the petitioner was that had these remarks been communicated to the petitioner she could have made her representation to the competent authority and in the eventuality of the removal of remarks she would have been entitled to promotion. ( 32. ) WE have on record the letters communicating the remarks, but we do not have on record as to on what respective dates the remarks for the respective years were passed. But we have presumed and presume that they were passed prior to the impugned order and were before the Promotion Committee. ( 33. ( 32. ) WE have on record the letters communicating the remarks, but we do not have on record as to on what respective dates the remarks for the respective years were passed. But we have presumed and presume that they were passed prior to the impugned order and were before the Promotion Committee. ( 33. ) WE now proceed to consider the contention with regard to noncompliance of the Circular No. 381-26-1 (2), dated 17-1-1970. This circular contains only instructions to the concerned officer that the gist of the report of reporting or reviewing officer including the appreciation part should be communicated to the concerned officer. In the aforesaid circular, a reference to clause 12 of Book Circule part 1, serial No. 7 entitled "confidential Reports on Officer" is made (hereinafter referred to as the circular ). ( 34. ) ON the perusal of this circular, we get that the confidential report is intended to be a general assessment by the reporting authority of his subordinates work and conduct so as to serve as a data for judging the comparative merits of the officers for the purpose of promotion and the like matters relating to employment. We also get that such report should not generally contain specific instances except in cases where the reporting officer considers it necessary. This circular, therefore, enjoins upon the officers to keep a proper watch over his subordinate regarding his work and conduct and provide training and guidance to him whenever necessary. [see clauses 3, 4, 5 and 13 (ii)]. The clause 12 is about the communication of remarks. The relevant portions for the purpose of this petition are clauses 12 (i) and 12 (ii) which are reproduced below: "12. (i) When a report is built up on individual opinions recorded by different departmental superiors, it is only the opinion accepted by the competent authority indicated in column 7 of the Appendix, which should, if necessary be communicated to the officer concerned. The competent anthority will decide whether remarks made by the other recording officers should be communicated. Before a decision is taken to make a communication to the officer not only for the report for one year but also reports for the preceding years may have to be examined. The competent anthority will decide whether remarks made by the other recording officers should be communicated. Before a decision is taken to make a communication to the officer not only for the report for one year but also reports for the preceding years may have to be examined. (ii) Only those remarks which can be remedied need be communicated, but while doing so, the substance of the entire report, including what may have been said in praise of the officer should be communicated. Where the report of an officer shows that he had made efforts to remedy or overcome defects mentioned in the preceding report, the fact should be communicated to the officer. " ( 35. ) CLAUSE 13 of the circular provides that the aggrieved officer has an opportunity to make a representation. Such representation would be considered by a competent authority who if satisfied would either alter or expunge. This representation has to be made within three months from the date of communication of the order; of course, the competent authority has the discretion to condone the delay. In the instant case till this petition was argued, we arc not told that any such representation was made and entertained. ( 36. ) THERE appears to be no period provided within which the communication has to be made. What remarks and when to be communicated that appears to be within the discretion of the concerned authority. Thus, from this circular, it is evident that the entry of the adverse remark and its taking into consideration for assessing the merits for promotion is not by way of penalty or punishment. The promotion committee or any other authority concerned considering the question of promotion is not required to give notice about the adverse remark so as to afford any opportunity for explanation and then decide about the promotion. The promotion committee has not to function as an inquiry officer in a departmental inquiry. ( 37. ) IN the instant case as already observed by us, the petitioner has made no representation against the adverse remarks. The remarks, therefore, stand as they are. Further, these remarks as already stated by us are about general assessment. The non-promotion on account of these remarks cannot be deemed to be a punishment. No question of breach of principles of natural justice arises in the case. The remarks, therefore, stand as they are. Further, these remarks as already stated by us are about general assessment. The non-promotion on account of these remarks cannot be deemed to be a punishment. No question of breach of principles of natural justice arises in the case. There is a remedy provided, by this circular itself, as discussed above, for the aggrieved party against the remarks. ( 38. ) IN view of the foregoing discussion, we cannot be persuaded to accept the contentions of the learned counsel for the petitioner urged on the basis of the circular. We are fortified in our view by the decision of their Lordships of the Supreme Court in R. L. Butail v. Union of India, 1970 SCC476 = (1970) 2scr561. The other decision is Prakash Chand Sharma v. The Oil and Natural Gas Commission and others, W R No. 233 of 1966, decided on the 22nd August 1967. reported in P. C, F. C. and Supreme Court Service Laws Judgments 1935-1973, (Vol. I, at p. 32 ). The relevant observations of this decision are reproduced below: "in effect, therefore, the only complaint of the petitioner with which we are concerned in his supersession in June, 1963. In the affidavit in reply the petitioner has referred to the memo dated February 12, 1962 (Annexure 28) relating to confidential reports, their preparation and maintenance. According to paragraph 8 of this memo, it was necessary that every employee should know what his defects were so that he could remove the same, if possible. Paragraph 9 of the memo shows that it was open to an employee to make representations against adverse remarks. Reliance was placed upon this paragraph as showing that if the petitioner had been given an opportunity of making representation against the adverse remarks relied on in this case, he might easily have satisfied the higher authorities that the remarks were uncalled for and unjustified. Strong reliance was placed on the various letters containing representations made by the petitioner from July, 1963 where he had stated categorically that he had always received testimonials from his higher officers and that his confidential reports were without any blemish. It was only when the affidavit in opposition was filed that he came to know that he had not been given promotion in June, 1963 because of these remarks. It was only when the affidavit in opposition was filed that he came to know that he had not been given promotion in June, 1963 because of these remarks. According to the learned counsel for the petitioner there was a clear violation of the instructions regarding confidential remarks and the petitioner had been discriminated against on the basis of remarks which should never have been made or should never have been allowed to remain in confidential reports or stand in the way of his promotion if an opportunity had been given to him to explain the same away. It was not disputed that the instructions as to confidential reports have not been properly observed in this case. It is not suggested that the departmental promotion Committee acted mala fide. If the adverse remarks were there in the confidential reports it was the duty of the departmental promotion Committee to take note of them and come to a decision on a consideration of them. The Committee could not be expected to make investigation about the confidential reports. It appears to us that in this case there was no discrimination, purposeful or otherwise, and at the best, the Committees taking into consideration confidential reports with respect to which the petitioner had been given no chance to make a representation was merely fortuitous. In such a state of affairs, we are not satisfied that any interference is called for and the rule will therefore be discharged. There will be no order as to costs. " ( 39. ) THE learned counsel for the petitioner had contended that the aforesaid decisions of the Supreme Court did not apply to the present case and drew strength for his argument from a decision of Delhi High Court in Malli-nato Jain v. Municipal Corporation, (1973) 1 S L R 413. The discussion in this about distinguishing the aforesaid Supreme Court cases would be found in paragraphs 28 and 29 (re : Prakashchand Sharma v. The Oil and Natural Gas Commission and others){supra) and in paragraphs 36, 37 and 38 (re: R. L. Butail v. Union of India) (supra ). From the discussion in these paragraphs of the judgment of the Delhi high Court, it would be found that the aforesaid decisions of the Supreme court were distinguished with reference to the facts of that case. From the discussion in these paragraphs of the judgment of the Delhi high Court, it would be found that the aforesaid decisions of the Supreme court were distinguished with reference to the facts of that case. The facts of the instant case discussed above do not warrant any such distinction and the supreme Court decisions referred to above fully support the view that we have taken. ( 40. ) IN view of the foregoing discussion, we repeal all the contentions advanced on behalf of the petitioner and we are of the firm view that the reversion was on the basis of unsuitability of the petitioner. The decision on the question of suitability is not open to question by Court. That is purely a matter which rests solely with the Government. Court can interfere only when there is a mala fide exercise of the power. (See Dr. Jai Narayan Mishra v. The State of Bihar, AIR 1971 SC 1381. ( 41. ) ON the question of prejudice, there is only the statement in the petition. Neither material facts are averred in the petition nor there is any material on record on the basis whereof, it can be said that anyone acted against the petitioner with any bias or prejudice. Bias or mala fides are to be alleged against a particular person who had something to do in the matter. Government is not a living person. It acts through the agency of the concerned officer. Therefore, whenever any action of the Government is challenged on the basis of bias or mala fides or the like, the person who so stated should be named and the material facts indicating the alleged bias or mala fides should also be stated. ( 42. ) IN the result, we do not find any merit in the petition. The petition fails and is accordingly dismissed with costs. Counsels fee Rs. 100, if certified. Petition dismissed.