JUDGMENT This is a writ petition challenging an order of reversion dated the 1st of September, 1977, on the ground inter alia, of malafide, discriminatory, violative of Article 311(2) of the Constitution of India, illegal, irregular, violative of the principles of natural justice and bad in law. It is also challenged on the ground of with holding the salary of the petitioner for the month of August, 1977, which act amount to punishment. The relevant facts appear to be as follows:- 2. On the 12th of August, 1959, the petitioner joined as a Lower Division Assistant of the finance dept., Govt. of West Bengal. On the 1st of April. 1964, the petitioner became permanent in the post of Lower Division Assistant. On the 22nd of November, 1965, the petitioner was promoted to officiate as the Upper Division Assistant. On the 29th of November, 1973, the petitioner was confirmed in the Upper Division Assistant post. It appears that by the Memorandum No. 5009 F dated the 21st of May, 1974, the finance dept. of Govt. of West Bengal issued an order laying down the principles for guidance of the finance dept, in respect of promotion, confirmation, crossing of efficiency bar find several anciliary benefits in respect of government employees regarding presence or absence on the days of "Bundhs", "Cease Work" or "Strikes". The relevant portion is set out here-under :- "In deciding the cases of promotion, confirmation, crossing of efficiency bar and other marginally noted anciliary benefits in respect of Government Employees, there presence or absence on days of "Bundhs", "Cease Work" or "Strikes" shall also be taken into consideration along with other relevant factors. In this connection attention is drawn to Rules 3B and 3C of the West Bengal Service Rules Part 1 and Rule 27 of the West Bengal Government Servants Conduct Rules, 1959. In all pending cases of promotion, confirmation, crossing of efficiency bar and other marginally noted ancillary benefits, no order shall be passed and no order in this respect which has not yet been implemented shall be implemented until the records of the employees concerned are verified and all relevant factors including his attendance and non-attendance on days when calls for "Bundhs", "Cease 'Work" or "Strikes" were given are ascertained. A simple form with a set of likely entries in this respect is enclosed herewith for guidance and use. A simple form with a set of likely entries in this respect is enclosed herewith for guidance and use. The Commissioner or Secretary concerned for each department shall take steps to ensure that the above directions are complied with in all offices under his control from the Secretariat to the Directorate, district and all subordinate, levels". 3. It also appears that (prior to the said order by a Memo No. 7119-F. FIS-25-72 dated the 1st of December, 1972, by an order of the finance dept. of Govt. of West Bengal principles to be followed in matter of promotion was laid down) which is set out hereunder: Government of West Bengal Finance Department Audit Branch No.7119-F-FIS-25-72. Calcutta, 1st December, 1972 MEMORANDUM Subject: Principles to be followed in the matter of promotion. 4. For some time past the question of laying down a uniform principle to be followed in the matter of promotion was under consideration of the government. The matter has been carefully considered and governor has been pleased to lay down the following principles for guidance of all concerned in super-session of previous order. (a) A government servant should be selected for promotion on grounds of merit and suitability in all respect and not of seniority. (b) Seniority should be taken into account only when it is impossible to choose between two or more persons on grounds of merit alone. 2. It is considered necessary to indicate some guidelines in determining merit. The following factors should therefore be taken into consideration in deciding merit, : (a) The annual confidential report of the competent officer in the prescribed form should be given due weight ill considering cases of promotion taking into account reports 'relating to paragraphs (b) and (c) below. (b) Satisfactory work based on periodical reports which in case of certain categories should involve report on maintenance of case records, diaries etc. and on out put of work according to the approved norm. (c) The conduct of government servants who resort to cease work and or indulge in acts of indiscipline like slogan shouting, holding meeting etc. within office premises during the prescribed office hours and or resort to or in any way abet strike for any period in violation of the provisions in Rule 3(C) of West Bengal Service Rules, Part I, and Rule 27 of West Bengal Govt. Servants. Conduct Rules. 3. within office premises during the prescribed office hours and or resort to or in any way abet strike for any period in violation of the provisions in Rule 3(C) of West Bengal Service Rules, Part I, and Rule 27 of West Bengal Govt. Servants. Conduct Rules. 3. It is further impressed on all authorities empowered to appoint a Govt. servant on promotion that (a) Promotion should be regarded as being made in the interest of the public service and not of the individuals, (b) In choosing a man for promotion the criterion should be the good which the organisation will stand to gain by the promotion of the particular man rather than another; (c) A man should be promoted not as a reward for the good work which his record may show him to have done in the past, but in the expectation to which his past record may justifiably given rise that he will do good work in future in the post to which it is proposed to promote him, Sd/-S.R. Das Financial Commissioner and Secretary. 5. It can be judicially noticed as a notorious fact that there is a change in the government after the last general election in March, 1977, and thereafter, by an order dated the 8th of July, 1977 of the finance dept., Government of West Bengal, certain clauses of the said order dated the 1st of December, 1972, were deleted and certain clauses were amended. The said order is set Out hereunder:- Government of West Bengal Finance Department Audit Branch No. 5651-F Calcutta, 8th July. 1977 MEMORANDUM The question whether the provision contained in para 2(c) of this Dept, Memorandum No. 7119-F dated the 1.12.72 should continue to operate in the context of withdrawal of this Department Meme No. 5009-F dated 21.5.74 and No. 3060(36)-F dated 10-4-76 has been under consideration of Government for sometime past. After due consideration the Governor has been pleased to decide that clause (C) in para 2 of Finance Department Memo No. 7119-F dated 1.12.72 shall be deleted. Consequently in clause (a) and (c) the words paragraph (b) shall be substituted. Sd/- A.K. Mukherji Special Commissioner & E O. Secretary to the Government of West Bengal Finance Department. 6. It also appears that (by another order dated the 23rd of April, 1977, of the Finance Dept. Govt. Consequently in clause (a) and (c) the words paragraph (b) shall be substituted. Sd/- A.K. Mukherji Special Commissioner & E O. Secretary to the Government of West Bengal Finance Department. 6. It also appears that (by another order dated the 23rd of April, 1977, of the Finance Dept. Govt. of W.B., various circulars and memorandum issued in connection with the implementation and operation of various orders were cancelled.) The said order dated the 23rd of April, 1977, is set out hereunder: (To be substituted for the Order bearing the same number and date). Government of West Bengal Finance Department Audit Branch No. 3414-F. Dated, Calcutta, 23rd April, 1977. MEMORANDUM The Governor is pleased to decide that Finance Department Memo No. 5009-F dated 21.5.74 and No. 3060(36)-F dated 10.4.76 will cease to be operative with immediate effect. 1. No. 5716-F dt. 16.875 All other Circulars and Memo- 2. No. 6392-F dt. 8.9.75 randa issued in connection with 3. No. 6930-F dt. 30.9.75 the implementation of the above 4. D O. No. 455(25)/76-CS two Memoranda including those at. 31.5.76 noted in the margin are hereby 5. No. 5503(36)-F dt. 18.676 cancelled. 6. D.O. No. 620/76 CS dt. 29.7.76. Sd/- A. K. Mukherji. Special Commissioner & Ex-Officio Secretary, Finance Department. 7. By another order being Memo. No. 5652/F dated the 8th of July, 1977, as a follow up of the cancellation and withdrawal of various previous orders passed by the Government under the previous regime, decision and principles in respect of employees of the Finance Dept. were laid down. The said order is set out hereunder: Government of West Bengal Finance Department Audit Branch No. 5652-F. MEMORANDUM Calcutta, 8th July, 1977. In the context of withdrawal of Finance Dept. Memo. No. 5009-F dated the 21st of May, 1975, and No. 3060(36) dated 10.4.76 and cancellation of other ancillary circulars under this department Memo. No. 3414-F dated 23.4.77 the question whether any retrospective effect can be allowed to the affected employees in respect of benefits like crossing or efficiency bar, appointment of New/Intermediate selection Grade, promotion to higher posts, confirmation in service/post, declaration of quasi permanent service, or service with permanent status, bringing to class IV contingency staff under regular temporary establishment and absorption of work-charged staff in the regular establishment has been under consideration of Government for some time past. After careful consideration of the matter the Governor has been pleased to decide as follow:- 1) The competent authorities may permit toe employees to cross efficiency bar with retrospective effect from the due date subject to usual conditions, Arrear payments if any, shall be allowed in such cases. 2) The competent authorities may appoint the affected employees to New/Intermediate Selection Grades with retrospective effect where vacancies remain unfilled subject to fulfilment of other conditions. 3) The competent authorities may give such employees promotion to Higher posts with retrospective effect if vacancies remain unfilled subject to fulfilment of other conditions. 4) The competent authorities may confirm a Govt. servant in a cadre/post with retrospective effect if suitable vacancy remains unfilled or be available subject to fulfilment of usual conditions. 5) The competent authorities may declare temporary government employees to be in quasi-permanent service or in service with permanent status with retrospective effect subject to fulfilment of usual conditions. 6) The competent authorities may bring class IV contingency staff under regular temporary establishment with retrospective effect and also absorb work-charged staff in the regular establishment with retrospective effect provided other requirements are fulfilled." In the mean time, there was an order dated the 29th of June, 1977, issued by the Government of West Bengal Home Dept., Political, laying down the terms and conditions of reinstatement of dismissed employees inter alia on political grounds which are as follows :- Government of West Bengal Home Department Political No. 1583-PS Order Calcutta The 29th June, 1977. 8. The undersigned is directed by order of the Governor to say that the Government have since reviewed the policy relating to the case of State Government Employees, other police personnel, who had been dismissed from service in the past by invoking provisions of proviso (c) of Articles 311(2) of the Constitution of India. It has been decided that all such State Government employees who were so dismissed from services should be reinstated immediately. 2. It has been decided that all such State Government employees who were so dismissed from services should be reinstated immediately. 2. The undersigned is also directed by order of the Governor to say that the Governor has been pleased to lay down the following terms and conditions for reinstatement: (i) That the period between the date of dismissal from service and the date of joining in respect of each of such employees shall be treated as duty for the purpose of leave, increment, promotion, seniority, pension and other service and retirement benefits: (ii) That for the intervening period the employee shill be paid full pay and other admissible allowances to which he would have teen entitled if he had not been dismissed; (iii) That where the reinstated Government employees has secured employment during any period between dismissal and joining the amount payable to him after reinstatement for the intervening period shall be reduced by the emoluments earned by him during such employment. (iv) That while making the payment to the employees concerned the actual amount of compassionate allowances paid to him according to the order of Court or otherwise if any, during the intervening period should be recovered in full. (v) That the head of the concerned department is hereby authorised to create such permanent or temporary post as may be necessary where no suitable post is available to accommodate a specified employee now reinstated, subject to the conditions that such post will be adjusted against the next available vacancy. 3. This has the concurrence of the Finance Dept. vide their U/O No. Group P MISC 274 dated the 28th of June, 1977." 9. Therefore, it is quite clear from the above that with the change of the government there were changes in the policy and principles for' appointment, promotion etc. of the government employees in the Finance Department. 10. It appears that by an order dated the 8th of October, 1975, the petitioner along with other persons were appointed to officiate in the New/Intermediate Selection Grade Post of Upper Division Assistant which was created by an order dated the 18th of May, 1975, with effect from 1st of August, 1974. Thereafter, by an office order of the Finance Dept., Govt. Thereafter, by an office order of the Finance Dept., Govt. of West Bengal dated the 22nd of December, 1976, the petitioner and six other persons who were permanent U.D.A. officiating in the New/Intermediate Selection Grade Post for U.D.A. were appointed provisionally to officiate in the post of Head Assistant in the Finance Dept. with effect from 20th of December, 1976, until further order against the vacancy shown against each of them. The petitioner appears to have been appointed as officiating in the post of Head Assistant in place of Panchu Gopal Mitra who was appointed Sectional Officer in the Finance Department. It also appears that by an order No. 6276-F, of the Finance Dept., Govt. of West Bengal dated the 28th of July, 1977, the suspension order of Nipendra Narayan Chakrabarty the Respondent No.5 was withdrawn and he resumed his duties on the 28th of July, 1977. As a consequence thereof the impugned order of the Finance Dept. being No. 7745-F dated the 1st of September, 1977, was issued. The said order is set out hereunder: Annexure "B" Government of West Bengal Finance Department Audit Branch No. 7745 Calcutta, 1st of September, 1977. ORDER Consequent upon the withdrawal of the order of suspension of Shri Nripendra Narayan Chakrabarty, Head Assistant, of this Dept. (Vide Office Order No. 6276-F dated 28.7.77) and his resumption of duties on 28.7.77 the Junior-most officiating Head Assistant of this Department Shri Bijon Bhusan Mukherjee, is reverted to the post of Upper Division Assistant (New/Intermediate Selection Grade) in the afternoon of 27.7.77. Sd/- N. R. Bhattacharyya Deputy Secretary to the Government of West Bengal 11. It also appears that by another order of the same date that is, 1st of September, 1977, a temporary post was created in the U.D.A. in the New/Intermediate Selection Grade over and above the admissible strength on the basis of tile prescribed percentage. This order was passed, as alleged by the petitioner, only to accommodate the Respondent No.6, Biswajit Das. It appears that the petitioner has made representation for allowing him to officiate in the leave vacancy in the post of Head Assistant as there was clearly one leave vacancy and he also submitted that he should not be reverted to his original post. The said letter is set out hereunder: To The Special Commissioner & Secretary, Finance Department, Government of West Bengal, Writers Buildings, Calcutta. The said letter is set out hereunder: To The Special Commissioner & Secretary, Finance Department, Government of West Bengal, Writers Buildings, Calcutta. Sir, With due respect I beg to submit the following fact for your kind immediate action. That I am permanent U.D. Assistant helding Selection Grade and Offg. As Head Assistant in the Finance Dept. from 20.12.76. On 28.7.77, Shri Nripendra Narayan Chakraborty, a suspended H.A, of this Dept. joined in this Dept. and consequently the question of reversion from the post of H. A. has arisen and for this purpose, a proposal for the creation of a supernumary post of H.A. in this dept. in order to lave the hardship of the Juniormost Head Asstt. of this dept. from reversion is under consideration of Govt. in this dept. Now, since I being the juniormost H. A. of this Dept. the question of reversion from the post of H. A. has arisen in my case and accordingly my name is being shown in the Acting Arrangement as U.D.A (S.G.) for drawal of my pay for the month of January, 1977. There is leave vacancy in this dept. w.e.f. 28.7.77 due to the taking of leave of one of H.A. of this dept. for more than two months. It is the age old practice of the Secretariat that the juniormost H.A. instead of reversion is allowed to officiate in such leave vacancies. But in my case, this procedure is not being followed and I am going to be reverted even when there is clear one leave vacancy in this dept. I, therefore, pray that you will kindly consider my case and allow me to officiate in the leave vacancy in the post of Head Asstt. in order to save me from pecuniary losses in case of my reversion to the post of U.D. Asstt. Hope, you will do the needful and oblige. Calcutta, Yours faithfully, The 9th August, 1977. Sd/-Bijan Bhusan Mukherjee. 12. It is an admitted position that the petitioner worked as U.D.A. up to 31st of August, 1977, and his salary was withheld without any reason being given to him and he made a representation by a letter dated the 31st of August, 1977 a copy of which is set out hereunder:- To The Financial Commissioner & Secretary, the Govt. of West Bengal, Writers Buildings, Calcutta. of West Bengal, Writers Buildings, Calcutta. Sir, With due respect I beg to state the following facts for your information and necessary action. That I am permanent Upper Division Assistant holding selection grade and officiating as Head Asstt. in the Finance Dept. But it is surprising to me that to-day when all the employees of the Finance Dept. are drawing their salary, I have, for reasons not known to me, been deprived of my legitimate due. On enquiry I understand that my - name was not included in the salary bill for the month of August, 1977. Sir, I attended office regularly throughout the month. I have worked regularly in the office upto 7.30 P.M, to 8 P.M. throughout the month for the preparation of Budget estimates etc. As far as I knew I have committed no such fault that can prevent the Govt. from paying me my regular monthly salary. In these circumstances I pray to your good-self to take such action as deemed necessary so as to enable me to draw my salary immediately and maintain my family as usual. Yours faithfully, Calcutta, Sd/-Bijan Bhusan Mukherjee Dated The 31st August, Head Assistant, 1977. Finance (Budget) Deptt. 13. Thereafter, the petitioner moved this writ petition on the 2nd of September, 1977, and Rule was issued in terms of prayers (a), (b) and (c) and it was made returnable four weeks thereafter. It also transpires that by an order dated the 7th of September 1977, made by this Court in this application the petitioner was directed to be paid by the Respondent his salary as Head Assistant for the month of August, 1977, and no post of Head Assistant to be filled up until the hearing of this Rule. It now transpires that subsequently by a series of orders all dated the 28th of December, 1977, temporary posts were created in the Finance Dept. and several appointment were made. Those orders all dated the 28th of December, 1977, are set out hereunder :- Govt. of West Bengal Finance Dept. Audit Branch. No. 11400-F From: Shri N. R. Battacharyya Deputy Secretary. To: The accountant General, West Bengal. The 28th December, 1977. Sir, I am directed by order of the Governor to say that the Governor has been pleased to sanction the creation of two temporary posts of Section Officer in Finance Dept. of West Bengal Finance Dept. Audit Branch. No. 11400-F From: Shri N. R. Battacharyya Deputy Secretary. To: The accountant General, West Bengal. The 28th December, 1977. Sir, I am directed by order of the Governor to say that the Governor has been pleased to sanction the creation of two temporary posts of Section Officer in Finance Dept. in the usual scale of pay and allowances one with effect from 1.6.74 and the other from 10.2.75 and upto 28.2.78 for the present. These posts will be adjusted against the next available vacancies in the temporary post of Section Officer. The charges will be met from the appropriate Head under "252-Sectt. General Services-I Sectt. (2)-Finance Department" in the State Budget. Yours faithfully, Sd/- N.R. Bhattacharyya, Deputy Secretary to the Govt. of West Bengal. No.11400/1(1)-F dated 28.12.77. Copy forwarded for information to the Accounts Officer, West Bengal Secretariat. Deputy Secretary to the Govt. of West Bengal. Govt. of West Bengal Finance Dept. Audit Branch. No. 11406-D. Calcutta the 28th Dec., 1977. NOTIFICATION Shri Nripendra Narayan Chakrabarty, Head Assistant of this Department is hereby appointed to officiate in the post of Section Officer of this dept. in the scale of Rs. 600-860/- plus special pay of Rs. 50/- per month created in G.O. No. 11400-F dated the 28.12.77 with effect from 1.6.74 and until further order. Sd/- N.R. Bhattacharyya Deputy Secretary to the Government of West Bengal. No. 11406/1(3)-F. Copy forwarded for information to : 1. The Accounts Officer, West Bengal Secretariat, 2. The Accountant General, West Bengal, 3. Shri Nripendra Narayan Chakrabarty, Head Assistant. Sd/- N.R. Bhattacharyya Deputy Secretary to the Government of West Bengal. Government of West Bengal Finance Department Audit Branch. Calcutta The 28th Dec., 1977. OFFICE ORDER Shri Bhabotosh Roy, permanent Upper Division Assistant of this Dept. is hereby appointed to officiate in the post of Head Assistant of this Dept. against the post created in G.O. No. 11401-F dated 28.12.77 with effect from 17.3.72 & until further orders. 2. Shri Bltabotosh Roy is also hereby confirmed in the permanent post of Head Assistant of this Department created In G.O. No. 11401-F dated 28.12.77 with effect from 19.12.75. Sd/- N.R. Bhattacharyya Deputy Secretary to the Government of West Bengal. No. 11407/1(3)-F Copy forwarded for information to : 1. The Account Officer, West Bengal Secretariat 2. The Accountant General, West Bengal. 3. Shri Bhabotosh Roy. U.D. Assistant. Sd/- N.R. Bhattacharyya Deputy Secretary to the Government of West Bengal. No. 11407/1(3)-F Copy forwarded for information to : 1. The Account Officer, West Bengal Secretariat 2. The Accountant General, West Bengal. 3. Shri Bhabotosh Roy. U.D. Assistant. Sd/- N.R. Bhattacharyya Deputy Secretary to the Government of West Bengal. Government of West Bengal Finance Department Audit Branch No.11409-F Calcutta, the 28th December, 1977. OFFICE ORDER Shri Ashoke Lal Sengupta, Permanent New/Intermediate Selection Grade Upper Division Assistant, of this department is hereby appointed to officiate in the post of Head Assistant in this Dept. with effect from 20.12.75 and until further order vice Shri Bhabotosh Roy, appointed as Section Officer of this dept. vide Notification No. 11408-F dt. 28.12.77. Sd/- N.R. Bhattacharyya Deputy Secretary to the Government of West Bengal. No. 11409/1(3)-F. Dated, 28th December, 1977. Copy forwarded for information to : 1. The Accounts Officer, West Bengal Secretariat. 2. The Accountant General, West Bengal, 3. Shri Ashoke Lal Sengupta, U. D. Asstt. Finance Dept. Sd/- N. R. Battacharyya, Deputy Secretary to the Government of West Bengal. 14. It may be noted here that in course of the hearing both Mr. B. N. Sen, appearing for the petitioner, and Mr. Naranarayan Gupta, appearing for the Respondents No. 1, State of West Bengal and other Respondents and Mr. Somenath Chatterjee, appearing for the Respondent No.6, exchanged, remarks regarding the undue preference and favouritism shown by the political party in power during the periods, that is, prior to March, 1977, and subsequent thereto and in fact it wall alleged on behalf of the Respondents that the petitioner was given undue preference by showing favouritiam for his support to the political party then in power and he did not deserve the promotion and in fact, he superseded various other person including the Respondent No. 6 for whom Mr. Somenath Chatterjee was appearing. Having regard to the said heated altercations from the Bar I directed the Respondents to produce the C. C. Roll of the petitioner so as to verify whether there is any adverse remark in the said roll, but it may be noted nothing has been produced. Somenath Chatterjee was appearing. Having regard to the said heated altercations from the Bar I directed the Respondents to produce the C. C. Roll of the petitioner so as to verify whether there is any adverse remark in the said roll, but it may be noted nothing has been produced. On the other hand it is being alleged that the orders of the Chief Secretary were passed in the usual course of the government administration of the department whereas the petitioner alleged that the same was done under the pressure of the Co-ordination Committee which is the supporter of the present political party in power. Be that, as it may, the Court is only concerned whether any injustice, illegality, irregularity or violation of the norms and Rules has been perpetrated in this particular case reverting the petitioner to his original post in the facts and circumstances of this case. It will be convenient to set out the relevant Service Rules which have been referred to by both the parties." The West Bengal Service Rules, Part I Rules 72, 72(B) and 74. "72. Payment and allowances on reinstatement- (1) When a Government servant has been dismissed, removed or compulsory retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order- (a) Regarding the pay and allowances to be paid to the government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and (b) Whether or not the said period shall be treated as a period spent on duty. (2) Whether-the authority competent to order reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be. (3) In a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes. (5) In a case falling under sub-rule (4) the period of absence may be treated as a period spent on duty or leave unless the competent authority specifically directs that it shall not be so treated for any specified purpose. Note: The order of the competent authority under sub-rule (5) shall be absolute and no higher sanction shall be necessary for the grant of- (a) extraordinary leave in excess of three months in the case of temporary government servants, (b) leave of any kind in excess of five years in the case of permaneat or quasi-permanent Government servant. Pay and allowances on reinstatement by competent authority - 72B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on 1iuperannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order- (a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of retirement on superannuation, as the ease may be ; and (b) whether or not the said period shall be treated as a period spent on duty. (3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified the Government servant shall, subject to the provisions of sub-rule (8). be paid the full pay and allowances to which he would have been entitled, had he not been suspended. (4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes. 74. Leave may not be granted to a Government servant while he is under suspension or committed to prison. Note: 1. This rule does not prevent the grant to a Government servant on the termination of the period of his suspension or of the proceedings in connection with which he was committed to prison, of leave for the period of his suspension or committal to prison. Note: 1. This rule does not prevent the grant to a Government servant on the termination of the period of his suspension or of the proceedings in connection with which he was committed to prison, of leave for the period of his suspension or committal to prison. Note 2: In an establishment where provision for leave reserves exists any vacancy caused on account of the suspension of a Government servant or of his committal to prison for debt or on a criminal charge should be filled by a reservist and where a "reservist" is not available, the post should, subject to the provision of Note I below rule 55, be filled by an officiating appointment. It is however, not necessary to create an extra post. West Bengal Services (Classification, Control and Appeal) Rules, 1971. Part : - V- Discipline 8) Penalties:- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely (i) Censure; (ii) withholding of increments or promotions; (iii) recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of orders; (iv) reduction to a lower stage in the time-scale of pay for a specified period with further direction as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay; (v) reduction to a lower time-scale of pay, post or service which shall ordinarily be a "bar to the promotion of the Government servant to the time scale of pay, grade, post or service from which he was reduced, with or without further directions regarding conditions of the restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service; (vi) compulsory retirement; (vii) removal from service which shall not be a disqualification for future employment; (viii) dismissal from service which shall ordinarily be a disqualification for future employment under the Government. Explanation: The following shall not amount to a penalty within the meaning of this rule, namely :- (iv) reversion to a lower service, grade or post of a Government servant officiating in a higher service, grade or post or on the ground that he is considered, after trail, to be unsuitable for such higher service, grade or post or on administrative grounds unconnected with his conduct; (v) reversion to his permanent service, grade or post of a Government servant appointed on probation to another service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing the probation. Part: VI: Appeals 15(2). A member of the West Bengal State Service, Class III or Class IV, may appeal against an order imposing upon him any of the penalties specified in rule 8 to the authorities specified in the corresponding entry in column 5 of Schedule 1. 16(2). An appeal against an order, (b) reverting to a lower service, grade or post, a Government servant officiating in a higher service, grade or post otherwise than as a penalty. It also appears that "as a general rule officiating appointment in vacancies of two months duration or less shall not be made". That rule is the provision in Note I under Rule 55 of the West Bengal Service Rule, Part: I at page 32. It follows that if there is a vacancy for more than two months which may be occasioned by leave vacancy that is to be filled up by officiating appointment. III other words [if there is any employee officiating in a particular post and due to resumption of office of another employee in the same post the requisite number is filled up and the question of the employee being reverted to his original post arises, but if there is any leave vacancy for more than two months, as a general rule such leave vacancy should be filled up by the officiating employee who would have otherwise, had to go back to his original substantive post. In fact, in the present case the petitioner, Bijan Bhusan Mukherjee, submitted a memorial on which notes and orders of the Finance (Budget) Department in its file were made; an extract from which had been annexed to the affidavit of Bijan Bhusan Mukherjee affirmed on the 20th of March, 1978, relevant portion of which is set out hereunder :- "It appears from the statement of Shri Mukherjee that consequent on the joining of Shri Nripendra Barayan Chakraborty, a suspended Head Asstt., the question of reverting the Juniormost H.A. who is unforunately Shri Mukherjee has cropped up. But we understand that there is a leave vacancy in the post of H.A. and as such he may be allowed to continue to officiate against the vacant post available now as has been the usual practice followed hitherto in such cases in the Finance Deptt. Shri Mukherjee has been efficiently officiating for a pretty long period and in this view it will be a pitiful thing if he has to revert now inspite of a berth being available." 15. From the above facts it clearly appears that when a suspended employee coming back and joining his post after a period of about six years the question of an officiating juniormost employee in the said post being reverted arose and as a general rule if there would have been a leave vacancy for more than two months as was in this case, the said juniormost officiating Officer being the petitioner should have filled up the said leave vacancy so as to avoid the reversion or in some cases such reversion could be avoided by creating a supernumerary post. In fact, in the case of Respondent No.6, Biswajit Das, such a post was created after he came back as there was no berth available only with a view to not to leave him oat. Therefore, prima facie, it appears that there was no difficulty in retaining the petitioner in his officiating post as Head Assistant even the said Respondent No. 5. Nripendra Narayan Chakrabarty against whom order of suspension was withdrawn and rejoined his original post as Head Assistant there being a leave vacancy for more than two months. Therefore, prima facie, it appears that there was no difficulty in retaining the petitioner in his officiating post as Head Assistant even the said Respondent No. 5. Nripendra Narayan Chakrabarty against whom order of suspension was withdrawn and rejoined his original post as Head Assistant there being a leave vacancy for more than two months. It further appears that the, said Nripendra Narayan Chakrabarty for all practical purposes was not really meant to be in the post of Head Assistant as appeared from the subsequent events and orders of the State Govt. which have been set out before. Not only he was brought back in his original post but very soon thereafter by an order dated the 28th of December, 1977, he was promoted to the post of Section Officer with effect from 1st of June, 1974. It further appears that inspite of specific interim order in this application that no appointment in the post of Head Assistant to be made till the disposal of this application, by an order dated the 28th of December, 1977, an order was made appointing one Mr. Bhabotosh Roy as officiating Head Assistant with effect from 17th of March, 1972, and by the very same order he was confirmed in the said post of the Head Assistant with effect from 19th of December, 1975 and also another employee Asoke Lal Sengupta was given an officiating appointment as Head Assistant with effect from 20th of December, 1975, by an order dated the 28th of December, 1977. Those orders have been set out hereinbefore. From the above it is clear that inspite of specific orders made by this Court in this application, the State Govt. has not carried out the same but by making appointments with retrospective effects has made an attempt to circumvent the said order, if possible. In my view, the said, orders have been both in substance and in spirit clear violation of this court's order and it would have been proper for the State Govt. to take leave of this Court before making such appointments which appears to be indirectly if not directly violating an order of this Court passed in this application. 16. Mr. B. N. Sen, appearing with Mr. Shyamal Sen and Mr. to take leave of this Court before making such appointments which appears to be indirectly if not directly violating an order of this Court passed in this application. 16. Mr. B. N. Sen, appearing with Mr. Shyamal Sen and Mr. Uma prasad Mukherjee, for, the petitioner, submitted that on the 28th of July, 1977, when one suspended Section Officer and one suspended Head Assistant were reinstated in the Finance Dept, there were one vacancy in each of the two categories. In the case of the Section officer according to Rule the Junior-most Section Officer Panchu Gopal Mitra was absorbed in the vacant post and there was no order of reversion in his case. Mr. B. N. Sell., therefore, submitted that according to the General Rule which has been referred to earlier the Juniormost Officiating Head Assistant, the petitioner Bijan Bhusan Mukherjee, should also have been absorbed in the vacant post but in violation of General Rule the petitioner was reverted to his substantive post of selection grade, Upper Division Head Assistant. According to, Mr. Sen that this wall a discriminating attitude of the Finance Department contrary, to the existing General Rule. Mr. Sen Submitted that Mr. Mukherjee, the petitioner, should have been treated in a similar manner as the said Panchu Gopal Mitra in whose place the petitioner was appointed on the 22nd of December, 1976. It is alleged by Mr. Sen that the same was done due to the pressure of the Coordination Committee., Mr. Sen referred to the fact that the petitioner Mr. Mukherjee was recommended for bring absorbed in the leave vacancy by Mr. B. C. Dutta, Assistant Secretary, Mr. A. C. Basu, Deputy. Secretary and Mr. N. K. Pal, Joint Secretary in their notes which have been set out before: Further, Mr. Sen submitted that there is no adverse remark in the C. C. Roll of the petitioner, neither any proceeding was drawn against him and the reversion in those circumstances amounted to penalty. Mr. Sen further submitted that after the, alleged reversion of the petitioner, Bijan Bhusan Mukherjee, in his substantive of Selection Grade Upper Division Assistant, the said Mr. Biswajit Das who was the juniormost in the Section Grade Upper Division. Assistant should have been reverted to his substantive post of Upper Division Assistant as there was no vacancy in the post of Selection Grade Upper Division Assistant. Biswajit Das who was the juniormost in the Section Grade Upper Division. Assistant should have been reverted to his substantive post of Upper Division Assistant as there was no vacancy in the post of Selection Grade Upper Division Assistant. But inspite of that a supernumerary post was created to retain the said Mr. Biswajit Das in his officiating post in the Selection Grade Upper Division Assistant. Therefore, Mr. Sen submitted that the petitioner, Bijan Bhusan Mukherjee was not given the benefit of supernumerary post as he said Biswajit Das was given and therefore, the said act of reversion was a discriminatory act and should be struck down. He alleged that the same was dues to the pressure of the Co-ordination Committee as the notices and orders were pasted as will appear from the file. Here it may be noted that the Respondents submitted that the pasting of orders is the usual in the Govt. files. Mr. Sen Submitted that the petitioner worked in the Finance Dept. as Head Assistant for the month of August, 1977, and he was signing the attendance Register of Head Assistant and was performing the duties of Head Assistant and files were being marked to, him as Head Assistant. Therefore Mr. Sen submitted that in this context an order dated the 1st of September, 1977, reverting him to Selection Grade Upper Division Assistant with, retrospective effect from 27th of July, 1977, is Illegal and should be set aside Mr. sen further submitted that Mr. Mukherjee, the petitioner, is a permanent Govt. employee and worked as a Head Assistant for the month of August, 1977, but no salary bill for the petitioner has been prepared and drawn by the Finance Dept. for the month of August, 1977, but he was paid only after an order was made by this court in this application. In. those circumstances Mr. Sen submitted that the order of reversion of the petitioner being dated the 1st of September, 1977, is highly discriminatory, malafide, illegal and against the General Rule and therefore, should be set aside. Mr. Sen submitted that in the facts and. In. those circumstances Mr. Sen submitted that the order of reversion of the petitioner being dated the 1st of September, 1977, is highly discriminatory, malafide, illegal and against the General Rule and therefore, should be set aside. Mr. Sen submitted that in the facts and. circumstances of this case it is quite clear that the order of reversion of the petitioner from the post of Head Assistant in which he was officiating in the vacancy of Pdnchu Gopal Mitra on the ground of the said Nripendra Narayan Chakraborty substituting the petitioner on the withdrawal of his suspension order is absolutely malafide. Mr. Son submitted that it has been specifically pleaded that the said order of reversion was malafide in paragraphs 14 and 17 sub-paragraphs (v), and (vii). Mr. Sen. there-fore, submitted that the said order of reversion coupled with the withholding of salary, puts the petitioner with the evil consequence of loss of pecuniary benefit, it is discriminatory and amounting to a and therefore, violative of Article 311 (2) of the constitution of India. In support of his contention Mr. Sen cited several decisions Mr. Sen also submitted that the said order of dismissal was not communicated to the petitioner before the present writ petition was moved and he cited a decision in the (1) State of Punjab v. Amar Singh Harika, AIR 1966 SC 1316 where, it has been laid down that the said order of dismissal passed against an Officer on a particular date cannot be said to have taken effect until he clime to know about it. Thereafter, Mr. Sen cited the Supreme Court decision in (2) S. P. Basudeva v. State of Haryana, AIR 1975 SC 2298 where it has been held that a question of reversion from a higher post to a lower post cannot be questioned except on the basis of malafide in the making of the order. Mr. Sen submitted that in the facts of this case having regard to the manner and mode of reversion of the petitioner is nothing but malafide exercise of the power by the Respondent No. 1 only to victimise the petitioner and therefore, the order should be set aside as bad and violative of Article 311(2) of the Constitution of India. On the question of an order being discriminatory the Court has jurisdiction to grant relief Mr. On the question of an order being discriminatory the Court has jurisdiction to grant relief Mr. Sen cited a Punjab decision in (3) Suresh Kumar & Anr. v. Union of India, AIR 1969 Punjab 257. Mr. Sen also cited a Supreme Court decision in (4) M/s. Uresian Equipment & Chemical Limited v. State of West Bengal & Anr. AIR 1975 SC 266 where a Government Contractor challenged an order placing it in the black list it was held that the fact of black listing indicates that the authority is to have an objective satisfaction. Fundamental of fair play requires that the person concerned should be given an opportunity to represent his cue before he is put on the black list. The Government cannot chose to exclude a person by discrimination. The order of black listing has the effect of depriving a person of equality of opportunity in the matter of public contract when the State acts to the prejudice of the person which has to be supported by legality. A citizen has a right to claim equal treatment to enter into a contract which may be proper, necessary and essential to his lawful calling. Where a black listing involves civil consequences it cast a slur. It creates a barrier between the person black listed and the Government in the ma tier of transaction. Black lists are the instruments of coercion. Such a person must be given un opportunity of hearing before his name is to be on the black list. Relying on the said decision Mr. Sen rightly submitted that the order of reversion in the facts' find circumstances of this particular case amounts to putting a slur on the petitioner having regard to the fact that there being an existing leave vacancy which as a general rule should have been filled up by the petitioner, the juniormost officiating Head Assistant or by creating a supernumerary post, as it was done in the case of the Respondent No.6, Biswajit Das, it amounts to a discrimination, malafide and colourable exercise of the power by the Respondents and therefore, has penal consequences and without giving an opportunity to the petitioner, such an order is violative of the principles of fundamental of fair play, natural justice and Article 311 (2) of the Constitution of India. Mr. Mr. Sen also cited a decision in the case of (5) State of Mysore v. P.R. Kulkarni & Ors. AIR 1972 SC 2170 where it was held that if the power of reversion is used for collateral and illegally extraneous purposes, the reversion order resulted in an unjustifiable discrimination against the employees and was struck down under Articles 14 and 16 of the Constitution of India. Mr. Sen rightly submitted that here also the Respondent No.1, State of West Bengal, and the Respondent Nos. 2, 3 and 4 have collateral the said order of reversion issued against the petitioner for a collateral and extraneous purposes other than administrative grounds unconnected with the conduct of the petitioner Mr. Sen submitted that it is only for the purpose of petitioner being victimised and the Respondent Nos. 5 and 6 being rewarded due to the change in the political power governing the State. Mr Sen very strongly relied en the decision in (6) The Slate of U. P. & Ors. v. Sughar Singh, AIR 1974 SC 423 where the petitioner alone was reverted from his officiating post to his substantive post allowing other who were junior to him to retain their officiating posts and the basis of such reversion was admitted to be an adverse entry in his character roll and the order of reversion was by way of punishment fwd amounted to reduction in rank. The order was alleged to be violative of Articles 14 and 16 of the Constitution of India. It was observed by the Supreme Court that an order of reversion is in its immediate effect bound always to a reduction in rank. Even a reversion from a higher but temporary and officiating rank to a lower substantive rank is in a sense reduction. But such reversions are not always "reduction of rank" wit bin the meaning of Article 311 of the Constitution of India: It was held that the real test in 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 reversion is a punishment and cannot be ordered except in compliance with the provisions of Article 311 of the Constitution of India. If he has a right to the post, then reversion is a punishment and cannot be ordered except in compliance with the provisions of Article 311 of the Constitution of India. 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 of the Constitution of India. But even in that case be cannot be reverted in a manner which will show conclusively that the intention was to punish him. The Supreme Court laid down the principle as follows: "In considering the question whether all order of reversion from an officiating post to the substantive post is by way of punishment, the Court is concerned only with the question if the order entails any penal consequences. The motive behind the reversion is not relevant." "17. Mr. Sen submitted that applying the test laid down in the said Supreme Court decision to the facts of this case it should be held that the said order of reversion amounted to a punishment of the petitioner and rewarding the Respondent Nos. 5 and 6 and therefore:, it is violative of Article 311 of the Constitution of India. Mr. Sen also relied on the Supreme Court decision in (7) The State of Bihar v. Shiva Bikkhu Misra, AIR 1971 SC 1011 where it has been laid down that for the applicability of Article 311 of the Constitution of India it is not necessary that there should be express words of stigma attributable to the conductor a Govt. servant in the impugned order. There is no rigid principle that one has look to toe order and if it does not contain any imputation - of misconduct or words attaching stigma to the character or reputation of a Govt.-Officer, it must be held to have been made in the ordinary course of administrative routine and the Court is debarred to look into at the attendant circumstances to discover whether the order has been made by way of punishment. A form of order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. It may be that an order which is innocuous and does not contain any imputation of misconduct is a circumstances or a piece of evidence for finding whether it was made by way of punishment or administrative routine. It may be that an order which is innocuous and does not contain any imputation of misconduct is a circumstances or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstanecs preceding or attendent on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. Mr. Sen rightly submitted that applying the said principle and test to the present case by taking into account the entirety of circumstances preceding or attendant on the said impugned order of reversion, it will be clear that the petitioner bas been discriminated and meted out with a punishment by the present political party in power and puts a slur on the petitioner and therefore. violative of Article 311 of the Constitution of India, and should be set aside. Mr. Sen also cited the Supreme Court decision in (8) M/s. Laxman & Company v. Dr, Anand R. Despandey & Anr., AIR 1973 SC 171 in support of his proposition that the Court can take notice of subsequent event to shorten litigation to preserve rights of both the parties and to sub-serve the ends of justice. Mr. Sen rightly submitted that subsequent conduct of the Respondent Nos. 1, 2, and 3 in not paying the salary of the petitioner as Head Assistant inspite of the Court's order and inspite of the fact of his serving as a Head Assistant for the month of August, 1977, and also making appointments in the post of Head Assistant by the order dated the 28th of December, 1977, inspite of Court's order and the promotion of the Respondent No.5, Nripendra Narayan Chakrabarty, to the Post of Section Officer with retrospective effect makes it quite clear that the said order of reversion of the petitioner was malafide, highly discriminatory and had the penal consequences of withholding salary and therefore, violative of Article 311(2) of the Constitution of India and should be struck down. 18. Mr. 18. Mr. Naranarayan Gooptu, appearing for the Respondent Nos.1, 2 and 3, mainly contended that the petitioner as officiating Head Assistant had no legal right to the said post and he has been reverted as a natural consequences of the said Nripendra Narayan Chakrabarty whose suspension order was withdrawn and under the W. B. Service Rules he became entitled to join the post which he was holding at the date of the order of suspension. The petitioner being the Juniormost officiating Head Assistant was bound to be reverted to his substantive post and therefore, the said order of reversion Cannot be a penalty, discriminatory or malafide as alleged by the petitioner. Mr. Gooptu cited several Supreme Court decisions wnhereit has been held that unless there is a legal right to be in a particular post a Govt. Officer cannot challenge the oreder of reversion from officiating post to his substantive live post., Mr. Gooptu cited the series of decisions in which the principles laid-down in the root case of- (9) Purusattam Lal Dhingra v. Union of India, AIR 1958 SC 36 was applied and followed. Those decisions are in (10) Madhab Laxman Bhai Kunthi v. State of Mysore AIR 1962 SC 8 , (11) State of Rajasthan v. Ramswaran AIR 1964 SC 1361 (12) The Division Personnel Officer, SER Mysore v. S. Raghadendrachari, AIR 1966 SC 1259, Mr. Gooptu also submitted that the petitioner has not pointed out any violation of the Service Rules or the Statute by the said order of reversion which was on administrative ground un-connected with his conduct. Mr. Gooptu submitted that as the order of suspension against the said Nripendra Narayan Chakrabarty Was withdrawn it was a matter of administrative routine the petitioner being the juniormost officiating Head Assistant should be reverted to his substantive post to make room for the said Nripendra Narayan Chakrabarty who rejoined his post. Mr. Gooptu referred to the West Bengal Service (Classification, Control and Appeal), Rule, 1971, Rule 8, Explanations (iv) and (v) in support of his proposition that the said order of reversion of the petitioner in the facts and circumstances of this case cannot amount to a penalty within the meaning of the said Rule. Therefore, it cannot be said that the said order was violative of Article 311 of the Constitution of India as it was not a penaly. Mr. Therefore, it cannot be said that the said order was violative of Article 311 of the Constitution of India as it was not a penaly. Mr. Gooptu also referred to the provisions for appeal in Part (v) Rules 15 and 16 of the said West Bengal Service (Classification, Control and Appeal Rules, 1971, and submitted that if the petitioner Was aggrieved by the said order of reversion, he could have preferred an appeal under the said Rules to the appellate authority for remedy and, therefore the present writ petition cannot lie. Mr. Gooptu submitted that the Rule should be discharged and the interim order should be vacated. 19. Mr. Somenath Chatterjee, appearing for the Respondent No.6, Biswajit Das, submitted after drawing my attention to the petitioner's letter dated the 9th of August, 1977, that the petitioner did not challenge the order of reversion but has merely prayed for leave to officiate in the leave vacancy in the post of Head Assistant. Therefore, Mr. Chatterjee submitted that the petitioner should not be allowed to challenge the said order of reversion which he accepted as legal and valid. In my view, Mr. Chatterjee was not quite right in his said submission as the said letter if it is read as a whole makes it quite clear that the petitioner's representation to his appointing authority was that there being leave vacancy he should be allowed to fill in the same according to the age old practice and the said order of reversion is contrary to such practice. The said letter is written in an usual polite form as it should be from a subordinate to the higher appointing authority, Mr. Chatterjee referred to the Supreme Court decision in (13) G. S. Gill & Ors. v. State of Punjab & Ors. AIR 1974 SC 1898 where writ petition for quashing an order of reversion from an officiating post to the substantive post was held to be a simple order of reversion not amounting to dismissal or removal within the meaning of Article 311 of the Constitution of India. It was also held that a person acquires a right to the post only when he is specifically appointed to it. There is no stigma that order of reversion cast upon the petitioner. It was also held that a person acquires a right to the post only when he is specifically appointed to it. There is no stigma that order of reversion cast upon the petitioner. Therefore, it was held that Article 311 of the Constitution of India has no application until the order of reversion casts stigma and was, therefore, punitive in charactor. In that decision the principles of Purusattam Lal Dhingra’s case were applied and approved. Mr. Chatterjee also cited a Supreme Court decision in (14) Gurudev Singh v. State of Punjab 1971(3) SCC 324 where a suit filed by a Govt. Servant challenging the order of reversion to his substantive post which was dismissed by the Trial Court and the High Court in appeal and thereafter, the Supreme. Court in the appeal held that It is quite clear that the appellant was not reverted because of any shortcoming and there was stigma on him and no adverse remark against his character or efficiency and it was held that he was reverted for administrative reasons and, therefore, he could not complain except on the ground of his legal right to continue in the post which gave him the right to hold the post Relying on those two decisions Mr. Chatterjee submitted that the said order of reversion is legal and valid and did not amount to punishment and as such, cannot be violative of Article 311 of the Constitution of India. 20. Regarding the maintainability of the present writ petition in view of the provisions of appeal form the impugned order that is existence of alternative remedy Mr. Sen rightly submitted that when a totally unauthorised act which is without jurisdiction is challenged, the bar under article 226(3) of the Constitution on India would not apply and he cited a decision in Sukumar Banerjee v. Chariman, Calcutta Improvement Trust & Ors 82 CWN 923. He also cited a deision in (15) R. Rajiah v. Inspector of Municipal Council & Local Boards, Madras AIR 1955 Madras 584 where it was held that provisions for the alternative remedy by way of appeal or right of representation to the Govt under the statute is really illusory when the Govt. itself has decided to pass the impugned order and to seek remedy at the hand of the Govt. is meaningless. Mr. itself has decided to pass the impugned order and to seek remedy at the hand of the Govt. is meaningless. Mr. Sen also cited a decision in (16) Bhartia Electricity Steel Company Limited v. Commercial Tax Officer & Ors. AIR 1956 Calcutta 299 where it was held that an order passed by an Officer under the directive made by the Govt. and consequently any revision before the Commissioner of Commercial Tax Officer would be meaning less and a mere ritual. Therefore, the writ application must be heard on its merit and was held to be maintainable. In may view, Mr. Sen was right in the facts of this case as when the Govt. in view of its present policy regarding withdrawal of suspension orders, promotion, creation of supernumerary posts etc. it will be absolutely futile and illusory to prefer an appeal under the provisions of the West Bengal Service (Classification. Control and Appeal) Rules, 1971. Therefore, in my view [the present writ petition seems to be the only possible remedy open to the petitioner to get any relief on proper grounds.] 21. Considering the matter very carefully and giving my anxious thought over the matter it appears to be an admitted fact that the petitioner against whom there is no adverse report in fact, inspite of my asking the Respondents to produce the petitioner's Confidential Ch.1facter Roll, the same was not produced and, therefore, it may be inferred that had it been produced, nothing against the petitioner could be found. It also transpires that the petitioner in the usual course of his employment as a Govt. Servant in the Finance Dept. was promoted from the Lower Division Assistant in the Finance Dept, which he joined on the 12th of August 1959. It further appears that in the usual course he was officiating as a Head Assistant in the Finance Dept. by an office order dated the 22nd of December, 1976, in place of one Panchu Gopal Mitra who was promoted to the post of Section Officer. It is an admitted position that the petitioner received his pay as Head Assistant up to 31st of July, 1977. It is only the salary for the month of August, 1977, was withheld and thereafter the impugned order dated the 1st of September, 1977, was passed reverting the petitioner to his substantive post of Upper Division Assistant. It is an admitted position that the petitioner received his pay as Head Assistant up to 31st of July, 1977. It is only the salary for the month of August, 1977, was withheld and thereafter the impugned order dated the 1st of September, 1977, was passed reverting the petitioner to his substantive post of Upper Division Assistant. The said impugned order which has been set out before clearly indicates that due to the withdrawal of order of suspension of the Respondent No.5, Nripendra Narayan Chakrabarty and his resumption of duties on the 28th of July, 1977. The petitioner being the juniormost officiating Head Assistant was reverted to the post of Upper Division Assistant in the afternoon of 27th of July, 1977. It is now an admitted position that on that date there was a leave vacancy in the post of Head Assistant for more than two months and, therefore, according to the General Rule the petitioner should have been appointed in the said leave vacancy as would appear from the note (1) of Rule 55 of the West Bengal Service Rules, Part I. In fact, the petitioner was recommended to be appointed in the said leave vacancy and that was his representative to the appointing authority as per his letter dated the 9th of August, 1977. It further appears that the State Govt. has created supernumerary post to avoid reversion of employees like the Respondent No. 6 but the petitioner being similarly situated in the post of Head Assistant Was not given a berth there by creating a supernumerary post. Therefore, in my view, it appears to be a clear case of discrimination. It is hit by both the Articles 14 and 16 of the Constitution of India. It also appears that [after the change of the Govt. in 1977 various Service Rules made by the previous Govt. have been altered, set aside or cancelled but whatever may be the policy of the political party in power, the security of the Govt. servants and the tenure of their respective services should be maintained so as to ensure efficient, faithful and smooth running of the Govt. machinery by Govt. Servants.] It is now well settled that [all orders of reversion in its immediate effect bound always to be a reduction in rank. servants and the tenure of their respective services should be maintained so as to ensure efficient, faithful and smooth running of the Govt. machinery by Govt. Servants.] It is now well settled that [all orders of reversion in its immediate effect bound always to be a reduction in rank. Even a reversion from a higher but temporary and officiating rank to a lower substantive rank is in a sens reduction.] See State of U. P. & Orr. v. Sughar Singh AIR 1974 SC 423 but it is also well settled that reversion as such is not always "reduction of rank". "The real test as laid down by the Supreme Court in the said decision is to ascertain if the Officer concern has right to the post from which he is reverted. If he has a right to the post, then reversion ill a punishment and cannot be ordered except in compliance with the provisions of Article 311 of the Constitution of India. If on the other hand the Officer concern has no right to the post, he can be reverted without attracting the provisions of Article 311 of the Constitution of India. 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 concern is being reverted by way of punishment. In fact, the order may, in various other ways cast a stigma on the officer concern. In all these cases the order is to be taken as a punishment Sometime, 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 sub-ordinate rank or a stoppage or postponement of future chances of promotion. In such cases all the Govt. Servants must be regarded as have not been punished and his reversion to the substantive post must be treated as a reduction in rank. In such cases Article 311 of the Constitution of India will be attracted. In considering the question whether all order of reversion from an officiating post to the substantive post is by way of punishment the Court is only concerned with the question if the order entails any penal consequences. The motive behind the reversion is not relevant." 22. In such cases Article 311 of the Constitution of India will be attracted. In considering the question whether all order of reversion from an officiating post to the substantive post is by way of punishment the Court is only concerned with the question if the order entails any penal consequences. The motive behind the reversion is not relevant." 22. Therefore, it is to be seen whether in the present case any penal consequences had been suffered by the petitioner in the facts and circumstances of this case. 23. It is further laid down by the Supreme Court in the decision of The State of Bihar & Ors. v. Shiva Bikkhu Misra, AIR 1971 SC 1011 that "for the applicability of Article 311 of the Constitution of India it is not necessary that there should be express words of stigma attributable to the conduct of a Government Servants in the impugned order. There is no rigid principle that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Govt. Officer it must be held to have been made in the ordinary course of administrative routine and the Court is debarred to look into at the attendant circumstances to discover whether the order had been made by way of punishment. The form of order is not a conclusive of its true nature and it might merely be a cloak or the Camoflage of an order founded on misconduct. It may be that an order which is innocuous 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 a mere motive or is the very foundation of the order." 24. That said principle is also reiterated in the subsequent Supreme Court decision in (17) R.S. Sial v. The State of U.P. & Ors., AIR 1974 SC 1317 . That said principle is also reiterated in the subsequent Supreme Court decision in (17) R.S. Sial v. The State of U.P. & Ors., AIR 1974 SC 1317 . Therefore, from the facts of this present case it must be examined with care and caution to find out the mode and manner of the petitioner's reversion by the impugned order in the light of the proceeding and attendant circumstances and also the subsequent conduct of the Respondent in making appointments both officiating and permanent and also creation of supernumerary post in the Finance Dept. in different cadre in which the petitioner was working, The root case on the subject seems to be on the Supreme Court decision in purusattam Lal Dhingra v. Union of India, AIR 1958 SC 36 where it has been laid down. "The real test for determining whether the reduction in such cases is or is not by way of arrangement is to find out if the order for the reduction also visits the servant with penal consequences. Thus if the order entails or provides for the forfeiture of the pay or allowances or the loss of his seniority in his substantive rank or the stoppages or the postponement of its future chances of promotion, then the circumstances may indicate that although any form of Govt. had purported to exercise its right to terminate the employment or to reduce the services to a lower rank under the terms of the contract of employment or under the Rules in truth and reliability the Govt. had terminated the employment as and by way of employment. The use of the expression "terminate" or "discharge" is not conclusive. Inspite of such used innocuous expression the Court has to apply the two tests mentioned above namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to. If the case satisfied either of the two tests, it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from the service or the reversion to its substantive rank must be regarded as a reduction in rank and if the requirements of the Rule and Article 311 of the Constitution of India which give protection to Govt. servant have not been complied .with, the termination of the service or the seduction in rank must be held to wrongful and in violation of the Constitutional right of the servant." 25. The said test is to be applied to each case and in the light of the peculiar facts, in the background in which the impugned order is made and also the subsequent conduct of the Govt. in relation to such employees would be very material to judge the situation correctly and the purpose, object and consequences of an impugned order. As in this case the petitioner who was officiating as a Head Assistant admittedly had no legal right in the said post but certainly he has a right to be appointed in the leave vacancy according to the General Practice unless there is very good reasons for not doing so. In this case there is no allegation against the petitioner as to any misconduct, inefficiency or indiscipline. On the other hand, the departmental head has recommended the petitioner to be appointed to the said leave vacancy which was existing at the date of impugned order in the post of Head Assistant. It further appears that the Respondent could have created a supernumerary post as they have done in the case of the Respondent No. 6 to avoid reversion of the petitioner who was officiating in the post of Head Assistant. But that was not done and, therefore, it is a discrimination in the facts and circumstance of the present case which is hit by Articles 14 and 16 of the Constitution of India. (See The State of Mysore v. P. R. Kulkarni & Ors., AIR 1972 SC 2170 .) The subsequent conduct of the Respondent in not paying the petitioner's salary except by an order of the Court and also making appointments in the post of Head Assistant inspite of specific interim order of the Court not to make any appointment pending the disposal of this application makes it quite clear that the said order of reversion of the petitioner is mala fide, discriminatory and against the General Rule of appointment in leave vacancy which was admittedly existing at the date of impugned order. Further, it appears that the said Nripendra Narayan Chakrabarty whose suspension order was withdrawn and who resumed his duties by displacing the petitioner bas been promoted as Section Officer with effect from 1st of June, 1974, by the order dated the 28th of December, 1977, set out hereinbefore, Therefore, it is quite clear that the whole purpose of the impugned order of reversion dated the 1st of September, 1977, was simply to push back the petitioner to his original post without considering his case for being appointed in the existing leave vacancy and also not retaining him be creating the supernumerary post. Therefore, the said order of reversion must be held to be visited with penal consequences as the petitioner having lost the chanee of being appointed in the leave vacancy and also in a supernumerary post as in the case of other in similar circumstances like the Respondent No. 6 and also the order dated the 28th of December, 1977, by which one Bhabotosh Roy who was appointed to officiate in the Post of Head Assistant. Therefore, the said order is clearly discriminatory and violative of Articles 14 and 16 of the Constitution of India. It is quite clear that in the facts of this case the order of reversion of the petitioner must be said to be visited with penal consequences although the wordings seem to be innocuous and as a matter of routine due to withdrawal of the suspension order of the Respondent No.5. This case is a class by itself and the penal consequences which has visited the petitioner is very subtle but at the same time quite effective. It is the effect of order alone that matters as the "protection of Article 311 of the Constitution of India is not against the "harsh words" but against the "hard blows". Here the petitioner being treated discriminately not being retained in the officiating post by creating a supernumerary post or being appointed in the leave vacancy as a General Rule under the provisions of Rule 55 Note (1) of the West Bengal Service Rules Part I, Therefore. I have no hesitation in holding that the said impugned order of reversion of the petitioner has visited him with penal consequences and violative of Articles 14 and 16 of the Constitution of India and must be set aside. 26. In the result, the Rule is made absolute. I have no hesitation in holding that the said impugned order of reversion of the petitioner has visited him with penal consequences and violative of Articles 14 and 16 of the Constitution of India and must be set aside. 26. In the result, the Rule is made absolute. There will be an order of injunction in terms of prayer (f). Further, the petitioner would be raid the salary as a Head Assistant. 27. The Respondent Nos. 1 to 4 to pay the costs of this application. 28. Respondent Nos. 1 to 4 to act on a signed copy of the minutes on the petitioner's advocates on record's undertaking to complete and file this order.