ORDER Pandey, J. -- 1. This appeal, under Clause 10 of the Letters Patent, is directed against the order dated 12.9.96 passed by a learned Single Judge of this Court. The learned single Judge has dismissed the writ petition under Articles 226/227 of the Constitution of India. 2. The facts invloved in the appeal are as follows. The appellant was appointed as a Civil Judge Class II on 19.6.75. He was promoted to the post of Civil Judge Class-I in December, 1983. The appellant, therefore, earned a higher grade in the same cadre known as Selection grade-cum-Chief Judicial Magistrate and was initially posted as Additional Chief Judicial Magistrate in June 1987. Subsequently, the appellant was posted as regular Chief Judicial Magistrate in the year 1988. It is obvious that the appellant achieved the highest grade in Lower Judicial Service after 12 years of service in Madhya Pradesh Lower Judicial Service and he was due for promotion to the lowest grade of Higher Judicial Service called District Judge in Senior Time Scale (3200-100-3700-125-4700). Accordingly, the appellant was promoted to officiate temporarily on the post of District Judge by a Gazette Notification dated 24.5.1989 by the Department of Law and Legislative Affairs, in the name of Governor of Madhya Pradesh. Consequently, the appellant was posted by the High Court as per Order dated 14.8.89 (Annexure-2), as Fourth Additional Judge to the Court of District Judge, Gwalior. Thereafter, the appellant was posted at Badwani on transfer in July, 1991 and remained there upto July, 1992. It appears that the appellant's trouble began at that place. The Court of the Appellant was inspected by District Judge, Mandleshwar in March, 1992 and he submitted his Inspection Report to the High Court as per Annexure-3, sometime, .after the month of March. According to the appellant this report, Annexure-3 was not against him and was substantially in his favour. In the month of July, 1992 the appellant was transferred to Raigarh. The appellant alleged in his petition that he had the misfortune to incur the wrath of the then District Judge, Mandleshwar, Shri T.C. Jain, because, he did not release the relatives of the District Judge, by name, Abhay Lunked and Jagdish Lunked, in Criminal Case No. 602 of 1992. Therefore, after the appellant left Badwani on transfer to Raigarh on 16.7.1992, Shri T.C. Jain made a complaint dated 23.7.1992 (Annexure-5) against him. Therefore, after the appellant left Badwani on transfer to Raigarh on 16.7.1992, Shri T.C. Jain made a complaint dated 23.7.1992 (Annexure-5) against him. Consequently, a Departmental Enquiry was sought to be instituted by the High Court, respondent No.1. Article of charges alonghwith statement of allegations based on the complaint were proposed (Annexure R.11). The appellant was required to submit an explanation. He gave the explanation dated 6.8.1994 (Annexure 13). Consequently, the High Court, after considering his explanation passed the order dated 24th January, 1995 (Annexure-6). 'The text of that order was that after considering the explanation dated 6.8.94 the appellant was warned to be more 'judicious in future'. Thereafter, the proposed Departmental Enquiry against the appellant was not pursued. It was claimed by the appellant that his work at Gwalior for two years of his posting was good and nothing adverse was communicated to him. It was stated further that his performance and work at Raigharh was scrutinized by two senior District Judges, Shri S.K. Tiwari (now a Judge of Calcutta High Court) and Shri R.K. Mishra, District and Sessions Judge, Raigarh. The appellant claimed that the above named officers had also given him a good chit and it was further stated that the appellant was given next Higher Grade in Higher Judicial Service by the order dated 24.9.94 (Annexure-7) passed by the High Court. It is called District Judges in Junior Administrative. Grade Non-Functional (Rs. 3960-125-4700-150-5700). Thereafter, the appellant was informed that the High Court, in its Full Court Meeting, dated 6th/7th May, 1994 (Alongwith the second Full Court Meeting), had found that the appellant was unfit/unsuitable for confirmation by letter dated 23.11.1994 (Annexure-6). The appellant was, therefore, reverted to the post of Civil Judge Class-I/Chief Judicial Magistrate by the Notification dated 24.7.95, issued by the Department of Law and Legislative Affairs of the State of Madhya Pradesh, in the name and by order of the Governor. 3. The main grievance of the appellant in the writ petition was that he was being punished on account of the adverse uncommunicated entry made by Shri T.C. Jain, District Judge, Mandleshwar in the Annual Confidential Report ending 31.3.1992. The appellant amended his petition after the High Court filed its Return and also filed a Rejoinder. 3. The main grievance of the appellant in the writ petition was that he was being punished on account of the adverse uncommunicated entry made by Shri T.C. Jain, District Judge, Mandleshwar in the Annual Confidential Report ending 31.3.1992. The appellant amended his petition after the High Court filed its Return and also filed a Rejoinder. He asserted that during the course of Full Court Meeting held on 1st, 2nd and 3rd May, 1992 (hence-forth 'the First Full Court Meeting') the Inspection Report (Annexure-3) of Shri T.C. Jain, District Judge, Mandleshwar was not considered by the High Court. However, he urged that the adverse uncommunicated Confidential Report must have been considered at the First Full Court Meeting and, therefore, he was not found fit for confirmation as per Full Court Resolution (Annexure R-1). It was asserted by the appellant that he was communicated with the adverse entry in his Confidential Report of 1992"on 8.3.1996 (Annexure-20) during the pendency of his writ petition. The appellant raised ground that the uncommunicated entry in his Confidential Roll could not be used for his non-confirmation. It was also claimed• that the complaint (Annexure-5) formed the basis for his non-confirmation in the Full Court Meeting held on 6th and 7th May, 1994 (1ne 'Second Full Court Meeting', for short). 4. The appellant claimed that his reversion to the post of Civil Judge Class I Chief Judicial Magistrate in his substantive rank consequent to his non-confirmation, was by way of punishment because the order of non-confirmation was based on the material which called for an enquiry which was not pursued. It was also contended that the uncommunicated confidential. reports for the year ending 1992 could not be considered by the High Court in its First and Second Full Court Meetings. It was also claimed that the punishment could also be inferred from the facts that his junior have been retained in the service. It was claimed that order of non-confirmation as well as reversion was discriminatory because several persons who had faced a departmental 'enquiry, have been retained in service despite being found guilty. He gave an example in respect of Shri A.N. Vijay. It was further claimed by the appellant that even if he was found unsuitable for confirmation, he could not have been reverted to the post of Civil Judge Class I Chief Judicial Magistrate. 5. He gave an example in respect of Shri A.N. Vijay. It was further claimed by the appellant that even if he was found unsuitable for confirmation, he could not have been reverted to the post of Civil Judge Class I Chief Judicial Magistrate. 5. The appellant prayed that this Court, by an appropriate writ, should quash Annexure R-1, the First Full Court Resolution. He also sought quashing of Second Full Court Resolution, Annexure R-3. The appellant further required this Court to quash Annexure-8, the Notification dated 24.7.95 (Annexure-10) and the consequential order of the High Court dated 5.9.1995 (Annexure R-7). The appellant wanted this Court to issue a writ of prohibition and mandamus. The relief for a writ of mandamus was sought for issuing command to the respondents to consider on the basis of record as in the years 1992 and 1993. 6. The respondent No.1, the High Court of Madhya Pradesh, inter alia, claimed that the work and conduct of the appellant after his promotion and posting in the Higher Judicial Service was not upto the mark for the purpose of finding him fit or suitable for confirmation. It was pointed out that Inspection Report of District Judge, Mandleshwar (Annexure-3) was not altogether favourable to the appellant. Apart from General Remarks about his performance, the District Judge, in his Inspection Report, had criticized his judicial work and commented that the appellant did not know the three essential ingredients for grant of temporary injunction. It was also reported that the appellant failed to amalgamate two claim cases arising out of the same accident. It was also pointed out that the report said that the appellant failed to observe the judicial discipline by ingnoring the binding precedents and decided a revision as if he was exercising the powers of an appellate Court. In one case he awarded sentence of two days for an offence under Section 324 of the IPC. The Return also stated that the aforesaid allegations against the appellant were based on Annexure-3. The respondent No.1 further referred to the allegations made by the District Judge in the complaint, Annexure-5, written by the District Judge, Mandleshwar in the case of M/s. Adinath Ginning Factory. The Return also stated that the aforesaid allegations against the appellant were based on Annexure-3. The respondent No.1 further referred to the allegations made by the District Judge in the complaint, Annexure-5, written by the District Judge, Mandleshwar in the case of M/s. Adinath Ginning Factory. The complaint had stated' that the appellant granted temporary injunction without notice under Section 80 of the Code of Civil Procedure overlooking the fact that the suit itself was barred under the M.P. Public Demands Recovery Act. The appellant had granted ex-parte temporary injunction on the day the plaint was presented. The complaint was referred to Administrative Committee No.1 which sought the explanation from the appellant. The explanation dated 6.8.94 was considered by the meeting of the Administrative Committee No. 1 on 31.8.94. It required the draft charges (Annexure R 11) to be framed but on 31.11.94 the Administrative Committee No. 1 decided not to pursue the disciplinary proceedings and gave the warning dated 24.1.95 (Annexure 6/R-6. The representation of appellant against the warning was rejected on 24.7.95 (Annexure R-9). It was further asserted that Shri S.N. Tiwari, Advocate, Raigarh reported that he was representing as a pauper counsel in the Criminal case against Sadhabai. The case was fixed for 10.2.94 but the appellant postponed it to 10.1.94 without informing the counsel. He then appointed another counsel and assured Shri Tiwari that he shall issue necessary certificate but declined to grant it. The matter was reported to the High Court and the appellant received warning dated 16.3.95 (Annexure R-10) to be more cautious in future. On 19.1.1995 the Portfolio Judge made a remark that there are complaints against the appellant but nobody came forward to support them. It was claimed that in the First Full Court Meeting of 1992 the appellant was not found fit. In 1993 his case was not ripe and in the Second Full Court Meeting of 1994 a resolution was passed accepting recommendation of Administrative Committee held on 21.4.94 (Annexure R-3). On 25.4.95 the Administrative Committee No.1 recommended that since the appellant was found unfit for confirmation twice, he be reverted. Accordingly, the Full Court Meeting held on 29.4.95 (henceforth 'the Third Full Court Meeting' for short), passed a resolution of reverting the appellant (Annexure R-6). 7. On 25.4.95 the Administrative Committee No.1 recommended that since the appellant was found unfit for confirmation twice, he be reverted. Accordingly, the Full Court Meeting held on 29.4.95 (henceforth 'the Third Full Court Meeting' for short), passed a resolution of reverting the appellant (Annexure R-6). 7. In return reference was made to Rule 10 of the Civil Services (Classification, Control and Appeal) Rules, 1966 and reference was also made to the explanation showing that following shall not account to penalty. The respondent No.1 relied on clause (iv) of the explanation but it appears to be misquoted and a part clause (v) appears to have been incorporated in it. It was stated that reversion of the appellant to his substantive rank as a consequence of non-confirmation did not attract Article 311 of the Constitution. The non-confirmation of the appellant is non-penal in nature and, therefore, no writ petition lay. It was denied that the impugned resolutions were either arbitrary or they suffered from vice of discrimination. It was asserted .that allegations made against Shri T.C. jain, besides being unintelligible, could not be gone into because he was not made a party to the petition. It was claimed that Annexure-3 itself was sufficient for holding that the appellant was not fit for confirmation. It was claimed that despite the issuance of notification dated 24.7.95 (Annexure 10) and the consequent order dated 5.9.95 (Annexure R-7) reverting the appellant to the post of Civil Judge Class I/Chief Judicial Magistrate, posting him as at Indore as IInd Civil Judge Class I/Additional Chief Judicial Magistrate, the appellant continued to preside as District Judge, Raigarh and took important cases. Such conduct on the part of the appellant is unbecoming of a Judicial Officer. 8. The respondent No.2 adopted the return of the respondent No.1, on record. 9. The appellant amended the petition after receipt of return and filed a rejoinder to the return of the respondent No.1. In the amendment, the appellant referred to the adverse entires in the ACR of the year 1992. In the rejoinder it was denied that Annexure- 3 was not considered by the First Full Court Meeting as it was not placed before it. In the amendment, the appellant referred to the adverse entires in the ACR of the year 1992. In the rejoinder it was denied that Annexure- 3 was not considered by the First Full Court Meeting as it was not placed before it. As to the document Annexure-5, it was claimed that the Administrative Committee had considered the explanation, dated 6.8.94 after the impugned Resolutions of First Full Court Meeting in May, 1992 and Second Full Court meeting in May, 1994 were passed. The warning. (Annexure 6/R-8) was given on 24.1.1995. It had no relevance for deciding the case of the appellant. 'It was claimed that he had filed a representation against warning (Annexure R-10) and it was pending. It was stated that the report of Portfolio Judge dated 19.5.1995 was not adverse and it was not relevant. It was claimed that reports of Portfolio Judge, Justice Shri A.C. Qureshi, of 1992 and of Justice Shri P.P. Naolekar, of 1994; and the A.C .Rs. for these years be summoned. It was claimed that the appellant made a representation dated 7.2.95 (Annexure-17) against his non-confirmation in the Higher Judicial Cadre and the same has been rejected by Annexure-18. The appellant stated that his confidential reports from 1989 to 1994 except that of 1992, were of very good category. It was denied that the appellant was informed that he was reverted during the period he presided as District Judge, Raigarh, by the Registry in letter dated 9.8.1995. 10. The respondent No. 1 filed an Additional Return. Apart from denial of stand of the appellant it was asserted that judicial orders could be considered for judging the suitability and performance of a Judge. "The report Annexure- 5 was communicated to the petitioner by the District Judge, Mandleshwar before the Full Court Meeting was held on 1st, 2nd and 3rd May, 1992. The remarks on the basis of Inspection Report were placed before the Full Court Meeting". His work performance was duly assessed and the matter of his confirmation was every time placed before the Full Court Meeting of 1992, 1993 and 1994". xxx xxx xxx It was further claimed n "The fact that the departmental enquiry was to be initiated against the petitioner by itself would be sufficient to negative the claims of confirmation. His work performance was duly assessed and the matter of his confirmation was every time placed before the Full Court Meeting of 1992, 1993 and 1994". xxx xxx xxx It was further claimed n "The fact that the departmental enquiry was to be initiated against the petitioner by itself would be sufficient to negative the claims of confirmation. It is different matter that the High Court took a lenient view and gave a warning." This assertion was again repeated in slightly different language in peragraphs 2 and 3 at page 163 of paper-book. It was asserted that the appellant received warning (Annexure R-10) in Tiwari Advocate's case. It was serious matter. 11. Strangely enough, the respondent No.1, the High Court took the stand that the second warning in the matter of Shri S.N. Tiwari, Advocate could be considered by a Court, hearing the petition against non-confirmation and consequent reversion even though the second warning was given much after the Second Full Court passed the resolution declining to confirm the appellant. The pleading in paragraph 4 of the Additional Return should not have been made. It would be immaterial because the writ Court is not entitled to consider any material which was not considered' in the resolutions' of the two Full Courts Meetings whereby the claim of the appellant for confirmation was rejected. We would, therefore, ignore the above pleadings for the purpose of this appeal. 12. The learned single Judge, after hearing both the parties to writ petition, came to the conclusion that writ petition filed by the appellant is liable to be dismissed. The learned single Judge has given the opinion that the appellant was reverted to his substantive rank after the Full Court did not find him fit or suitable for confirmation on the post of District Judge. His promotion and posting in the lowest cadre of Higher Judicial Service was on officiating basis and the Full Court refused to confirm him on that post after taking into account his over-all performance. The learned Single Judge rejected the argument of the appellant that Annexure-3 was favourable to the appellant. The learned single Judge also held that mala-fide was not attributed to District Judge, Badwani. It appears that learned single Judge held that petitioner has not challenged his non-confirmation in the year 1992. Accordingly, the petition was dismissed. 13. The learned Single Judge rejected the argument of the appellant that Annexure-3 was favourable to the appellant. The learned single Judge also held that mala-fide was not attributed to District Judge, Badwani. It appears that learned single Judge held that petitioner has not challenged his non-confirmation in the year 1992. Accordingly, the petition was dismissed. 13. Shri A.D. Deoras, the learned counsel for the appellant argued that the appellant did not dispute that his appointment on promotion to Higher Judicial Service was in officiating/temporary capacity but submitted that his non-confirmation was by way of punishment. The order of non-confirmation in both the resolutions of the Court was founded on the material which could only be dealt with in a departmental enquiry. However, the respondent No.1 did not choose to serve with the Adverse Confidential Report written in 1992 until the appellant filed this petition. It was argued that the Adverse Confidential Report was the cause of his non-confirmation. The learned counsel for the appellant further argued that the Adverse Confidential Report which was not communicated to the appellant, could not be considered by the disciplinary authority but this confidential Report formed the basis of non-confirmation of the appellant in the resolutions of both the First and Second Full Court Meetings. It was further urged that as far as the Second Full Court Meeting was concerned, apart from the Adverse Confidential Report, Annexure-5, the complaint made by the District Judge was added to the foundation of resolution. Thus, Annexure-5, was one of keystones, on which the resolution of non-confirmation rested besides the adverse confidential. It was argued that Annexure- 5 was proved to be baseless and Annexure- 3 was not adverse. It was argued that during two years of posting at Gwalior, between 1989 to 1991 his work was found to be good. Thereafter, between the period of 1993 to 1995 also his work was found to be good. The learned counsel for the appellant drew the attention of this Court to Annexure P-27, the inspection report of Justice Shri A.G. Qureshi and argued that the inspection report was good and it was observed that the members of the Bar made no complaints against the appellant. The learned counsel for the appellant drew the attention of this Court to Annexure P-27, the inspection report of Justice Shri A.G. Qureshi and argued that the inspection report was good and it was observed that the members of the Bar made no complaints against the appellant. It was claimed that several juniors of the appellant were retained and the appellant was not confirmed and reverted on the basis of the non-confirmation order which was not valid according to law as it was based on confidential report which was written adversely against the appellant contrary to the instructions of the High Court and the General Book Circulars. The adverse confidential report was not supported by the inspection report of District Judge, Annexure-3. The impugned resolutions of non-confirmation as well as the notification of reversion based on the resolution of the Second Full Court Meeting was penal as it was based on alleged mis-conduct of the appellant. It was also argued that prior to passing of order of reversion of the appellant M.P. Uchachatar Nyayik Sawa (Bharti Tatha Sewa Sharton) Niyam, 1994 (for short Recruitments Rules for Higher Judicial Services, 1994) came into force on 23.11.94. The appellant was posted in category a (ii) as per rule 3 of the Recruitment Rules for Higher Judicial Services, 1994 and, therefore, the appellant could not have been reverted to lower Judicial Service as his promotion category a (ii) under Rule 3 itself would clothe him with a right to continue in the High Judicial Service as per Rule 9 of the aforesaid Rules. The learned counsel for the appellant referred to the following decisions in -- Purshotam Lal Dhingra v. Union of India AIR 1958 SC 36 , S. Sukhbans Singh v. The State of Punjab AIR 1962 SC 1711 , State of Uttar Pradesh v. Sughar Singh AIR 1974 SC 423 , The High Court of Punjab and Haryana etc. The learned counsel for the appellant referred to the following decisions in -- Purshotam Lal Dhingra v. Union of India AIR 1958 SC 36 , S. Sukhbans Singh v. The State of Punjab AIR 1962 SC 1711 , State of Uttar Pradesh v. Sughar Singh AIR 1974 SC 423 , The High Court of Punjab and Haryana etc. v. The State of Haryana and others AIR 1975 SC 613 , The Regional Manager and another v. Pawan Kumar Dubey AIR 1976 SC 1766 , Gurudial Singh Fajji v. State of Punjab and others AIR 1979 SC 1622 , Union of India and others v. B.C. Nambudiri AIR 1988 SC 1395, Om Prakash Goel v. The Himachal Pradesh Tourism Development Corporation, Ltd., Shimila and another AIR 1991 SC 1490 , State of U.P. v. Yamuna Shankar Misra and another AIR 1997 SC 1951, Punjab National Bank, Betul v. Deviram and others AIR 1985 MP 87 . 14. The learned counsel for the respondent No. 1 Shri V.S. Shroti, whose argument was adopted by the learned Government Advocate, appearing for the respondent No.2, supported the impugned order passed by the learned single Judge. The main emphasis of his argument appeared to be that the appellant was promoted to the post of Higher Judicial Service as Additional Judge to the Court of District Judge in officiating capacity. His appointment was in temporary capacity and, therefore, his term in the order was transitory until he was confirmed in a post in the Higher Judicial Service. The appellant was under disciplinary control of the High Court and, therefore, the High Court had full power to declare that he was not suitable or fit for confirmation. The learned counsel submitted that Rule 9 of M.P. Civil Services (General Conditions of Service) Rules, 1961 (henceforth 'The Rules of 1961') would apply to the appellant as he was appointed in the officiating capacity as Additional Judge to the Court of District Judge by the initial notification of the Governor. It was contended that Rule 3(e) of the aforesaid Rules made the provision of these rules applicable to a member of Judicial Service. The conditions of Services of a promotee from lower Judicial Service to Higher Judicial Service were not provided in M.P. Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955 (henceforth 'the Rules of 1955'). It was contended that Rule 3(e) of the aforesaid Rules made the provision of these rules applicable to a member of Judicial Service. The conditions of Services of a promotee from lower Judicial Service to Higher Judicial Service were not provided in M.P. Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955 (henceforth 'the Rules of 1955'). These Rules deal with conditions of Service of a direct appointee only. The field regarding the Conditions of Service of District Judge was not occupied by the aforesaid Rules. Therefore, proviso 3(c) of the Rules of 1961 was applicable. 'The High Court was entitled to consider the suitability or fitness of an officer appointed to officiate by way of promotion. The High Court considered the case of the appellant twice in exercise of its power under Rule 9 of the Rules of 1961. After the passing of two resolutions rejecting the suitability of the appellant continued temporarily under Rule 9(5). He was reverted because he was not found suitable ultimately. The resolutions declining to confirm the appellant were based on his over-all performance arid not by way of punishment. Each time his case was scrutinized by the Administrative Committee No.1. It was contended that the appellant was given two chances as per earlier resolution of the High Court in its Full Court Meeting. The appellant did not improve. The learned counsel for the respondent referred to Rule 10 (iv) of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (henceforth 'the Rules of 1966') and contended that a reversion of a person on the ground that he was not suitable for higher service shall not amount to penalty. It was contended that the appellant had three opportunities. Firstly, in two Full Court Meetings when his case was considered regarding his suitability. Even when he was found unfit for confirmation, he continued to officiate in the post held by him. He did not show any signs of improvement. On the other hand, he incurred another warning from the High Court. His conduct showed that he was not fit for confirmation. The learned counsel for the respondent No. 1 relied on-- State of Bombay v. F.A. Abraham, AIR 1962 SC 794 , The Divisional Personal Officer, Southern Railway Mysore v. S. Raghvendra AIR 1966 SC 1529 , Union of India and another v. Gajinder Singh etc. His conduct showed that he was not fit for confirmation. The learned counsel for the respondent No. 1 relied on-- State of Bombay v. F.A. Abraham, AIR 1962 SC 794 , The Divisional Personal Officer, Southern Railway Mysore v. S. Raghvendra AIR 1966 SC 1529 , Union of India and another v. Gajinder Singh etc. AIR 1972 SC 1329 , Dhanji Bai v. State of Gujarat AIR 1985 SC 603 , Baikuntha Nath Das and another v. Chief District Medical Officer, Barinoda and another AIR 1992 SC 1020 , State of U.P. and another v. Ku. Prem Lata Misra and others AIR 1994 SC 2411 , Kunwer Arun Kumar v. U.P. Hill Electronics Corporation Ltd. and 'others (1977)2 SCC 191, Rajendra Singh Rai v. State of Madhya Pradesh and two others M.P. No. of 1951 of 1985 decided on 31.10.1996, Devi Prasad Verma v. State of Madhya Pradesh and another. M.P. No. 788 of 1987 decided on 19.4.1993, Ku. Afsari Khan v. The State of M.P. and Z- others LPA No. 63 of 1994 decided on 16.7.1977, and Chhitarilal Laudwal v. State of M.P. and another LPA No. 113 of 1995 decided on 16.5.1997. 15. Before we embark upon the decision of this appeal, we must make some preliminary remarks. The appellant, in his petition, had made allegations against the then District Judge, Mandleshwar, Shri T.C. Jain, that he had sent the Annexure-5 by way of complaint against the appellant because Shri Jain was annoyed with the appellant on the count that he had not released Abhay Lunkad and Jagdish Lunkad in Criminal Revision No. 602 of 1992. We are not the least impressed by these allegations for the reason the appellant did not care to make Shri T.C. Jain, a party to his writ petition. However, this appeal shall be decided without being prejudiced by the allegations made against Shri T.C. Jain. Likewise, this case has to be decided without prejudice to the appellant. It would be appropriate to say that we do not appreciate the allegations made by the appellant against a person, who could not reply, when the appellant himself was invoking the principles of natural justice because adverse remark in his confidential were not communicated to him. But we must disabuse ourselves of prejudice to either and deal with this appeal as if the aforesaid allegations do not exist in the petition. 16. But we must disabuse ourselves of prejudice to either and deal with this appeal as if the aforesaid allegations do not exist in the petition. 16. The appellant was promoted/appointed temporarily in officiating capacity until further orders as a District Judge on 24th May, 1989 by the Governor alongwith nineteen other officers. The order dated 24th May, 1989 is being reproduced here as it was published in the M.P. Rajpatra, dated 9th June, 1989, as follows:-- Pursuant to the aforesaid notification the appellant was posted by order dated 14.6.1989 (Annexure-2) as Additional Judge to the Court of District Judge, Gwalior, in the Higher Judicial Service in its lower grade called District Judge in Senior Time Scale. It appears that in the Higher Judicial Service of the State there is no cadre of Additional District and Sessions Judges. There is direct promotion from the Higher Grade of the lower Judicial Service to the post of 'District Judge' Thereafter, the promotion is by way of different grades in the Higher Judicial Service. The Higher Judicial Service of the State constitutes a single consolidated cadre of different grades. 17. It may be, therefore, necessary to dilate upon the status or the position of the appellant in Higher Judicial Service. Under Article 233(1) of the Constitution it is provided that appointment of persons to be and posting and promotion of District Judge in any State shall be made by the Governor of the State in consultation with the High Court having jurisdiction in relation to that State. The Supreme Court interpreting the words 'posting and promotion of District Judge, has suitably' explained these words to mean 'posting and promotions of the persons' to be the District Judge in the case of The State of Assam and another v. Kuseswar Saikia and others, AIR 1970 SC 1616 . In the case of Barndakanta Mishra v. High Court of Orissa and another, AIR 1976 SC 1899 , at page 1902. A.N. Ray, C.J., peragraph 17, held as follows :-- " 17. Article 233 provides that the appointment, posting and promotion of District Judges is by the Governor. The posting of a District Judge is the initial or the first posting as District Judge. The promotion of District Judge is appointment of persons by promotion to District Judges. A.N. Ray, C.J., peragraph 17, held as follows :-- " 17. Article 233 provides that the appointment, posting and promotion of District Judges is by the Governor. The posting of a District Judge is the initial or the first posting as District Judge. The promotion of District Judge is appointment of persons by promotion to District Judges. When a subordinate Judge is appointed as a District Judge the appointment is by promotion but it is a fresh appointment by promotion to be a District Judge. " It is thus, clear from the aforesaid quotation that the appointment by way of promotion to the post of District Judge is a fresh appointment. There is reason for providing for fresh appointment by way of promotion for the post of District Judge is open to direct recruits also. Therefore, at the level of the post of District Judge there exists a cadre of officers who may be recruited to that post directly or may be appointed by way of promotion from the subordinate ranks. The 'cadre' of District Judge is a combined cadre of recruits from two sources. Therefore, the Governor is required to make fresh appointment in case of promotion to the post of District Judge as defined by Article 236(a) of the Constitution. It may be brone in mind that a promotee to the post of District Judge in Madhya Pradesh is as much a District Judge as a direct recruit to that post. After the entry of the persons in the lowest grade of the Highest Judie al to the lower grade of the Higher Judicial Service there could be no' discrimination in the conditions of service of a direct appointee or a promotee/appointee. Therefore, the Supreme Court has used the word 'fresh appointment' in the case of promotee to the post of District Judge. 18. It has been held that the power of initial appointment and posting under Articles 233(1) of the Constitution is with the Governor in the case of District Judge as defined in Article 236(a) of the Constitution. The word 'posting' has been narrowly interpreted to mean initial or first posting (See the cases of The State of Assam v. Rana Muhammad and others AIR 1967 SC 903 and The High Court of Punjab arid Haryana etc. v. The State of Haryana and others. AIR 1975 SC 613 . The word 'posting' has been narrowly interpreted to mean initial or first posting (See the cases of The State of Assam v. Rana Muhammad and others AIR 1967 SC 903 and The High Court of Punjab arid Haryana etc. v. The State of Haryana and others. AIR 1975 SC 613 . It has been held that this power can be exercised by the Governor after consulting the High Court. It also follows from the powers given to the Governor that he has also power to dismiss, terminate,' remove or reduce in rank a person appointed by him under Article 233(1) of the Constitution. It is held by the Supreme Court that a High Court exercising jurisdiction in relation to a State has full control over the subordinate judiciary including the District Judge as defined in Article 236(1) of the Constitution. The word 'control' has been explained to mean disciplinary as well as other kind of control required for the performance of the duties of the office. However, the control of High Court does not derogate from the power constitutionally vested on the Governor under Article 233(1) of the Constitution. Thus, the Supreme Court has harmonized the apparently conflicting provisions. The result is that under the word 'control' the power of confirmation to post of District Judge is vested in the High Court. This legal position is firmly established and, therefore, the following quotation from the Constitution Bench in the case of The High Court of Punjab and Harayana (supra) shall serve the purpose. In that case it has been held at page 622, paragraph 44, that --, "44....Confirmation of District Judge is vested in the control of the High Court for the reason that if after the appointment of District Judges the Governor will retain control over District Judges until confirmation there will be duel control of District Judges. The High Court in that case would have control over confirmed District Judges and the Governor would have control over unconfirmed District Judges. That is not Article 235". Thus, by expanding the word 'control' in Article 235 of the Constitution, the Supreme Court has given the Governor the position of a Constitutional Monarch or figurehead of the State, who can act in respect of appointment, dismissal, removal or reduction in rank exists, of a District Judge only after consulting the High Court. That is not Article 235". Thus, by expanding the word 'control' in Article 235 of the Constitution, the Supreme Court has given the Governor the position of a Constitutional Monarch or figurehead of the State, who can act in respect of appointment, dismissal, removal or reduction in rank exists, of a District Judge only after consulting the High Court. Otherwise, the exercise of power of dealing with a District Judge during the tenure of his service and more particularly disciplining him in discharge of his judicial function, lies with the High Court. This is, as it should be, because one of directive principles of the State policy has directed the State to separate the judiciary from the executive. That apart, if the power of dealing with District Judge and subordinate judiciary is exercised by any other agency, except the High Court, then there would be lot of difficulty in administration of Justice. The control shall be too remote and what would be much worse, that it shall be in hand of those persons who have neither the expertise nor the inclination to advance the cause of justice for which the Courts exist. 19. It may be noticed, however, that Governor of the State has power to frame rules under proviso to Article 309 of the Constitution regarding the recruitment conditions of service of a person appointed in connection with the affairs of the State. It has been held that the exercise of the power under the proviso to Article 309 of the Constitution is in lieu of the power vested in the appropriate legislature. The rule-making power is in effect a transitory power until this activity of legislation is taken upon by the appropriate Legislature. It was indeed so intended by the founding fathers by whom the Article 309 of the Constitution was put on the anvil. However, in 50th year of the Republic hardly any enactment is passed by those who were substituted with the task. The result is that time and again the Court is faced by the rules in respect of services framed by the Governor and they are sometimes at cross purposes because of their sheer numbers. Be it may, since the proviso makes ru1e making a substitute for legislative activity, it follows the rules framed under Article 309 of the Constitution, which are at par with the law made by a Legislature. Be it may, since the proviso makes ru1e making a substitute for legislative activity, it follows the rules framed under Article 309 of the Constitution, which are at par with the law made by a Legislature. They have the same characteristics as that of an enactment of the Legislature. The rules made by the Governor under Artic1e 309 of the Constitution are plenary in nature and are different from the rules made under an enactment. The later part of subordinate legislation are as different from the rules under Article 309 as chalk is from cheese. It has been held by the Supreme Court that these rules. could be made with retrospective effect because they are legislative in character (please see the case of B.S. Vadera v. Union of India and others AIR 1969 SC 118 . 20. The power to frame rules or making legislation is, however, subject to Constitution as is clear from the opening words of Article 309. In the case of B.S. Yadav & others v. State of Haryana & Ors. AIR 1981 SC 561 , the Constitution Bench of the Supreme Court clearly laid down that the vesting of power of control of subordinate judiciary did not deprive the Governor of his Constitutional power of framing rules in respect of recruitment and conditions of service of a judicial officer. A judicial officer too is covered by the main part of Article 309, being a public servant appointed in connection with the affairs of the State. It was held that the Governor could make rules so long as these rules did not impinge upon or restrict the 'control' of High Court under Artic1e 235 of the Constitution. Any rule which trespasses its legitimate territory and violates any of the provisions of the Constitution including Artic1e 235 thereof, may be struck down. Subject to that limitation the Governor of the State could regulate the conditions of service or recruitment of a judicial officer. It was also pointed out in B.S. Yadav's case (supra) that there is no Constitutional compulsion upon the Governor to frame any rule. Nor was he bound to consult the High Court under any Constitutional mandate before framing a rule in respect of conditions of service of the judicial officers serving under the control of the High Court of the State. Nor was he bound to consult the High Court under any Constitutional mandate before framing a rule in respect of conditions of service of the judicial officers serving under the control of the High Court of the State. The Rules framed without consultation with the High Court could not be struck down on that ground alone in case they did not violate the' other Constitutional provisions; more particularly, Article 235 thereof. In the case of B.S. Yadav, (supra) at page 586 it was suggested by the Constitution Bench of the Supreme Court that it would be in fitness of things that a Governor should consul the High Court in respect of service rules of judicial officers who would be under the control of the High Court by virtue of Article 235 of the Constitution. 21. These established principles deduced from the Constitution and the high authority of the decisions of the Supreme Court were not debated at the Bar, However, these principles have been stated only to clarify the legal• position and to give usa vantage point from which to deal with the case on merits. 22. After reorganization of the State of Madhya Pradesh there were three cadres of subordinate judicial services in the State of Madhya Pradesh. There was single cadre of Civil Judges whether they be Civil Judge Class-I or Civil Judge Class-II. The next promotion from this lowest cadre was to the cadre of Additional District and Sessions Judge. Thereafter, the State Government, by the Order No. 3/A/7/81/21-B, dated 24.2.81 created Higher Judicial Service by absorption of 101 posts of Additional District and Sessions Judges in the cadre of District and Sessions Judges and thereby creating 154 new posts of District and Sessions Judges. Out of them 129 posts consisted of permanent cadre and 25 posts were of temporary cadre. Thus, 154 posts were sanctioned for the purpose of equating their pay-scales with that of Senior IAS Officers. It was also provided that out of the aforesaid 154 posts 23 posts shall be of selection grade of two types. Three posts were allotted for Higher Selection Grade and 20 posts were reserved of Lower Selection Grade. In the same order there was provision for absorption of only those Additional District Judges in the cadre of District Judge who were recommended by the High Court for that purpose. Three posts were allotted for Higher Selection Grade and 20 posts were reserved of Lower Selection Grade. In the same order there was provision for absorption of only those Additional District Judges in the cadre of District Judge who were recommended by the High Court for that purpose. The rest of the Additional District and Sessions Judges were allowed to continue in supernumerary cadre as Additional District and Sessional Judges in the same pay-scale. This order dated 24.2.81 met legislative recognition when the M.P. Civil Courts Act 1958 was amended by M.P. Civil Courts (Amendment) Act, 1982 (Act No. 17 of 1982) with effect from 15.4.1983. Section 2 of Civil Courts Act 1958 was amended as follows :-- "2. (a) "Cadre of Higher Judicial Service" means the cadre of District Judges and shall include the District Judge, Additional Judge to the Court of District Judge aM Additional District Judge; (b) "Cadre of Lower Judicial Service" means the cadre of Civil Judges consisting of Civil Judge Class I and Civil Judge Class II; (c) "Supernumerary cadre of Additional. District Judges" means a cadre of Additional District Judges who have not been absorbed in the cadre of Higher Judicial Service: xxx xxx xxx and sub-Section (2) of Section 3 of the same Act stood amended as follows :-- "3. (2) A presiding Officer of the Court of District Judge, Additional Judge to the Court of District Judge or Additional District Judge shall be from the cadre of Higher Judicial Service: Provided that a Judge from the Supernumerary cadre of Additional District Judge may also be appointed for the time being, to a Court of Additional District Judge." In course of time the persons holding supernumerary posts retired and the situation that emerged after their retirement was to the effect that the subordinate judiciary in the State of Madhya Pradesh consisted of two distinct cadre i.e. "Higer Judicial Service" and "Lower Judicial Service". Both these cadres were sub-classified into grades from time to time. The law made by the Legislature itself has confirmed the fact about existence of two cadres. 23. It would be thus clear from the above narration of the history of creation of new cadres that the original cadre of Additional District and. Both these cadres were sub-classified into grades from time to time. The law made by the Legislature itself has confirmed the fact about existence of two cadres. 23. It would be thus clear from the above narration of the history of creation of new cadres that the original cadre of Additional District and. Sessions Judge which existed at the time of creation of the new State of Madhya Pradesh stood abolished by creating a single cadre of Higher Judicial Service as defined in Section 2(a) of the Civil Courts Act 1958 after amendment of 1982. Therefore, the appellant was promoted to the post of the District Judge by the Governor by Order dated 24.5.1989. 24. Now the stage has arrived for noticing the argument of the learned counsel for the respondent No. 1. Shri V.S. Shroti, that conditions of service of appellant regarding his confirmation after he was appointed as a 'District Judge' in officiating/temporary capacity were governed by Rules of 1961. It was urged by the learned counsel for the appellant that the Rules of 1961 shall not apply to case of the appellant in view of Rule 3(c) of the Rules of 1961. 25. As per Rule 3 of Rules of 1961, the aforesaid rules apply to any person who holds the post or is a member of a service in the State except the members of the services mentioned in Clause (a), (b) and (c) of that Rule. The Rule 3(c) of Rules of 1961 specifically excepts the persons appointed to judicial services from the application of the Rules of 1961. However, the Rule 3 ibid itself is hedged by a proviso which provides for application of the Rules of 1961 to the categories of services covered by caluse (a), (b) or (c) in respect of any matter not covered by special provisions relating to him. Therefore, it would be necessary to find out if there were any special rules that governed the confirmation 'of the appellant when he was promoted as a District Judge on 24.5.1989. 26. The Rules of 1955 were prevalent at the relevant time. There was a controversy formerly that these rules were not applicable to judicial services of newly constituted Madhya Pradesh after re-organization. 26. The Rules of 1955 were prevalent at the relevant time. There was a controversy formerly that these rules were not applicable to judicial services of newly constituted Madhya Pradesh after re-organization. However, this controvery is set at rest by the Division Bench of this Court in the case of Rudra Pratap Singh v. State of M.P. & another, 1990 JLJ427 = 1990 MPLJ 549 . The Division Bench pointed out that the aforesaid rules were held to be applicable by two earlier cases decded by Division Bench' in Jayant Kumar Chavhan v. Public Service Commission, M.P. Indore & another, 1978 MPU 784 and Anant Kumar Polekar v. State of M.P. & others, 1975 ILJ 527 = 1975 MPLJ.624. A number of cases of this Court have been decided on the basis that the aforesaid .Rules of 1955 are applicable. The Supreme Court too has rendered the decision on the basis that the aforesaid rules are applicable. Consequently, it would be in the fitness of things to hold even on the principle of Stare decisis that these rules are applicable. However, since these rules do not provide for the conditions of services of an officer promoted to officiate as 'District Judge' temporarily, it would not have made any difference to case of the appellant, if these rules were held to be inapplicable. The facts remains that there are no special rules framed for governing the conditions of services of an officiating/temporary promotee to the post of District Judge in regular vacancy. The learned counsel for the appellant does not appear to be right when he argued that the Rules of 1961 are not attracted. 27. In view of total silence of Rules of 1955, this Court arrives at the conclusion that the proviso to Rule 3 of Rules of 1961 become operative and the conditions of the services of the appellant were governed by Rule 9 of the Rules of 1961 on his promotion as a 'District Judge' by order dated 24.5.1989 passed by the Governor. Therefore, the entire Rule 9 of Rules of 1961 is being reproduced hereunder which would apply to a person who has been promoted in of frication capacity on 24.5.1989 -- "9. Therefore, the entire Rule 9 of Rules of 1961 is being reproduced hereunder which would apply to a person who has been promoted in of frication capacity on 24.5.1989 -- "9. Trial for suitability of officiating Government Servants -- (1) A person already in permanent Government service appointed to another service or post by direct recruitment, promotion or transfer shall ordinarily be appointed in an officiating capacity for a period of two years to ascertain his suitability for the service or post: Provided that the Government may declare that any previous of frication in such a service or post may be counted towards the period of trial to such extent as may be specified in the particular case : Provided further that if the Government servant is appointed to a post to which direct recruitment is also made in accordance with the Recruitment Rules governing appointments to such post then the period of officiation shall be equal to the period of probation prescribed for a person appointed by direct recruitment to the said post under the rules. (2) The appointing authority may for sufficient reasons extend the period of officiation by a further period not exceeding one year : Provided that if the Government servant is appointed to a post to which direct recruitment is also made in accordance with the Recruitment Rules governing appointments to such posts and the Rules provide for extension of the period of probation then the period by which the period of officiation may be further extended shall be equal to the period by which the period of probation is extendable for a person appointed by direct recruitment to the said post under the Rules. (3) If during or at the end of the period of officiation or extended period of officiation, the Government servant is found unsuitable for the service or post to which he has been appointed he shall be reverted to his former substantive service or post. Note -- The failure to pass prescribed departmental examination, if any, within such period as may be allowed for the purpose may be construed as failure to show fitness for the service or post in which the Government servant is officiating. Note -- The failure to pass prescribed departmental examination, if any, within such period as may be allowed for the purpose may be construed as failure to show fitness for the service or post in which the Government servant is officiating. (4) If at the end of the period of the trial the of ficating Government servant is considered .suitable for the service or post to which he has been appointed he shall, if there is a permanent post available, be confirmed in the service or post to which he has been appointed otherwise a certificate shall be issued in his favour by the appointing authority to the effect that the officiating Government servant would have been confirmed but for the non-availability of the permanent post and that as soon as a permanent post becomes available he will be confirmed. (5) An officiating Government servant, who has neither been confirmed, nor a certificate has been issued in his fovour under the sub-rule (4) nor reverted to his former substantive service or post under sub-rule (3) shall notwithstanding anything contained in sub-rule (2), be deemed to have been continued in officiating capacity till further orders and during such period he shall at any time be liable to be reverted to his substantive service or post.' 28. The Rule 9(1) inter alia says that a person who is holding a post of permanent Government servant shall ordinarily be appointed to a post in officiating capacity for two years on his promotion in order to ascertain his suitability to the post or service to which he is promoted. This rule is subject to two provisos. However, we are concerned with proviso (2) which purports to alter the period of two years' offication and equates the period of officiation with that of a direct recruit, appointed on probation as per Rules of direct recruitment. It would be clear from this proviso that the rule making authority did not want to discriminate between the direct appointees and the promotees so far as initial period of trial was concerned. The Rule 9(2) of the Rules of 1961 enables the appointing authority to enlarge the period of officiation to maximum extent of one year more. However, the proviso to this rule is again made with a view to avoid discrimination between direct recruits and promotees in the matter of period of trial. The Rule 9(2) of the Rules of 1961 enables the appointing authority to enlarge the period of officiation to maximum extent of one year more. However, the proviso to this rule is again made with a view to avoid discrimination between direct recruits and promotees in the matter of period of trial. It is, therefore, provided that if there be any rules for direct recruitment to the post to which a person is promoted in officiating capacity and they provide maximum period for probation then the maximum period for officiation of the promotees shall be the same as is given in the Rules of direct recruitment. These rules require this Court to determine the initial period of officiation and the maximum period of officiation under the provisos mentioried in order to give full effect to those sub-rules (1) and (2) of Rule 9 by finding if there were any rules of direct recruitment prevalent at the time the appellant' was promoted. We have already seen that the cadre of Addl. District & Sessions Judge stood abolished w.e.f. 24.2.1981. The appellant was appointed to the cadre of District Judge. At that time Rules for the Special Direct Recruitment of District & Sessions Judge, 1964 were prevalent (henceforth 'the Rules of 1964) and they were not repealed by any law. Identical rules were framed for recruitment of Addl. Distt. Sessions Judge but they became redundant with the abolition of cadre of the Additional District and Sessions Judges. Instend of one year as prescribed in Rule 9(1) of the Rules of 1961, the initial period for promotion was 18 (eighteen) months in the Recruitment Rules of 1964 as per Rule 10(1) thereof. However, the Rule 10 (ii) of Recruitment Rules of 1964 provided too that maximum period of extension of probation would not exceed one year. Thus, in accordance with Rule 9(1) and Rule 9(2) of Rules of 1961, the maximum period of officiation would be 2 1/2 years because as per Rule 10(iv) of Recruitment Rules of 1964 a probationer is liable to be confirmed at the end of period of his probation. The Rule 9(3) of the Rules of 1961 provides the consequences of unsuitability to post held in officiating capacity on promotion. It directs that an unsuitable person shall be reverted. The Rule 9(3) of the Rules of 1961 provides the consequences of unsuitability to post held in officiating capacity on promotion. It directs that an unsuitable person shall be reverted. On the contrary, Rule 10(ii) of Recruitment Rules of 1964 provides that a direct recruit is liable to be discharged if he is not found fit during the extended period of probation. The Rule 9(4) of the Rules of 1961 provides that an officiating promotee, if found fit, may be confirmed to the post to which he is promoted subject to availability of a 'permanent post' or in the alternative shall get a certificate that he shall be confirmed as a permanent post is made available. The Rule 9(5) of the Rules of 1961, however, provides that despite the expiry of period provided by Rules 9(1) and 9(2) of Rules of 1961 a person, who is not confirmed or given certificate of confirmation, and not riverbed as a consequence of non-confirmation, shall continue to hold the post held by him in officiating capacity until further orders and shall be liable to be reverted to his substantive post. The Rules 9(5) of the Rules of 1961 is notwithstanding anything contained in sub-rule 9(2) of Rules of 1961. The Rule 9(5) of the Rules in effect waters down the safeguard provided in the Rules 9(1) and 9(2) of the Rules of 1961. It appears to take by left hand what is given to a promotee by right hand in shape of Rules 9(1) and 9(2) of the Rules of 1961. There is no provision in the Rule 9(5) of the Rules of 1961, as was in the case of Rules 9(1) and 9(2) of these Rules to equate the conditions of services of a promotee with that of a direct recruit. 29. In our opinion, whether a person is appointed to the cadre of the District Judge by way of promotion or by way of direct recruitment, he cannot be discriminated on the basis of the source of his appointment as he belongs to one and single cadre of a District Judge. Whatever distinction there be prior to recruitment or promotion, as the case may be, the distinction loses its significance after entry into service. Therefore, in the matter of confirmation a promotee is entitled to claim similar treatment as aforesaid to a direct recruit after the appointment. Whatever distinction there be prior to recruitment or promotion, as the case may be, the distinction loses its significance after entry into service. Therefore, in the matter of confirmation a promotee is entitled to claim similar treatment as aforesaid to a direct recruit after the appointment. Otherwise, the members of one and the same cadre are liable to be discriminated against without any basis. It may be noticed that after entry into one single cadre the "distinguishable differentia" on the basis of original source does not remain. Moreover, it is difficult to spell any 'reasonable relation or nexus' with the object of a classification based on source of recruitment in the present context. On this anvil of Articles 14 and 16 of the Constitution, the application of Rule 9(5) of the Rules of 1961, if available, as applicable to the promotee Judicial Officer to the cadre of District Judge, would lend it to the serious objection of discrimination within a single cadre. We may quote here the words of the majority judgment of the Constitution Bench of Supreme Court in the case of E.P. Rovappa v. State of Tamil Nadu and another, AIR 1974 SC 555 , at page 504. as follows :-- "86. It is also necessary to point out that the ambit and reach of Articles 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Arts. 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is, therefore, no answer to the charge of infringement of Articles 14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was inerely officiating in that post. That might have some relevance to Art. 311 but not to Articles 14 and 16.....' In this case Article 16 of the Constitution was held to be an instance of Article 14. The genus is Article 14 and Article 16 is a species thereof. It would be proper to recall the ringing words in which P.N. Bhagwati, J. Woo spoke for the majority as follows :-- ".....The basis principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. The genus is Article 14 and Article 16 is a species thereof. It would be proper to recall the ringing words in which P.N. Bhagwati, J. Woo spoke for the majority as follows :-- ".....The basis principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to the words of Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or Iexicographi approach. We cannot countenance any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are shorn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is abritrary, it is implicit in it that it is unequal both according to political logic and constitutional law is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality… (at page 583, paragraph 85). Later on, the seven Judges Bench, in the case of Smt. Maneka Gandhi v. Union of India and another, AIR 1978 SC 597 , approved the case of E.P. Rovappa (supra). Delivering the majority judgment, Bhagwati, J., referred to this case in paragraph 56 at page 624. It appears that the dissenting view expressed by Vivian Bose, J., in the case of the State of West Bengal v. Anwar Ali Sarkar and others, AIR 1952 SC 75 . finds its echo in this case. Delivering the majority judgment, Bhagwati, J., referred to this case in paragraph 56 at page 624. It appears that the dissenting view expressed by Vivian Bose, J., in the case of the State of West Bengal v. Anwar Ali Sarkar and others, AIR 1952 SC 75 . finds its echo in this case. Since then the view of the Supreme Court, stated hereinabove, has been approved of in subsequent cases, for example: in Ramana Devaram Shetty v. The International Airport Authority of India and others, AIR 1979 SC 1628 , Ajay Rasia etc. v. Khalid Mujib Sharevardi & others, AIR 1981 SC 487 , and A.L Kalra v. The Project & Equipment Corporation of India Ltd., AIR 1984 SC 1361 , and a host of others. The two lines of thought are apparently there. The earlier conservative view that a class legislative can be justified on the ground that there should be distinguishable differentia with others in respect of the class to which the legislation is addressed and that the classification must have reasonable in relation to the object sought to be achieved by the statute is still applied. But, its rigour has been somewhat shaken by successive pronouncements. There are in reality, two bases of thought. It is possible that the view of Bose, J., may gain acceptance a bit more as we face arbitrary action of the executives or arbitrary laws made by the Legislature which strike at the very root of the Article 14. 30. It may be noted that the Rules of 1961 are rules of general conditions of the service of the members of the State service. In fact, the Rule making authority manifested its intention generally for not applying these rules to judicial officer. However, by way of proviso, these rules were made applicable in absence of the special rules. In effect, the proviso was made for filling in the vaccum. Since the part of the rules convering the general conditions was not made with an eye to service conditions of the judicial officer, its general sweep has to be examined with a view to special conditions of service of District Judges. 31. We have already seen that so far as the 'Rules of Recruitment 1964' are concerned, a reading of Rule 10 does not permit extension of period beyond 2-1/2 years. 31. We have already seen that so far as the 'Rules of Recruitment 1964' are concerned, a reading of Rule 10 does not permit extension of period beyond 2-1/2 years. At this stage it is necessary to reproduce entire Rule 10' of the aforesaid Rules, as follows :-- "10. (1) Every person appointed to the post of a district judge by direct recruitment shall be put on probation for a period of eighteen months out of which for the first six months, he shall undergo training. In case his mother tongue is not Hindi he shall have to pass a departmental examination in Hindi within a period of one year, and on his failure to do so, his service shall be liable to be terminated. (ii) The High Court may in any case, except one of a person rendering himself liable to termination of service for failure to pass a departmental examination in Hindi within a period of one year, recommend the extension of the period of training or a probation by a period not exceeding one year. If the person concerned is not considered fit for confirmation at the end of such period, his services shall be dispensed with. (iii) The training shall be such as may be prescribed by the High Court. (iv) The probationers may, at the end of the period of their probation be confirmed subject to their fitness for confirmation. The sub-rule (ii) of Rule 10 of the Recruitment Rules of 1964 says the period of probation cannot be extended further more than one year. What would be the consequence of not passing any order of confirmation beyond the period of extended one year. Would it result in automatic confirmation of the District Judge who is directly recruited? The answer to such a question has been given by the decision redered by the Supreme Court in the case of Davaram Dayal v. State of M.P., 1997(2) JLJ 290 = J.T. 1997(7) SC 520. Their Lordships of the Supreme Court interpreted Rule 24 of M.P. Judicial Services (Classification, Recruitment and Conditions of Service) Rules 1955. Under the rule initial period of probation was two years. It was extendable upto two years more. The maximum period was four years. 'The question was if after four years the recruited Civil Judge would be automatically confirmed. Their Lordships of the Supreme Court interpreted Rule 24 of M.P. Judicial Services (Classification, Recruitment and Conditions of Service) Rules 1955. Under the rule initial period of probation was two years. It was extendable upto two years more. The maximum period was four years. 'The question was if after four years the recruited Civil Judge would be automatically confirmed. Their Lordships of the Supreme Court relied on the decision of the Constitution Bench of the Supreme Court in the case of State of Punjab v. Dharam Singh, 1968(3) SCR 1 , and pointed out this decision was accepted by 7 Judges Bench in Shamahar Singh v. State of Punjab, AIR 1974 SC 2193. However, in that case rule was different. The Supreme Court declined to follow the case of Beena Tiwari v. State of M.P., 1988 JLJ 208 = AIR 1988 SC 488 , on the ground that decision of Constitution Bench aforesaid was not brought to the notice of Bench. Their Lordships of the Supreme Court held that the case of Beena Tiwari (supra) was decided per incuriam without saying so in so many words. Their Lordships of the Supreme Court distinguished the case of Satya Narain Athya v. State of M.P., 1996 JLJ 269 = (1996)1 SCC 560 . The result of this decision would be that Rule 10 of the Direct Recruitment Rules quoted above is liable to be interpreted in the same manner. The period of probation of directly appointed District Judge cannot be extended beyond one year of extended period of probation. He is confirmed automatically after 2 1/2 years. The view taken by the Constitution Bench in the case of State of Punjab v. Dharam Singh, (1968)3 SCR 1 , was referred to by the Supreme Court with approval in another case of the Chief General Manager, State Bank of India & Another v. Shri Bijay Kumar Mishra, JT 1997(8) SC 221. 32. A study of Rule 11(b) of Recruitment Rules of 1964 would show that seniority of direct recruits viz-a-viz a promoted officer shall be counted with reference to the dates of their confirmation in a particular cadre. Therefore, a direct recruit would be in an advantageous position by getting his confirmation within a maximum period of 2 1/2 years and person who is appointed by way of promotion may languish for confirmation in absence of rule of automatic confirmation. Therefore, a direct recruit would be in an advantageous position by getting his confirmation within a maximum period of 2 1/2 years and person who is appointed by way of promotion may languish for confirmation in absence of rule of automatic confirmation. Article 233 of the Constitution provides treatment for both appointments either by way of direct recruitment or by way of promotion on par as is demonstrated by the observations of the Supreme Court in Bardakanta Mishra's case (supra). We may quote the following observations of three Judges of High Court of Calcutta in the case of Pran Krishna Goswami and others v. The State of West Bengal and others, 1983 Lab. IC 1806, in paragraph 44, page 1821 as follows :-- "44. According to them, a promotee enters the cadre of sub-inspectors no sooner he is promoted to officiate after the first selection. He is only required to render two more years officiating service for acquiring the eligibility for confirmation. This contention in my view cannot be accepted for two reasons. The first reason is that such a construction would not he consistent with the other rules and the second reason is that much a special provision applicable only to the promotees for their confirmation would not stand the test of constitutional validity because that would discriminate the promo tees in the matter of confirmation from the direct recruits with reference to the origin but not based on any intelligible differentia. Once, the direct recruits and the promotees are appointed on selection to posts in the cadre, the confirmation for both must be based on the same test or standard: the promotees cannot be called upon to stand another selection for such confirmation while for the direct recruits confirmation would follow as a course. ' , The portion underlined though made in a slightly different context provides for a norm for judging discriminatory treatment to persons absorbed in a single cadre. Thus, it can be safely concluded that operation of rule 9(5) of the Rules of 1961 shall be clearly discriminatory, if applied to District Judge promoted in officiating capacity viz-a-viz the' District Judge appointed directly in accordance with the Rules of Recruitment of 1964. 33. It may be noted that the Rules of 1961 were not framed with a view to provide general conditions of services of a District Judge. 33. It may be noted that the Rules of 1961 were not framed with a view to provide general conditions of services of a District Judge. In fact, the intention was manifest in the Rule 3 itself that these rules shall not apply to judicial officers. The rule making authority, however, in order to provide for vaccum in absence of the special rules, made these rules applicable to judicial officers by way of abundant caution. On account of the presence of two provisos to Rules 9(1) and 9(2) of the Rules of 1961 the possible discrimination between promoted District Judge and a District Judge who is directly appointed, was nullified. But, in absence of a similar proviso to Rule 9(5) of the Rules of 1961 the conditions of services of the promotee District Judge are subjected to an arbitrary rule. Since these rules were framed with an eye on the services of the State, generally there may be no need to equate the conditions of services of probationary direct recruits with that of an officiating promotees for the reason there may be no discrimination in the rules providing for conditions of services of appointees from two sources. In' fact, the Rule 8(7) of the Rules of 1961 gives the probationer the status of a temporary government servant which is subject to M.P Government Servants (Temporary and Quasi Permanent Services) Rules 1960. This is not so in the case of a person who would be directly appointed as a District Judge under the Rules of 1964. Once it is held following the decision of the Supreme Court in the case of E.P, Rovappo (supra) that Articles 14 and 16 of the Constitution are available for application to the case of that an officiating promotee, there can be no escape from the conclusion that direct appointee and officiating promotee cannot be discriminated against because they form a single cadre as there is no distinguishable differentia. The distinction made on the basis of source of appointment in the matters of confirmation and consequent seniority would have no relation to the object sought to be achieved by the discriminatory rule. Even otherwise, if we apply the paradigm given by the subsequent cases of E.P. Bavapra (supra) and Smt. Maneka Gandhi (supra) the Rule 9(5) of the Rules of 1961 shall fail on shibboleth of arbitrariness. Even otherwise, if we apply the paradigm given by the subsequent cases of E.P. Bavapra (supra) and Smt. Maneka Gandhi (supra) the Rule 9(5) of the Rules of 1961 shall fail on shibboleth of arbitrariness. There should be no reason to continue the fate of a promotee officiating District Judge hanging in the balance after the maximum period of trial when it has already been provided that it shall not exceed one year to the initial period provided by Rule 9 (1) of the Rules of 1961. Thus looked either way the application of the Rule 9(5) of the Rule of 1961 appears to be discriminatory. 34. Therefore, it can be safely presumed that the rule making authority did not reckon the possibility of discrimination by operation of the proviso to clause (e) of the Rule 3 of Rules of 1961. There was no intention to discriminate. We can, therefore, solve this judicial dilemma by construing the proviso to clause (c) of Rule 3 of Rules of 1961 as not authorising the Rule making authority makes a rule in the case of the District Judges so that it results in discrimination between direct recruits and those appointed by promotion in the matter of confirmation. It has to be presumed that the rule making authority was authorised to make these general rules which would cater to the special circumstances of appointment of a District Judge under Article 233 of the Constitution. The written Constitution to the supreme law of the land and every statute, Rule notification by law or any other order having the force of law is made under it and not above it. In the, case of In re, Hindu Women's Rights to Property Act, 1937, AIR 1941 Federal Court 72, the Hindu Women Rights to Property Act 1937 made by the Central Legislature was widely worded to include agricultural property which fell beyond the legislature's competence of law made by the Central Legislation. It was held that legislature is presumed to act within its competence and, therefore, the words property was read as comprising the property other than agricultural land. The whole Act was not declared to be ultra vires as the Act so interpreted could be validity operative in the field of control of the competent legislature which passed the law. It was held that legislature is presumed to act within its competence and, therefore, the words property was read as comprising the property other than agricultural land. The whole Act was not declared to be ultra vires as the Act so interpreted could be validity operative in the field of control of the competent legislature which passed the law. The aforesaid principle of reading down or severability was held to apply to a statute which contravened the provisions of constitutional prohibition in the case of State of Bombay v. R.N. Balsara, AIR 1951 SC 318 . In the leading case of R.M.D. Chamaraughalla & another v. Union of India & another, AIR 1957 SC 628 . Venkatarama Ayyar, J. has given an elaborate discussion regarding the doctrine of severability and has given a summary of rules of construction called out from various constitutional authorities of America and Writers on Statutory Constitution. They are 7 in number. This case too illustrates the principle that the Courts have power to apply doctrine of severability, in order to protect a valid part of statute, from the invalid part, if the statute can still remain operative after severance. In the case of N.C. Dalwadi v. State of Gujarat, AIR 1987 SC 1933 , the rule authorised the Government to retire a person at the age of 55, three years before the prescribed age of superannuation of 58 years without any indication as to circumstance in which this power of compulsory retirement could be exercised. The Supreme Court constitutionalized the rule by reading into it that the power to retire compulsorily after attaining age of 55 could be exercised only in 'public interest'. In the case of Charanlal Sahu v. Union of India, AIR 1990 SC 1480 , the Court was faced with poignant problem of fate of victims of Bhopal Gas Leak Disaster. The victim or the dependant were too poor to litigate, and, therefore, an enactment was passed by Parliament authorising the Central Government to take up the claims for damages for and on behalf of the victims against the Union Carbide. It was held by the majority of the judges upholding the validity of Bhopal Gas Leak Disaster (Processing of Claims 1985) Act 1985 that there was implied obligation to pay interim compensation and this implied obligation was essential for sustaining the validity of the Act. It was held by the majority of the judges upholding the validity of Bhopal Gas Leak Disaster (Processing of Claims 1985) Act 1985 that there was implied obligation to pay interim compensation and this implied obligation was essential for sustaining the validity of the Act. Otherwise, the Act was liable to be struck down. The examples aforesaid show the Courts lean in favour of constitutionalizing a statute or Rule, if it is possible to do so. The Supreme Court in the case of T.K. Ponny Swamy and others v. Government of Tamil Nadu & ors., 1994(5) SLR 596, in order to avoid discrimination regarding qualification for promotion. held as follows at page 600 :-- "....Once there are two sources of recruitment to the post Deputy Collector, namely, (i) Direct recruitment, (ii) promotion, both of them have constituted one single cadre. The post of Deputy Collector is the feeder category for District Revenue Officer. Therefore, to insist six years experience as Deputy Collector in the case of direct recruit and little experience as Deputy Collector is the case of promotees brings about an anomalous situation leading to undue frustration among the officers. In our considered view instead of going into the larger question whether the rule is discriminatory and, therefore, is opposed to Article 14, the matter could be resolved by so interpreting the ruling to avoid the above stated anomalous situation. Therefore, we read down the rule holding when it says six years experience, it be only 'six years experience as Deputy Collector' irrespective of the fact whether the officer is a Deputy Collector by reason of :-- (i) Direct recruitment or (ii) on account of promotion..." 35. To revert to the problem at hand we hold that Rule 9(5) of the Rules of 1961 is severable from the rest of the Rule 9. It is held that proviso to Rule 3(c) could not have given power to Rule making authority to make a rule which would create discrimination between the conditions of services of direct recruit and promotee District Judges. We, therefore, held that Rule 9(5) of the Rules of 1961 does not govern the conditions of service of a promotee. The rest of the sub-rules of Rule 9, i.e. (1), (2), (3) and (4) shall be applicable to an officiating promotee District Judge. 36. We, therefore, held that Rule 9(5) of the Rules of 1961 does not govern the conditions of service of a promotee. The rest of the sub-rules of Rule 9, i.e. (1), (2), (3) and (4) shall be applicable to an officiating promotee District Judge. 36. The consequence of aforesaid severance would be that the Rule 9(1) and Rule 9(2) of the Rules of 1961 provide for the period of appointment of the appellant as an officiating District Judge. The appointment of the appellant on 24.5.89 as an officiating District Judge was made by the Governor of the State until further orders. However, the Governor himself has made the Rules of 1961 and, therefore, he himself is bound by them. It is, therefore, proper to hold that initial appointment of the appellant was made under proviso No. 2 to Rule 9(1) for 18 months. Thereafter, the period of officiation of the appellant could be extended upto one year and it could not exceed more than one year. After the passing of 2 1/2 years the appellant shall be deemed to be confirmed on 24.11.1991. A similar result would have accrued if the appellant was directly appointed as a District Judge under the Rules of 1964. For this conclusion we follow the decision given by the Supreme Court in Dayaram Dayal's case (supra). In result, the appellant, having been confirmed automatically after expiry of 2 1/2 years of his appointment as District Judge. the subsequent resolutions of the Full Court regarding his non-confirmation and reversion would not be of any avail. 37. Lord Denning, Master of Rolls quoted from Thomas Fuller's Gnomologia, a proverb in the case of Gourict v. Union of Post Office Workers, (1977) QB 729,761-762. "Be you never so high the law is above you". If it be permissible to mould the above proverb to suit the circumstance, may we say -- "Be you never so high, the Constitution is above you." 38. This appeal could be disposed of on above point. However, we may examine the alternative ground raised in the petition by the appellant. The counsel for the appellant argued that the appellant was punished because he was not confirmed on a material placed before the Full Court which should have been in reality subject matter for Departmental Enquiry. This appeal could be disposed of on above point. However, we may examine the alternative ground raised in the petition by the appellant. The counsel for the appellant argued that the appellant was punished because he was not confirmed on a material placed before the Full Court which should have been in reality subject matter for Departmental Enquiry. It is in that Departmental Enquiry the appellant could have vindicated his stand that the complaint dated 23.7.1992 (Annexure-5) was motivated. It was also argued that the Departmental Enquiry sought to be instituted against the appellant was dropped by order dated 24.1.1996 (Annexure-6). The learned counsel for the appellant also pointed out that adverse entries made in the confidential report of 1992 were not communicated to the appellant until he filed the petition and therefore, both the Full Court Meetings held, could not have considered these remarks. The complaint made by District Judge. Mandleshwar, by Annexure-A-5 was subject-matter of an enquiry. No such enquiry was held and the appellant received a warning which could not be held to be any punishment in the eyes of law. It was Annexure A-5 and adverse confidential report for the foundation and not the motive for not confirming the appellant. It was contended that the inspection report, Annexure-3 was not against the appellant. The learned counsel for the respondent No.1 on the other bend, contends that non-confirmation of the appellant was after assessment of his overall performance between the period of 24.5.89 to 6/7 May, 1994. The appellant was found unsuitable for confirmation on the basis of his performance. He had not been not confirmed and, therefore, he was reverted by the notification dated 24.7.95 (Annexure-10). 39. It would not be out of place to indicate the legal position in this behalf. Their Lordships of the Supreme Court considering the scope of Article 311 of the Constitution in the well known case of Supreme Court i.e. P.L. Dhingra v. Union of India. AIR 1958 SC 36 , equated the case of officiating promotee with that of a person employed on a post temporarily until further orders, or a probationer. A person promoted to officiate likewise, has no right to continue in the post held by him. He is liable to be reverted back to his substantive post, if he is not confirmed. AIR 1958 SC 36 , equated the case of officiating promotee with that of a person employed on a post temporarily until further orders, or a probationer. A person promoted to officiate likewise, has no right to continue in the post held by him. He is liable to be reverted back to his substantive post, if he is not confirmed. However, if reduction in rank is by way of punishment then Article 311 of the Constitution is attracted. In paragraph 28 at page 49 of the report their Lordships summed up their conclusion as follows :-, 'In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Art. 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligonce, inefficiency or other disqualification, then it is a punishment and the requirement of Art. 311 must be complied with. xxx xxx xxx xxx A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has right to particular rank, then the very reduction from that rank will operate as penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. " It was observed further on the same page : "The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus, if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstances may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "terminate" or "discharge" is not conclusive... " 40. It is thus, clear from the aforesaid observations that be it a case of a temporary Government servant or a probationer or a person officiating by way of promotion in higher rank, Article 311 of the Constitution is attracted, if the order is by way of punishment. The aforesaid decision is also an authority for the proposition that in such cases form of the order is not decisive. The Court is entitled to find out if the termination of service or reduction in rank is founded on misconduct, negligence, insufficiency or other disqualification. In the case of Samsher Singh v. State of Punjab, AIR 1974 SC 2192 . A.N. Ray, C.J., presiding over a Constitution Bench of 7 Judges after considering the case of P.L. Dhingra (supra) observed as follows in paragraph 62 at page 2205 : "...There are, however, two important observations of Das, C.J., in Dhingra's case (supra). One is that if a right exist under a contract or service Rules to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The other is that if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and violates Art. 311 of the Constitution. The reasoning why motive is said to be irrelevant is that it inheres in the state of mind which is not discernible. The other is that if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and violates Art. 311 of the Constitution. The reasoning why motive is said to be irrelevant is that it inheres in the state of mind which is not discernible. On the other hand, if termination is founded on misconduct it is objective and is manifest." and on the same page, at paragraph 63 it has been observed that: "63. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry arid without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 (2) of the Constitution." In this case, some of the important cases like State of Bihar v. Gopikishore Prasad, AIR 1960 SC 689 , State of Orissa v. Ram Narain Das, AIR 1961 SC 177 , Madan Gopal v. State, AIR 1962 SC 531, B.C. Banerjee v. Union of India, AIR 1963 SC 1552 , Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854 , Jagdish Mitter v. Union of India, AIR 1964 SC 449 , K.H. Phadnis v. State of Maharashtra, AIR 1971 SC 908 and State of Bihar v. Shiv Bhikasuk, AIR 1972 SC 1011, were considered. It hardly matters that the aforesaid case of Samsher Singh (supra) relates to termination. It is based on the some principles, as are applicable to the case of reduction in rank. Krishna Aiyar, J., agreeing with the majority alongwith Bhagwati, J., lamented the lack of clarity and quoted an Article of Dr. Tripathi that distinction between 'foundation of order' or 'substance of the matter' etc. are too vague, to be distinguished from motive. The learned judge ultimately, held as follows in paragraph 160 at page 2233 :-- "...After all, between 'unsuitability' and misconduct' this partition do their bounds divide. Tripathi that distinction between 'foundation of order' or 'substance of the matter' etc. are too vague, to be distinguished from motive. The learned judge ultimately, held as follows in paragraph 160 at page 2233 :-- "...After all, between 'unsuitability' and misconduct' this partition do their bounds divide. And over the years, in the rulings of this Court, the accent has shifted, the canons have varied and predictability has proved difficult because the play of legal light and shade has been baffling. The learned Chief Justice. has, in his judgment tackled this problem and explained the rule which must govern the determination of the question as to when termination of service of a probationer can be said to amount to discharge simpliciter and when it can be said to amount to punishment so as to attract the inhibition of Article 311 ...., In view of the above authoritative judgment of the Supreme Court regarding the interpretation of P.L. Dhingra' s case (supra) it would be unnecessary to cover the same ground. It is clear that form of the order is not final. In each case it has to be seen if the impugned order is by way of punishment. The form of the order does not matter. The Court is entitled to lift the veil in order to discover, if the impugned order was in fact, actuated by matters which should have been properly subject-matters of an enquiry. However, the Court cannot go into the motive of the order. It normally inheres in the mind of the maker and is not discernible. If there be material on record to show that the impugned order is founded on misconduct, negligence, inefficiency or some other disqualification, then it is punishment. However, the Court must be aware of the caveat of Krishna Aiyar, J. that between 'unsuitability' and misconduct' "then partitions do their bounds divide". This is more so in the case of person who has not been confirmed. 41. It may be noticed that the appellant was found unfit for confirmation in the First Court Meeting held on 1st, 2nd and 3rd May, 1992. However, resolution. Annexure R-l itself says that the appellant was liable to be reverted only if he was found unfit twice. Why was he found unfit in the First Full Court Meeting? 41. It may be noticed that the appellant was found unfit for confirmation in the First Court Meeting held on 1st, 2nd and 3rd May, 1992. However, resolution. Annexure R-l itself says that the appellant was liable to be reverted only if he was found unfit twice. Why was he found unfit in the First Full Court Meeting? The respondent No.1, had not taken a specific stand in the initial return regarding the material placed before the First Full Court Meeting. The appellant denied that the inspection report. Annexure-3 was placed before the Full Court and asserted that only the uncommunicated confidential report, Annexure-20 turned the tables against him. However, in the additional return specific stand was taken by the respondent No. 1 that Annexure- 3 was placed before the First Full Court Meeting. held on 1st, 2nd and 3rd May. 1992. In the petition if was denied by the appellant that Annexure-3 was unfavorable to him. It appears that the appellant relied upon paragraph 27 of Annexure-3 for this purpose. However, the report, Annexure-3 cannot be said to be absolutely favourable to the appellant. The learned single Judge has rightly found that certain portions of the report of District Judge. Mandleshwar show that the appellant's judicial work required improvement. Since we are not sitting in appeal over the assessment of the work of the appellant by the High Court, it would not be fair to comment on the report. We cannot say that this report is mala fide because the appellant did not plead so. Even otherwise we shall not consider it so, because the District Judge, Mandleshwar was not made a party to the petition. However, the other piece of material, Annexure-20, the uncommunicated adverse confidential report is more damaging to the case of the appellant. The High Court has not said anything in its return regarding the allegation of the appellant in the amended petition that this report was considered by the Full Court in its First Meeting of 1992. In absence of rebuttal on the part of the respondent No.1, it is natural to presume that his adverse confidential report must have played a large part in decision making process of the High Court in its resolution of First Full Court Meeting, Annexure R-1. In absence of rebuttal on the part of the respondent No.1, it is natural to presume that his adverse confidential report must have played a large part in decision making process of the High Court in its resolution of First Full Court Meeting, Annexure R-1. It appears that apart from these two pieces of material, there was no adverse material on record against the appellant for finding him unsuitable for confirmation in the First Full Court Meeting. It would be clear as day-light that remarks against the integrity of the appellant formed an explosive material. No judge would be fit to be confirmed in the face of Annexure-20. In the opinion of this Court, the adverse confidential report, Annexure-20 must have formed the core material for finding the appellant unfit for confirmation in the First Full Court Meeting. However, the appellant had another chance to be confirmed as per Annexure R-1. 42. The appellant was, however, bounded by another circumstance in shape of Annexure-5. 'This document, dated 23rd July, 1992, is a Demi-official letter written by the District Judge, Mandleshwar to the Registrar, High Court. He demanded an enquiry by the Registrar Vigilance cell of the High Court. The appellant was transferred from Badwani to Raigarh. It is clear from Annexure R-11, at page 168 of paper-book, referred to by the respondent No.1 in its additional return that charges were framed against the appellant because of Annexure-5. It was specifically stated that the appellant granted temporary injunction to the plaintiff in Civil Suit No. 13-A/92, hastily contrary to Section 80 of the Code of Civil Procedure and M.P. Public Money (Recovery of Dues) Act, 1981. It was also stated that the appellant ignored the requirement of payment of advalorem Court fees. The proposed charges are definitely based on Annexure-5. However, Annexure-13, dated 6.8.1994 was the explanation submitted by the appellant and pursuant to that explanation, Annexure-13, the Administrative Committee, before whom the explanation was placed, decided to warn the appellant and directed him to be careful and judicious in future It was directed that these warning remarks should be kept in the confidential tile of the appellant. The decision of the Administrative Committee of the High Court was communicated to the appellant as per letter dated 25.1.1995, Annexure 6/R-8. The decision of the Administrative Committee of the High Court was communicated to the appellant as per letter dated 25.1.1995, Annexure 6/R-8. Recently, in the case of Registrar v. Rambabu Dixit, 1997(2) JLJ 9 , a Division Bench of this Court has held that warning does not amount to even a minor penalty. Thus, so far as Annexure-5 is concerned, its effect has been wiped out by the conclusion reached by Administrative Committee. No question of doubting the integrity of the appellant arises now on the basis of Annexure-5. 43. However, events over-took the case of the appellant. The case of The appellant was not considered by the Full Court in 1993 because his case was not considered ripe for consideration. The appellant's case was considered by the Full Court in its Meeting held on 6th and 7th May, 1994. The second Full Court Meeting decided to accept the report dated 21.4.94 of the Administrative Committee No.1 and after considering his performance, conduct and reputation, the appellant was not found fit to be confirmed. Now, we have to consider in this appeal, if anything additional was against the appellant. In the opinion of this Court the report of District Judge, Mandleshwar loomed large along-with his adverse confidential reports Annexure-3 and Annexure-20. No other material which could be really said to be adverse was placed before by the respondent No. 1 for the period between 24th May. 1989 to 6th and 7th May. 1994. Other material regarding his conduct at Raigarh could not have been considered by the Full Court because it must have reached the High Court after second Full Court Meeting. We have already held that the consequence of warning dated 24.1.1995 (Annexure 6/R-8) had the effect of wiping out the complaint, Annexure-5. It must be presumed that the High Court exonerated the appellant of all the charges of grave misconduct which the appellant allegedly committed while deciding Civil Suit No. 13-A/92. He was merely warned. Therefore as a matter of law we have to hold that whatever be the effect of the warning dated 14.1.1995, Annexure 6/R-8, the appellant could not be held guilty of charges made against him by Annexure A-5 especially regarding his integrity. In the second Full Court Meeting this Annexure A-5 must have been considered. He was merely warned. Therefore as a matter of law we have to hold that whatever be the effect of the warning dated 14.1.1995, Annexure 6/R-8, the appellant could not be held guilty of charges made against him by Annexure A-5 especially regarding his integrity. In the second Full Court Meeting this Annexure A-5 must have been considered. Although there is no direct admission but it is clear from the stand taken by the respondent No. 1 in paragraph 5 of the return. In the additional return at page 162 of the paper-book, it has been stated in paragraph 1 that : "The fact that a departmental enquiry was to be instituted against the petitioner 'by itself would be sufficient to negative his claim for confirmation. Thus, this assertion of respondent No.1, supported by the affidavit of the responsible officer of the High Court show that as a matter of fact in Annexure-5 also went against the appellant in the second Full Court Meeting. 44. We, therefore, conclude that in the second Full Court Meeting adverse confidential report, Annexure-20, Annexure-5 and Annexure-3 must have been considered along with other material for confirmation of the appellant. We are certain in our minds that Annexure-20 and Annexure-5 would pursuade any one to hold against the appellant. We have also held that the effect of complaint, Annexure-5 was substantially nullified as it did not result in an enquiry against the appellant. The Annexure 6/R-8 dated 24.1.1995 wiped out the effect of Annexure-5 and totally rebbed of it of its power. The warning given by Annexure R-6 is merely a word of caution. Now, we are required to consider the effect of uncommunicated confidential report, Annexure-20. We do not know the basis of the entry in the confidential file. However, it is obvious that the integrity in a judge is a fundamental precondition for performance of his judicial function. A judge without integrity cannot call himself a judge. whatever else he may be. A judge must have an opportunity to defend himself against an onslought upon his integrity in any report whatever be its source, if that report is to be acted upon. It is too explosive a material and cannot be left unattended. In the case of Gurdial Singh v. Stale of Punjab, AIR 1979 SC 1622 , the appellant was not given an integrity certificate on the basis of an adverse report. It is too explosive a material and cannot be left unattended. In the case of Gurdial Singh v. Stale of Punjab, AIR 1979 SC 1622 , the appellant was not given an integrity certificate on the basis of an adverse report. The explanation of the appellant was not considered and promotion was denied to him on the basis of the adverse report. It was held that the adverse report could not be considered for denying promotional opportunity. In the case of Union of India v. E.C. Nambudri, 1991(1) SLR, SC 675, it was observed by the Supreme Court that the adverse entries playa vital role in the matter relnting to confirmation, crossing of efficiency bar, promotion and retention in service. For this reason, an adverse entry must be communicated to the government servant so that he may improve his work and conduct. He may also explain the circumstance leading to such an entry. Therefore, principles of natural justice require that the adverse confidential report should be communicated to the government servant so that he makes a representation. This procedure was not an 'empty formality' and an adverse report which was not communicated, or if there be denial of opportunity in making representation, then the superior authority could not consider the report against him. In the case of State of Haryana v. P.C. Wadhwa, AIR 1987 SC 1201 , it was pointed out that inordinate delay in communicating the adverse remarks would not be proper. In the present case before us entry for period year ending 31.3.1992, Annexure-20 was communicated in the year 1996 after the appellant filed the writ petition. It reached his hands much after the appellant was found unfit for confirmation and consequently, reverted. If communication of the adverse entry is not an empty formality, the delay in communication would affect the right of the appellant to make a representation prior to his non-confirmation and consequent demotion. There is no explanation whatsoever in the return filed by the respondent No.1. The appellant was required to make a representation against entry after lapse of four years. How could the appellant meet the adverse entry regarding his integrity after four years? The appellant was bound to face unsurmountable difficulties, not to say impossibility in defending his conduct after lapse of four years. Even good reputation of a man is written on sands. The appellant was required to make a representation against entry after lapse of four years. How could the appellant meet the adverse entry regarding his integrity after four years? The appellant was bound to face unsurmountable difficulties, not to say impossibility in defending his conduct after lapse of four years. Even good reputation of a man is written on sands. It is bound to disappear with lapse of time. We must, therefore, held that it is the demand of justice and fair play that the appellant ought to have been given a reasonable opportunity to defend his conduct in the fact of the adverse entry within a reasonable time. A lapse of four years has made his task too difficult, especially when he had already shifted from Badwani four years back. It is, therefore, held that Annexure-20 should not have been considered when his case of confirmation was taken up in first and second Full Court Meetings. It is further held that in second Fun Court Meeting, Annexure-5 too should not have been considered because its effect has been wiped out. 45. The result of the aforesaid discussion is that we conclude that during first Full Court Meeting, adverse confidential report in respect of year ending 31.3.92, Annexure-20 must have been considered and the appellant must have found unfit on its basis. In the second Full Court Meeting Annexure-5 along-with Annexure-20 too must have been considered by the Full Court. In our opinion. both these documents form core material for finding the appellant unfit for confirmation. It is our considered opinion that no Full Court could have found the appellant fit for confirmation in face of the aforesaid documents. However, we are firmly of the view that Annexure-20 could not have been considered by in the first and second Full Court Meetings for the reasons already recorded in the previous paragraphs. We are further of the view that the effect of Annexure-5 is wiped out when the appellant received warning by Annexure-6/R-8. Therefore, it could not have been considered in the second Full Court Meeting of the High Court. 46. We make it clear that we are not sitting in appeal over the decision of the two Full Court Meetings wherein the appellant was found unfit for confirmation. Therefore. Therefore, it could not have been considered in the second Full Court Meeting of the High Court. 46. We make it clear that we are not sitting in appeal over the decision of the two Full Court Meetings wherein the appellant was found unfit for confirmation. Therefore. we have not made reference to any argument of the learned counsel for the appellant or the respondent No. 1 regarding the suitability of the appellant for confirmation in either of the Full Court Meetings. All we can say is, that apart from the Annexure-20 and Annexure-5, only Annexure-3 was placed on record which could be unfavourable. But we are unable to hold that the Full Court on the basis of Annexure- 3 alone would have found the appellant unit for confirmation in both the Full Court Meetings. However, we have already indicated Annexure-20 or Annexure-5 would not give an option to any Full Court to confirm the appellant. We make it further clear that we have not considered Annexure-22 to Annexure 27 for any purpose as they were not made part of the petition by mentioning them in the body of the petition. Nor do we feel that we can judge merits of the case of the appellant for confirming him. We do not consider it necessary to express our opinion on the other points argued by the learned counsel for the appellant. 47. It is now necessary to consider the relief to which the appellant is entitled. We hold that the appellant is entitled to succeed on our conclusion that appellant shall be deemed to be confirmed after expiry of two and half years of his appointment as officiating District Judge. We have indicated in our judgment that even on the alternative ground the two resolutions of the Court declining to confirm him, were liable to be quashed because it appeared to us that the decision making process was influenced by certain material which could not be considered. We cannot definitely say that if the Annexure-20 was not considered in the First Full Court Meeting the appellant would have been confirmed. Similarly, if the Annexure-5 and Annexure-20 were to be excluded from consideration, it cannot be said definitely that the Court in second Full Court Meeting would have confirmed the appellant. We cannot definitely say that if the Annexure-20 was not considered in the First Full Court Meeting the appellant would have been confirmed. Similarly, if the Annexure-5 and Annexure-20 were to be excluded from consideration, it cannot be said definitely that the Court in second Full Court Meeting would have confirmed the appellant. On our second conclusion the proper direction would have been to quash the order of reversion and direct the respondent No. 1 to reconsider the case of the appellant afresh on the basis of his record without being affected by Annexure-5 and Annexure-20. However, on our first conclusion that the appellant was automatically confirmed after two and half years, we set aside the judgment of the learned single Judge and issue a writ of certiorari quashing the Full Courts' resolution Annexure R-1, passed in the Meeting of Full Court, dated 1st, 2nd and 3rd May, 1992 and Annexure R-3, passed in the meeting of Full Court, dated 6th and 7th May, 1994, whereby the appellant was not confirmed. We further quash Annexure R-6 whereby the Full Court in its Meeting dated 29.4.1995 accepted the recommendation of Administrative Committee No.1 dated 25.4.1995 (Annexure R-5) for reverting the appellant. The consequence of aforesaid direction in the writ petition would be that the order dated 24th July, 1995 (Annexure-10), issued by Governor of the State, reverting the appellant to the post of Chief Judicial Magistrate/Civil Judge Class-I; and also the order dated 5.9.1995 (Annexure R-7) passed by the respondent No.1 have to be quashed by writ of certiorari. 1he appellant shall be deemed to be confirmed in the post of District Judge, after 24.11.1991 and shall be entitled to all the consequential benefits flowing from this order Thus, this appeal succeeds and is allowed. There shall be no order as to costs throughout.