MALIK MUHAMMAD ASLAM KHAN (CHAIRMAN). Through this service' appeal, the appellant an A. C.
F. in the Forest Department, bas challenged Government order dated 30-3-68 (Annexure G) by which the appellant and another A.C.F., Mr. Aftab Hussain were reverted to A. C. F. Class II from A. C. .F. Class I. This reversion eras effected as a result of the acceptance of departmental appeals filed by Sardar Agha Mohammed Khan and Ra' Mohammad Akram Khan II Class A. C, Fs. (both now, retired) against two other Class I.A.C. Fs. promotion Ch. Ahmed Din andManzoor Illahi.
It may be stated that the appellant and six other candidates were selected by the Public Service Commission for Class I, A. C. F. posts as a con-sequence of which, six selected, including the appellant, were appointed temporarily by the Government as Class I, A.C.Fs. against the posts in the Forest Development Schemes vide Government order merit order dated 31-5-67 (Annex.
C).Their probationary period was two years. By this very order Ch. Ahmed Din and Mr. Manzoor Illahi, were promoted from Class II to Class I.A.C. Fs. in the department Aggrieved by this order Sardar Agha Mohammad Khan Class II A.C. Fs. filed departmental appeals against these two promotes the Govt. ordered the reversion of the appellant and Mr. Aftab Hussain the directly appointed Class I, A. C. Fs. It is against this background that the present appeal has been lodged.
2. The learned counsel for the respondent took twin preliminary objection to the effect that the appeal was time barred and incompetent as well since it had been lodge beyond the statutory period of limitation and without exhausting the remedy of departmental appeals. He however later on gave them up when the facts were found to the contrary.
3. The main stand taken by the learned counsel for the appellant it is that reversion of the appellant from A. C. F. Class I carrying; higher time scale, to A. C. F. Class 11, carrying lower time scale, amounts to punishment as detailed in particle 10, K. S. R.. Vol. II, which could not he inflicted without the appellant being served with a show-cause notice, and afforded opportunity of being heard against the, proposed action contained in the impugned order. For this, reliance has been placed on Articles 30 and 2 K. S. R., Vol. II. The reply of the leaned counsel far the respondent is that as he reversion in time scale was effected during and before the completion of the probationary period, Articles 30 and 32 of the K. S. R. did not apply to the case of the appellant. Because, according to him, a proba--tioner before completion of probationary period and confirmation acquires no service rights for protection under the Kashmir Civil Service Rule much as even his service can be dispensed with and the Probationary discharged at the discretion of the appointing; authority. For this contention reliance is placed on Art 21 of the K. S .R. Vol. II.
4. We have given due consideration to the arguments addressed at the bar. It is true that the services of a probationary can be dispensed with at any time within the probationary period and before confirmation at the discretion the Government; say for want of a post or for non-passing of a prescribed test or if the appointing authority does not consider teal: probationer suitable for the post. In such an eventuality provision of Art 21 K. S.will come into play excluding the other protective articles like Arts 30 and32 available to an employee who has been confirmed. But the core question for decision before us is could the provisions of Art. 2 K. S. R. be applicable where the services of an employee are not dispensed with but he is reverted to a lower post of lime scale? We are of considered view Oat though under Art. 21, K. S. R. the services of the appellant could be dispensed with during the probationary period but be could not be reduced to a lower time scale because according in Article 30 (iii), K. S. R. "reduction to a lower post or time scale or to lower stage in a time scale" LIN MOM; the defined categories of penalty. A penalty, according to us, can be inflicted, even on a probationer, only after the conditions laid down in Article 32 ate complied with. The two conditions, inter alia, laid down in Article 32, K. S. t: are that before an order of dismissal, removal or reduction can be passed the employee must be informed in writing of the grounds on which it isproposed to take action and he be afforded an adequate opportunity defending himself. In other words, show-cause notice and a reasonable opportunity of being heard are the twin prime conditions to be fulfilled' before a penalty in terms of Art. 30, K,S.R. can be inflicted upon an employee be he a probationer appointed temporarily or permanently. Articles 30 and 32 of the K. S. R. are general in terms and make no distinction between a pro--bationer, a temporary or a permanent employee. Therefore Article 21 cannot be available to justify a penal action in disregard of Articles 30 and 32 of the K. S. R. Otherwise tart, tine principle of audi alteram partem will come into play, even in case of a probationary or a temporary employee, if tat action proposed to be taken is of the nature of punishment. Thus even a probationer, under the principle of natural justice, when being punished or penalised, Must be served with low-cause notice and afforded dice oppor--tunity of being heard, before taking action against him of a punitive nature, like reduction in rank or time scale. There is no doubt that the employee can dispense with the services of a probationer, but such an act on does not carry any stigma against the employee; since such an action is implied in the very condition of employment. This, in no way, scars the reputation of the probationer and there can be no bar to his seeking employment some where else. But the case is quite different when an employee is visited with a penalty as a punishment, which certainly mars his reputation and an opportunity for further employment. It is therefore, fair, that in such a case, the employee, must to faced with the charges against him and reasonable opportunity to defend his reputation and character. Otherwise it would amount to condemning him unheard. In view of this matter, we repel this contention of the learned counsel for the respondent, who leas sought to provide cover to the impugned order under Article 21.K. S, R, It is notdenied that the impugned order which falls within one of the penalties penalties d in Article 30, K. S. R. has actually reduced toe time scale of the appellant. Therefore, the impugned order, is unsustainable in law as the appellant was neither served with a show-cause notice nor afforded any opportunity of being heard.
5. We are rather surprised to note that though the departmental appeals were lodged by Sardar Agha Mohammad Khan sad Raja Mohammad Akram Khan against promotes; Ch. Ahmed Din and Mr. Marizoor Illahi, the appellant who was direct appoint and better qualified, was reverted by the acceptance of their appeals though the appointment of the appellant was neither challenged nor he was a party to the appeals 'the learned counsel for the respondents could not explain, as to why the departmental promotes, against whom the appeals had been directed, could not be reverted to A. C. F. Class, II, after acceptant- of the appeals. We also note, that perhaps the Government afterwards on realising the unjustifiability of its action in reducing the time scale of directly recruited Class i A. C. Fs. viz-a-viz that of the promotes, restored vide Government order Annexure A/1, the scales and Class I of four A. C. Fs. Kh. Habib Ullah, Qazi Aftab Hussan Mr, Mohammad Munir and Afzal Tariq, who agreed not to claim their arrears, But as the appellant did not agree to these terms, his case seems to have been ignored. As we have already held, the impugned order is legally unsupportable and as such no such condition of giving up the claim to arrears could be forced on the appellant at the pain of being reduced to a lower time scale. The case would have been quite different if he, like his other colleagues, had himself agreed to give up his claim to the arrears. Then perhaps, he could not have a case. But as the appellant has not given up his claim, he is justified in challenging the impugned order.
The upshot of the whole discussion is that we hold the impugned order (Annexure G) dated 30th March 1968 qua the rights of the appellant as without legal effect thereby entitling the appellant to remain and continue as A. C. P. Class I from 31st May 1957 with all the rights and privileges attached to this Class from the same date. No orders as to costs.