MALIK MUHAMMAI) ASLAM KHAN (CHAIRMAN)-Through this service appeal, the appellant, an A. C.
F. in the Forest Department, has 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 11 from A.
C. F. Class I. This reversion was effected as a result of the acceptance of Departmental a Mohammad Khan and Raja Mohammed Akram Khan II Class A C. Fs. (both now retired) against two other Class I A. C. Fs, promote, Ch. Ahmed Din and Mr. Manzoor Illahi.
It may be stated that the appellant and six other candidates were selected by the Public Service Commission for Class t A. C. F. posts, as a consequence of which six selected, including the appellant, were; appointed temporarily by the Govt. as Class 1 A. C. Fs. against the posts in the Forest Development Schemes aide Govt. order dated 31-5_67 (Annexure 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 and Raja Mohammad Akram Khan Class II A. E. Fs filed departmental appeal against these two promotes. The Govt. accepted their appeals but instead, of reverting the 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 objections to the effect that the appeal was time-barred and incompetent as well, since it had been lodged 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 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 Article 30, K. S R., Vol. 11, which could not be 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 35, K. S. R, Vol. 11. The reply of the learned counsel for the res--pondents is that as the reversion is 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 probationary before completion of probationary period and confirmation, acquires no service rights for protection under the Kashmir Civil Service Rules inasmuch as even his services can be dispensed with and the probationary dis changed at the discretion of the appointing authority. For this contention, reliance is placed on Article 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 dis--pensed with at any time within the probationary period and before confirmation at the discretion of the Government; say for want of a post or for non-passing of a prescribed test or if the appointing authority does not consider the probationer suitable for the post. In such an eventuality provisions of Article 21, K. S. R. will come into play excluding the other protective articles like Arts 30 and 32 available to an employee who has been confirmed. But the core question for decision before us is, could the provisions of Art. 2 t, K. S. R. be applicable where the services of an employee are not dispensed with but he is reverted to a lower post or time scale? We are of considered view that though under Article 21, K. S. R, the services of the appellant could be dispensed with during the probationary period but he could not be reduced to a lower time scale. Because according to Article 30(iii), K. S. R. "reduction to a lower post or time scale or to lower stage in a time scale's falls within the defined categories of penalty. A penalty, according to us, can be inflicted, even on a probationer, only after the condi--tions laid down in Article 32 are complied with. The two conditions, inter alia, laid down in Article 32 K. S. R., are that before an order for dismissal, removal or reduction can be passed, the employee must be informed in writing of the grounds on which it is proposed to take action and he be afforded an adequate opportunity of defending himself. In other words, show cause A notice and a reasonable opportunity of being heard are the twin prime conditions to be fulfilled before a penalty in term of Article 30, K.S.R. can be inflicted upon an employee, be he a probationer appointed temporarily car permanently.
Articles 30 and 32 of the K. S. R. are general in terms and hake no distinction between a probationer, a temporary or a permanent employee, Therefore Article 21 cannot be available to justify a penal action disregard of Articles 30 and 32 of the K. S. R. Otherwise too, the principle of audi alteram partem will come into play, even in case of a probationary or a temporary employee, if the action proposed to be taken is or the n:, of punishment. Thus even a probationer, under the principles of natural justice, when being punished or penalised, must be served with s'-W-cause notice and afforded due opportunity 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 employer can dispense with the services of a probationer, but such an action 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 somewhere also. 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 be faced with the charges against him, and afforded 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 to learned counsel for the respondents who has sought to provide cover to the impugned order under Article 21, K. S. R. It is not denied that that the impugned order, which falls within one of the penalties enumerated in Article 30, K. S. R., has actually reduced the 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 or being heard.
5. We are rather surprised to note that though the departmental appeals were lodged by Sardar Agha Mohammad Khan and Raja Mohammad Akram Khan, against promotes, Ch. Ahmed Din and Mr. Manzoor Illahi, the appellant who was a direct appointee 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 depart--mental promotes, against whom the appeals had been directed, could not be reverted to a A. C. F. Class II, after acceptance of the appeals. We also note, that perhaps the Government afterwards en realising the un justifiability of its action in reducing the time scale of directly recruited Class I A. C. Fs. vis-a-vis that of the promotes, restored vide Govt order Annexure A/1, the scales and Class I of four A. C. Fs. Kh. Habib Ullah, Qazi Aftab Hussain, Mr. Mohammad Munir and Mr. 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 held the impugned order (Annexure C) dated 30-3- 1968 qua the rights of the appellant as without legal effect thereby entitling the appellant to remain and continue as A. C. F. Class I from 31-5-1967 with all the rights and privileges attached to this Class from the same date. No orders as to cost.