P. C. Wadhwa v. Union of India & Anr.

Acg. C. J.

er quoted. If the words "appointed to a post" are to be interpreted in the same way, then there is no escape from the position that there is no automatic right of appoint-ment to a post on the senior time-scale.

We have therefore come to the conclusion that the first contention urged on behalf of the appellant that he has a right to go automatically into the senior scale is not correct and cannot be upheld.

We turn now to the alternative argument of the ap-pellant that in any view of the matter his reversion invol-ved penal consequences to him within the meaning of the rule laid down in Parshotam Dal Dhingra's case('). Dealing with the question of reduction in rank, Das C.J. speaking for the majority of the court in that case said : "A reduction in rank likewise may be by way of 'punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a 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. llut 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. 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 en-

tails or provides for the forfeiture of his pay or al-1963 lowances or the loss of his seniority in his substan-tive rank or the stoppage or postponement of his fu-P. C. Wadhrutr ture chances of promotion, then that circumstance v. Union of may indicate that although in form the Government India and had purported to exercise its right to terminate the Anr. employment or to reduce the servant to a lower rank under the terms of the contract of employment S. K. Das Acg. C. f. or under the rules, in truth and reality the Gov-ernment has terminated the employment as and by way of penalty. The use of the expression "termi-nate" or "discharge" is not conclusive. In spite of the use of such innocuous expression, the court has to ap-ply the two tests mentioned above namely, (1) whether the servant has a right to the post or the rank or (2) whether he has been visited with evil conse-quences of the kind hereinbefore referred to. If the case satisfies either of the two tests then it must be held that the servant has been punished and the ter-mination of his service must be taken as a dismissal or removal from service or the reversion to his subs-tantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311,.

which give protection to Government servant have not been complied with, the termination of the ser-vice or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant."

The appellant has contended that his case comes under the second test laid down in Parshotam Lal Dhingra's case('), namely that he has been visited with penal consequences like loss of pay, loss of seniority and the stoppage or postponement of his future chances of pro-motion.

This is an aspect of the matter which has caused us great anxiety. The admitted position is that the appellant was reverted to the post of an Assistant Superintendent of Police by an order dated November 3, 1958. The re-version was not due to the return of the permanent incumbent from leave or deputation or for any adminis- ·----rr trative reason. It is also admitted that officers junior to 1963 the appellant continued to officiate in the senior scale

while the appellant was reverted. In its written statement P. C. Wadhwa the respondent State took the stand that the appellant

v.

Union of was tried as Superintendent of Police and on trial he was India and found to be immature. It was further stated that his re-

Anr. version had nothing to do with the departmental pro-

ceedings instituted against him on July 18, 1958. It S. K. Das appears from the judgment of the High Court that the Acg. c. ].

personal file of the appellant was produced before the learned Judges and on examining the personal file the learned Judges found that the reasons which prompted the appellant's reversion in the present instance were not the reasons which led to the framing 0£ a charge sheet against him. The same personal file has also been produ-ced before us and we have examined it. The following extracts from that file are relevant:

"As the regular enquiry into Shri Wadhwa's conduct might take long, probably it will be advisable to shift him from F erozepore some other place. His personal file is placed below.''

This was apparently a note of the Senior Superintendent of Police. It is dated October 6, 1958 and was marked to the InsJ?ector General. Below that there is a note of some other officer which begins with the following : "Can't we revert him and then proceed with further enquiries on the charge of not carrying out the orders of his senior officers?"

Then it is stated that Mr. W adhwa is not yet ripe and fit for the duties of a Superintendent of Police and then the note says :

"We may, therefore, get the State Government's ap-proval to his reversion on account of his unsatisfac-tory record. The departmental enquiry could be pro-ceeded with after his reversion."

The extracts quoted above show that the appellant was really reverted by way of punishment. The depart-mental proceedings were instituted against him on July 18, 1958. On 6-10-1958 it was noted that as the regular en- .quiry into the conduct of the appellant might take a long time it was advisable to shift him from Ferozepore. The reversion order was thereafter passed and the ground sug-gested for reversion was unsatisfactory conduct. No details of the unsatisfactory conduct were specified and the ap-1963 pellant was not asked for any explanation. In his writ petition the appellant stated that he has had a brilliant P. C. Wadhwa v. academic career and that no bad or adverse remarks were Union of ever communicated to .him; he further stated that he was India and recommended for the award of the Indian Police Medal Anr. for gallantry : only a month before the order of reversion he was given an increment of pay. The appellant's sug-S. K. Das Acg. f. gestion is that if his work was unsatisfactory, his incre-ment would have been withheld. On all these grounds the contention of the appellant is that he has really been reverted by way of punishment though the order of rever-sion is expressed in innocuous terms.

We are inclined to agree with this contention of the appellant. It should be made clear however that when a person is reverted to his substantive rank, the question of penal consequences in the matter of forfeiture of pay or loss of seniority must be considered in the context of his substantive rank and not with reference to his offi-ciating rank from which he is reverted, for every rever-sion must necessarily mean that the pay will. be reduced to the pay of the substantive rank. In the case before us the appellant has not merely suffered a loss of pay which was inevitable on reduction in rank, but he has also suf-fered loss of seniority as also postponement of future chan-ces of promotion to the senior scale. A matter of this kind has to be looked at from the point of view of subs-tance rather than of form. It is indeed true, as was pointed out in Parshotam Lal Dhingra's case('), that the motive operating on the mind of the Government may be irrelevant; but it must also be remembered that in a case where Government has by contract or under the rules the right to reduce an officer in rank, Government may nevertheless choose to punish the officer by such reduction.

Therefore, what is to be considered in a case of this na-ture is the effect of all the relevant factors present there-in. If on a consideration of those factors the conclu-sion is that the reduction is by way of punishment in-volving penal consequences to the officer, even though Government has a right to pass the order of reduction, the provisions of Art. 311 of the Constitution are attrac-1963 ted and the officer must be given a reasonable opportu-

nity of showing cause against the action proposed to be P. C. Wadhwa taken against him. Our conclusion is that in the present

v.

Union of case the appellant was reverted by way of punishment, India and but he was given no opportunity of. showing cause against

Anr. the action proposed to be taken against him. Therefore

the order of reversion dated November 3, 1958 was in vio-S. K. Das lation of the provisions of Art. 311 of the Constitution. Acg. C. /.

In view of this finding it is unnecessary to go into the further question of any violation of the fundamental rights guaranteed under Arts. 14 and 16 of the Constitu-tion.

We would accordingly allow this. appeal and quash the order of reversion passed against the appellant on No-vember 3, 1958. The appellant will be entitled to his costs of this court and the High Court.

Mudholkar /. MuoHOLKAR, J.-This is an appeal by special leave l __ from the judgment of the High Court of Punjab dismis-sing the appellant's writ petition under Art. 226 of the Constitution.

The appellant is a member of the Indian Police Ser-vice having been appointed therein on October 3, 1952 as an Assistant Superintendent of Police on the basis of a competitive examination held by the Union Public Service Commission. He was confirmed in his appointment on No-vember 30, 1953. On January 27, 1958 he was appoint-ed to officiate as District Superintendent of Police, which is a post in the senior scale of pay of the service, and was posted as Additional Superintendent of Police, Ferozepore. He was later transferred to the post of Additional Superin-tendent of Police, Punjab Armed Police, Ferozepore, which post carries a special pay of Rs. 100.00 p.m. It may be mentioned that at the date of his appointment as Ad-ditional Superintendent of Police he was drawing a salary of Rs. 440.00 in the junior scale. But on being appointed to the post of senior scale he drew the minimum salary of Rs. 600.00 in the senior scale.

On July 18, 1958 a charge-sheet was served upon the appellant to which he submitted a reply. On October 31, 1958 a departmental enquiry was ordered against him by the Government under the All India Services (Discipline Jo( and Appeal) Rules, 1955 and Mr. Bindra, Deputy Inspec-tor General of Police, Jullunder, was appointed as an En-1963 quiry Officer. On November 3, 1958 the appeilant was re-C. verted to the post of Assistant Superintendent of Police P. Wadhwa v. and posted at Amritsar. The appellant thereupon prefer-Union of red a writ petition before the High Court of Punjab. The India and first ground on which the writ petition rested was that the Anr. reversion of the petitioner from the post of officiating Superintendent of Police to that of Assistant Superinten-Mudholkar dent of Police involved an element of punishment and that as the provisions of the All India Services (Discipline and Appeal) Rules, 1955 and those of Art. 311 of the Cons-titution were not complied with, his reversion was illegal.

The second ground was that the action of the Govern-ment in reverting him was mala fide. It is common ground that persons junior to the appellant in the grada-tion list were either continued to officiate as Superinten-dents of Police after the reversion of the appellant or were appointed to officiate as Superintendents of Police whik the appellant continued to he Assistant Superintendent of Police. The main question, therefore, for consideration is whether the appellant's reversion amounts to a punish-ment.

The determination of this question would depend up-on the answer to he found to another question and that is whether the appellant, by virtue of his appointment to the Indian Police Service had a right to be promoted to and to hold the post of Superintendent of Police, if at the time his turn came to officiate in that rank there was a vacancy and he was not barred from stepping in because of any punishment awarded to him as a result of an en-quiry made under the Discipline and Appeal Rules. The High Court, while negativing the contention of the ap-pellant, observed that this Court held in Parshotam Lal Dhingra v. Union of India(') that a Government servant acquires a right to hold a post only in three kinds of cases :

the first is when he is substantively appointed to a per-manent post in Government service ; the second is when he is appointed to a temporary post for a fixed term ; and the third is when a person having been appointed temporarily -- to a post has been in continuous service for --------- - --- --~.

( 1) [1958] S.C.R. 828.

~0-2 S. C. lndia/64.

1963 more than three years or has been certified by the appoi~t::----.,kil

ing authority as fit for appointment in a quasi-per-P. C. Wadhwa manent capacity. The learned Judges, however, over-

·v~ looked the fact that there this Court was interpreting the Union of lndia' and Fundamental Rules and not rules applicable to an All

Anr. India Service, which have their source in the All India

Services Act, 1951 (LXI of 1951). It may be mentioned Mudholkar f. that this Act applies only to two All India Services namely

the Indian Administrative Service and the Indian Police Service and to no others.

Sub-section ( 1) of s. 3 of this Act empowers the Go-vernment to make rules for the regulation of recruitment and conditions of service of persons appointed to an All-India Service. In exercise of this power the Indian Police Service Recruitment Rules, 1954, were framed by the Go-vernment. Rule 3 provides that the service shall con- ...,. sist 0f three classes of persons : (a) members of the In-dian Police ; (b) members recruited to the service before the commencement of the rules and ( c) persons recruited to the Service in accordance with the provisions of the Rules. The method of recruitment prescribed by rule 4 are : (a) by a competitive examination and (b) by pro-j motion of substantive members of a State Police Service. Rule 6 provides that all appointments to the Service shall be made by the Central Government and no such appoint-ment shall be made except after recruitment by one of the methods specified in r. 4. Rule 9 provides for rec-ruitment by promotion. Sub-rule (2) of that rule pro-vides that the number of posts available for being filled by recruitment or promotion would not exceed at any time 25% of the number of senior duty posts borne on the cadre of a State. Sub-rule ( 1) of that rule empowers the Central Government, in consultation with the State Go-l vernments and the Union Public Service Commission, to make regulations governing recruitment and promotion. In exercise of this power the Indian Police Service ( Ap-pointment by Promotion) Regulations, 1955 were made by the Government. It is sufficient to say that these rules provide for the preparation of "select lists" in each State in which persons belonging to state service were selected by a committee and placed in their order of merit and appointments to cadre posts i.e., posts in the Indian l Police Service were to be made in accordance with these 1963 Lists. It would be relevant here to make a m.ention of the fact that according to the High Court a cadre post means P. C. Wadhwa v. only a senior post in the service, that is, the post of Union of Superintendent of Police or a higher post. In coming to India and this conclusion the High Court has purported to rely on Anr. the Indian Police Service Cadre Rules, 1954, framed un-der sub-section (1) of s. 3 of All India Services Act. Mudholkar Rule 2 (b) defines a cadre post to be one specified as such in the regulations made under sub-rule (1) of r. 4. Rule 3 provides that there shall be constituted for each State or group of States an Indian Police Service Cadre. Here we are not concerned with a cadre for a group of States but one for a single State. 'Cadre Officer', according to the definition in r. 2(a) means a member of the Indian Police Service. Rule 4(1) provides for determining the strength and composition of each of the cadres constitu-ted under r. 3. Rule 5 provides for the allocation of mem-bers to various cadres by the Central Government. From these rules it is clear that once a person is appointed in the Indian Police Service it is the Central Government which allocates such person to the cadre of a State. No State has more than one cadre and as soon as a person appointed to the Indian Police Service is allocated to a State he is borne on the cadre of that State. Consequent-ly the post which he holds would be cadre post. These rules do not differentiate between posts held in the junior scale of pay and those in the senior scale of pay.

Rule 8 provides "Save as otherwise provided in these rules, every cadre post shall be filled by a cadre officer" which means by an officer of the Indian Police Service. Thus it is immaterial whether the post is borne on the junior scale of pay or on the senior scale of pay but so long as the post is borne on the cadre of the Indian Police ser-vice it must be filled by a cadre officer and none else ex-cept of course as provided in the cadre rules. The only other rules which have any bearing on this point in the Cadre rules are rules 9 and 10. Rule 9 .deals with tem-porary appointment of non-cadre officers to cadre posts and rule 10 deals with keeping cadre posts vacant. In pur-suance of the power conferred by r. 4(1) the Central Government has made regulations fixing the cadre 1963 streqgth for the State of Punjab at 82. The number of

senior posts is fixed at 57, 43 of which are to be filled by P. C. Wadhwa direct recruitment and 14 by promotion. The total direct

v. of recruitment posts is fixed at 68 and, therefore, 25 of them Union India and must be junior posts. The cadre thus comprises not neces-

Anr. sarily 0£ senior post but includes also junior posts. In addi-

rion to these rules, the Central Government framed Po-Mudholkar /. lice Service (Pay) Rules, 1954 in exercise of the powers

conferred by sub-section ( 1) of s. 3 of the All India Services Act, 1951. Rule 2 (a) provides that 'Cadre' and 'Cadre post' shall have the meanings respectively assigned to them in the Indian Police Service (Cadre) Rules, 1954. Rule 3 prescribes the time-scale of pay admissible to members of the service. The rules prescribe two scales of pay-junior scale and the senior scale, in addition to the selection grade. The junior scale is Rs. 350-350-380-380-30-500-E.B.-30-770-10-850 (19 years). The senior scale is Rs. 600 (6th year or under)-40-1000-1000-1050-1050-1100-1100-1150 (22 years). The selection grade is Rs 1250. It also contains some other provisions which are not relevant for the present discussion. Sub-rule (1) of r. 4 provides that the initial pay of a direct recruit shall be fixed at the minimum of the junior time-scale. Sub-rule (2) of that rule provides that the pay of a member of the service in the junior time scale shall, on appointment to a post on the senior time-scale, be fixed at the corresponding stage in the senior time-scale as shown in Schedule I of the rules. Further, the rule deals with promoted officers but with that part of the rule we are not concerned. Rule 5 deals with regulation of irn;re-ments and cl. ( 1) of sub-rule ( 1) of that rule says that in the case of a member appointed as a result of competitive examination the increment shall accrue on the expiry of each year from the date of his appointment to the ser-vice. The point to be noted is that where an Assistant Superintendent of Police is appointed as Superintendent of Police in the senior scale his annual increment falls due not on the expiry of one year from the date of his appointment as Superintendent of Police but by reference to his initial appointment in the junior scale. Rule 6 deals with withholding of increments and r. 7 with grant of advance increments. The heading of r. 8 is "Pay of officers holding posts enumerated in Schedule III". The 1963 posts in the Schedule are (a) posts carrying pay above the time-scale pay of the Indian Police Service under the P. C. Wadhwa v. State Governments, specified in Section A, (b) posts car-Union of rying pay in the senior time-scale of the Indian Police India and Service under the State Governments including posts car-Anr. rying special pay (in addition to pay in the time-scale) specified in Section B and ( c) posts carrying pay above Mudholkar the time-scale or special pay in addition to pay in the time-scale, under the Central Government held by mem-bers of the Service, specified in Section C. In category (a) so far as the State of Punjab is concerned the posts are those of Inspector General of Police and Deputy Ins-pector(s) General of Police; posts in category (b) in that State are: Assistant lnspector(s) General of Police, Super-intendent(s) of Police of District(s), Additional Super-intendent( s) of Police and others. The posts in cate-gory ( c) are posts held under the Central Govern-ment and not under the State Government. It will be seen that the posts of Superintendents of Police and Addi-tional Superintendents of Police in category (b) are inclu-ded in Sec. B of Schedule III. It is urged by the learn-ed Additional Solicitor General that by the inclusion of the posts of Superintendents of Police in sec. B of the Schedule it is made clear that officers have to be appoint-ed to the posts therein in the same manner as to posts in Sections A and C. No doubt a formal order of appoint-ment to all posts has to be made, whether an element of selection is involved therein or not. But if the contention means that appointments to posts in the senior scale must be made by selection, we cannot accept it is sound.

The rule in question does not <lea! with the question of appointment at all. Its heading clearly discloses its purpose: that of indicatin& the pay of certain classes of officers. While the pays of posts in Sections A and C --I are specifically set out in those sections, those of posts in

Section B are not. The heading of Section B merely des-cribes the posts dealt with in that section as those carrying senior scale of pay and provides mainly for two mat-ters concerning such posts namely, calculation of selec-tion posts and competency of the State Government to grant special pay and allied matters. It will thus be seen 1963, that this rule has no relevance to the determination of the

question before us. A consideration of the various rules P. C. Wadhwp_ would therefore, make it clear beyond doubt that a person in

v.

Union of the junior time-scale of the Service is as much a cadre offi-India and cer as one holding a post in the senior time-scale or a

Anr. post above the time-scale, such as those in Category (a)

of Schedule III.

Mudholkar /. As to what is meant by senior post we must go to the

definition contained in the Indian Police Service (Regu-lation of Seniority) Rules, 1954, also framed under sub-section (1) of s. 3 of the All-India Services Act, 1951. Senior post is defined thus in r. 2(g) :

" 'senior post' means a post included under item 1 of each Schedule to the Indian Police Service (Fixa-tion of Cadre strength) Regulations, 1955, framed un-der sub-rule (1) of Rule 4 of the Indian Police Ser-vice (Cadre) Rules, 1954, or any post declared equiva-lant thereto by the State Government concerned ;" The senior posts in the cadre of the State of Punjab are 57 in number and include 18 posts of Superintendents of Police and 5 posts of Additional Superintendents of Police. Rule 3 provides that every officer directly rec-ruited to the Indian Police Service shall be assigned a year of allotment according to the provisions contained in that rule. Rule 4 provides for determining seniority of officers. Rule 6 provides that there shall be prepared every year for each State cadre a gradation list of names of all officers borne on that cadre arranged in the order of seniority in accordance with the provisions of rules 4, 5, 5-A and 7.

Even though a large body of rules has been framed by the Central Government governing the rights, privi-leges, discipline etc., of the members of the Indian Po-lice Service, there is not a single rule which specifically deals with the appointment of an Assistant Superinten-dent of Police to the post of Superintendent of Police. In · other words there is no specific rule which prescribes the condition for transfer or 'promotion' of :i person hold-ing a post carrying a pay in the ju!lior scale to a post carrying salary in the senior pay scale. Nor again, is there any rule which specifically provides that in so far as a member of the Indian Police Service is concerned he has to be freshly appointed to a post carrying a salary 1963 in the senior scale of pay. This may be apparently be-C. cause 'appointment' connotes only initial appointment to P. Wadhwa v. the Service. Union of

In this situation we have got to deduce the precise India and legal position from the large body of rules to which we Anr. have referred. It seems clear beyond doubt that in so f. far as the Indian Police Service is concerned there is only Mudholkar one cadre. Appointments to posts borne on that cadre are to be made by direct recruitment except to the extent of 25% of the senior posts which may be filled by promotion from the State Police Service, leaving aside for the mo-ment appointments made by special recruitment or emer-gency recruitment. Now, according to the learned Additional Solicitor General, what is guaranteed to a per-son who is appointed to the posts of Assistant Superin-tendent of Police is that he will be allowed to reach the maximum of .Rs. 850.00 in the 19th year of his service in the junior scale subject of course to his increment not being withheld. His contention is that an Assistant Super-intendent of Police has no right to hold a post car-rying a pay in the senior scale even though according to his seniority in the gradation list he may be eligible for such a post. He emphasises that an element of se-lection is involved in promoting an Assistant Superinten-dent of Police to the post of a Superintendent of Police.

No doubt the junior time scale goes upto Rs. 850.00 which would be reached by an Assistant Superintendent of Po-lice in his 19th year of service and thereafter he would continue to draw only that salary till he retires. But it would not be right to conclude from this circumstance that that is all that is guaranteed to him. We must take into account all the relevant rules bearing on the matter.

There are also good reasons for providing a complete time scale for the junior posts. Thus it may well hap-pen that the senior posts are unavailable for a long period because of having been filled by younger persons say as special or emergency recruits. Or again, the Govern-ment may find an officer in the junior scale unsuitable for holding a post in the senior scale and may either not appoint him to or revert him from a post in the senior scale. Thus, if after conforming to the appropriate proce-1963 dure the Government withholds the promotion of such

person or reverts him provision for granting increment P. C, Wadhwa to him had to be made so that he could expect to draw

v.

Union of a reasonably fair salary with the passage of time and not India and be left to stagnate at a very low salary for the rest of the

Anr. period of his service. The argument of the Addition-

al Solicitor General on the point cannot, therefore, be Mudholkar /. accepted. It is true that we are not direct! y concerned in

this case with initial appointment of a person to a post in the senior time-scale but only with that of one who has been reverted. Apart from grounds of administrative convenience the guiding factors would be the same, name-ly, seniority, whether the case is of initial appointment to a post in the senior scale or reversion therefrom to the junior scale. No doubt, r. 6(2) of the Pay Rules con-templates provision of an efficiency bar in the junior .... scale and a bar has been placed at Rs. 590.00. But the placing of this bar has no bearing on tqe appointment of a person whose increment has been barred, to a post in the senior scale. Indeed, the proviso to r. 6(2) clearly states that even where the increment of a member has been witliheld, but he is appointed to a post in the senior scale his pay in that scale will not be affected but would be regulated according to his length of service. This proviso in fact lends further support to the conclusion that in the Service what counts is the length of service of a member and not even whether he has or has not passed the departmental examination. Increments can, under r. 6(1), be withheld but that is only if a member fails to pass the departmental examination in a prescribed time. This is a condition of service and when the condition is not satisfied the member affected can have no legiti-mate grievance. But the result of this is different from · that of not allowing a person to hold a post in the se-nior time-scale in his turn according to his seniority. As already indicated very elaborate rules have been framed for the purpose of determining the inter se seniority of the officers borne on the cadre of the Indian Po-lice Service. The gradation list has to be prepared with scrupulous regard to the rights of every member of the service. All this would have been unnecessary if seniority were meaningless. In Schedule I framed under rr. 4(2) and 5(2) of the pay Rules the first column refers to 1963 the year of service, the second to the monthly rate of pay in the junior scale and the third column to the monthly P. C. Wadhwa v. rate of pay in the senior scale. No person is directly rec-Union of ruited to the Indian Police Service as a Superintendent India and of Police and, therefore, it will be pointless to provide in Anr. cl. 3, against the first year of service the salary of Rs. 600.00 the salary in the junior scale for that year being Mudholkar Rs. 350.00. The reason why this has been provided for apparently is that a situation was contemplated that a person appointed as an Assistant Superintendent of Police may immediately have to hold the office of a Superinten-dent of Police, the minimum salary for which was fixed at Rs. 600.00. If a question of selection were involved, surely choice could never fall upon a person who has just been recruited to the service. The circumstance that the two scales are given in parallel columns clearly indicates that the transition of a member of the service from one scale to another was not to depend upon the consideration of the comparative merits of a group of offi-cers in the junior scale inter se but only upon a considera-tion of their seniority. We have already indicated that in so far as promotion of officers to the State Police Service is concerned, elaborate provisions have been made in the rules which, among other things, provide for the appoint-ment of a selection committee and preparation of 'select lists'. Thus where a question of selection was invol-ved the procedure has been laid down in the rules. Had it been the intention of the Government to bring in the element of selection in so far as promotion of Assistant Superintendents of Police to the posts of Superintendents of Police is concerned we have no doubt that express provisions relating to the manner in which the selection has to be made wonld have found place in the rules.

The appellant who argued his case in person asked us to compare the position of persons belonging to other Cen-tral Services and said that in so far as they were concer-ned the rules provide for a selection at every stage and in this connection he drew our attention to expla-nation (iii) to r. 13 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 which reads thm :

1963 "The following shall not amount to a penalty within the meaning of this rule :

v.

Union of (iii) non-promotion whether in a substantive or offi-India and ciating capacity of a Government servant, after

Anr. consideration of his case, to a Service, grade or

f. post for promotion to which he is eligible;" Mudholkar and sought to support the argument by reference to this

explanation. He also pointed out that there is no corres-ponding provision in the All India Services (Discipline and Appeal) Rules. This argument is not without subs-tance.

The learned Additional Solicitor General, however referred us to explanation (3) to r. 3 of these Rules which · run_s thus :

"A refusal to promote a member of the Service, after due consideration of his case, to a post or grade to which promotions are made by selection, does not amount to withholding of promotion within the mean-ing of this rule."

Clearly, this provision will apply only where appointment is to be made to a post by selection and the question we have to decide is whether the post of a Superintendent of Police is of that nature. The language of this provi-sion is different from that to which we have adverted earlier.

Then the learned Additional Solicitor General, as also the High Court, relied upon explanation 4 to r. 3. Rule 3 provides for penalties including withholding of increments, promotion, reduction in rank i.e., to a lower post or time-scale or to a lower stage in a time-scale. The explanation reads thus :

"The reversion to a lower post of a member of the Service who is officiating in. a higher post, after a trial in the higher post or for administrative reasons (such as the return of the permanent incumbent from leave or deputation, availability of a more suitable officer, and the like) does not amount to reduction in rank within the meaning of this rule."

The question, however, is whether it applies to a case like the present. No doubt, this explanation speaks of a person who was given a trial in the higher post being reverted for administrative reasons including availability 1963 of a more suitable officer. This may be a condition of ser-vice but if it means that a person who has a right to hold P. C. Wadhwa v. a post in the senior scale would be liable to be demoted Union of if an officer junior to him, but more suitable, is available India and it would run contrary to the provisions _of Art. 311 (2) Anr. and would be ultra vires. But it would be a valid provi-J. sion if we consider it to apply only to promotions to Mudholkar posts to which the incumbent has no right. In our opi-nion, the whole scheme of the rules indicates that a person borne on the junior scale of pay has a right to hold a post on the senior scale of pay depending upon the availability of a post and his seniority in the junior scale of pay. We should not be understood as saying that this right extends to the appointment to a post carrying pay above time scale of pay or a post carrying a special pay.

The rules governing appointment to such posts were not placed before us. If a person holding a post in the senior scale, though in an officiating capacity is found to be un-fit to hold that post, action will have to be taken against him as required by r. 5 of Discipline and Appeal Ru-les because his reversion to a post in the lower scale would amount to reduction in rank within the meaning of Art. 311 of the Constitution as held in Dhingra's case(').

In the case before us Mr. Wadhwa was not reverted for an administrative reason like the unavailability of posts but for a different reason which we will indicate while j dealing with the second point raised by him. Despite the

fact that he holds a certain rank in the gradation list per-sons who also belong to the Indian Police Service and who were recruited to it subsequent to him have con-tinued to hold or have been appointed to hold posts car-rying salary in the senior scale. This would itself indicate that the action taken against him was by way of penalty or punishment. For, he has not only been reduced in rank but his promotion to the senior scale has also been withheld. This could only be done by holding a depart-mental enquiry and affording him an opportunity to show cause against the action proposed to be taken against him. Nothing of the kind was done and, therefore, on 1963 this ground alone the writ petition ought to have been

granted.

P. • .Wadhwa , On the other ground also the writ petition must sue'

v.

Union of ceed. The learned Additional Solicitor General very fair-lndia and ly placed before us the file concerning the reversion of

Anr. the appellant which we find from the judgment of the

f. High Court was also placed before it. The following ex-Mudholkar tracts from that file would be relevant :

"As the regular enquiry into Shri Wadhwa's conduct might take long, probably it will be advisable to shift him from Ferozepore to some other place. His per-sonal file is placed below."

This was apparently a note of the Senior Superintendent of Police. It is dated October 6, 1958 and was marked to the Inspector General. Below that there is a note of some other officer which begins with the following que-ry:

"Can't we revert him and then proceed with further enquiries on the charge of not carrying out the orders of his senior officers?"

Then it is stated that Mr. Wadhwa is not yet ripe and fit for the duties of a Superintendent of Police and then the note says :

"We may, therefore, get the State Government's ap-proval to his reversion on account of his unsatisfac-tory record. The departmental enquiry could be pro-ceeded with after his reversion."

It will thus be clear that the main object with which his re-version was sought was to facilitate the departmental en-quiry. No doubt, a reference is made to the unsuitability of the appellant for the post of Superintendent of Police. But that is not what mainly actuated his superior in re-commending his reversion. Then, as the next note in the file would show, actually a show cause notice was prepared and a recommendation was made to the Inspector Gene-ral to send it to the Chief Minister for his approval. There-after there is a long note of the Inspector General in which reference is made to Explanation 4 to r. 3 of the Discipline and Appeal Rules and it is said that in view of this provision no show cause notice need be issued to the appellant. This suggestion of the Inspector General was accepted by the Chief Minister and that is how the appel-1963 lant came to be reverted.

A perusal of the file thus shows that instead of sus-P. C. Wadhwa pending the appellant during the pendency of the enquiry v. against him which was expected to take considerable time Union of India and to finish, resort was had to his reversion on the vague Anr. grounds that he was a 'problem child' and an 'immature person'. We quite appreciate that while a departmental Mudholkar f. enquiry is being held against a person in respect of a ser-ious offence it would not be in the public interest to allow him to hold a responsible position. But in that case the more straightforward course would be to suspend him and not to resort to a devious method of the kind which the Government thought it fit to employ in this case. If as a result of the departmental enquiry the per-son arraigned is found not guilty or is awarded a minor punishment he may well be able to revert to the post which he was occupying. We are told that in the depart-mental enquiry held against the appellant, though he has been found remiss, the only punishment awarded to him was stoppage of one increment without prejudice to his future. If that is the correct state of affairs one would have expected that the appellant, had he been suspended, would have been restored to his former post in the light of the actual action taken against him on the basis of the findings of the Enquiry Officer. But, as a result of what the Government has done he loses the benefit of i such a result. In the circumstances we have no doubt in

coming to the conclusion that the order of the Govern-ment is mala fide.

On both these grounds, therefore, we allow the appeal :is well as the writ petition and quash the order dated November 3, 1958 reverting him to the post of Assistant Superintendent of Police from the post of Superintendent of Police. Costs of this petition here and in the High Court will be paid by the respondent State.

Appeal allowd.