P. C. Wadhwa Vs. Union of India &
ANR [1963] INSC 178 (27 August 1963)
27/08/1963 DAS, S.K.
DAS, S.K.
SUBBARAO, K.
DAYAL, RAGHUBAR AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION: 1964 AIR 423 1964 SCR (4) 593
CITATOR INFO:
D 1966 SC1529 (17) D 1967 SC1910 (6) D 1968
SC 754 (1,5,10,15) D 1971 SC 766 (10)
ACT:
Police Service-Officer officiating in the
senior time-scale served with charge sheet-Before enquiry reverted to
substantive post-Whether entitled as of right to promotion to senior scale-Whether
order of reversion amounts to "reduction in rank"-Constitution of
India, Art. 311-Indian Police Service (Pay) Rules, 1954, r. 3-Indian Police
Service (Cadre) Rules, 1954, rr. 3, 4(1), 8, All India Service (Discipline and
Appeals) Rules, 1955 Explanation 4, r. 3Indian Police Service (Recruitment)
Rules, 1954, r. 3.
HEADNOTE:
The appellant is a member of the Indian
Police Service. He joined the service in 1952 and was confirmed in 1953. In
1958 the appellant was promoted to officiate in the senior time-scale and was
posted as Additional Superintendent of Police at Ferozepore, in the place of
one Siasat Singh who was granted leave, and his pay was fixed at Rs. 600.00 per
month. He earned an increment and his pay was raised to Rs.
640.00 per month. In July 1958 he was served
with a charge sheet and was called upon to submit his defence and he submitted
his reply. Before the enquiry started he was reverted to his substantive rank
of Asstt. Superintendent of Police by an order dated November 3, 1958. His reversion
was not due to "the return of the permanent incumbent from leave or
deputation" or for any administrative reason. Other officers junior to the
appellant continued to officiate in the senior scale while he was reverted.
The personal file of the appellant which was
produced both before this Court and the High Court showed that the reason given
by the respondent for the reversion of the appellant was that he was tried as
Superintendent of Police and was found to be immature and was not true. The file
also revealed a note made by the Senior Superintendent of Police on 6-10-58 to
the effect that as the regular enquiry into the conduct of the appellant would
take a long time it was advisable to revert him.
The appellant filed before the High Court of
Punjab a petition under Art. 226 of the Constitution of India against the order
of reversion. The High Court dismissed the petition. The present appeal was by
way of special leave granted by this Court.
It was contended that under the relevant
rules governing the Indian Police Service, a member thereof was entitled as of
right to be promoted to a post in the senior scale as and when a vacancy
(except a vacancy in the promotion quota) arose therein and no one senior to
him was available for that post, that -upon the facts and circumstances of the
case the order of reversion was in effect a reduction in rank within the
meaning of Art.
599 311(2) of the Constitution and that
inasmuch as he was not given an opportunity of showing cause against the said
order there was a violation of Art. 311. Relying on the principle laid down in
Purshottam Lai Dhingra v. Union of India, [1958] S.C.R. 828 the appellant
alternatively contended that the order of reversion involved penal consequences
and operated as a punishment.
The respondent denied that the appellant had
any right to be appointed to a vacancy to a senior scale as claimed by him
since such appointment was not automatic and it involved a process of
selection. This being the position the reversion order did not amount to a
reduction in rank so as to attract the provision of Art. 311(2). As to the
alternative contention of the appellant the respondent replied that since the
order of reversion was made for the reason that the appellant was found to be
unfit and immature to hold a senior post, it could not be said that his
reversion amounted to a punishment.
Held:(per K. Subba Rao, Raghubar Dayal and J.
R. Mudholkar, JJ.) A consideration of the various rules would make it clear
beyond doubt that a person in the junior timescale of the service is as much a
cadre officer as one holding a post in the senior time-scale or a post above
the time-scale. The efficiency bar contained in r. 6(2) of the Pay Rules has no
bearing on the appointment of a person whose increment has been barred to a
post in the senior scale. The wording of this rule lends 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. 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 express provisions would have found
place in the rules.
The whole scheme of the rules indicates that
a person in the junior scale of pay has a right to hold a post on the senior
scale of pay subject to the availability of a post in the senior scale of pay
and his seniority in the junior scale of pay. If a person holding a post in the
senior scale, though in an officiating capacity, is found to be unfit to hold
that post action will have to be taken against him as required by r. 5 of
Discipline and Appeal Rules because his reversion to a post in the lower scale
would amount to a reduction in rank within the meaning of Art. 311.
From the facts and circumstances of the case
it is found that the appellant has not only been reduced in rank but his
promotion to the senior scale also has been withheld and this could be done
only by holding a departmental enquiry.
The appellant was reverted to facilitate the
departmental enquiry against him and the order of the Government was therefore
mala fide.
600 Held : (per S. K. Das, Acting C.J. and N.
Rajagopala Ayyangar J.) An officer in the junior scale has no right to go
automatically into the senior scale. On the contrary the suitability of a cadre
officer is a relevant consideration even in the matter of a temporary
appointment. The Indian Police Service (Pay) Rules, 1954, which provides for
two independent scales spread over a period of years, seem to indicate that an
officer in the junior scale cannot claim such automatic promotion. The
provision for an efficiency bar at the stage when the salary of a junior
officer reaches Rs. 590.00 also leads to this conclusion. The expression
"on appointment to a post on the senior time-scale" occurring in r.
4(2) and the provision in r. 8 which states that any member of the service
appointed to hold a post specified in Schedule 11 shall be entitled, as long as
he holds that post, to draw the pay indicated for that post also support this
conclusion. Explanation (4) to r. 4 of the All India Services (Discipline and
Appeal) Rules, 1955, shows clearly that a member of the service cannot claim
the right to officiate in a higher post merely by reason of his seniority and
even when he is officiating in a higher post he may be reverted after a trial
in that post or for administrative reasons and such a reversion does not amount
to 2 reduction in rank.
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 officiating rank from which he is reverted for every
reversion must necessarily mean that the pay will be reduced to the pay of the
substantive rank.
A matter of this kind has to be looked from
the point of view of substance rather than of form. All the relevant factors
should be taken into consideration and if on such a consideration the
conclusion is that the reduction is by way of punishment involving penal
consequences to the officer even though the Government has a right to pass the
order of reduction the provisions of Art. 311 will be attracted and the officer
must be given a reasonable opportunity of showing cause against the proposed
action.
On an examination of the facts and
circumstances of the case it is found that the appellant was reverted by way of
punishment but he was given no opportunity of showing cause against the action
proposed to be taken against him.
Therefore the order of reversion was in
violation of Art.
311 of the Constitution.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 720 of 1962.
Appeal by special leave from the judgment and
order dated January 20, 1961, of the Punjab High Court in Civil Writ No.
752/1959.
601 The appellant appeared in person.
S.V. Gupte, Additional Solicitor-General for
India, Mohinder Singh Punnu, Deputy Advocate-General for the State of Punjab,
N. S. Bindra, R. H. Dhebar, R. N. Sachthey and P. D. Menon, for the
respondents.
August 27, 1963. The Opinion of S. K. Das,
Acting C.J., and Rajagopala Ayyangar, J. was delivered by S. K. Das, Acting
C.J. The judgment of K. Subba Rao, Raghubar Dayal and Mudholkar, JJ. was
delivered by Mudholkar, J.
S.K. DAS, Acting Chief Justice--This is an
appeal by special leave. The appellant is a member of the Indian Police
Service. He joined that service on October 3, 1952 as a result of a competitive
examination held in, 1951, and was posted in the State of Punjab. He was
confirmed on November 30, 1953. The time-scales of pay admissible to a member
of the Indian Police Service consist of the junior scale, the senior scale and
selection grade ; see r. 3 of the Indian Police Service (Pay) Rules, 1954. In
pursuance of sub-rule (1) of r. 4 of the Indian Police Service (Cadre) Rules,
1954, the Central Government made regulations known as the Indian Police
Service (Fixation of Cadre Strength) Regulations, 1955. Under these
regulations, Punjab has 57 senior posts in the Indian Police Service out of
which some have to be filled by promotion in accordance with r. 9 of the Indian
Police Service (Recruitment) Rules, 1954. To this aspect of the case we shall
advert later. The number of junior posts is also laid, down in the regulations.
The Indian Police Service (Pay) Rules, 1954, also lays down in Schedule III-(a)
posts carrying pay above the time scale of pay of the Indian Police Service
under the State Governments, (b) posts carrying pay in the senior time scale of
the Indian Police Service under the State Governments, and (c) posts carrying
pay above the time scale or special pay in addition to pay in the time-scale
under the Central Government. The initial pay of a direct recruit is fixed at
the minimum of the junior time, scale. 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 1 of the Indian 39-2 S. C. India/64 602 Police Service (Pay) Rules,
1954; see r. 4 of the said rules. The posts of Superintendents of, Police are
posts in the senior time-scale.
On January 27, 1958 the appellant was
promoted to officiate in the senior time-scale and was posted as Additional
Superintendent of Police, Ferozepore. The order dated January 18, 1958 stated
that the appellant was permitted to officiate as Superintendent of' Police and
posted as Additional Superintendent of , Police, Ferozepore, vice Shri Siasat
Singh granted leave from January 27, 1958. Because of this officiating
promotion, the appellant's pay was fixed at Rs. 600.00 which is the lowest pay
in the senior scale.
On April 19, 1958, the appellant was
transferred and posted as Additional Superintendent of Police, Punjab Armed
Police, Ferozepore. This post carried a special pay of Rs. 100.00 per month.
The appellant earned one increment on October 3, 1958 and his basic pay was
raised from Rs. 600.00 to Rs. 640.00 per month. On July 18, 1958 the appellant
was served with -a charge sheet and was called upon to submit a reply in defence.
The appellant submitted a reply which apparently did not satisfy the
Government. 1 An enquiry was ordered, and an officer was appointed to hold the
enquiry.
However, before the enquiry started; the
appellant was reverted to his substantive rank of Assistant Superintendent of
Police by an order dated November 3, 1958. The post of Assistant Superintendent
of Police is a post in the junior scale and the, order dated November 3, 1958
stated that the appellant was reverted to his substantive rank of Assistant
Superintendent of Police from the
We shall presently state the grounds on which
the appellant attacks the order of reversion; but before we do so, we may
complete the statement of facts. The appellant challenged the order of
reversion by means of a Writ Petition filed in the Punjab High Court. This Writ
Petition was however dismissed as premature, on the ground that the appellant had
filed 'an appeal, permissible under the rules, to the Government: of India
against 603 the order of reversion and the appeal had not then been disposed
of. Subsequently, the Government of India dismissed the appeal by an order
dated May 8, 1959. The appellant then filed a second Writ Petition in the
Punjab High Court out of which the present appeal has arisen. This second Writ
Petition was first placed before a single Judge who referred it to a larger
Bench. The Writ Petition was ultimately heard by Khosla, C.J. and Dulat, J.
They dismissed the petition. The appellant then-moved this court for special
leave and having obtained such leave, has brought the present appeal to this
court from the order of the. High Court dated January 20, 1961 by which the High
Court dismissed the second Writ Petition.
We proceed now to state the main grounds on
which the appellant has attacked the order of reversion dated November 3, 1958.
The principal contention of the appellant has been that under the relevant
rules governing the Indian Police Service, a member thereof is entitled as of
right to be promoted to a post in the senior scale as and when a vacancy
(except a vacancy in the promotion quota) arises therein and no one senior to
him is available for that post; at the time when the appellant was reverted,
officers Junior to him in the I.P.S. cadre of the Punjab State were officiating
in the senior scale ; therefore, the order of reversion made against the
appellant on November 3, 1958 was in effect a reduction in rank within the
meaning of Art. 311(2) of the Constitution for it operated as a forfeiture of
his right, and inasmuch as the appellant was given no opportunity of showing
cause against the said order of reversion, there was a violation of the
provisions of Art. 311 of the Constitution. Alternatively, the appellant has
contended that on the principles laid down by this Court in Parshotam Lal
Dhingra v. Union of India(1), the order of reversion made against the appellant
involved penal consequences and operated as a punishment against the -appellant
both in the matter ,of his pay and seniority ; it has been contended that the
order entailed loss of pay as well as loss of seniority and postponement of the
appellant's future chances of promotion ; therefore, although in form the
Government had purported to exercise its right to revert the appellant to (1)
[1958] S.C.R. 828.
604 his substantive rank, the order of
reversion really amounted to a reduction in rank by way of punishment,
irrespective of whether the appellant had a right to be appointed to a vacancy
in the senior scale. These are the two main grounds on which the appellant has
attacked the order of reversion.
He has also raised a contention that the
order of reversion was malafide, improper and against the provisions of Arts.
14 and 16 of the Constitution.
On behalf of the respondents, the main
contention has been that under the relevant rules the appellant had no absolute
right to be appointed to a vacancy in the senior scale as and when such vacancy
occurred therein and nobody senior to the appellant was available for it. The
stand taken on behalf of the respondents is that under r. 4(2) of the Indian
Police Service (Pay) Rules, 1954 appointment to a post on the senior time-scale
is not automatic, because such appointment involves a process of selection ;
therefore, there was no forfeiture of any right of the appellant by the order
of reversion made against him and the provisions of Art. 311(2) are not
attracted to it. As to the alternative contention of the appellant the reply of
the respondents has been that the order of reversion made against the appellant
was not made by way of punishment. In their written statements, the respondents
have stated that the order of reversion was not made as a measure of punishment
or penalty, but was made because the appellant who was tried as officiating
Superintendent of Police was not found fit and ripe enough for being entrusted
with the duties and responsibilities of a Superintendent of Police. It was
further averred that the departmental enquiry instituted against the appellant
had nothing to do with the order of reversion.
The respondents relied on Explanation (4) to
r. 3 of the All India Services (Discipline and Appeal) Rules, 1955, which says
that 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 r. 3 which deals
with penalties that may, for good and sufficient reasons, be im605 posed on a
member of the service. The respondents have contended that as the order of
reversion was not passed by way of punishment, it was unnecessary to ask the
appellant to show cause against the action proposed to be taken and there has
been no violation of the provisions of Art. 311 of the Constitution. The
respondents have also denied that the order of reversion made against the
appellant was malafide or improper or that it violated the fundamental rights
guaranteed under Arts. 14 and 16 of the Constitution.
We may now briefly state the findings which
the High Court has arrived at. The first finding of the High Court was that the
appellant did not hold the officiating post of a Superintendent of Police as a
matter of right and his case was covered by Explanation (4) referred to above;
therefore, the order of reversion did not amount to reduction in rank within
the meaning of Art. 311(2) of the Constitution.
Secondly, the High Court found that the
reversion of the appellant to his substantive rank of Assistant Superintendent
of Police was not by way of punishment and the reasons which led to the framing
of a charge sheet against the appellant were not the reasons which prompted the
order of reversion. Therefore, the order of reversion was not per se an order
of punishment and did not inflict any stigma or stain upon the appellant, nor
was the appellant debarred from future promotion to the senior scale. The High
Court did not deal with the question whether the order was malafide nor with
the question whether the order of reversion violated any of the fundamental
rights guaranteed under Arts. 14 and 16 of the Constitution, presumably because
these were not pressed in the High Court.
We proceed now to consider the first point
urged on behalf of the appellant, namely, whether he had a right to a vacancy
in the senior scale as and when such a vacancy occurred, except a vacancy in
the promotion quota, It is perhaps necessary to explain here what the promotion
quota means. Rule 9 of the Indian Police Service (Recruitment) Rules, 1954 says
inter alia that the number of persons recruited by promotion from amongst the
members of a State Police Service (usually Deputy Superintendents of Police)
shall not exceed 25 per cent of the 606 number of senior duty posts borne on
the cadre of that State. The manner in which the promotion quota of 25 per cent
is filled is laid down in the Indian Police Service (Appointment by Promotion)
Regulations, 1955. It is sufficient to state here that a committee is
constituted to make a selection and a list of suitable officers is prepared.
The selection for inclusion in such a list is based on merit and suitability in
all respects with due regard to seniority. The Select List is considered from
time to time and after approval by the Union Public Service Commission, forms
the Select List of the members of the State Police Service from which the
promotion quota is filled. It is conceded on behalf of the appellant that a
vacancy in the promotion quota is not filled automatically and that the
regulations laid down in the Indian 'Police Service (Appointment by Promotion)
Regulations, 1955 clearly indicate that there is a process of selection in the
matter of filling up the promotion quota.
The argument of the appellant is that there
is no such selection with regard to vacancies in the senior scale other than
vacancies in the promotion quota ; therefore, a member of the Indian Police
Service who is in the junior scale is entitled as of right to go into the
senior scale in a vacancy other than a promotion quota vacancy, provided that
nobody senior to him in the Indian Police Service is available for that post.
In support of his contention the appellant has relied on the Indian Police
Service (Regulation of Seniority) Rules, 1954, particularly r. 6 thereof which
says inter alia that there shall be prepared every year for each State Cadre a gradation
list consisting of the names of all officers borne on that Cadre arranged in
order of seniority in accordance with the provisions of the said rules.
We are unable to accept this line of argument
as correct.
Under r. 4 of the Indian Police Service
(Recruitment) Rules, 1954 recruitment to the Indian Police Service is done by
two methods: (1) by a competitive examination ; and (2) by promotion of
substantive members of a State Police Service.
Under r. 3 of the Indian Police Service
(Cadre) Rules, 1954 there shall be constituted for each State or group of
States an Indian Police Service Cadre. The strength and composition of each 607
of the Cadres constituted under r. 3 shall be determined by regulations made by
the Central Government. These regulations are known as the Indian Police
Service (Fixation of Cadre Strength) Regulations, 1955. We have already stated
that so far as Punjab is concerned, there are 57 senior posts out of which 14
have to be filled by promotion and 43 by direct recruitment. Amongst the senior
posts are included the posts of the Inspector General of Police, Deputy
Inspectors General of Police Assistant Inspectors General of Police, Principal,
Police Training School etc.
If the argument of the appellant were to be
pushed to its logical extreme, then a member of the Indian Police Service would
be entitled as of right to all the senior posts including the post of Inspector
General of Police, Deputy Inspectors General of Police etc. This, we do not
think, can be correct, and indeed the appellant does not so contend.
Under r. 8 of the Indian Police Service
(Cadre) Rules, 1954, save as otherwise provided in the rules, every cadre post
shall be filled by a cadre officer. That does not however mean that a cadre
officer is entitled as of right to go into the senior scale or to hold every
post in the senior scale.
The appellant has drawn our attention to r.
9(b) of the Indian Police Service (Cadre) Rules, 1954. That relates to the
temporary appointment of a non-cadre officer to a cadre post and the rule lays
down, inter alia, that a cadre post may be filled by a person who is not a
cadre officer if the State Government is satisfied that there is no suitable
cadre officer available for filling the vacancy. We do not think that rule
shows that an officer in the junior scale has the right to go automatically
into the senior scale. On the contrary, the rule seems to show that the
suitability of a cadre officer is a relevant consideration even in the matter
of a temporary appointment. We think that the matter is governed by the Indian
Police Service (Pay) Rules, 1954.
Every person recruited to the Indian Police
Service by a competitive examination remains on probation for a period of two
years; see r. 3 of the Indian Police Service (Probation) Rules, 1954.
Thereafter, on his confirmation, he starts on the Junior scale. The Indian
Police Service (Pay) Rules, 1954, lay down two independent scales of 608 pay ;
one is the junior scale spread over 19 years and the other is the senior scale
spread over 22 years. These two independent scales spread over a period of
years seems to indicate that an officer in the junior scale cannot claim the
right of automatically passing into the senior scale without any selection by
the State Government, though normally we apprehend that an officer in the
junior scale may expect to go into the senior scale if nothing is found against
him. It may be here stated that there is an efficiency bar in the junior scale
at the stage when the salary of the officer reaches Rs. 590.00 per month which
corresponds to the eleventh year of his service. If every officer in the junior
scale has the right to pass automatically into the senior scale, then it is
difficult to understand the meaning of this efficiency bar at the eleventh year
of service. Such a bar would serve no useful purpose in the majority of cases,
because all officers would automatically go into the senior scale long before
the eleventh year unless they were kept back by way of punishment.
Rule 4 of the aforesaid rules lays down that
the initial pay of a direct recruit shall be fixed at the minimum of the junior
time-scale. R. 4(2) is important for our purpose and may be quoted here.
"4. (2) 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 timescale as
shown in Schedule I:
* * * * The learned Additional
Solicitor-General who has argued the case on behalf of the respondents has
rightly drawn our attention to the words "on appointment to a post on the
senior time-scale" occurring in r. 4(2). His argument is that those words
indicate that the competent authority must appoint a member of the Indian
Police Service to a post on the senior time-scale before he can claim the pay
fixed for the senior time-scale as shown in Schedule I ; in other words, the
argument is that the words "appointment to a post on the senior
time-scale" show by necessary implication that the appointing authority
has the right either to appoint or not to appoint a member of the Indian Police
Service to a post on the senior time-scale 609 and there is no automatic
advance from the junior to the senior scale. We think that this contention of
the learned Additional Solicitor-General is correct. Rule 8 of the Indian
Police Service (Pay) Rules, 1954 is also relevant in this connection and
fortifies the argument of the learned Additional Solicitor-General. That rule
says that any member of the Service appointed to hold a post specified in Schedule
111, shall, for so long as he holds that post, be entitled to draw the pay
indicated for that post in the said Schedule. The rule makes it clear that
there must first be an appointment to a post specified in Schedule III and then
a member of the Service appointed to that post is entitled to draw the pay
indicated in Schedule III. When we go to Schedule III we find that the posts
mentioned therein are classified under three heads, A, B and C. Category A
relates to posts above the timescale of pay and includes the posts of Inspector
General of Police and Deputy Inspectors General of Police. The appellant
concedes that to these posts there is no automatic right to promotion. Category
B relates to posts' in the senior time-scale and includes, so far as Punjab is
concerned, the posts of Assistant Inspectors General of Police, Superintendents
of Police, Adjutant, Punjab Armed Police, Principal, Police Training School
etc.
Category C relates again to posts carrying
pay above the time-scale. The argument of the appellant, when properly
analysed, is that with regard to category B posts there is an automatic right,
but not so to category A and category C posts. This argument falls to the
ground when the terms of r. 8. are examined. The rule makes no difference in
the matter of the three categories of posts specified in Schedule III ; on the
contrary, the rule in express terms says that any member of the Service
appointed to hold a post specified in Schedule III shall, for so long as he
holds that post, be entitled to draw the pay indicated for that post in the
said Schedule. The expression "for so long as he holds that post" is
important and shows clearly enough that the appointing authority has a right to
appoint or not to appoint a member of the Service to a post in Schedule III. It
is conceded that such a right exists in the matter of category A and category C
posts; but the argument is that no such right exists 610 in the appointing
authority in the matter of category B posts. We do not see how in view of the express
terms of r. 8 any such distinction between category A and category C posts on
one side and category B posts on the other can be made. In our view, r. 8 shows
beyond any doubt that the posts of Superintendents of Police which are
mentioned in category B of Schedule III are posts to which an appointment must
first be made by the appointing authority and a member of the Service cannot
claim an automatic right to such a post. This conclusion inevitably flows from
r. 4(2) and r. 8 of the Indian Police Service (Pay) Rules, 1954.
There is another aspect of the question. In
exercise of the powers conferred by sub-section (1) of s. 3 of the All-India Services
Act, 1951, the Central Government has made rules known as the All India
Services (Discipline and Appeal) Rules, 1955. Rule 3 of the said rules states
the penalties which may, for good and sufficient reasons, be imposed on a
member of the Service. Rule 5 lays down the procedure to be followed for
imposing those penalties and states that no order shall be passed imposing any
of the penalties specified in r. 3 on a member of the Service unless he has
been informed in writing of the grounds on which it is proposed to take action
and has been afforded an adequate opportunity of defending himself. In the
Central Civil Services (Classification, Control and Appeal) Rules, 1957, a
distinction is drawn between penalties which are minor in nature such as
censure, withholding of increments or promotion and recovery from the pay of an
officer any pecuniary loss caused to Government by his negligence, and other
punishments of a major character such as reduction in rank, compulsory retirement,
removal or dismissal from service. No such distinction appears to have been
made 'in the All-India Services (Discipline and Appeal) Rules, 1955 save for
certain exceptional cases mentioned in sub-rule (10) of r. 5. Under r. 3 of the
said rules there are seven kinds of penalties one of which is "reduction
in rank including reduction to a lower post or time-scale, or to a lower stage
in a time scale". There are certain Explanations to r. 3 of which
Explanation (4) is important for our purpose. This Explanation reads thus :
611 "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 High Court was of the view that the case of the appellant was
covered by the aforesaid Explanation even though the reversion of the appellant
was not caused by the return of the permanent incumbent from leave or
deputation nor by the availability of a more suitable officer. The High Court
took the view that the instances mentioned in the Explanation were not
exhaustive and the phrase "and the like" was intended to cover other
instances of reversion when reversion was not intended to be by way of
punishment or penalty. Whether the reversion of the appellant in the present
case was by way of punishment or penalty, apart from the alleged forfeiture of
his right to go automatically to the senior scale, is a question which we shall
presently consider in relation to his alternative argument. At the present
moment, we are considering the question from the point of view as to whether
there has been any forfeiture of his right to go automatically into the senior
scale. In our view Explanation (4) to r. 3 shows clearly enough that a member
of the Service cannot claim the right of officiating in a higher post merely by
reason of his seniority and even when he is officiating in a higher post he may
be reverted after a trial in that post or for administrative reasons and such
reversion does not amount to reduction in rank within the meaning of r. 3. The
existence of such a rule negatives the claim of the appellant that he has the
right to officiate in a post on the senior scale, and any reversion from that
officiating post amounts to reduction in rank within the meaning of Art. 311 of
the Constitution.
There is a third aspect of the question. We
have stated earlier that r. 3 of the Indian Police Service (Pay) Rules, 1954
states that there shall be two time-scales of pay, junior and senior, and also
a selection grade. The first proviso to the rule states that a member of the
Ser612 vice holding a post in the senior time-scale may be appointed to a post
in the selection grade and where he is so appointed, he shall be entitled to
draw pay of the post in the selection grade. Here again the proviso talks of
"appointed to a post in the selection grade". The words show by
necessary implication that an officer may or may not be appointed to a post in
the selection grade. Exactly the same words occur also in r. 4(2) which we have
earlier 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 appointment 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 appellant that in any view of the matter his reversion involved penal
consequences to him within the meaning of the rule laid down in Parshotam Lal
Dhingra's case(1). 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. 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. 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
(1)[1958] S.C.R. 828.
613 tails 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
circumstance 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. In spite of the use of such innocuous
expression, the court has to apply 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 consequences 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 termination of his service must be taken as a
dismissal or removal from service or the reversion to his substantive 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 service 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(1), 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 promotion.
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 reversion was not due to the return of the permanent
incumbent from leave or deputation or for any administrative reason. It is also
admitted that officers junior to (1)[1958] S.C.R. 828 614 the appellant
continued to officiate in the senior scale while the appellant was reverted. In
its written statement the respondent State took the stand that the appellant
was tried as Superintendent of Police and on trial he was found to be immature.
It was further stated that his reversion had nothing to do with the
departmental proceedings instituted against him on July 18, 1958. It appears
from the judgment of the High Court that the 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 of a
charge sheet against him. The same personal file has also been produced 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 Ferozepore 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 Inspector 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. 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 approval to his reversion on account of his unsatisfactory record.
The departmental enquiry could be proceeded with after his reversion." The
extracts quoted above show that the appellant was really reverted by way of
punishment. The departmental proceedings were instituted against him on July
18, 1958. On 6-10-1958 it was noted that as the regular enquiry 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
suggested for reversion was unsatisfactory conduct. No details 615 of the
unsatisfactory conduct were specified and the appellant was not asked for any
explanation. In his writ petition the appellant stated that he has had a
brilliant academic career and that no bad or adverse remarks were ever
communicated to him; he further stated that he was recommended for the award of
the Indian Police Medal for gallantry : only a month before the order of
reversion he was given an increment of pay. The appellant's suggestion is that
if his work was unsatisfactory, his increment 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 reversion 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 officiating rank
from which he is reverted, for every reversion 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 suffered loss of seniority as also
postponement of future chances of promotion to the senior scale. A matter of
this kind has to be looked at from the point of view of substance rather than
of form. It is indeed true, as was pointed out in Parshotam Lal Dhingra's
case(1), 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 nature is the effect of
all the relevant factors present therein. If on a consideration of those
factors the conclusion is that the reduction is by way of punishment involving
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
attracted (1)[1958] S.C.R. 828.
616 and the officer must be given a
reasonable opportunity of showing cause against the action proposed to be taken
against him. Our conclusion is that in the present case the appellant was
reverted by way of punishment, but he was given no opportunity of showing cause
against the action proposed to be taken against him. Therefore the order of
reversion dated November 3, 1958 was in violation of the provisions of Art. 311
of the Constitution.
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 Constitution.
We would accordingly allow this appeal and
quash the order of reversion passed against the appellant on November 3.
1958. The appellant will be entitled to his
costs of this court and the High Court.
MUDHOLKAR J.-This is an appeal by special
leave from the judgment of the High Court of Punjab dismissing the appellant's
writ petition under Art. 226 of the Constitution.
The appellant is a member of the Indian
Police Service 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
November 30, 1953. On January 27, 1958 he was appointed 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 Superintendent
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
Additional 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 and Appeal) Rules, 1955 and Mr. Bindra, Deputy
Inspec617 tor General of Police, Jullunder, was appointed as an Enquiry
Officer. On November 3, 1958 the appellant was reverted to the post of
Assistant Superintendent of Police and posted at Amritsir. The appellant
thereupon preferred a writ petition before the High Court of Punjab. The first
ground on which the writ petition rested was that the reversion of the
petitioner from the post of officiating Superintendent of Police to that of
Assistant Superintendent 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 Constitution were not complied with, his reversion
was illegal. The second ground was that the action of the Government in
reverting him was mala fide. It is common ground that persons junior to the
appellant in the gradation list were either continued to officiate as
Superintendents of Police after the reversion of the appellant or were
appointed to officiate as Superintendents of Police while the appellant
continued to be Assistant Superintendent of Police. The main question,
therefore, for consideration is whether the appellant's reversion amounts to a
punishment.
The determination of this question would
depend upon the answer to be 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 enquiry made under the Discipline and Appeal Rules. The High
Court, while negativing the contention of the appellant, observed that this
Court held in Parshotam Lal Dhingra v. Union of India(1) 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 permanent 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. 40-2 S. C.
India/64.
618 more than three years or has been
certified by the appointing authority as fit for appointment in a
quasi-permanent capacity. The learned judges, however, overlooked the fact that
there this Court was interpreting the Fundamental Rules and not rules
applicable to an All India Service, which have their source in the All India
Services Act, 1951 (LXI of 1951). It may be mentioned 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 Government 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 Government.
Rule 3 provides that the service shall consist of three classes of persons :
(a) members of the Indian 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 promotion 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
appointment shall be made except after recruitment by one of the methods
specified in r. 4.
Rule 9 provides for recruitment by promotion.
Sub-rule (2) of that rule provides 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 Governments
and the Union Public Service Commission, to make regulations governing
recruitment and promotion. In exercise of this power the Indian Police Service
(Appointment 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 619 Police Service were to be made in
accordance with these Lists. It would be relevant here to make a mention of the
fact that according to the High Court a cadre post means only a senior post in
the service, that is, the post of Superintendent of Police or a higher post. In
coming to this conclusion the High Court has purported to rely on the Indian Police
Service Cadre Rules, 1954, framed under subsection (1) of s. 3 of All India
Services Act. 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 constituted under r. 3.
Rule 5 provides for the allocation of members
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.
Consequently 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 service it must be
filled by a cadre officer and none else except 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 temporary appointment of
non-cadre officers to cadre posts and rule 10 deals with keeping cadre posts
vacant. In pursuance of the power conferred by r. 4(1) the Central Government
has made regulations fixing the cadre 620 strength for the State of Punjab at
82. The number of senior posts is fixed at 57, 43 of which are to be filled by
direct recruitment and 14 by promotion. The total direct recruitment posts are
fixed at 68 and, therefore, 25 of them must be junior posts. The cadre thus
comprises not necessarily of senior post but includes also junior posts. In
addition to these rules, the Central Government framed Police 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. 350-350-380-38030500-E.B.-30-770-10-850 (19 years). The senior
scale is Rs. 600 (6th year or under)-40-1000-1000-1050-10501100-11001150 (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 increments 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
service. 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
621 officers holding posts enumerated in Schedule III". The posts in the
Schedule are (a) posts carrying pay above the time-scale pay of the Indian
Police Service under the State Governments, specified in Section A, (b) posts
carrying pay in the senior time-scale of the Indian Police Service under the
State Governments including posts carrying special pay (in addition to pay in
the time-scale) specified in Section B and (c) posts carrying pay above the
time-scale or special pay in addition to pay in the time-scale, under the
Central Government held by members of the Service, specified in Section C. In
category (a) so far as the State of Punjab is concerned the posts arc those of
Inspector General of Police and Deputy Inspector(s) General of Police ; posts
in category (b) in that State are : Assistant Inspector(s) General of Police,
Superintendent(s) of_ Police of District(s), Additional Superintendent(s) of
Police and others. The posts in category (c) are posts held under the Central
Government and not under the State Government. It will be seen that the posts
of Superintendents of Police and Additional Superintendents of Police in
category (b) are included in Sec. B of Schedule III. It is urged by the learned
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 appointed to the posts therein in the same manner as to
posts in Sections A and C. No doubt a formal order of appointment 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
deal with the question of appointment at all. Its heading clearly discloses its
purpose: that of indicating the pay of certain classes of officers. While the
pays of posts in Sections A and C are specifically set out in those sections,
those of posts in Section B are not.
The heading of Section B merely describes the
posts dealt with in that section as those carrying senior scale of pay and
provides mainly for two matters concerning such posts namely, calculation of
selection posts and competency of the State Government to grant special pay and
allied matters.
It will thus be seen 622 that this rule has
no relevance to the determination of the question before us. A consideration of
the various rules would therefore, make it clear beyond doubt that a person in
the Junior time-scale of the Service is as much a cadre officer as one holding
a post in the senior time-scale or a post above the time-scale, such as those
in Category (a) of Schedule III.
As to what is meant by senior post we must go
to the definition contained in the Indian Police Service (Regulation of
Seniority) Rules, 1954, also framed under subsection (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 (Fixation of Cadre strength) Regulations, 1955, framed
under sub-rule (1) of Rule 4 of the Indian Police Service (Cadre) Rules, 1954,
or any post declared equivalent 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
recruited 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, privileges, discipline
etc., of the members of the Indian Police Service, there is not a single rule
which specifically deals with the appointment of an Assistant Superintendent 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 a
person holding a post carrying a pay in the junior 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 623 has to be freshly appointed to a post carrying a salary in the senior
scale of pay. This may be apparently because 'appointment' connotes only
initial appointment to the Service.
In this situation we have (Tot to deduce the
precise legal position from the large body of rules to which we have referred.
It seems clear beyond doubt that in so far as the Indian Police Service is
concerned there is only 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 moment appointments made by special recruitment or 'emergency
recruitment. Now, according to the learned Additional Solicitor General, what
is guaranteed to a person who is appointed to the posts of Assistant
Superintendent 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
Superintendent of Police has no right to hold a post carrying 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 selection is
involved in promoting an Assistant Superintendent 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 Police 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 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 happen 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 Government
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 proce624 dure the
Government withholds the promotion of such person or reverts him provision for
granting increment to him had to be made so that he could expect to draw a reasonably
fair salary with the passage of time and not be left to stagnate at a very low
salary for the rest of the period of his service. The argument of the
Additional Solicitor General on the point cannot, therefore, be accepted. It is
true that we are not directly 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, namely, 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 contemplates 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
the 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 withheld, 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(l), 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 legitimate grievance. But the result of this is different
from that of not allowing a person to hold a post in the senior 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 Police 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) 625 and 5
(2) of the pay Rules the first column refers to the year of service, the second
to the monthly rate of pay in the junior scale and the third column to the
monthly rate of pay in the senior scale. No person is directly recruited to the
Indian Police Service as a Superintendent of Police and, therefore, it will be
pointless to provide in cl. 3, against the first year of service the salary of
Rs. 600.00 the salary in the junior scale for that year being 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
Superintendent 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 officers in the junior
scale inter se but only upon a consideration 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 appointment of a selection committee and
preparation of 'select lists'. Thus where a question of selection was involved
the procedure has been laid down in the rules. Had it been the intention of die
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 would 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 Central Services and said that in so far as they
were concerned the rules provide for a selection at every stage and in this
connection he drew our attention to explanation (iii) to r. 13 of the Central
Civil Services (Classification, Control and Appeal) Rules, 1957 which reads
thus:
626 "The following shall not amount to a
penalty within the meaning of this rule * * * * (iii) non-promotion whether in
a substantive or officiating capacity of a Government servant, after
consideration of his case, to a Service, grade or post for promotion to which
he is eligible;
and sought to support the argument by
reference to this explanation. He also pointed out that there is no corresponding
provision in the All India Services (Discipline and Appeal) Rules. This
argument is not without substance.
The learned Additional Solicitor General
however referred us to explanation (3) to r. 3 of these Rules which runs 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 meaning 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 provision 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 timescale 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 627 reverted for administrative reasons including
availability of a more suitable officer. This may be a condition of service but
if it means that a person who has a right to hold a post in the senior scale
would be liable to be demoted if an officer junior to him, but more suitable,
is available it would run contrary to the provisions of Art. 311(2) and would
be ultra vires. But it would be a valid provision if we consider it to apply
only to promotions to posts to which the incumbent has no right. In our
opinion, 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 unfit to hold that post, action will have
to be taken against him as required by r. 5 of Discipline and Appeal Rules
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(1). 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 dealing with the second point raised by
him. Despite the fact that he holds a certain rank in the gradation list
persons who also belong to the Indian Police Service and who were recruited to
it subsequent to him have continued to hold or have been appointed to hold
posts carrying 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 departmental 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 (1)(1958] S.C.R. 828.
628 this ground alone the writ petition ought
to have been granted.
On the other ground also the writ petition
must succeed.
The learned Additional Solicitor General very
fairly placed before us the file concerning the reversion of the appellant
which we find from the judgment of the High Court was also placed before it.
The following extracts 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 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 Inspector General. Below that there is a
note of some other officer which begins with the following query :
"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 approval to his reversion on account of his unsatisfactory record.
The departmental enquiry could be proceeded with after his reversion." It
will thus be clear that the main object with which his reversion was sought was
to facilitate the departmental enquiry. 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 recommending 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 General to send it to the Chief Minister for his
approval. Thereafter 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 629
accepted by the Chief Minister and that is how the appellant came to be
reverted.
A perusal of the file thus shows that instead
of suspending the appellant during the pendency of the enquiry against him
which was expected to take considerable time to finish, resort was hard to his
reversion on the vague grounds that he was a 'problem child' and an 'immature
person'. We quite appreciate that while a departmental enquiry is being held
against a person in respect of a serious 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 person 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 departmental 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 such a result. In the circumstances we have no
doubt in coming to the conclusion that the order of the Government is mala
fide.
On both these grounds, therefore, we allow
the appeal as 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 allowed.
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