State of Uttar Pradesh & Ors Vs.
Sughar Singh  INSC 212 (22 November 1973)
MATHEW, KUTTYIL KURIEN MATHEW, KUTTYIL KURIEN
BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 423 1974 SCR (2) 335 1974
SCC (1) 218
RF 1976 SC1766 (2,3,5,7,14,16) RF 1976 SC2547
(6,18,21) D 1980 SC1459 (7) RF 1981 SC 965 (6,7) RF 1986 SC1626 (26,33) R 1987
Constitution of India-Arts. 311, 14 and 16Reversion
of temporary Government servant from his officiating post-When juniors allowed
to continue Reversion if violative of art.
311-Post not abolished nor any administrative
reason shownWhether violative of arts. 14 & 16.
The respondent, a permanent Head Constable in
the U.P. Police Force, was appointed in 1961 as officiating Platoon Commander
in the combined cadre of sub Inspector, Armed Police and Platoon Commander. In
1966, an adverse nary was made in his character roll and he was reverted to the
substantive post of Head Constable in 1968. At the time of reversion he was one
among a group of about 200 officers, most of whom were junior to him. The High
Court quashed the order of reversion to the post of Head Constable.
On the question whether the order of
reversion was made in violation of Art. 311 of the Constitution or in violation
of any right of the respondent under Art. 16 of the Constitution.
Dismissing the appeal,
HELD: An order of reversion is in its
immediate effect bound always to be a reduction in rank. Even a reversion from
a higher but temporary or officiating rank to a lower substantive rank is in a
sense a reduction. But, such orders of reversion are not always reduction in
rank within the meaning of Art. 311. If the officer is promoted substantively
to a higher post or rank, he gets a right to that particular post or rank and if
he is afterwards reverted to the lower post or rank which he held before, it is
a "reduction In rank" in the technical sense in which the expression
is used in art. 311. The real test in all such cases is to ascertain if the
officer concerned has a right to the post from which he is reverted. It cannot
be ordered except in compliance with the provisions of art. 311. If on the
other hand, the officer concerned has no right to the post, he can be reverted
without attracting the provisions of art 311. But even in this case, he cannot
be reverted in a manner which will show conclusively that the intention was to
punish him. The order itself may expressly state that the officer concerned is
being reverted by way of punishment. In fact the order may in various other
ways cast a stigma on the officer concerned. In all such cases, the order is to
be taken as a punishment. Sometimes again, the order of reversion may bring
upon the officer certain penal consequences like forfeiture of pay and
allowances or loss of seniority in the subordinate rank or the stoppage or
postponement of future chances of promotion in such cases also the Government
servant must be regarded as having been punished and his reversion to the
substantive rank must be treated as a reduction in rank. In such a case art.
311 will be attracted. [342H; 343A-D] In the instant case the order of
reversion is not attended with any stigma. There is nothing to show that the
respondent has lost his seniority in the substantive rank and there is no
evidence to show that there has been any forfeiture of his pay or allowances or
any loss in the seniority in the substantive rank. The mere fact that the
respondent will be deprived of he post of Platoon Commander is not a penal
consequence. Such deprivation is in the usual consequence of an order of
reversion from the officiating post to Which an incumbent has no right to hold.
In a case like this what is important to see
is whether the order of reversion entails any penal consequences and not the
motive behind the reversion. [345A-E] Parshotam Lal Dhingra v. The Union of
India,  S.C.R.828, State of Punjab and Another v. Sukh Raj Bahadur,
 3 S.C.R. 23, State of Orissa v. Ram Narayan Das,  S.C.R. 606, R.
C. lacy. State of Bihar, C.A. No. 590 of 1962 decided on 23-10-63, Madan Gopal
v. State of Punjab,  3 S.C.R. 716. Jagdish Miter v. Union of India,
A.I.R. 1964 S.C. 449, A. G. Benjamin v.
336 Union of India, C.A. No. 1341 of 1966
decided on 13-12-1966 and Ram Govt Chaturvedi v. State of Madhya Pradesh,.
 1 S.C.R. 472, referred to.
Union of India v. Gajendra Singh  5
S.C.R. 660, Divisional Per sonnel Officer v. Raghavendrachar,  3 S.C.R.
106, Union of India v. Jesva. Ram, A.I.R. 1958 S.C.
905, Madhav v. State of Mysore, A.I.R. 1962
S.C. 81 and State of Bombay v. Abraham, A.I.R. 1962 S.C. 794, followed.
But, the order was liable to be quashed on
the ground of contrave nation o articles 14 and 16 of the Constitution.
The complaint that 200 head constables what
had taken training as Cadet Sub-Inspectors of Armed Police after the respondent
who were junior to him have still been allowed to retain their persent saturation
as Sub-Inspector and have not been reverted to their substantive post of Head Constable
must be sustained. No possible explanation for this extreme form of discrmination
has been shown. It is also clear that there was no administrative reason for
There was no suggestion that the post had
been abolished or that the respondent was, for administrative reasons, required
to go bacl, tohis own post of Head Constable.
[347C-E] State of Mysore v. P. R. Kulkarni,
A.I.R. 1972 S.C. 2170 and The State of Bihar and Others v. Shiva Bhikshuk
Mishra,  2 S.C.R. 191, followed.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
1110 of 1971.
From the judgment and decree dated the 8th
September, 1970 of the Allahabad High Court in Special Appeal No. 826 of 1969.
G. N. Dikshit and O. P. Rana, for the
R. K. Garg, S. C. Agarwala and V. J. Francis,
for the respondent.
The Judgment of the Court was delivered byMATHEW,
J. This appeal, by certificate, is directed against the judgment and decree
dated September 8, 1970 of the Allahabad High Court. The short facts of the
case are as follows. The respondent Sughar Singh was a permanent head constable
in the U.P. Police Force between 1950 and 1960.
Sometime in 1960, he was deputed for training
as a cadet sub-inspector at the Armed Police Training Centre at Sitapur. On
March 16, 1961, Sughar Singh was appointed an officiating Platoon Commander. He
worked in that post till August, 1968. While working as a Platoon Commander, on
July 22, 1966, the respondent was served with a notice by the Senior
Superintendent of Police, Kanpur, in which he was asked to show cause within 10
days' of the receipt of that notice as to why the following adverse entry
should not be entered in his character roll "1966-is suspected to have got
entries of date of birth and educational qualifications altered on the
authority of a fictitious certificate which had to be corrected later on.
Severly warned." The respondent submitted an explanation in accordance
with the terms of this notice on July 30, 1966. The "planation was not,
however, found acceptable and an adverse entry was actually made in his character
roll in 1966. On August 12, 1968, the Deputy Inspector General of Police,
Kanpur Range, U.P. passed an order to the following effect 337 "Order No.
1207/P.14.Q.-No. T 13 B 68 Order-On his reversion from the post of Officiating Sub
Inspector, Armed Police, Shri Sughar Singh is taken back on his substantive
post of Head Constable".
The order is in Hindi but we have set out an
English translation of the order which we found included in the records.
The respondent challenged this order of
reversion by a writ petition filed in the High Court of Judicature at
His petition was, at first dismissed by a
learned Singl e Judge of the High Court on May 12, 1969. He filed a special, a
Division Bench. One of the Judges of this Division the appeal and quashed the
order of reversion. The other learned Judge, however, was of a different view
and held that the respondent's appeal was liable to be dismissed. The matter,
thereafter, was referred to a third learned Judge who found in favour of the
respondent and quashed the order of reversion. In view of the opinion of the
third learned Judge, the special appeal filed by the respondent was allowed by
a judgment of September 8, 1970 and the order reverting the present respondent
to his post of head constable was quashed. The appellants have now come on
appeal before this Court against the order of the Allahabad High Court.
The short question that arises for
determination is as to whether the order of August 12, 1968, was made in
violation of article 311 of the Constitution of India or in violation of any
right of the respondent under article 16 of the Constitution.
For answering this question the first
essential is to determine what was exactly the nature of the appointment of
Sughar Singh when he was posted as a Platoon Commander.
Both parties accept the proposition that the
rank of Platoon Commander is the same as that of a Sub-Inspector of Police.
The appellants contend that Sughar Singh was
never appointed substantively to the post of Sub-Inspector of Police and that
he was merely officiating as a Platoon Commander in August 1968 when he was
reverted to his-substantive post of Head Constable. The respondent on the otherhand,
contends that before he was appointed as a Platoon Commander, he had been
appointed as a Sub-Inspector of Police and that even if his appointment to the
post of a Platoon Commander was in an officiating capacity, his substantive
rank was that of a Sub-Inspector of Police. In support of this contention,
reliance was placed on the framing of the order dated March 21 1961 which was
in the following terms "Order-On completion of the practical training on
March 16, 1961, the following S.I.A.P. Cadres are allotted to P.A.C.for posting
as offg. Platoon Commanders :
Distt/Unit of lien Residerce
-------------------------------------------------------------xx xx xx Sughar
Singh Agra Etawah xx xx xx Sd. M.U. Abmald I.P.S.
Dy. Inspr. Gen. of Police, Headquarter,
The order was made in respect of 15 head constables and reads as if all the
officers mentioned therein who were posted as officiating Platoon ,Commanders
already belonged on the relevant date to the S.I.A.P. Cadre i.e., they were
sub-inspectors in the Armed Police. The respondent's counsel argued that the
order specifically described the respondent as a Sub-Inspector belonging to the
Armed Police Cadre and the obvious intent of that order was to allot him to the
Provincial Armed Constabulary in the post of Officiating Platoon Commander. The
argument, in other words, was that independently of and prior to the
appointment of the respondent to the post of a Platoon Commander, he had been
enjoying the status of a SubInspector. It was further contended that since the
respondent's status as a Sub-Inspector of Police is not qualified as either
officiating or temporary, it is impossible to resist the conclusion that on
completion of his training he had already been appointed as a SubInspector
The order of March 21, 1961 was merely an
order of posting and not an order indicating the appointment of the respondent
to, a particular cadre. We are unable to accept this argument of the respondent
& counsel. To understand the position clearly, one has to refer to certain
provisions of the Police Regulations under which the respondent had been
selected for promotion from the post of Head Constable to the rank of
Sub-Inspector in the Armed Police :
"406(b) Armed Police-Permanent
promotions to the rank of sub-inspector in the armed police are made by Deputy
Inspectors General from the list of those who have ,qualified at the course
prescribed under paragraph 448.
Superintendents may promote in officiating or
447. Recruitment to the rank of sub-inspector
Armed Police/Platoon Commander will be made in the following manner " (a)
80 per cent of the posts both temporary and permanent in the combined cadre of
subinspector, Armed Police/ Platoon Commander will be filled in by selection of
men from the r anks.
"(b) The remaining 20 per cent of the
posts both temporary and permanent in the combined cadre of Sub-Inspector,
Armed Police/Platoon Commander will be filled in by direct recruitment.
"For category (a) the Range Deputy
Inspectors General of Police, Deputy Inspector General, Provincial Armed
Constabulary and the Deputy Inspector General of Police Headquarters in the
cases of the Railway Police, win nominate from time to time as required by the
Inspector General such number of head constables of the Armed Police as may be
"For category (b) selection of the
requirednumber of candidates will be made by a committee consisting of the 339
Inspector General, the Deputy Inspector General Provincial Armed Constabulary
and one more Deputy Inspector General nominated by Inspector General.
"448(i) Candidates. nominated or
selected under paragraph 447, will undergo a course of training of 7 months'
duration at the armed training centre Sitapur including one month's practical
training in the Provincial Armed Constabulary, Units.
(ii) Before taking training under the above
sub-para, candidates selected under para 447(b) shall undergo a successful
preliminary training for a period of two months at the Armed Training Centre,
"448-A. Relative seniority will be
governed by the date of passing the Sub-Inspector Armed Police Course and for
men passing the same course by the position obtained in the. final examination
of sub-inspector Armed Police Course between two men obtaining equal marks in
the same final examination (i) promoted man will take seniority over directly
recruited candidate (ii) if both men are directly recruited the age will be the
determining factor and in the case of the ranker cadets it will be the length
Certain things are clear from the above
regulations. There is a combined cadre of Sub-Inspectors of Armed Police and
Platoon Commanders. 'Mat means there is no difference in rank between a
Sub-Inspector of Armed Police and a Platoon Commander. Eighty per cent of the
posts of this cadre are filled up by promotion from the, ranks and twenty per
cent by direct recruitment. These appointments whether by promotion or by
direct recruitment are made to posts which may be temporary or permanent. When
appointments are made by promotion, the promoters are nominated from among the
head constables of the Armed Police. As soon as the selection of' nominees is
made, they have to undergo first a preliminary training for a period of two months
and, if successful in that training, a further training of 7 months at the
Armed Police Training Centre, Sitapur. There are certain rules for determining
the relative seniority of the promotees inter se and also vis-a-vis the direct
We are not concerned with those rules in this
In the light of these regulations and from
the facts set out in the different affidavits on record, it is clear that the
respondent was selected for training as a cadet SubInspector under Regulation
447 of the Police Regulations and on his successful completion of the' training
he was promoted to the combined cadre of 'Sub-Inspector, Armed Police/Platoon
Commander". The order of March 21, 1961 was the order posting the
respondent and his other colleagues who were successful in the training to
certain vacant posts in that combined cadre of Sub-Inspector and Platoon
Commander for the, first time.. The order is not happily worded. The order
seems. to make 340 a kind of distinction between the rank of Sub-Inspector of
the Armed Police Cadre and the rank of a Platoon Commander, though, in fact,
there was no such distinction. Regulation 447 (a) makes that position
indubitably clear. The respondent's contention that he was first appointed SubInspector
and then posted as a Officiating Platoon Commander, is based on this obvious
erroneous drafting of the order of March 21, 1961. Had the respondent been
appointed in the first instance to the post of a Sub-Inspector and then posted
as a Platoon Commander, it would have been possible for him to produce the
first order by which he claims to have been promoted to the cadre of
He produced no such order. In fact, there can
be little doubt that there, was no such order. The order of March 21, 1961 was
an order passed immediately after the completion of the practical training on
March 21, 1961. That is clear from the order itself. There is no room for any
order intervening the completion of the practical training and the passing of
the posting order on March 21, 1961. Having regard to these considerations, it
is impossible for us to accept the respondent's contention that he, had been
appointed substantively to the rank of Sub-Inspector of Police. In our opinion,
his first appointment was as an officiating Platoon Commander and he was never
given a substantive rank in the combined cadre of Sub-Inspectors, Armed Police
and Platoon Commanders.
We now turn to the question whether the order
of reversion of the respondent was either a reduction in rank in contravention
of article 311 of the Constitution or a contravention of the respondent's
fundamental right under article 16 of the Constitution. Though the law in this
matter has been laid down in a large number of decisions of this Court,
considerable difficulty arises in applying the various principles enunciated by
those decisions to the facts of any particular case.
The first decision which has now become a
locus classicus on the subject is the decision in Parshotam Lal Dhingra v. The
Union of India(1). The principles that were laid down in that case are as
follows (1) Article 311 of the Constitution of India makes no distinction
between permanent and temporary posts and extends its protection equally to all
government servants holding permanent or temporary posts or officiating in any
(2) The protection of article 311 is
available only where dismissal, removal or reduction in rank is sought to be
inflicted by way of punishment and not otherwise.
(3) If the termination of service or
reduction in rank is not by way of punishment, article 311(2) is not attracted.
To determine whether the termination or the reduction is by way of punishment
one has to consider whether the servant has the right to hold the post from
which he has been either (1)  S.C.R. 828.
3 41 removed or reduced. In the case of a
probationary or officiating appointment to a permanent or temporary post there
is no such right. This does not mean, however, that the termination of service
or reduction in rank of a servant who has no right to the post can never be
dismissal or removal or reduction by way of punishment. If government expressly
chooses to penalise the servant for misconduct, negligence, inefficiency or the
like by inflicting on him the punishment of dismissal, removal or reduction,
the requirements of article 311 must be complied with.
(4) A reduction in rank must be a punishment
if it carries penal consequences with it and the two tests to be applied are:
(i) Whether the servant has a right to the
post or the rank; and (ii) whether evil consequences such as forfeiture of pay
and allowances, loss of seniority in his substantive rank, stoppage or
postponement of future chances of promotion follow as a result of the order ?
Where either of these tests apply, the reduction in rank must be one within the
meaning of article 311(2) of the Constitution and will attract its protection.
The principles formulated in Parshotam Lal
Dhingr's case have furnished the principal guidelines in all future cases
relating to dismissal, removal or reduction in rank of Government servants.As
we have already said,however, the matter is not altogether free of difficulty
even after the formulation of these principles. Depending on the nature and
circumstances of each individual case it has often been necessary to clarify
and modify these principles in certain respects. In this process, sometimes new
but analogous principles have been evolved and sometimes the old principles
have been themselves elaborated, analysed and re-formulated in a different
It is necessary at this stage to refer to one
special difficulty which has been created by the process of elaboration and
reformulation which we have mentioned just now. Sometimes in applying the
principles of Parshotam Lal Dhingra's case to the facts of a particular case,
one aspect had to be emphasised in view of the peculiar circumstances of that
case and in doing so this Court gave a special formulation which covered the
facts of that case. That principle was later found either inadequate or
inapplicable in another case Where the facts and circumstances have been
slightly different and which called for emphasis on a different aspect of the
rules. In this way, this Court has found it necessary to mould, the principles
to suit the needs of the varying circumstances of different cases. The original
principles were not intended to be abandoned but re-shaving of the principles
became necessary and even unavoidable to fit them accurately and appropriately
to new set of circumstances. This has often led to formulation of principles
with varying contours which superficially at least seem to suggest that some of
them are anomalous and even contradictory. If, however, 342 the principles are
construed with reference to the facts of any, particular case for which they
have been evolved, it will, we believe be found that there is no fundamental
discrepancy or contradiction in the principles.
Confusion has arisen particularly in respect
of cases where this Court has had to deal with orders of government from the
aspect of the motive underlying those orders. What' is the weight to be given
to motive in deciding whether a particular order is penal in character and
therefore falling within the mischief of article 311 of the Constitution or
whether it has been passed for departmental considerations and in exigencies of
public service. It is well recognised that very often the motive of a
particular order of government and the language and terms of the order itself
are not in harmony. In many, cases though government take action under the
terms of a contract of employment or under the specific service rules for the
purpose of terminating the service or reducing the rank of an officer, the real
motive or inducing factor which influences the government to take action is
different and is connected with some disqualification or inefficiency of the
officer. In other words. government while pretending to act in terms of the
contract of service or service rules, in reality wants to get rid of the
officer concerned or to reduce him to a lower rank by way of punishment for his
misconduct or inefficiency or disqualification. In such a case, the action
taken by government is in an innocuous form but the real intent of it is penal.
Such a situation was contemplated by Das, C.J. in Parshotam Lai Dhingra's case.
He observed "It is true that the misconduct, negligence inefficiency or
other disqualification may be the motive or the inducing factor which
influences the government to take action under the terms of contract of
employment or the specific service rule, nevertheless, if a right exists, under
the contract or the rules, to terminate the service, the motive operating in
the mind of the government is as Chagla, C.J. has said in Shrinivas Ganesh v.
Union of India (A.I.R. 1956 Bom. 455) wholly irrelevant. In short, if the
termination of service is founded on the right flowing from contract or the
service rules, then, prima facie the termination is not a punishment and
carries with it no evil consequences and so article 311 is not attracted."
Following this enunciation of the principle this Court has in many later cases
refused to give any weight to the motive operating in the mind of the authority
which passes an order terminating the service of a temporary servant or
reducing the servant in rank so long as the particular action taken was
"founded on the right flowing from contract or the service rules."
Since we are concerned in this case with a case of reversionwe propose to
confine our attention to the different circumstances in which an order of
reversion may be made. An order of reversion is, in its immediate effect bound
always to a reduction in rank. Even a reversion from a higher but temporary or
officiating rank to a lower 343 substantive rank is in a sense a reduction. But
such orders of reversion are not always reduction in rank within the meaning of
article 31 1. If the officer is promoted substantively to a higher post or
rank, he gets a right to that particular post or rank and if he is afterwards
reverted to the lower post or rank which he held before, it is a
"reduction in rank" in the technical sense in which the expression is
used in article 31 1. The real test in all such cases is to ascertain if the
officer concerned has a right to the post from which he is reverted. If he has
a right to the post then a reversion is a punishment and cannot be ordered,
except in compliance with the provisions of article 3 1 1. If, on the other
hand, the officer concerned has no right to the post, he can be reverted
without attracting the provisions of article 3 1 1. But even in this case, he
cannot be reverted in a manner which will show conclusively that the intention
Was to punish him. The order itself may expressly state that the officer
concerned is being reverted by way of punishment In fact the order may in
various other ways cast a stigma on the officer concerned. In all such cases,
the order is to be taken as a punishment. Sometimes again' the order of
reversion may bring up-on the officer certain penal consequences like
forfeiture ,of pay and allowances or loss of seniority in the subordinate rank,
or the stoppage or postponement of future chances of promotion: in such cases
also the government servant must be regarded as having been punished and his
reversion to the substantive rank must be treated as a reduction in rank. In
such a case article 311 will be attracted.
In State of Punjab and Another v. Sukh Raj
Bahadur(1), Mitter, J.. after analysing the decisions of this Court in
Parshotam Lal Dhingra v. Union of India(2), State of Orissa v. Ram Narayan
Das(3) R. C. Lacy v. State of Bihar(4), Madan Gopal v. State of Punjab(5),
Jagdish Mitter v. Union of India(6) and A. G. Benjamin v. Union of India(7),
has formulated the following propositions 1.The services of a temporary servant
or a probationer can be terminated under the rules of his employment and such
termination Without anything more would not attract the operation of article
311 of the Constitution.
2.The circumstances preceding or attendant on
the order of termination of service have to be examined in each case, the
motive behind it being immaterial.
3.If the order visits the public servant with
any evil consequences or casts an aspersion against his character or integrity,
it must be considered to be one by way of punishment, no matter whether he was
a mere probationer or a temporary servant.
(1)  3 S.C.R. 234.
(2)  S.C.R. 828.
(3)  1 S.C.R. 6()6.
(4) C.A. No 590 of 1962 decided on 23-10-63.
(5)  3 S.C.R. 716.(6) A.I.R. 1964 S.C.
(7) C.A. No. 1341 of 1966 decided on
10-522SCI/ 74 344 4.An order of termination
of service in unexceptionable form preceded by an enquiry launched by the
superior authorities only to ascertain whether the, public servant should be
retained in service, does not attract the operation of article 311 of. the
5.If there be a full-scale departmental
enquiry envisaged by article 311 i.e. an Enquiry Officer is appointed, a
charge. sheet submitted, explanation called for and considered, any order of
termination of service made thereafter will attract the operation of the said
article." In Ram Gopal Chaturvedi v. State of Madhya Pradesh(1), this
Court refused to interfere with an order terminating the services of an officer
who had been temporarily appointed to the Judicial Service of Madhya Pradesh
under rule 12 of the Madhya Pradesh Government Servants (Temporary and QuasiPermanent
Service) Rules, 1960, without passing any stigma on the officer concerned and
merely stating that his services were terminated from a specified date. Even
though the order of termination had been preceded in that case by an informal
enquiry into the conduct of the officer with a view to ascertain if he should
be retained in service, this Court followed the decision in State of Punjab v.
Sukh Raj Bahadur (supra) and observed "On the face of it the order did not
cast any stigma on the appellant's character or integrity nor did it visit him
with any evil consequences. It was not passed by way of punishment and the
provisions of article 311 were not attracted." In the Union of India v.
Gajendra Singh(2), this Court sustained an order passed by the Union of India
reverting an officiating Naib Tehsildar to his permanent post of Kanungo on the
ground that he could not pass the departmental examination. This Court clearly
held in that case that "appointment to a post on officiating basis is,
from the nature of employment, itself of a transitory character and in the
absence of any contract or specific rule regulating the conditions of service
to the contrary, the implied term of such an appointment is that it is
terminable at any time.
The Government servant so appointed acquires
no rights to the post. But if. the order entails or provides for forfeiture of
his pay or allowances or the loss of his seniority in the substantive rank Or
the stoppage or postponement of his future chances of promotion then that
circumstance may indicate that though, in form, the government had purported to
exercise its undoubted right to terminate the employment, in truth and reality,
the termination was by way of penalty,".
Let us now consider whether in the light of
the various cases decided by this Court the order of reversion amounted to a
reduction in rank within the meaning of article 311 (2) of the Constitution. We
will apply all the different tests laid down by this Court one by one. First,
the order is not attended with any stigma. The order merely states that Sughar
Singh is reverted and that he is reverted to his substantive (1)  1
(2)  3 S.C.R. 660.
345 post of head constable. By no stretch of
imagination can this language be construed as I casting a stigma on the
respondent. Secondly, there is nothing to show that Sughar Singh has lost his
seniority in the substantive rank. It is true that some of his colleagues who
were also holding the substantive post of head constable and who had also been
appointed in an officiating capacity to the post of Platoon Commanders were not
reverted on the day when the respondent was reverted. But that cannot be regarded
as a penal consequence by way of loss of seniority in the substantive rank. In
Divisional Personnel Officer v. Raghavendrachar(1), this Court has clearly held
that where a number of employees are placed on a senior list on a provisional
basis they do not get-any indefeasible right to retain their seniority on that
provisional basis so that the reversion of a person who was in the list does
not constitute a reduction in rank merely on the ground that persons lower in
the rank have not been reverted. Thirdly, there, is no evidence to show and, in
fact, it was not contended on behalf of the respondent that there has been any
forfeiture of his pay or allowances or any loss in the seniority in the
substantive rank which is, one must remember, the rank of Head Constables. On a
careful scrutiny of the order of reversion we do not find any indication that
it affects the seniority of Sughar Singh in his substantive rank or that it
affects his chances of his future promotion from that rank. It is true that Sughar
Singh will be deprived by the order of reversion of the post of Platoon
Commander but that is not considered a penal consequence. Such deprivation is
the usual consequence of any order of reversion from the officiating post which
an 'incumbent has no right to hold. Such deprivation has been held by this
Court not to be an order attended with penal consequences (see Union of India
v. Jeewan Ram(2).
It has been suggested that the motive behind
the reversion was really the infliction of punishment. There was a formal
proceeding held against the respondent and the explanation that he had
submitted in reply to the charges made out against him had not been accepted by
his superior officers.
The order of reversion which came soon after
this must, it was suggested, be connected with the disciplinary proceedings and
the order of reversion must be taken as motivated by the desire to punish him.
The reply to this suggestion is two-fold. The proceedings had been drawn up two
years before the order of reversion. The proceedings were limited in nature.
The only punishment proposed in the proceedings was the making of certain
adverse entries in the character roll. That penalty, had already been imposed
on the respondent. There is nothing to show that after two years the authorities
proposed to rake up that matter and inflict a heavier punishment on the
respondent than they had previously proposed and also inflicted. Besides, it is
well-known that in a matter like this we are concerned only with the question
whether the order of reversion entails any penal consequence. We are not
concerned with the motive behind the reversion (see Madhav v. State of
Mysore(3) and State of Bombay v. Abraham (4).
(1)  3 S.C.R. 106.
(2) A.1.R. 1958 S.C. 905.
(3) A.I.R. 1962 S.C.R. 11.
(4) A.I.R. 1962 S.C. 794.
346 The respondent's counsel then challenged
the order of reversion on another ground. He pointed out that at least 200 head
constables who had taken training as Cadet SubInspectors of Armed Police at
Sitapur after the respondent and who were junior to the respondent have still
been allowed to retain their present status as Sub-Inspector and have not been
reverted to their substantive post of Head Constable. Unless this can be
justified as a measure of punishment, the reversion of the respondent would
amount to discrimination in contravention of the provisions of articles 14 and
16 of the Constitution. The facts on which this contention is based are found
in paragraphs 7 and 20 of the petition. The contention itself is to be found in
ground No. 3 of the writ petition. The complaint, we must say, is one which has
to be sustained. No possible explanation in this extreme form of discrimination
has been shown to us. Indeed, it appears from the judgment of the third learned
Judge who heard the petition in the High Court that in answer to a question put
by him, the standing counsel appearing for the State clearly stated that the
order of reversion was a result of the adverse entry made in the appellant's
confidential character roll.' If this statement of the learned standing counsel
has to be accepted, it is impossible to resist the suggestion that the
respondent's order of reversion was really an order of punishment in disguise
in which event the order must be struck down for non-compliance with the
requirements of article 311 of the Constitution. The appellant in fact faces a
dilemma. If it was not a case of punishment, it becomes difficult to explain
why this discrimination was made against the respondent visa-vis at least 200
other officers who were junior to him in the substantive cadre.
That would make the order liable to be struck
down as violative of article 16 of the Constitution. Reference may be made to
State of Mysore v. P. R. Kulkarni(1), where an order of reversion was struck
down by this Court on the ground of "unjustifiable discrimination"
which brought the order within the mischief of articles 14 and 16 of the
Constitution. If, on the other hand, the order has to be justified with
reference to the adverse entry in the character roll, it becomes not merely a
case of double punishment, but also a case of infringement of article 311 of
the Constitution. It is true that the order ex-facie does not show anything
which can suggest the contravention of article 311 of the Constitution. We have
already analysed the order and discussed that aspect of the matter.
But the compelling logic of the totality of
circumstances attending the order of reversion indicates that if the order is
not discriminatory and has to be justified with reference to the proceedings
against the respondent and the earlier order regarding his character roll, it
is impossible to avoid the criticism that it was really a punishment in the
garb of an order of reversion. In the State of Bihar and Others v. Shiva
Bhikshuk Mishra(2), this Court was called upon to consider the effect of an
order of reversion passed on a member of the Bihar Police Force who, while
holding the substantive post of Sergeant, was promoted to officiate temporarily
as Subedar Major in 1948 but was subsequently in 1950 reverted to his
substantive post. The High Court of Patna found that the reversion was not in
the usual course or for administrative reasons but it was after the finding (1)
A.I.R. 1972 S.C. 217O.
(2)  2 S.C.R. 191.
347 on an enquiry about some complaint
against the plaintiff and by way of punishment to him. The matter having come
on appeal to this Court, this Court held that the form of the order is not
conclusive of its true nature and might often be a cloak or camouflage for an order
founded on misconduct.
This Court further observed:
"It may be that an order which is
innocuous on the face and does not contain any imputation of misconduct is a
circumstance or a piece of evidence for finding whether it was made by way of
punishment or administrative routine.
But the entirety of circumstances preceding
or attendant on the impugned order must be examined and the over-riding test
will always be whether the misconduct is a mere motive or is the very
foundation of the order." In the instant case we have no doubt in our mind
that the peculiar circumstance that from out of a group of about 200 officers
most of whom are junior to the respondent, the respondent alone has been
reverted to the substantive post of Head Constable makes it absolutely clear
that there was no administrative reason for this reversion. In fact there was
no suggestion at any time made on behalf of the appellant that the post has
been abolished or that respondent was, for administrative reasons, required to
go back to Ms own post of Head Constable. This circumstance only corroborates
what the learned standing counsel for the State admitted before the High Court
that the foundation of the order of reversion is the adverse entry made in his
character roll. In this view of the matter, we have no doubt. that the order
was passed way of punishment, though all outward indicate show the order to be
a mere order of reversion. Even if it were not so, we have no doubt that the
order would be liable to be quashed on the ground of contravention of articles
14 and 16 of the constitution.
In these circumstances, the appeal mu% be
dismissed with costs and we do so.
Before parting with this case, we think it
only fair to mention that in Writing this judgment we have derived considerable
assistance from a draft of the judgment prepared by our late-.Brother
Mukherjea, J. ,who sitting with us, heard the case in the first instance.