G. S. Gill & Ors Vs. The State of
Punjab & Ors  INSC 130 (30 July 1974)
MATHEW, KUTTYIL KURIEN MATHEW, KUTTYIL KURIEN
RAY, A.N. (CJ)
CITATION: 1974 AIR 1898 1975 SCR (1) 586 1975
SCC (3) 73
Indian Administrative Service (Cadre) Rules,
1954 rr. 4 and 9--Members of State Civil Service appointed to cadre posts and
equivalent posts and then reverted--Procedure under Art.
311, it should be followed.
Fundamental Rule 9(19) provides that a
government servant officiates in a post when he performs its duties while
another holds a lien on it, and also that the Central Government may appoint a
government servant to officiate in a post on which another does not hold a
lien. The proviso to r. 4 (2) of the Indian Administrative Service (Cadre) Rules,
1954, provides that the State Government may under certain conditions and for a
certain period, add to a State or joint cadre one or more posts carrying duties
of like nature to cadre posts; and r. 9 of the Indian Administrative Service
(Cadre) Rules provides that subject to certain conditions the State Government
may fill temporarily a cadre post in a State by a person who is not a cadre
Some of the appellants were appointed by the
State Government to cadre posts in the Indian Administrative Service and others
were appointed to senior duty posts which were declared as equivalent to cadre
posts in the Indian Administrative Service. All of them were reverted to their
substantive posts in the State Civil Service. They challenged the reversion on
the ground that it was punitive and that the procedure under Art. 311 should
have been followed. The High Court overruled the contention.
Dismissing the appeal to this Court,
HELD : (1) Unless a person has a right to a
post, an order of reversion from that post cannot amount to dismissal or
removal within the meaning of Art. 331 and, a person gets a right to a post
only when he is substantively appointed to it. Therefore, if the appointments
of the appellants were officiating appointments of either type mentioned in F.
R. 9(19), the revision to State Civil Service would not attract Art. 311. [588
G-589 A] Parshotam Lal Dhingra v. Union of India  S. C. R. 828, The State
of Bombay, v. F. A. Abraham  Supp. 2 S. C.R. 92, at 97, Divisional
Personnel Officer, Southern Railway, v. S. Raghavandrachar,  3 S. C. R.
106, Union of India and Another v. Gajendra Singh etc.  3 S. C.
R. 660 and Union of India v. AT. L. Capoor
and Ors. A. 1.
R. 1974 S. C. 87, 103 followed.
(2)Since the appointees to the Cadre posts in
the Indian Administrative Service were appointed under r. 9 of the Indian
Administrative Service (Cadre) Rules, the appointments could not have been made
in any capacity other than in an officiating capacity. [587 H-588 A] (3)As
regards the other appellants also though tile order of appointment does not
indicate that the appointments were in officiating capacity, the fact that they
retained their lien in their posts in the State Civil Services shows that they
were not appointed substantively to the senior duty posts but only in an
officiating capacity. [588B-C, D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1098 1970.
Appeal from the Judgment and Order dated 9th
January, 1968 of the Punjab and Haryana High Court in Civil Writ No. 2301 of
R.K. Garg, S. C. Agarawal, S. S. Bhatnagar
and V. J.Francis, for the appellants.
587 F. S. Nariman, Addl. Sol. Gen. for Union
of India, P. P.Rao, V. C. Mahajan, B. N. Sachthey and Girish Chandra for
respondent nos. 2 and 3.
N. S. Bindra S. K. Mehta and 0. P. Sharma for
1 The Judgment of the Court was delivered by
MATHEW. J.-The appellants filed a petition before the High Court of Punjab
under Articles 226 and 227 of the Constitution for quashing the orders passed
by the State of Punjab reverting them from the posts held by them in an
officiating capacity in the cadre and ex-cadre posts of senior scale of Indian
Administrative Service to their substantive posts in the State Civil Service
from which they were promoted.
The appellants contended before the High
Court that the orders of reversion were punitive in character and,, therefore,
attracted the provisions of Article 311 of the Constitution and since they were
given no reasonable opportunity to make their representations against the
reversion, the orders were bad, and prayed for quashing them. The High Court
overruled the contention and dismissed the petition. This appeal, by
certificate, is against that order.
The case of the appellants in the writ
petition was that their names were included in the Select List prepared under
Regulation 4 of the Indian Administrative Service (Appointment by Promotion)
Regulations, 1955 (hereinafter referred to as the 'Promotion Regulations) and
that they thereby acquired right to be appointed to the cadre and excadre posts
in the Indian Administrative Service. In paragraphs 11 and 13 of the writ
petition, they said that in the State of Punjab there were two types of posts
in the Senior Duty Scale, namely, (i) Cadre posts which are specified in the Schedule
to the Indian Administrative Service (Cadre) Rules, 1954 and, (ii) ex-cadre
posts; that the ex-cadre posts were created by the State Government from time
to time according to exigencies of service and in matters of pay, promotion and
other benefits, the ex-cadre posts were declared equivalent to a cadre post and
that they were appointed to senior duty posts and ex-cadre in 1963 and 1964.
The creation of ex-cadre posts by State
Government can only be in terms of the second proviso to Rule 4 (2) of the
Indian Administrative Service (Cadre) Rules, 1954. That proviso reads as
'Provided further that the State Government
concerned may add for a period not exceeding one year and with the approval of
the Central Government for a further period not exceeding two years, to a State
or Joint Cadre one or more posts carrying duties or responsibilities of a like
nature to cadre posts." Even if it be assumed that the State Government
could appoint any person to these ex-cadre posts, the appointment must necessarily
be temporary appointment. So far as appellants 1, 3 and 5 are concerned, there
can be no doubt that since the appointments were made by the State Government
to cadre posts in the Indian Administrative 588 Service, the appointments could
not have been in any capacity other than in an officiating capacity under Rule
9 of the Indian Administrative Service (Cadre) Rules. Mr. Garg for the
appellants contended that-appellants 2, 4 and 6 to 12 were appointed to senior
duty posts which were declared as equivalent to cadre posts in the Indian
Administrative Service and as the orders of appointment did not indicate
...that they were appointed in any officiating capacity, the appointment.,,
must be deemed to be substantive in character.
No doubt, the orders of appointment of these
appellants do not say that they were appointed in an officiating capacity; and
in paragraph 15 of the writ petition, they said that they were appointed to
various senior duty posts not in an officiating capacity. This averment was denied
by the Government of India. In the affidavit in reply, the appellants stated
that it was wrong to equate regular officiating appointments with stop-gap or
local arrangements. They said that officiation is of two kinds, one,
officiation of a subordinate service official against a post in a superior
service in a stop-gap or local arrangement when the regular incumbent of the
post is, say, on leave and the other, officiation of a regular recruit on
appointment to service in which he is to be confirmed and made substantive
permanent in due course on availability of a substantive vacancy and that
"the officiating appointments of the appellants in the senior scale of the
1. A. S. was of the second type". The
appellants also said that they retained their lien in their posts in the State
Civil Service which would make it clear that they were not appointed
substantively to the senior duty posts, but only in an officiating capacity.
The judgment of the High Court also proceeds
on the basis that these appellants were appointed in an officiating capacity to
senior duty posts. These appellants had no case that they were substantively
appointed to any posts.
There can be two types of officiating
appointments. Fundamental Rule 9(19) provides:
"9(19) Officiate. A Government servant
officiates in a post when he performs the duties of a post on which another
person holds a lien. The Central Government may, if it thinks fit, appoint a
Government servant to officiate in a vacant 'post on which no other Government
servant holds a lien".
If the appointments were officiating
appointments, whether of the type mentioned in the first portion of the meaning
of the word ,officiate' in F.R. 9(19) or in its latter part, there can be no
doubt that the reversion of the appellants to their substantive posts in the
State Civil Service would not attract the application of Article 311 unless the
orders of reversion cast stigma and were, therefore, punitive in character.
There is no case that orders of reversion cast any stigma upon the appellants.
Parshotam Lal Dhingra v.Union of' India (1) is clear authority for the
proposition that unless a person has a right to a post, a simple order of
reversion from that post cannot amount to dismissal or removal within the
meaning of Article 311 and that a person (1)  S.C.R. 828.
gets a right to a post only when lie is
substantively appointed it. This is what their Lordships said at p. 842:
"It is, therefore, quite clear that
appointment to a permanent post in a Government service, either on probation,
or on an officiating basis, is, from the very nature of such employment, itself
of a very transitory character and, in the absence of any special contract or
specific rule regulating the conditions of the service, the implied term of
such appointment, under the ordinary law of master and servant, is that it is
terminable at any time. 'In short, in the case of an appointment to a permanent
post in a Government service on probation or on an officiating basis, the
servant so appointed does not acquire any substantive right to the post and
consequently cannot complain, any more than a private servant employed on
probation or an officiating basis can do, if his service is terminated at any
This passage was quoted with approval in The
State of Bombay v. F. A. Abraham (1). See also Divisional Personal Officer
Southern Railway v. S. Raghavendrachar (2) and Union of India and Another v.
Gajendra Singh etc. (3) As appellants 1, 3 and 5 were appointed under Rule 9 of
the Indian Administrative Service (Cadre) Rules, there can be no doubt that the
State Government was competent to terminate their appointments at any time (see
Union of India v. M. L. Capoor and Others (4).
The appellants have not made out their case
as specified in the writ petition or as urged by them before the High Court.
We hold that the High Court was right in its
conclusion. We dismiss the appeal. No order as to costs.
V.P.S. Appeal dismissed.
(1)  Sup. 2 S.C.R. 92, it (2)  3,
(3)  3, S.C.R. 660.
(4) A.I.R. 1974 SC. 87, 103.