Full Judgment Text
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PETITIONER:
STATE OF UTTAR PRADESH & ORS.
Vs.
RESPONDENT:
SUGHAR SINGH
DATE OF JUDGMENT22/11/1973
BENCH:
MATHEW, KUTTYIL KURIEN
BENCH:
MATHEW, KUTTYIL KURIEN
BEG, M. HAMEEDULLAH
CITATION:
1974 AIR 423 1974 SCR (2) 335
1974 SCC (1) 218
CITATOR INFO :
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 SC2408 (5)
ACT:
Constitution of India-Arts. 311, 14 and 16- Reversion 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 shown-
Whether violative of arts. 14 & 16.
HEADNOTE:
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
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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, [1958] S.C.R.
828, State of Punjab and Another v. Sukh Raj Bahadur, [1968]
3 S.C.R. 23, State of Orissa v. Ram Narayan Das, [1961]
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,
[1963] 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,. [1970]
1 S.C.R. 472, referred to.
Union of India v. Gajendra Singh [1972] 5 S.C.R. 660,
Divisional Per sonnel Officer v. Raghavendrachar, [1966] 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 wht had taken
training as Cadet Sub-Inspectors of Armed Police after the
respondenand who were junior to him have still been allowed
to retain their persent statu as Sub-Inspector and have not
been reverted to their substantive post of Hea Constable
must be sustained. No possible explanation for this extreme
form of dis crmination has been shown. It is also clear
that there was no administrative reason for this reversion.
There was no suggestion that the post had been abo lished or
that the respondent was, for administrative reasons,
required to go bacl, to- his 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,
[1971] 2 S.C.R. 191, followed.
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JUDGMENT:
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 appellants.
R. K. Garg, S. C. Agarwala and V. J. Francis, for the
respondent.
The Judgment of the Court was delivered by-
MATHEW, 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.
Some time 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 SubInspector, 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 Allahabad.
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
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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 other- hand, 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 :
--------------------------------------------------------------
Name 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, U.P.".
---------------------------------------------------------------
338
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 Sub-
Inspector. 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 Sub-
Inspector substantively.
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.
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Superintendents may promote in officiating or
temporary vacancies.
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 sub-
inspector, 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 specified.
"For category (b) selection of the required-
number 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, Sitapur.
"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 of service".
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
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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 recruits.
We are not concerned with those rules in this appeal.
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 Sub-
Inspector 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 Sub-
Inspector and then posted as a Officiating Platoon Com-
mander, 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 sub-inspector.
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 of them.
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(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) [1958] S.C.R. 828.
3 41
removed or reduced. In the case of a probationary or offi-
ciating 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 language.
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
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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 prnciples are construed with reference to the facts of
any, particular casefor which they have been evolved,
it will, we believe be found thatthere 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
reversion- we 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
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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) [1968] 3 S.C.R. 234.
(2) [1958] S.C.R. 828.
(3) [1961] 1 S.C.R. 6()6.
(4) C.A. No 590 of 1962 decided on 23-10-63.
(5) [1963] 3 S.C.R. 716.(6) A.I.R. 1964 S.C. 449.
(7) C.A. No. 1341 of 1966 decided on 13-12-1966.
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
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be retained in service, does not attract the
operation of article 311 of. the Constitution.
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 Quasi-
Permanent 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) [1970] 1 S.C.R. 472.
(2) [1972] 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
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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 pro-
ceedings 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) [1966] 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 Sub-
Inspectors 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
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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) [1971] 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.
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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.
B.P.R. Appeal dismissed,
348