Full Judgment Text
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PETITIONER:
DIVISIONAL PERSONNEL OFFICER, SOUTHER RAILWAY
Vs.
RESPONDENT:
S.RAGHAVENDRACHAR
DATE OF JUDGMENT:
16/12/1965
BENCH:
SATYANARAYANARAJU, P.
BENCH:
SATYANARAYANARAJU, P.
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
RAMASWAMI, V.
CITATION:
1966 AIR 1529 1966 SCR (3) 106
CITATOR INFO :
R 1974 SC 87 (14)
R 1974 SC 423 (17)
R 1974 SC1898 (7)
RF 1976 SC1766 (2,12)
RF 1976 SC2547 (21)
ACT:
Constitution of India, Art. 311(2)-Reversion from
officiating post to substantive post when juniors
Officiating in higher post-Whether amounts to reduction in
rank.
HEADNOTE:
The respondent was employed in the Southern Railway as Train
Examiner in the scale of Rs. 100-5-125-6-185. He was
promoted to officiate in the next higher scale of Rs. 150-
225. Subsequently he was reverted to the lower scale, and
his departmental representations and appeals having failed,
he filed a writ petition under Art. 226 of the Constitution.
The High Court held that the reversion of the respondent
amounted to a reduction in rank because he was reverted from
the higher post to the lower post notwithstanding the fact
that his juniors were still retained in the higher posts.
As this reduction of rank was in violation of Art. 311(2)
the High Court granted the writ prayed for. The Divisional
Personnel Officer, Southern Railway appealed to this Court
by special leave.
It was contended on behalf of the appellant that the High
Court had misunderstood the ratio of the judgment of this
Court in Vaikunthe’s case and that the respondent had not
suffered any reduction in rank within the meaning of Art.
311(2).
HELD : (i) The reversion of a Government servant from an
officiating post to his substantive post, while his junior
is officiating in higher post, does not, by itself,
constitute a reduction in rank within the meaning of Art.
311(2) of the Constitution. [110 D]
(ii) An important aspect of the decision in Vaikunthe’s case
was lost sight of by the High Court. The real ground on
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which Vaikunthe’s reversion to his original post of
mamlatdar was held to be a violation of his constitutional
guarantee was that his chances of promotion were irrevocably
barred for a period of three years. There was no such bar
on promotion in the present case. [114 E]
Madhav Laxman Vaikunthe v. State of Mysore, [1962] 1 S.C.R.
886, distinguished.
(iii) The respondent’s complaint was that he had lost his
seniority by reason of the retention of his juniors in the
officiating higher post. But his rank in the substantive
post i.e. in the lower grade, was in no way affected by
this. In the substantive grade the respondent retained his
rank and was not visited with any penal consequences. The
respondent had no right to the post to which he was
provisionally promoted. His reversion in these
circumstances did not amount to reduction in rank. [118 G-
119 A]
107
Parshotam Lal Dhingra v. Union of India, [1958] S.C.R. 828,
State of Bombay v. F. A. Abraham, [1962] Supp. 2 S.C.R. 92
and The High Court, Calcutta v. Amal Kumar Roy, [1963] 1
S.C.R. 437, ’relied on.
P. C. Wadhwa v. Union of India, [1964] 4 S.C.R. 598,
distinguished.
M. A. Waheed v. State of Madhya Pradesh, [1954] Nag. L. J.
305, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 975 of 1964.
Appeal by special leave from the judgment and order
December 12, 1962, of the Mysore High Court in W.P. No. 531
of 1961.
Bishan Narain, Naunit Lal and B.R.G.K. Achar, for the
appellant.
S. K. Venkataranga Iyengar and R. Gopalakrishnan, for the
respondent.
The judgment of the Court was delivered by
Satyanarayana Raju, J. This appeal, by special leave, raises
a somewhat important question of all, which is whether the
reversion of a Government servant from an officiating post
to his substantive post, while his junior is officiating in
the higher post, does not, by itself, constitute a reduction
in rank within the meaning of art. 311(2) of the
Constitution.
For the purpose of deciding the point raised in the appeal,
it would be necessary to state the material facts. The
Southern Railway has two grades of Train Examiners, one in
the scale of Rs. 100-5-125-6-185 and the other in the scale
of Rs. 150-225. The respondent was employed in the lower
scale as a Train Examiner. By an order dated April 7, 1959,
the respondent was promoted to officiate in the higher scale
with a starting salary of Rs. 150 per month. That order
read as follows :
"2. Sri S. Raghavendrachar, TXR-YPR in scale
Rs. 100-185 is promoted to officiate as TXR in
scale Rs. 150-225 on Rs. 150 per month and
retained YPR as TXR-IC. 185 is promoted to
officiate as TXR in scale Rs. 150- 225 on Rs.
150 per month and transferred to SBC-BG vide
item above.
Sanction endorsed by D.S. for promotion of
items 2 and 3."
108
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There is a note appended to the order which is
important
"Note: 1. The promotion of items 2 and 3
are purely provisional subject to revision
when Divisional Seniority lists are drawn up."
By an order dated November 27, 1959, the
respondent was reverted. ]Mat order was as
follows :
"Sri S. Raghavendrachar, TXR/YPR (officiating)
in scale Rs. 150-225 is reverted to scale Rs.
100-185 on Rs. 130 per month and transferred
to SBC/MG."
On receipt of this order, the respondent made
representations to the appellant. The
appellant sent to the respondent communication
dated May 25, 1960 :
"As per the existing instructions an
officiating employee with less than 18 months
of service in the higher grade may be reverted
to lower scale without assigning any reason
for such reversion by a competent authority.
Since the period of your officiating in scale
Rs. 150225 was less than 18 months and since
your reversion from scale Rs. 150-225 to Rs.
100-185 has been ordered by a competent
authority, no reasons need be assigned as
requested in your representation dated 8th/9th
December 1959.
As regards the confirmation of TXRs in scale
Rs. 150-225, who were your juniors while you
were officiating in scale Rs. 150-225, 1 have
to advise you that consequent on your
reversion to scale Rs. 100-185, all your
juniors, in scale Rs. 150-225, have become
your seniors and their confirmations in
preference to you are in order.
Regarding your re-promotion to scale Rs. 150-
225, it will be considered in the normal
course according to your, seniority and
suitability to hold the post in scale Rs. 150-
225."
The respondent made a further appeal to the Divisional
Superintendent, Mysore, on July 2, 1960 and sent him two
reminders. Not having got any response, he filed an appeal
on January 31, 1961, to the General Manager, Southern
Railway. The respondent sent a reminder to the latter on
March 31, 1961. In reply,
109
the Divisional Personnel Officer wrote to the respondent as
follows by letter dated April 30, 1961 :
Rs. 150-225 (PS) was not a penalty as presumed
by you, in your above representations. The
vacancy thus released by you in scale Rs. 150-
225 (PS) and the vacancies which existed on
the date of your reversion were filled up on
14th February 1960. You are therefore
eligible to be considered for promotion
against a vacancy which occurred after the
date of your reversion and not against the
vacancies which existed on the date of your
reversion and also the vacancy caused by your
reversion. No regular vacancy (other than
short term leave vacancy) in scale Rs. 150-225
has occurred from the date of your reversion
till date. You will therefore be considered
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for promotion against the next vacancy,
subject to the condition of seniority-cum-
suitability, on the basis of which only
promotions to non-selection posts are to be
ordered.
2. As regards seniority, all those hitherto
promoted to scale Rs. 150-225 (PS) will
automatically rank seniors to you and your
seniority if promoted will be reckoned only
from the date of your promotion in future
vacancy.
3. Your contention that, when you were
promoted to officiate for 2 months against the
leave vacancy of Shri Venkataraman, as per
this office order No. M. 542/PI of 14th
November 1960, you should have been continued
even after the expiry of the leave vacancy,
and that Shri Varghese should have been
reverted, is not correct, for the reasons
stated in paragraph 2 above.
4. Your representation of 30th January 1961
to GM(P) Madras is therefore withheld."
Aggrieved by the order dated November 27, 1959, the res-
pondent moved the Mysore High Court, on the failure of his
representations to the hierarchy of Departmental Heads, for
a writ of certiorari to quash the impugned order made by the
appellant. By judgment dated December 12, 1962, a Division
Bench of the High Court quashed the order of reversion. The
High Court observed that it was not necessary to express any
opinion on the question whether the reversion of the
respondent on the ground that his work was unsatisfactory
amounted to a reduction
110
in rank within the meaning of that expression occurring in
art. 311(2) of the Constitution. But the High Court held
that the reversion of the respondent amounted to a reduction
in rank because he was reverted from the higher post to the
lower post notwithstanding the fact that his juniors were
still retained in the higher posts. In reaching this
conclusion the High Court purported to follow the decision
of this Court in Madhav Laxman Vaikunthe v. State of
Mysore(.).
The Divisional Personnel Officer, Southern Railway,
Mysore,obtained special leave from this Court against the
order of the High Court.
It is contended by Mr. Bishan Narain, learned counsel for
the appellant, that the High Court misunderstood the ratio
of the judgment of this Court in Vaikunthe’s case(1), that
there is no right in a Government servant to promotion as of
right, that the mere reversion of a Government servant from
an officiating post to his substantive post, notwithstanding
that his juniors are retained in the higher posts, does not
amount to a reduction in rank and the provisions of art.
311(2) are not attracted. On the other hand, it is
contended by Mr. S. K. Venkataranga lyengar, learned counsel
for the respondent, that the circumstances of the case
clearly indicated that the reversion of the respondent
amounted to a reduction in rank and since the procedure
prescribed by art. 311(2) was not complied with, the order
of reversion was bad in law.
It may be taken to be settled by the decisions of this Court
that since art. 311 makes no distinction between permanent
and temporary posts, its protection must be held to extend
to all government servants holding permanent or temporary
posts or officiating in any of them, but that protection is
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limited to the imposition of three major penalties
contemplated by the Service Rules, viz., dismissal or
removal or reduction in rank.
The first of the cases which may be considered is the
decision in Parshotam Lal Dhingra v. Union of India(2),
Commonly known as Dhingra’s case. In this case, Das C.J.,
who spoke for the majority, considered comprehensively the
scope and effect of the relevant constitutional provisions,
service rules and their impact on the question as to whether
reversion of Dhingra offended against the provisions of art.
311(2). Dhingra was appointed as a Signaller in 1924 and
promoted to the post of Chief Controller in 1950. Both
these posts were in Class III Service. In
(1) [1962] 1 SCR. 886.
(2) [1958] S.C.R. 828.
111
1951, he was appointed to officiate in Class II Service as
Assistant Superintendent, Railway Telegraphs. On certain
adverse remarks having been made against him, he was
reverted as a subordinate till he made good his ’short
comings. Then, Dhingra made a representation.
Subsequently, the General Manager gave him notice reverting
him to Class III appointment. It was this order-which was
challenged by Dhingra by a writ petition, in the High Court
and, eventually, in this Court. The question for decision
was whether the order of the General Manager amounted to
reduction in rank within the meaning of art. 311(2) of the
Constitution, and Dhingra was entitled to a reasonable
opportunity to show cause against the order. This Court
held that the reversion of an officiating officer to his
substantive post did not attract the provisions of art.
311(2) and that Dhingra was not entitled to the protection
of that article.
It is however true that even an officiating government
servant may be reverted to his original rank by way of
punishment. It was therefore observed in Dhingra’s case(")
at p. 863 :
"Thus if the order entails 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 Gov-
ernment 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."
One test for determining whether the termination of service
was by way of punishment or otherwise is to ascertain
whether under the Service Rules, but for such termination,
the servant has the right to hold the post. It was held in
Dhingrads case(1) that he was holding an officiating post
and had no right under the rules of the Railway Code to
continue in it, that under the general law such appointment
was terminable at any time on reasonable notice and the
reduction could not operate as a forfeiture of any right,
that the order of the General Manager visited him with no
evil consequences and that the order therefore did no",
amount to a reduction in rank.
(1) (1958] S.C.R. 828.
112
Vaikunthe’s case(1) was relied upon by the High Court in
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support of its conclusion that the reversion of the
respondent amounted to a reduction in rank. It is therefore
necessary to scrutinize the facts of that case.
The appellant Vaikunthe, who held the rank of a Mamlatdar in
the first grade, and was officiating as District Deputy
Collector, was alleged to have wrongly charged travelling
allowance for 59 miles instead of 51 and was, as the result
of a Departmental enquiry, reverted to his substantive rank
for three years and directed to refund the excess he had
charged. He made a representation to the Government which
was of no avail although the Accountant General was of the
opinion that the appellant had not over-charged and
committed no fraud. Ultimately, the appellant was promoted
to the Selection Grade but the order of reversion remained
effective and affected his position in the Selection Grade.
After retirement he brought a suit for a declaration that
the order of reversion was void and for recovery of a
certain sum as arrears of salary and allowances. The trial
Court held that there was no compliance with the provisions
of S. 240(3) of the Government of India Act, 1935, granted
the declaration but refused the arrears claimed. Vaikunthe
filed an appeal and the State a cross-objection. The High
Court dismissed the appeal and allowed the cross-objection,
holding that the order of reversion was not a punishment
within the meaning of S. 240(3) of the 1935 Act.
This Court held that the matter was covered by the
observations in Dhingra’s case(1) and the tests of
punishment laid down by this Court viz., (1) whether the
servant had a right to the rank or (2) whether he had been
visited with evil consequences of the kind specified
therein, and that the second test certainly applied. This
Court concluded that Vaikunthe might or might not have the
right to hold the higher post, but there could be no doubt
that he was visited with evil consequences as a result of
the order of reversion. It was there held :
"Mere deprivation of higher emoluments,
however, in consequence of an order of,
reversion could not by itself satisfy that
test which must include such other
consequences as forfeiture of substantive pay
and loss of seniority."
Since the requirement of s. 240(3) of the 1935 Act, which
corresponds to art. 311(2) of the Constitution, had not been
found to have been fully complied with, the order of
reversion was held
to be void.
(1) [1962] 1 S.C.R. 886.
(2) [1958] S.C.R. 828.
113
There was an important aspect of this decision which was
lost sight of by the High Court. The impugned order there
ran as follows :
"After careful consideration Government have
decided to revert you to Mamlatdar for a
period of three years........
It was pointed out in Dhingra’s case(-) that if the order of
reversion entailed or provided for the forfeiture of the pay
or allowances of the Government servant or loss of his
seniority in his substantive rank or the stoppage or
postponement of his future chances of promotion, then that
circumstance might ’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 had terminated
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the employment as and by way of penalty. At p. 891, Sinha,
C.J., who spoke for the Court, pointed out:
he would have continued as a Deputy Collector
but for the Order of the Government, dated
August 11, 1948, impugned in this case, as a
result of the enquiry held against him, and
that his reversion was not as a matter of
course or for administrative convenience. The
Order, in terms, held him back for three
years. (Italics ours). Thus his emoluments,
present as well as future, were adversely
affected by the Order aforesaid of the
Government. In the ordinary course, he would
have continued as a Deputy Collector with all
the emoluments of the post and would have been
entitled to further promotion but for the set
back in his service as a result of the adverse
finding against him which finding was
ultimately declared by the Accountant General
to have been under a misapprehension of the
true facts. It is true that he was promoted
as a result of the Government Order dated
March 26, 1951, with effect from August 1,
1950. But that promotion did not entirely
cover the ground lost by him as a result of
the Government Order impugned in this case."
Again, at p. 893, the learned Chief Justice
pointed out"If the loss of the emoluments
attaching to the higher rank in which he was
officiating was the only consequence of his
reversion as a result of the enquiry against
him, the appellant would have no cause of
(1) [1958] S.C. 828.
114
action. But it is clear that as a result of
the Order dated August 11, 1948 (Ex. 35), the
appellant lost his seniority as a Mamlatdar,
which was his substantive post. That being
so, it was not a simple case of reversion with
no evil consequences; it had such consequences
as would come within the test of punishment as
laid down in Dhingra’s case."
Finally, it was pointed out :
"If the reversion had not been for a period of
three years, it could not be Said that the
appellant had been punished within the meaning
of the rule laid down in Dhingra’s Case. It
cannot be asserted that his reversion to a
substantive post for a period of three years
was not by way of punishment. From the facts
of this case it is clear that the appellant
was on the upward move in the cadre of his
service and but for this aberration in his
progress to a higher post, he would have, in
ordinary course, been promoted as he actually
was some time later when the authorities
realised perhaps that he had not been justly
treated......
The real ground on which Vaikunthe’s reversion to his
original post of Mamlatdar was held to be a violation of his
Constitutional grantee was that his chances of promotion
were irrevocably barred for a period of three years. If
this aspect of Vaikunthe’s case(1) is borne in mind, it will
be found that there is no basic inconsistency between the
decisions which have a bearing on the question as to in what
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cases reversion would amount to a reduction in rank.
Even so, it is contended by learned counsel for the respon-
dent that the real reason which operated on the mind of the
appellant was that the respondent’s work in his officiating
capacity was unsatisfactory. Assuming that to be so, the
question is whether his reversion to his original post,
because he was found unsuitable for the higher rank to which
he had been given the officiating chance, is valid.
In State of Bombay v. F. A. Abraham(2) the respondent held
the substantive post of Inspector of Police and had been
officiating as Deputy Superintendent of Police. He was
reverted to his original rank without being given an
opportunity of being heard in respect of the reversion. His
request to furnish him with reasons for his reversion was
refused. Later, a departmental
(1)[1962]1 S.C.R.886.
(2) [1962] Supp. 2 S.C.R. 92.
115
enquiry was held behind his back in regard to certain
allegations of misconduct made against him in a confidential
communication from the District Superintendent of Police to
the Deputy Inspector-General of Police, but these
allegations were not proved at the enquiry. The Inspector-
General of Police, however, thereafter wrote to the
Government that the respondent’s previous record was not
satisfactory and that he had been promoted to officiate as
Deputy Superintendent of Police in the expectation that he
would turn a new leaf. The High Court held, following its
earlier decision in M. A. I. Waheed v. State of Madhya
Pradesh(1) that if a person officiating in a higher post is
reverted to his original post in the normal course, that is,
on account of cessation of the vacancy or his failure to
acquire the required qualification, the reversion did not
amount to a reduction in rank but if he is reverted for
unsatisfactory work, then the reversion would amount to a
reduction in rank. This Court did not agree with the ob-
servations in Waheed’s case(1) that when a person
officiating in a post s reverted for unsatisfactory work,
that reversion would amount to a reduction in rank. This
Court took the view that the Government had a right to
consider the suitability of the respondent to hold the
position to which he had been appointed to officiate and
that it was entitled for that purpose to make inquiries
about his suitability and that was all what the Government
had done in that case.
Two more cases cited at the Bar now require to be consider-
ed. In The High Court, Calcutta v. Amal Kumar Roy (2) this
Court held that the word ’rank’ in art. 311(2) referred to
classification and not to a particular place in the same
cadre in the hierarchy of service. The facts of the case
were as follows. The respondent was a Munsif in the West
Bengal Civil Service (Judicial). When the cases of several
Munsifs came up for consideration before the High Court for
inclusion in the panel of officers to officiate as
Subordinate Judges, the respondent’s name was excluded. On
a representation made by him, the respondent was told by the
Registrar of the High Court that the Court had decided to
consider his case after a year. As a result of such exclu-
sion, the respondent, who was then the senior most in the
list of Munsifs, lost eight places in the cadre of
Subordinate Judges before he was actually appointed to act
as an Additional Subordinate Judge. His case mainly was
that this exclusion by the High Court amounted in law to the
penalty of ’withholding of promotion’ without giving him an
opportunity to show cause. He pray-
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(1) [1954] Nag. L.J. 305.
(2) [1963] 1 S.C.R. 437
116
ed that a declaration might be made that he occupied the
same position in respect of seniority in the cadre of
Subordinate Judges as he would have done if no supersession
had taken place and claimed arrears of salary, in a suit
filed by him. The trial Court decreed the suit. On behalf
of the appellants a preliminary objection was taken in this
Court that the controversy raised was not justiciable. This
Court held that there was no cause of action for the suit
and the appeal must succeed.
It was there contended on behalf of the respondent that even
though there, might not have been any disciplinary proceed-
ings taken against him, the effect of the High Court’s order
was that he was reduced by eight places in the list of
Subordinate Judges and that in law amounted to a reduction
in rank within the meaning of art. 311 (2) of the
Constitution. At p. 453 it was pointed out as follows :
"In our opinion, there is no substance in
this contention because losing places in the
same cadre, namely, of Subordinate Judges does
not amount to a reduction in rank within the
meaning of art. 311(2). The plaintiff sought
to argue that ’rank’, in accordance with
dictionary meaning, signifies ’relative
position or status or place, according to
Oxford English Dictionary. The word ’rank’
can be and has been used in different senses
in different contexts. The expression ’rank’
in art. 3 1 1 (2) has reference to a person’s
classification and not his particular place in
the same cadre in the hierarchy of the service
to which be belongs. Hence, in the context of
the Judicial Service of West Bengal, ’reduc-
tion in rank’ would imply that a person who is
already holding the post of a Subordinate
Judge has been reduced to the position of a
Munsif, the rank of a Subordinate Judge being
higher than that of a Munsif. But Subordinate
Judges in the same cadre hold the same rank
though they have to be listed in order of
seniority in the Civil List. Therefore,
losing some places in the seniority list is
not tantamount to reduction in rank. Hence,
it must be held that the, provision-, of art.
311 (2) of the Constitution are not attracted
to this case."
This decision therefore is authority for the position that
losing some places in the seniority list is not tantamount
to reduction in rank
117
The respondent relied upon the decision of this Court in P.
C. Wadhwa v. Union of India(1). There, the appellant, a
member of the Indian Police Service and holding the
substantive rank of Assistant Superintendent of Police (a
post in the junior time scale of pay) in the State of
Punjab, was promoted to officiate as Superintendent of
Police, which was a post carrying a higher salary in the
senior time-scale, and posted as Additional Superintendent
of Police. After he had earned one increment in that post,
he was served with a charge-sheet and before the enquiry,
which had been ordered, had started, he was reverted to his
substantive rank of Assistant Superintendent of Police, the
ground suggested for reversion being unsatisfactory conduct.
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No details of the unsatisfactory conduct were specified and
the appellant was not asked for any explanation. At the
time when the appellant was reverted officers junior to him
in the I.P.S. Cadre of the State were officiating in the
senior scale. The order entailed loss of pay as well as
loss of seniority and postponement of future chances of
promotion.
It was held that the order of reversion made against the
appellant was in effect a ’reduction in rank’ within the
meaning of art. 311(2) of the Constitution and inasmuch as
he was given no opportunity of showing cause against the
said order of reversion, there was violation of art. 311.
On a consideration of the circumstances of the case, this
Court reached the conclusion that the action of the
Government reverting the appellant was mala fide. But that
was not the sole ground on which the order of reversion was
held to be bad.
After an examination of the legal position from the large
body of rules to which reference was made, it was held that
in so far as the Indian Police Service is concerned there
was only one cadre, that appointment to posts borne on that
cadre were to be made by direct recruitment except to the
extent of 25 per cent of the senior posts which may be
filled by promotion from the State Police Service. A
special feature of the All India Services like the Indian
Police Service and the Indian Civil Service is that pro-
motion is a matter of right. It was for this reason that
this Court, by a majority pointed out at p. 622 that in the
case of’ those services there was no rule which,
specifically provided that an officer had to be freshly
appointed to a post carrying a salary in the senior scale of
pay.
(1) [1964] 4 S.C.R. 598.
118
At p. 627 it was said
"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.... If a person hold-
ing 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."
On a consideration of the circumstances of that case, it is
clear that the decision itself proceeded on the basic fact
that for members of All India Services like the Indian
Police Service, promotion was a matter of right and special
considerations would have to be applied to them.
Now, in the light of the principles established by the above
decisions, we may consider the respondent’s case. The
Southern Railway has two grades of Train Examiners. The
respondent and one James Blazey were promoted from the lower
grade to officiate in the higher grade. The respondent was
shown at item no. 2 and James Blazey at item no. 3 in the
promotion list. A note was appended to the order that the
promotion of the respondent and Blazey were ’purely
provisional subject to revision when seniority lists were
drawn up for the Division’. By reason of the order dated
November 27, 1959, the respondent was reverted to the lower
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grade while Blazey was retained in the higher grade. The
case of the respondent is that Blazey was junior to him and
that since he was reverted while Blazey was not, it would
amount to a reduction in rank so far as he was concerned.
It is plain that what he complains of is that he lost his
seniority by reason of the retention of Blazey in the
officiating higher post.
The respondent’s rank in the substantive post i.e., in the
lower grade, was in no way affected by this. In the
substantive grade, the respondent retained his rank. It may
also be added that he was visited with no penal
consequences. It is no doubt true that it is not the form
but the substance that matters, but once it is accepted that
the respondent has no right to the post to which he was
provisionally promoted, there can be no doubt that his
reversion does not amount to a reduction in rank.
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None of the decisions considered above lends support to the
contention for the respondent.
It was finally argued that the procedure prescribed by rr.
1609 to 1619 of the rules contained ’in the Indian Railway
Establishment Code, Vol. I., were contravened. Rule 1609
reads
"As a general rule, in no circumstances,
should a gazetted railway servant be kept in
ignorance for any length of time that his
superiors, after sufficient experience of his
work, are dissatisfied with him; where a
warning might eradicate a particular fault,
the advantages of prompt communication are
obvious. On the other hand, the communication
of any adverse remarks removed from their
context is likely to give a misleading
impression to the gazetted railway servant
concerned. The procedure detailed in rule
1610 should therefore be followed."
Rules 1609 to 1618 apply only to gazetted railway servants.
’Me respondent is not a gazetted railway servant and there
is no question of his claiming that he is entitled to the
right given under the above rules.
Rule 1619 refers to non-gazetted railway servants. That
rule Provides that in general conformity with the principles
laid down in the preceding rules applicable to Gazetted
Railway Servants, a General Manager may frame detailed rules
for the preparation, submission and disposal of confidential
reports on non-gazetted railway servants. Learned counsel
for the respondent could not place before us those rules, if
any.
The contentions raised by the respondent having been nega-
tived, this appeal must succeed, and it is accordingly
allowed, but, in the circumstances of the case, there will
be no order as to costs.
Appeal allowed.
120