Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 22
PETITIONER:
P. C. WADHWA
Vs.
RESPONDENT:
UNION OF INDIA & ANR.
DATE OF JUDGMENT:
27/08/1963
BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
SUBBARAO, K.
DAYAL, RAGHUBAR
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION:
1964 AIR 423 1964 SCR (4) 593
CITATOR INFO :
D 1966 SC1529 (17)
D 1967 SC1910 (6)
D 1968 SC 754 (1,5,10,15)
D 1971 SC 766 (10)
ACT:
Police Service-Officer officiating in the senior time-scale
served with charge sheet-Before enquiry reverted to
substantive post-Whether entitled as of right to promotion
to senior scale-Whether order of reversion amounts to
"reduction in rank"-Constitution of India, Art. 311-Indian
Police Service (Pay) Rules, 1954, r. 3-Indian Police Service
(Cadre) Rules, 1954, rr. 3, 4(1), 8, All India Service
(Discipline and Appeals) Rules, 1955 Explanation 4, r. 3-
Indian Police Service (Recruitment) Rules, 1954, r. 3.
HEADNOTE:
The appellant is a member of the Indian Police Service. He
joined the service in 1952 and was confirmed in 1953. In
1958 the appellant was promoted to officiate in the senior
time-scale and was posted as Additional Superintendent of
Police at Ferozepore, in the place of one Siasat Singh who
was granted leave, and his pay was fixed at Rs. 600.00 per
month. He earned an increment and his pay was raised to Rs.
640.00 per month. In July 1958 he was served with a charge
sheet and was called upon to submit his defence and he
submitted his reply. Before the enquiry started he was
reverted to his substantive rank of Asstt. Superintendent
of Police by an order dated November 3, 1958. His reversion
was not due to "the return of the permanent incumbent from
leave or deputation" or for any administrative reason.Other
officers junior to the appellant continued to officiate in
the senior scale while he was reverted.
The personal file of the appellant which was produced both
before this Court and the High Court showed that the reason
given by the respondent for the reversion of the appellant
was that he was tried as Superintendent of Police and was
found to be immature and was not true. The file also
revealed a note made by the Senior Superintendent of Police
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 22
on 6-10-58 to the effect that as the regular enquiry into
the conduct of the appellant would take a long time it was
advisable to revert him.
The appellant filed before the High Court of Punjab a
petition under Art. 226 of the Constitution of India against
the order of reversion. The High Court dismissed the
petition. The present appealwas by way of
special leave granted by this Court.
It was contended that under the relevant rules governing the
Indian Police Service, a member thereof was entitled as of
right to be promoted to a post in the senior scale as and
when a vacancy (except a vacancy in the promotion quota)
arose therein and no one senior to him was available for
that post, that -upon the facts and circumstances of the
case the order of reversion was in effect a reduction in
rank within the meaning of Art.
599
311(2) of the Constitution and that inasmuch as he was not
given an opportunity of showing cause against the said order
there was a violation of Art. 311. Relying on the principle
laid down in Purshottam Lai Dhingra v. Union of India,
[1958] S.C.R. 828 the appellant alternatively contended that
the order of reversion involved penal consequences and
operated as a punishment.
The respondent denied that the appellant had any right to be
appointed to a vacancy to a senior scale as claimed by him
since such appointment was not automatic and it involved a
process of selection. This being the position the reversion
order did not amount to a reduction in rank so as to attract
the provision of Art. 311(2). As to the alternative
contention of the appellant the respondent replied that
since the order of reversion was made for the reason that
the appellant was found to be unfit and immature to hold a
senior post, it could not be said that his reversion
amounted to a punishment.
Held:(per K. Subba Rao, Raghubar Dayal and J. R. Mu-
dholkar, JJ.) A consideration of the various rules would
make it clear beyond doubt that a person in the junior time-
scale of the service is as much a cadre officer as one
holding a post in the senior time-scale or a post above the
time-scale. The efficiency bar contained in r. 6(2) of the
Pay Rules has no bearing on the appointment of a person
whose increment has been barred to a post in the senior
scale. The wording of this rule lends support to the
conclusion that in the service what counts is the length of
service of a member and not even whether he has or has not
passed the departmental examination. Had it been the
intention of the Government to bring in the element of
selection in so far as promotion of Assistant
Superintendents of Police to the posts of Superintendents of
Police is concerned express provisions would have found
place in the rules.
The whole scheme of the rules indicates that a person in the
junior scale of pay has a right to hold a post on the senior
scale of pay subject to the availability of a post in the
senior scale of pay and his seniority in the junior scale of
pay. If a person holding a post in the senior scale, though
in an officiating capacity, is found to be unfit to hold
that post action will have to be taken against him as
required by r. 5 of Discipline and Appeal Rules because his
reversion to a post in the lower scale would amount to a
reduction in rank within the meaning of Art. 311.
From the facts and circumstances of the case it is found
that the appellant has not only been reduced in rank but his
promotion to the senior scale also has been withheld and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 22
this could be done only by holding a departmental enquiry.
The appellant was reverted to facilitate the departmental
enquiry against him and the order of the Government was
therefore mala fide.
600
Held : (per S. K. Das, Acting C.J. and N. Rajagopala Ayyan-
gar J.) An officer in the junior scale has no right to go
automatically into the senior scale. On the contrary the
suitability of a cadre officer is a relevant consideration
even in the matter of a temporary appointment. The Indian
Police Service (Pay) Rules, 1954, which provides for two
independent scales spread over a period of years, seem to
indicate that an officer in the junior scale cannot claim
such automatic promotion. The provision for an efficiency
bar at the stage when the salary of a junior officer reaches
Rs. 590.00 also leads to this conclusion. The expression
"on appointment to a post on the senior time-scale"
occurring in r. 4(2) and the provision in r. 8 which states
that any member of the service appointed to hold a post
specified in Schedule 11 shall be entitled, as long as he
holds that post, to draw the pay indicated for that post
also support this conclusion. Explanation (4) to r. 4 of
the All India Services (Discipline and Appeal) Rules, 1955,
shows clearly that a member of the service cannot claim the
right to officiate in a higher post merely by reason of his
seniority and even when he is officiating in a higher post
he may be reverted after a trial in that post or for ad-
ministrative reasons and such a reversion does not amount to
2 reduction in rank.
When a person is reverted to his substantive rank, the ques-
tion of penal consequences in the matter of forfeiture of
pay or loss of seniority must be considered in the context
of his substantive rank and not with reference to his
officiating rank from which he is reverted for every
reversion must necessarily mean that the pay will be reduced
to the pay of the substantive rank.
A matter of this kind has to be looked from the point of
view of substance rather than of form. All the relevant
factors should be taken into consideration and if on such a
consideration the conclusion is that the reduction is by way
of punishment involving penal consequences to the officer
even though the Government has a right to pass the order of
reduction the provisions of Art. 311 will be attracted and
the officer must be given a reasonable opportunity of
showing cause against the proposed action.
On an examination of the facts and circumstances of the case
it is found that the appellant was reverted by way of
punishment but he was given no opportunity of showing cause
against the action proposed to be taken against him.
Therefore the order of reversion was in violation of Art.
311 of the Constitution.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 720 of 1962.
Appeal by special leave from the judgment and order dated
January 20, 1961, of the Punjab High Court in Civil Writ No.
752/1959.
601
The appellant appeared in person.
S.V. Gupte, Additional Solicitor-General for India,
Mohinder Singh Punnu, Deputy Advocate-General for the State
of Punjab, N. S. Bindra, R. H. Dhebar, R. N. Sachthey and P.
D. Menon, for the respondents.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 22
August 27, 1963. The Opinion of S. K. Das, Acting C.J., and
Rajagopala Ayyangar, J. was delivered by S. K. Das, Acting
C.J. The judgment of K. Subba Rao, Raghubar Dayal and
Mudholkar, JJ. was delivered by Mudholkar, J.
S.K. DAS, Acting Chief Justice--This is an appeal by
special leave. The appellant is a member of the Indian
Police Service. He joined that service on October 3, 1952
as a result of a competitive examination held in, 1951, and
was posted in the State of Punjab. He was confirmed on
November 30, 1953. The time-scales of pay admissible to a
member of the Indian Police Service consist of the junior
scale, the senior scale and selection grade ; see r. 3 of
the Indian Police Service (Pay) Rules, 1954. In pursuance
of sub-rule (1) of r. 4 of the Indian Police Service (Cadre)
Rules, 1954, the Central Government made regulations known
as the Indian Police Service (Fixation of Cadre Strength)
Regulations, 1955. Under these regulations, Punjab has 57
senior posts in the Indian Police Service out of which some
have to be filled by promotion in accordance with r. 9 of
the Indian Police Service (Recruitment) Rules, 1954. To
this aspect of the case we shall advert later. The number
of junior posts is also laid, down in the regulations. The
Indian Police Service (Pay) Rules, 1954, also lays down in
Schedule III-(a) posts carrying pay above the time scale of
pay of the Indian Police Service under the State
Governments, (b) posts carrying pay in the senior time scale
of the Indian Police Service under the State Governments,
and (c) posts carrying pay above the time scale or special
pay in addition to pay in the time-scale under the Central
Government. The initial pay of a direct recruit is fixed at
the minimum of the junior time, scale. The pay of a member
of the Service in the junior time-scale shall, on
appointment to a post on the senior time-scale, be fixed at
the corresponding stage in the senior time-scale as shown in
Schedule 1 of the Indian
39-2 S. C. India/64
602
Police Service (Pay) Rules, 1954; see r. 4 of the said
rules. The posts of Superintendents of, Police are posts in
the senior time-scale.
On January 27, 1958 the appellant was promoted to officiate
in the senior time-scale and was posted as Additional
Superintendent of Police, Ferozepore. The order dated
January 18, 1958 stated that the appellant was permitted to
officiate as Superintendent of’ Police and posted as
Additional Superintendent of , Police, Ferozepore, vice Shri
Siasat Singh granted leave from January 27, 1958. Because
of this officiating promotion, the appellant’s pay was fixed
at Rs. 600.00 which is the lowest pay in the senior scale.
On April 19, 1958, the appellant was transferred and posted
as Additional Superintendent of Police, Punjab Armed Police,
Ferozepore. This post carried a special pay of Rs. 100.00
per month. The appellant earned one increment on October 3,
1958 and his basic pay was raised from Rs. 600.00 to Rs.
640.00 per month. On July 18, 1958 the appellant was served
with -a charge sheet and was called upon to submit a reply
in -defence. The appellant submitted a reply which
apparently did not satisfy the Government. 1 An enquiry was
ordered, and an officer was appointed to hold the enquiry.
However, before the enquiry started; the appellant was
reverted to his substantive rank of Assistant Superintendent
of Police by an order dated November 3, 1958. The post of
Assistant Superintendent of Police is a post in the junior
scale and the, order dated November 3, 1958 stated that the
appellant was reverted to his substantive rank of Assistant
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 22
Superintendent of Police from the <late he was relieved and
on reversion the appellant was posted as Assistant
Superintendent of Police at Amritsar. It is this order
dated November 3, 1958 which is the main subject of attack
in the present appeal.
We shall presently state the grounds on which the appellant
attacks the order of reversion; but before we do so, we may
complete the statement of facts. The appellant challenged
the order of reversion by means of a Writ Petition filed in
the Punjab High Court. This Writ Petition was however
dismissed as premature, on the ground that the appellant had
filed ’an appeal, permissible under the rules, to the
Government: of India against
603
the order of reversion and the appeal had not then been
disposed of. Subsequently, the Government of India dis-
missed the appeal by an order dated May 8, 1959. The
appellant then filed a second Writ Petition in the Punjab
High Court out of which the present appeal has arisen. This
second Writ Petition was first placed before a single Judge
who referred it to a larger Bench. The Writ Petition was
ultimately heard by Khosla, C.J. and Dulat, J. They
dismissed the petition. The appellant then-moved this court
for special leave and having obtained such leave, has
brought the present appeal to this court from the order of
the. High Court dated January 20, 1961 by which the High
Court dismissed the second Writ Petition.
We proceed now to state the main grounds on which the
appellant has attacked the order of reversion dated November
3, 1958. The principal contention of the appellant has been
that under the relevant rules governing the Indian Police
Service, a member thereof is entitled as of right to be
promoted to a post in the senior scale as and when a vacancy
(except a vacancy in the promotion quota) arises therein and
no one senior to him is available for that post; at the time
when the appellant was reverted, officers Junior to him in
the I.P.S. cadre of the Punjab State were officiating in the
senior scale ; therefore, the order of reversion made
against the appellant on November 3, 1958 was in effect a
reduction in rank within the meaning of Art. 311(2) of the
Constitution for it operated as a forfeiture of his right,
and inasmuch as the appellant was given no opportunity of
showing cause against the said order of reversion, there was
a violation of the provisions of Art. 311 of the
Constitution. Alternatively, the appellant has contended
that on the principles laid down by this Court in Parshotam
Lal Dhingra v. Union of India(1), the order of reversion
made against the appellant involved penal consequences and
operated as a punishment against the -appellant both in the
matter ,of his pay and seniority ; it has been contended
that the order entailed loss of pay as well as loss of
seniority and postponement of the appellant’s future chances
of promotion ; therefore, although in form the Government
had purported to exercise its right to revert the appellant
to
(1) [1958] S.C.R. 828.
604
his substantive rank, the order of reversion really amounted
to a reduction in rank by way of punishment, irrespective of
whether the appellant had a right to be appointed to a
vacancy in the senior scale. These are the two main grounds
on which the appellant has attacked the order of reversion.
He has also raised a contention that the order of reversion
was malafide, improper and against the provisions of Arts.
14 and 16 of the Constitution.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 22
On behalf of the respondents, the main contention has been
that under the relevant rules the appellant had no absolute
right to be appointed to a vacancy in the senior scale as
and when such vacancy occurred therein and nobody senior to
the appellant was available for it. The stand taken on
behalf of the respondents is that under r. 4(2) of the
Indian Police Service (Pay) Rules, 1954 appointment to a
post on the senior time-scale is not automatic, because such
appointment involves a process of selection ; therefore,
there was no forfeiture of any right of the appellant by the
order of reversion made against him and the provisions of
Art. 311(2) are not attracted to it. As to the alternative
contention of the appellant the reply of the respondents has
been that the order of reversion made against the appellant
was not made by way of punishment. In their written
statements, the respondents have stated that the order of
reversion was not made as a measure of punishment or
penalty, but was made because the appellant who was tried as
officiating Superintendent of Police was not found fit and
ripe enough for being entrusted with the duties and res-
ponsibilities of a Superintendent of Police. It was further
averred that the departmental enquiry instituted against the
appellant had nothing to do with the order of reversion.
The respondents relied on Explanation (4) to r. 3 of the All
India Services (Discipline and Appeal) Rules, 1955, which
says that the reversion to a lower post of a member of the
service who is officiating in a higher post, after a trial
in the higher post or for administrative reasons (such as
the return of the permanent incumbent from leave or
deputation, availability of a more suitable officer, and the
like) does not amount to reduction in rank within the
meaning of r. 3 which deals with penalties that may, for
good and sufficient reasons, be im-
605
posed on a member of the service. The respondents have
contended that as the order of reversion was not passed by
way of punishment, it was unnecessary to ask the appellant
to show cause against the action proposed to be taken and
there has been no violation of the provisions of Art. 311 of
the Constitution. The respondents have also denied that the
order of reversion made against the appellant was malafide
or improper or that it violated the fundamental rights
guaranteed under Arts. 14 and 16 of the Constitution.
We may now briefly state the findings which the High Court
has arrived at. The first finding of the High Court was
that the appellant did not hold the officiating post of a
Superintendent of Police as a matter of right and his case
was covered by Explanation (4) referred to above; therefore,
the order of reversion did not amount to reduction in rank
within the meaning of Art. 311(2) of the Constitution.
Secondly, the High Court found that the reversion of the
appellant to his substantive rank of Assistant
Superintendent of Police was not by way of punishment and
the reasons which led to the framing of a charge sheet
against the appellant were not the reasons which prompted
the order of reversion. Therefore, the order of reversion
was not per se an order of punishment and did not inflict
any stigma or stain upon the appellant, nor was the
appellant debarred from future promotion to the senior
scale. The High Court did not deal with the question
whether the order was malafide nor with the question whether
the order of reversion violated any of the fundamental
rights guaranteed under Arts. 14 and 16 of the Constitution,
presumably because these were not pressed in the High Court.
We proceed now to consider the first point urged on behalf
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 22
of the appellant, namely, whether he had a right to a
vacancy in the senior scale as and when such a vacancy
occurred, except a vacancy in the promotion quota, It is
perhaps necessary to explain here what the promotion quota
means. Rule 9 of the Indian Police Service (Recruitment)
Rules, 1954 says inter alia that the number of persons
recruited by promotion from amongst the members of a State
Police Service (usually Deputy Superintendents of Police)
shall not exceed 25 per cent of the
606
number of senior duty posts borne on the cadre of that
State. The manner in which the promotion quota of 25 per
cent is filled is laid down in the Indian Police Service
(Appointment by Promotion) Regulations, 1955. It is
sufficient to state here that a committee is constituted to
make a selection and a list of suitable officers is pre-
pared. The selection for inclusion in such a list is based
on merit and suitability in all respects with due regard to
seniority. The Select List is considered from time to time
and after approval by the Union Public Service Commission,
forms the Select List of the members of the State Police
Service from which the promotion quota is filled. It is
conceded on behalf of the appellant that a vacancy in the
promotion quota is not filled automatically and that the
regulations laid down in the Indian ’Police Service
(Appointment by Promotion) Regulations, 1955 clearly
indicate that there is a process of selection in the matter
of filling up the promotion quota.
The argument of the appellant is that there is no such
selection with regard to vacancies in the senior scale other
than vacancies in the promotion quota ; therefore, a member
of the Indian Police Service who is in the junior scale is
entitled as of right to go into the senior scale in a
vacancy other than a promotion quota vacancy, provided that
nobody senior to him in the Indian Police Service is
available for that post. In support of his contention the
appellant has relied on the Indian Police Service
(Regulation of Seniority) Rules, 1954, particularly r. 6
thereof which says inter alia that there shall be prepared
every year for each State Cadre a gradation list consisting
of the names of all officers borne on that Cadre arranged in
order of seniority in accordance with the provisions of the
said rules.
We are unable to accept this line of argument as correct.
Under r. 4 of the Indian Police Service (Recruitment) Rules,
1954 recruitment to the Indian Police Service is done by two
methods: (1) by a competitive examination ; and (2) by
promotion of substantive members of a State Police Service.
Under r. 3 of the Indian Police Service (Cadre) Rules, 1954
there shall be constituted for each State or group of States
an Indian Police Service Cadre. The strength and
composition of each
607
of the Cadres constituted under r. 3 shall be determined by
regulations made by the Central Government. These
regulations are known as the Indian Police Service (Fixation
of Cadre Strength) Regulations, 1955. We have already
stated that so far as Punjab is concerned, there are 57
senior posts out of which 14 have to be filled by promotion
and 43 by direct recruitment. Amongst the senior posts are
included the posts of the Inspector General of Police,
Deputy Inspectors General of Police Assistant Inspectors
General of Police, Principal, Police Training School etc.
If the argument of the appellant were to be pushed to its
logical extreme, then a member of the Indian Police Service
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 22
would be entitled as of right to all the senior posts
including the post of Inspector General of Police, Deputy
Inspectors General of Police etc. This, we do not think,
can be correct, and indeed the appellant does not so
contend.
Under r. 8 of the Indian Police Service (Cadre) Rules, 1954,
save as otherwise provided in the rules, every cadre post
shall be filled by a cadre officer. That does not however
mean that a cadre officer is entitled as of right to go into
the senior scale or to hold every post in the senior scale.
The appellant has drawn our attention to r. 9(b) of the
Indian Police Service (Cadre) Rules, 1954. That relates to
the temporary appointment of a non-cadre officer to a cadre
post and the rule lays down, inter alia, that a cadre post
may be filled by a person who is not a cadre officer if the
State Government is satisfied that there is no suitable
cadre officer available for filling the vacancy. We do not
think that rule shows that an officer in the junior scale
has the right to go automatically into the senior scale. On
the contrary, the rule seems to show that the suitability of
a cadre officer is a relevant consideration even in the
matter of a temporary appointment. We think that the matter
is governed by the Indian Police Service (Pay) Rules, 1954.
Every person recruited to the Indian Police Service by a
competitive examination remains on probation for a period of
two years; see r. 3 of the Indian Police Service (Probation)
Rules, 1954. Thereafter, on his confirmation, he starts on
the Junior scale. The Indian Police Service (Pay) Rules,
1954, lay down two independent scales of
608
pay ; one is the junior scale spread over 19 years and the
other is the senior scale spread over 22 years. These two
independent scales spread over a period of years seems to
indicate that an officer in the junior scale cannot claim
the right of automatically passing into the senior scale
without any selection by the State Government, though
normally we apprehend that an officer in the junior scale
may expect to go into the senior scale if nothing is found
against him. It may be here stated that there is an
efficiency bar in the junior scale at the stage when the
salary of the officer reaches Rs. 590.00 per month which
corresponds to the eleventh year of his service. If every
officer in the junior scale has the right to pass automati-
cally into the senior scale, then it is difficult to
understand the meaning of this efficiency bar at the
eleventh year of service. Such a bar would serve no useful
purpose in the majority of cases, because all officers would
automatically go into the senior scale long before the
eleventh year unless they were kept back by way of
punishment.
Rule 4 of the aforesaid rules lays down that the initial pay
of a direct recruit shall be fixed at the minimum of the
junior time-scale. R. 4(2) is important for our purpose and
may be quoted here.
"4. (2) The pay of a member of the Service in
the junior time-scale shall, on appointment to
a post on the senior time-scale, be fixed at
the corresponding stage in the senior time-
scale as shown in Schedule I:
The learned Additional Solicitor-General who has argued the
case on behalf of the respondents has rightly drawn our
attention to the words "on appointment to a post on the
senior time-scale" occurring in r. 4(2). His argument is
that those words indicate that the competent authority must
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 22
appoint a member of the Indian Police Service to a post on
the senior time-scale before he can claim the pay fixed for
the senior time-scale as shown in Schedule I ; in other
words, the argument is that the words "appointment to a post
on the senior time-scale" show by necessary implication that
the appointing authority has the right either to appoint or
not to appoint a member of the Indian Police Service to a
post on the senior time-scale
609
and there is no automatic advance from the junior to the
senior scale. We think that this contention of the learned
Additional Solicitor-General is correct. Rule 8 of the
Indian Police Service (Pay) Rules, 1954 is also relevant in
this connection and fortifies the argument of the learned
Additional Solicitor-General. That rule says that any
member of the Service appointed to hold a post specified in
Schedule 111, shall, for so long as he holds that post, be
entitled to draw the pay indicated for that post in the said
Schedule. The rule makes it clear that there must first be
an appointment to a post specified in Schedule III and then
a member of the Service appointed to that post is entitled
to draw the pay indicated in Schedule III. When we go to
Schedule III we find that the posts mentioned therein are
classified under three heads, A, B and C. Category A relates
to posts above the timescale of pay and includes the posts
of Inspector General of Police and Deputy Inspectors General
of Police. The appellant concedes that to these posts there
is no automatic right to promotion. Category B relates to
posts’ in the senior time-scale and includes, so far as
Punjab is concerned, the posts of Assistant Inspectors Ge-
neral of Police, Superintendents of Police, Adjutant, Punjab
Armed Police, Principal, Police Training School etc.
Category C relates again to posts carrying pay above the
time-scale. The argument of the appellant, when properly
analysed, is that with regard to category B posts there is
an automatic right, but not so to category A and category C
posts. This argument falls to the ground when the terms of
r. 8. are examined. The rule makes no difference in the
matter of the three categories of posts specified in
Schedule III ; on the contrary, the rule in express terms
says that any member of the Service appointed to hold a post
specified in Schedule III shall, for so long as he holds
that post, be entitled to draw the pay indicated for that
post in the said Schedule. The expression "for so long as
he holds that post" is important and shows clearly enough
that the appointing authority has a right to appoint or not
to appoint a member of the Service to a post in Schedule
III. It is conceded that such a right exists in the matter
of category A and category C posts; but the argument is that
no such right exists
610
in the appointing authority in the matter of category B
posts. We do not see how in view of the express terms of r.
8 any such distinction between category A and category C
posts on one side and category B posts on the other can be
made. In our view, r. 8 shows beyond any doubt that the
posts of Superintendents of Police which are mentioned in
category B of Schedule III are posts to which an appointment
must first be made by the appointing authority and a member
of the Service cannot claim an automatic right to such a
post. This conclusion inevitably flows from r. 4(2) and r.
8 of the Indian Police Service (Pay) Rules, 1954.
There is another aspect of the question. In exercise of the
powers conferred by sub-section (1) of s. 3 of the All-India
Services Act, 1951, the Central Government has made rules
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 22
known as the All India Services (Discipline and Appeal)
Rules, 1955. Rule 3 of the said rules states the penalties
which may, for good and sufficient reasons, be imposed on a
member of the Service. Rule 5 lays down the procedure to be
followed for imposing those penalties and states that no
order shall be passed imposing any of the penalties
specified in r. 3 on a member of the Service unless he has
been informed in writing of the grounds on which it is
proposed to take action and has been afforded an adequate
opportunity of defending himself. In the Central Civil
Services (Classification, Control and Appeal) Rules, 1957, a
distinction is drawn between penalties which are minor in
nature such as censure, withholding of increments or
promotion and recovery from the pay of an officer any
pecuniary loss caused to Government by his negligence, and
other punishments of a major character such as reduction in
rank, compulsory retirement, removal or dismissal from
service. No such distinction appears to have been made ’in
the All-India Services (Discipline and Appeal) Rules, 1955
save for certain exceptional cases mentioned in sub-rule
(10) of r. 5. Under r. 3 of the said rules there are seven
kinds of penalties one of which is "reduction in rank in-
cluding reduction to a lower post or time-scale, or to a
lower stage in a time scale". There are certain Explana-
tions to r. 3 of which Explanation (4) is important for our
purpose. This Explanation reads thus :
611
"The reversion to a lower post of a member of
the Service who is officiating in a higher
post, after a trial in the higher post or for
administrative reasons (such as the return of
the permanent incumbent from leave or
deputation, availability of a more suitable
officer, and the like) does not amount to
reduction in rank within the meaning of this
rule."
The High Court was of the view that the case of the
appellant was covered by the aforesaid Explanation even
though the reversion of the appellant was not caused by the
return of the permanent incumbent from leave or deputation
nor by the availability of a more suitable officer. The
High Court took the view that the instances mentioned in the
Explanation were not exhaustive and the phrase "and the
like" was intended to cover other instances of reversion
when reversion was not intended to be by way of punishment
or penalty. Whether the reversion of the appellant in the
present case was by way of punishment or penalty, apart from
the alleged forfeiture of his right to go automatically to
the senior scale, is a question which we shall presently
consider in relation to his alternative argument. At the
present moment, we are considering the question from the
point of view as to whether there has been any forfeiture of
his right to go automatically into the senior scale. In our
view Explanation (4) to r. 3 shows clearly enough that a
member of the Service cannot claim the right of officiating
in a higher post merely by reason of his seniority and even
when he is officiating in a higher post he may be reverted
after a trial in that post or for administrative reasons and
such reversion does not amount to reduction in rank within
the meaning of r. 3. The existence of such a rule negatives
the claim of the appellant that he has the right to
officiate in a post on the senior scale, and any reversion
from that officiating post amounts to reduction in rank
within the meaning of Art. 311 of the Constitution.
There is a third aspect of the question. We have stated
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 22
earlier that r. 3 of the Indian Police Service (Pay) Rules,
1954 states that there shall be two time-scales of pay,
junior and senior, and also a selection grade. The first
proviso to the rule states that a member of the Ser-
612
vice holding a post in the senior time-scale may be appoint-
ed to a post in the selection grade and where he is so
appointed, he shall be entitled to draw pay of the post in
the selection grade. Here again the proviso talks of "ap-
pointed to a post in the selection grade". The words show
by necessary implication that an officer may or may not be
appointed to a post in the selection grade. Exactly the
same words occur also in r. 4(2) which we have earlier
quoted. If the words "appointed to a post" are to be
interpreted in the same way, then there is no escape from
the position that there is no automatic right of appointment
to a post on the senior time-scale.
We have therefore come to the conclusion that the first
contention urged on behalf of the appellant that he has a
right to go automatically into the senior scale is not
correct and cannot be upheld.
We turn now to the alternative argument of the appellant
that in any view of the matter his reversion involved penal
consequences to him within the meaning of the rule laid down
in Parshotam Lal Dhingra’s case(1). Dealing with the
question of reduction in rank, Das C.J. speaking for the
majority of the court in that case said :
"A reduction in rank likewise may be by way of
punishment or it may be an innocuous thing.
If the Government servant has a right to a
particular rank, then the very reduction from
that rank will operate as a penalty, for he
will then lose the emoluments and privileges
of that rank. If, however, he has no right to
the particular rank, his reduction from an
officiating higher rank to his substantive
lower rank will not ordinarily be a
punishment. But the mere fact that the
servant has no title to the post or the rank
and the Government has, by contract,
express or implied, or under the rules, the
right to reduce him to a lower post does not
mean that an order of reduction of a servant
to a lower post or rank cannot in any
circumstances be a punishment. The real test
for determining whether the reduction in such
cases is or is not by way of punishment is to
find out if the order for the reduction also
visits the servant with any penal
consequences. Thus if the order en
(1)[1958] S.C.R. 828.
613
tails or provides for the forfeiture of his
pay or allowances or the loss of his seniority
in his substantive rank or the stoppage or
postponement of his future chances of
promotion, then that circumstance may indicate
that although in form the Government had
purported to exercise its right to terminate
the employment or to reduce the servant to a
lower rank under the terms of the contract of
employment or under the rules, in truth and
reality the Government has terminated the
employment as and by way of penalty. The use
of the expression "terminate" or "discharge"
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 22
is not conclusive. In spite of the use of
such innocuous expression, the court has to
apply the two tests mentioned above namely,
(1) whether the servant has a right to the
post or the rank or (2) whether he has been
visited with evil consequences of the kind
hereinbefore referred to. If the case
satisfies either of the two tests then it must
be held that the servant has been punished and
the termination of his service must be taken
as a dismissal or removal from service or the
reversion to his substantive rank must be
regarded as a reduction in rank and if the
requirements of the rules and Art. 311, which
give protection to Government servant have not
been complied with, the termination of the
service or the reduction in rank must be held
to be wrongful and in violation of the
constitutional right of the servant."
The appellant has contended that his case comes under the
second test laid down in Parshotam Lal Dhingra’s case(1),
namely that he has been visited with penal consequences like
loss of pay, loss of seniority and the stoppage or
postponement of his future chances of promotion.
This is an aspect of the matter which has caused us great
anxiety. The admitted position is that the appellant was
reverted to the post of an Assistant Superintendent of
Police by an order dated November 3, 1958. The reversion
was not due to the return of the permanent incumbent from
leave or deputation or for any administrative reason. It is
also admitted that officers junior to
(1)[1958] S.C.R. 828
614
the appellant continued to officiate in the senior scale
while the appellant was reverted. In its written statement
the respondent State took the stand that the appellant was
tried as Superintendent of Police and on trial he was found
to be immature. It was further stated that his reversion
had nothing to do with the departmental proceedings
instituted against him on July 18, 1958. It appears from
the judgment of the High Court that the personal file of the
appellant was produced before the learned. judges and on
examining the personal file the learned judges found that
the reasons which prompted the appellant’s reversion in the
present instance were not the reasons which led to the
framing of a charge sheet against him. The same personal
file has also been produced before us and we have examined
it. The following ,extracts from that file are relevant:
"As the regular enquiry into Shri Wadhwa’s
conduct might take long, probably it will be
advisable to shift him from Ferozepore some
other place. His personal file is placed
below."
This was apparently a note of the Senior Superintendent of
Police. It is dated October 6, 1958 and was marked to the
Inspector General. Below that there is a note of some other
officer which begins with the following :
"Can’t we revert him and then proceed with
further enquiries on the charge of not
carrying out the orders of his senior
officers?"
Then it is stated that Mr. Wadhwa is not yet ripe and fit
for the duties of a Superintendent of Police and then the
note says :
"We may, therefore, get the State Government’s
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 22
approval to his reversion on account of his
unsatisfactory record. The departmental
enquiry could be proceeded with after his
reversion."
The extracts quoted above show that the appellant was really
reverted by way of punishment. The departmental proceedings
were instituted against him on July 18, 1958. On 6-10-1958
it was noted that as the regular enquiry into the conduct of
the appellant might take a long time it was advisable to
shift him from Ferozepore. The reversion order was
thereafter passed and the ground suggested for reversion was
unsatisfactory conduct. No details
615
of the unsatisfactory conduct were specified and the ap-
pellant was not asked for any explanation. In his writ
petition the appellant stated that he has had a brilliant
academic career and that no bad or adverse remarks were ever
communicated to him; he further stated that he was
recommended for the award of the Indian Police Medal for
gallantry : only a month before the order of reversion he
was given an increment of pay. The appellant’s suggestion
is that if his work was unsatisfactory, his increment would
have been withheld. On all these grounds the contention of
the appellant is that he has really been reverted by way of
punishment though the order of reversion is expressed in
innocuous terms.
We are inclined to agree with this contention of the
appellant. It should be made clear however that when a
person is reverted to his substantive rank, the question of
penal consequences in the matter of forfeiture of pay or
loss of seniority must be considered in the context of. his
substantive rank and not with reference to his officiating
rank from which he is reverted, for every reversion must
necessarily mean that the pay will be reduced to the pay of
the substantive rank. In the case before us the appellant
has not merely suffered a loss of pay which was inevitable
on reduction in rank, but he has also suffered loss of
seniority as also postponement of future chances of
promotion to the senior scale. A matter of this kind has to
be looked at from the point of view of substance rather than
of form. It is indeed true, as was pointed out in Parshotam
Lal Dhingra’s case(1), that the motive operating on the mind
of the Government may be irrelevant; but it must also be
remembered that in a case where Government has by contract
or under the rules the right to reduce an officer in rank,
Government may nevertheless choose to punish the officer by
such reduction. Therefore, what is to be considered in a
case of this nature is the effect of all the relevant
factors present therein. If on a consideration of those
factors the conclusion is that the reduction is by way of
punishment involving penal consequences to the officer, even
though Government has a right to pass the order of
reduction, the provisions of Art. 311 of the Constitution
are attrac-
(1)[1958] S.C.R. 828.
616
ted and the officer must be given a reasonable opportunity
of showing cause against the action proposed to be taken
against him. Our conclusion is that in the present case the
appellant was reverted by way of punishment, but he was
given no opportunity of showing cause against the action
proposed to be taken against him. Therefore the order of
reversion dated November 3, 1958 was in violation of the
provisions of Art. 311 of the Constitution.
In view of this finding it is unnecessary to go into the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 22
further question of any violation of the fundamental rights
guaranteed under Arts. 14 and 16 of the Constitution.
We would accordingly allow this appeal and quash the order
of reversion passed against the appellant on November 3.
1958. The appellant will be entitled to his costs of this
court and the High Court.
MUDHOLKAR J.-This is an appeal by special leave from the
judgment of the High Court of Punjab dismissing the
appellant’s writ petition under Art. 226 of the
Constitution.
The appellant is a member of the Indian Police Service
having been appointed therein on October 3, 1952 as an
Assistant Superintendent of Police on the basis of a
competitive examination held by the Union Public Service
Commission. He was confirmed in his appointment on November
30, 1953. On January 27, 1958 he was appointed to officiate
as District Superintendent of Police, which is a post in the
senior scale of pay of the service, and was posted as
Additional Superintendent of Police, Ferozepore. He was
later transferred to the post of Additional Superintendent
of Police, Punjab Armed Police, Ferozepore, which post
carries a special pay of Rs. 100.00 p.m. It may be mentioned
that at the date of his appointment as Additional
Superintendent of Police he was drawing a salary of Rs.
440.00 in the junior scale. But on being appointed to the
post of senior scale he drew the minimum salary of Rs.
600.00 in the senior scale.
On July 18, 1958 a charge-sheet was served upon the
appellant to which he submitted a reply. On October 31,
1958 a departmental enquiry was ordered against him by the
Government under the All India Services (Discipline and
Appeal) Rules, 1955 and Mr. Bindra, Deputy Inspec-
617
tor General of Police, Jullunder, was appointed as an En-
quiry Officer. On November 3, 1958 the appellant was re-
verted to the post of Assistant Superintendent of Police and
posted at Amritsir. The appellant thereupon preferred a
writ petition before the High Court of Punjab. The first
ground on which the writ petition rested was that the
reversion of the petitioner from the post of officiating
Superintendent of Police to that of Assistant Superintendent
of Police involved an element of punishment and that as the
provisions of the All India Services (Discipline and Appeal)
Rules, 1955 and those of Art. 311 of the Constitution were
not complied with, his reversion was illegal. The second
ground was that the action of the Government in reverting
him was mala fide. It is common ground that persons junior
to the appellant in the gradation list were either continued
to officiate as Superintendents of Police after the
reversion of the appellant or were appointed to officiate as
Superintendents of Police while the appellant continued to
be Assistant Superintendent of Police. The main question,
therefore, for consideration is whether the appellant’s
reversion amounts to a punishment.
The determination of this question would depend upon the
answer to be found to another question and that is whether
the appellant, by virtue of his appointment to the Indian
Police Service had a right to be promoted to and to hold the
post of Superintendent of Police, if at the time his turn
came to officiate in that rank there was a vacancy and he
was not barred from stepping in because of any punishment
awarded to him as a result of an enquiry made under the
Discipline and Appeal Rules. The High Court, while
negativing the contention of the appellant, observed that
this Court held in Parshotam Lal Dhingra v. Union of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 22
India(1) that a Government servant acquires a right to hold
a post only in three kinds of cases : the first is when he
is substantively appointed to a permanent post in Government
service ; the second is when he is appointed to a temporary
post for a fixed term ; and the third is when a person
having been appointed temporarily to a post has been in
continuous service for
(1)[1958] S.C.R. 828.
40-2 S. C. India/64.
618
more than three years or has been certified by the appoint-
ing authority as fit for appointment in a quasi-permanent
capacity. The learned judges, however, overlooked the fact
that there this Court was interpreting the Fundamental Rules
and not rules applicable to an All India Service, which have
their source in the All India Services Act, 1951 (LXI of
1951). It may be mentioned that this Act applies only to
two All India Services namely the Indian Administrative
Service and the Indian Police Service and to no others.
Sub-section (1) of s. 3 of this Act empowers the Government
to make rules for the regulation of recruitment and
conditions of service of persons appointed to an All-India
Service. In exercise of this power the Indian Police
Service Recruitment Rules, 1954, were framed by the Go-
vernment. Rule 3 provides that the service shall consist of
three classes of persons : (a) members of the Indian Police
; (b) members recruited to the service before the
commencement of the rules and (c) persons recruited to the
Service in accordance with the provisions of the Rules. The
method of recruitment prescribed by rule 4 are : (a) by a
competitive examination and (b) by promotion of substantive
members of a State Police Service. Rule 6 provides that all
appointments to the Service shall be made by the Central
Government and no such appointment shall be made except
after recruitment by one of the methods specified in r. 4.
Rule 9 provides for recruitment by promotion. Sub-rule (2)
of that rule provides that the number of posts available for
being filled by recruitment or promotion would not exceed at
any time 25% of the number of senior duty posts borne on the
cadre of a State. Sub-rule (1) of that rule empowers the
Central Government, in consultation with the State Go-
vernments and the Union Public Service Commission, to make
regulations governing recruitment and promotion. In
exercise of this power the Indian Police Service (Ap-
pointment by Promotion) Regulations, 1955 were made by the
Government. It is sufficient to say that these rules
provide for the preparation of "select lists" in each State
in which persons belonging to state service were selected by
a committee and placed in their order of merit and
appointments to cadre posts i.e., posts in the Indian
619
Police Service were to be made in accordance with these
Lists. It would be relevant here to make a mention of the
fact that according to the High Court a cadre post means
only a senior post in the service, that is, the post of
Superintendent of Police or a higher post. In coming to
this conclusion the High Court has purported to rely on the
Indian Police Service Cadre Rules, 1954, framed under sub-
section (1) of s. 3 of All India Services Act. Rule 2(b)
defines a cadre post to be one specified as such in the
regulations made under sub-rule (1) of r. 4. Rule 3 provides
that there shall be constituted for each State or group of
States an Indian Police Service Cadre. Here we are not
concerned with a cadre for a group of States but one for a
single State. ’Cadre Officer’, according to the definition
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 22
in r. 2(a) means a member of the Indian Police Service.
Rule 4(1) provides for determining the strength and
composition of each of the cadres constituted under r. 3.
Rule 5 provides for the allocation of members to various
cadres by the Central Government. From these rules it is
clear that once a person is appointed in the Indian Police
Service it is the Central Government which allocates such
person to the cadre of a State. No State has more than one
cadre and as soon as a person appointed to the Indian Police
Service is allocated to a State he is borne on the cadre of
that State. Consequently the post which he holds would be
cadre post. These rules do not differentiate between posts
held in the junior scale of pay and those in the senior
scale of pay. Rule 8 provides "Save as otherwise provided
in these rules, every cadre post shall be filled by a cadre
officer" which means by an officer of the Indian Police
Service. Thus it is immaterial whether the post is borne on
the junior scale of pay or on the senior scale of pay but so
long as the post is borne on the cadre of the Indian Police
service it must be filled by a cadre officer and none else
except of course as provided in the cadre rules. The only
other rules which have any bearing on this point in the
Cadre rules are rules 9 and 10. Rule 9 deals with temporary
appointment of non-cadre officers to cadre posts and rule 10
deals with keeping cadre posts vacant. In pursuance of the
power conferred by r. 4(1) the Central Government has made
regulations fixing the cadre
620
strength for the State of Punjab at 82. The number of
senior posts is fixed at 57, 43 of which are to be filled by
direct recruitment and 14 by promotion. The total direct
recruitment posts is fixed at 68 and, therefore, 25 of them
must be junior posts. The cadre thus comprises not neces-
sarily of senior post but includes also junior posts. In
addition to these rules, the Central Government framed Po-
lice Service (Pay) Rules, 1954 in exercise of the powers
conferred by sub-section (1) of s. 3 of the All India
Services Act, 1951. Rule 2(a) provides that ’Cadre’ and
’Cadre post’ shall have the meanings respectively assigned
to them in the Indian Police Service (Cadre) Rules, 1954.
Rule 3 prescribes the time-scale of pay admissible to
members of the service. The rules prescribe two scales of
pay-junior scale and the senior scale, in addition to the
selection grade. The junior scale is Rs. 350-350-380-380-
30500-E.B.-30-770-10-850 (19 years). The senior scale is
Rs. 600 (6th year or under)-40-1000-1000-1050-10501100-1100-
1150 (22 years). The selection grade is Rs 1250. It also
contains some other provisions which are not relevant for
the present discussion. Sub-rule (1) of r. 4 provides that
the initial pay of a direct recruit shall be fixed at the
minimum of the junior time-scale. Sub-rule (2) of that rule
provides that the pay of a member of the service in the
junior time scale shall, on appointment to a post on the
senior time-scale, be fixed at the corresponding stage in
the senior time-scale as shown in Schedule I of the rules.
’Further, the rule deals with promoted officers but with
that part of the rule we are not concerned. Rule 5 deals
with regulation of increments and cl. (1) of sub-rule (1) of
that rule says that in the case of a member appointed as a
result of competitive examination the increment shall accrue
on the expiry of each year from the date of his appointment
to the service. The point to be noted is that where an
Assistant Superintendent of Police is appointed as
Superintendent of Police in the senior scale his annual
increment falls due not on the expiry of one year from the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 22
date of his appointment as Superintendent of Police but by
reference to his initial appointment in the junior scale.
Rule 6 deals with withholding of increments and r. 7 with
grant of advance increments. The heading of r. 8 is "Pay of
621
officers holding posts enumerated in Schedule III". The
posts in the Schedule are (a) posts carrying pay above the
time-scale pay of the Indian Police Service under the State
Governments, specified in Section A, (b) posts carrying pay
in the senior time-scale of the Indian Police Service under
the State Governments including posts carrying special pay
(in addition to pay in the time-scale) specified in Section
B and (c) posts carrying pay above the time-scale or special
pay in addition to pay in the time-scale, under the Central
Government held by members of the Service, specified in
Section C. In category (a) so far as the State of Punjab is
concerned the posts arc those of Inspector General of Police
and Deputy Inspector(s) General of Police ; posts in
category (b) in that State are : Assistant Inspector(s)
General of Police, Superintendent(s) of_ Police of
District(s), Additional Superintendent(s) of Police and
others. The posts in category (c) are posts held under the
Central Government and not under the State Government. It
will be seen that the posts of Superintendents of Police and
Additional Superintendents of Police in category (b) are
included in Sec. B of Schedule III. It is urged by the
learned Additional Solicitor General that by the inclusion
of the posts of Superintendents of Police in sec. B of the
Schedule it is made clear that officers have to be appointed
to the posts therein in the same manner as to posts in
Sections A and C. No doubt a formal order of appointment to
all posts has to be made, whether an element of selection is
involved therein or not. But if the contention means that
appointments to posts in the senior scale must be made by
selection, we cannot accept it is sound. The rule in
question does not deal with the question of appointment at
all. Its heading clearly discloses its purpose: that of
indicating the pay of certain classes of officers. While
the pays of posts in Sections A and C are specifically set
out in those sections, those of posts in Section B are not.
The heading of Section B merely describes the posts dealt
with in that section as those carrying senior scale of pay
and provides mainly for two matters concerning such posts
namely, calculation of selection posts and competency of the
State Government to grant special pay and allied matters.
It will thus be seen
622
that this rule has no relevance to the determination of the
question before us. A consideration of the various rules
would therefore, make it clear beyond doubt that a person in
the Junior time-scale of the Service is as much a cadre
officer as one holding a post in the senior time-scale or a
post above the time-scale, such as those in Category (a) of
Schedule III.
As to what is meant by senior post we must go to the
definition contained in the Indian Police Service (Regu-
lation of Seniority) Rules, 1954, also framed under sub-
section (1) of s. 3 of the All-India Services Act, 1951.
Senior post is defined thus in r. 2(g)
"‘senior post’ means a post included under
item 1 of each Schedule to the Indian Police
Service (Fixation of Cadre strength)
Regulations, 1955, framed under sub-rule (1)
of Rule 4 of the Indian Police Service (Cadre)
Rules, 1954, or any post declared equivalent
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 22
thereto by the State Government concerned ;"
The senior posts in the cadre of the State of Punjab are 57
in number and include 18 posts of Superintendents of Police
and 5 posts of Additional Superintendents of Police. Rule 3
provides that every officer directly recruited to the Indian
Police Service shall be assigned a year of allotment
according to the provisions contained in that rule. Rule 4
provides for determining seniority of officers. Rule 6
provides that there shall be prepared every year for each
State cadre a gradation list of names of all officers borne
on that cadre arranged in the order of seniority in
accordance with the provisions of rules 4, 5, 5-A and 7.
Even though a large body of rules has been framed by the
Central Government governing the rights, privileges,
discipline etc., of the members of the Indian Police
Service, there is not a single rule which specifically deals
with the appointment of an Assistant Superintendent of
Police to the post of Superintendent of Police. In other
words there is-no specific rule which prescribes the
condition for transfer or ’promotion’ of a person holding a
post carrying a pay in the junior scale to a post carrying
salary in the senior pay scale. Nor again, is there any
rule which specifically provides that in so far as a member
of the Indian Police Service is concerned he
623
has to be freshly appointed to a post carrying a salary in
the senior scale of pay. This may be apparently because
’appointment’ connotes only initial appointment to the
Service.
In this situation we have (Tot to deduce the precise legal
position from the large body of rules to which we have
referred. It seems clear beyond doubt that in so far as the
Indian Police Service is concerned there is only one cadre.
Appointments to posts borne on that cadre are to be made by
direct recruitment except to the extent of 25% of the senior
posts which may be filled by promotion from the State Police
Service, leaving aside for the moment appointments made by
special recruitment or ’emergency recruitment. Now,
according to the learned Additional Solicitor General, what
is guaranteed to a person who is appointed to the posts of
Assistant Superintendent of Police is that he will be
allowed to reach the maximum of Rs. 850.00 in the 19th year
of his service in the junior scale subject of course to his
increment not being withheld. His contention is that an
Assistant Superintendent of Police has no right to hold a
post carrying a pay in the senior scale even though
according to his seniority in the gradation list he may be
eligible for such a post. He emphasises that an element of
selection is involved in promoting an Assistant Superinten-
dent of Police to the post of a Superintendent of Police.
No doubt the junior time scale goes upto Rs. 850.00 which
would be reached by an Assistant Superintendent of Police in
his 19th year of service and thereafter he would continue to
draw only that salary till he retires. But it would not be
right to conclude from this circumstance that is all that is
guaranteed to him. We must take into account all the
relevant rules bearing on the matter. There are also good
reasons for providing a complete time scale for the junior
posts. Thus it may well happen that the senior posts are
unavailable for a long period because of having been filled
by younger persons say as special or emergency recruits. Or
again, the Government may find an officer in the junior
scale unsuitable for holding a post in the senior scale and
may either not appoint him to or revert him from a post in
the senior scale. Thus, if after conforming to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 22
appropriate proce-
624
dure the Government withholds the promotion of such person
or reverts him provision for granting increment to him had
to be made so that he could expect to draw a reasonably fair
salary with the passage of time and not be left to stagnate
at a very low salary for the rest of the period of his
service. The argument of the Additional Solicitor General
on the point cannot, therefore, be accepted. It is true
that we are not directly concerned in this case with initial
appointment of a person to a post in the senior time-scale
but only with that of one who has been reverted. Apart from
grounds of administrative convenience the guiding factors
would be the same, namely, seniority, whether the case is of
initial appointment to a post in the senior scale or
reversion therefrom to the junior scale. No doubt, r. 6(2)
of the Pay Rules contemplates provision of an efficiency bar
in the junior scale and a bar has been placed at Rs. 590.00.
But the placing of this bar has no bearing on the
appointment of a person whose increment has been barred, to
a post in the senior scale. Indeed, the proviso to r. 6(2)
clearly states that even where the increment of a member has
been withheld, but he is appointed to a post in the senior
scale his pay in that scale will not be affected but would
be regulated according to his length of service. This
proviso in fact lends further support to the conclusion that
in the Service what counts is the length of service of a
member and not even whether he has or has not passed the
departmental examination. Increments can, under r. 6(l), be
withheld but that is only if a member fails to pass the
departmental examination in a prescribed time. This is a
condition of service and when the condition is not satisfied
the member affected can have no legitimate grievance. But
the result of this is different from that of not allowing
a person to hold a post in the senior time-scale in his
turn according to his seniority.
As already indicated very elaborate rules have been framed
for the purpose of determining the inter se seniority of the
officers borne on the cadre of the Indian Police Service.
The gradation list has to be prepared with scrupulous regard
to the rights of every member of the service. All this
would have been unnecessary if seniority were meaningless.
In Schedule I framed under rr. 4(2)
625
and 5 (2) of the pay Rules the first column refers to the
year of service, the second to the monthly rate of pay in
the junior scale and the third column to the monthly rate of
pay in the senior scale. No person is directly recruited to
the Indian Police Service as a Superintendent of Police and,
therefore, it will be pointless to provide in cl. 3, against
the first year of service the salary of Rs. 600.00 the
salary in the junior scale for that year being Rs. 350.00.
The reason why this has been provided for apparently is that
a situation was contemplated that a person appointed as an
Assistant Superintendent of Police may immediately have to
hold the office of a Superintendent of Police, the minimum
salary for which was fixed at Rs. 600.00. If a question of
selection were involved, surely choice could never fall upon
a person who has just been recruited to the service. The
circumstance that the two scales are given in parallel
columns clearly indicates that the transition of a member of
the service from one scale to another was not to depend upon
the consideration of the comparative merits of a group of
officers in the junior scale inter se but only upon a
consideration of their seniority. We have already indicated
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 22
that in so far as promotion of officers to the State Police
Service is concerned, elaborate provisions have been made in
the rules which, among other things, provide for the
appointment of a selection committee and preparation of
’select lists’. Thus where a question of selection was
involved the procedure has been laid down in the rules. Had
it been the intention of die Government to bring in the
element of selection in so far as promotion of Assistant
Superintendents of Police to the posts of Superintendents of
Police is concerned we have no doubt that express provisions
relating to the manner in which the selection has to be made
would have found place in the rules. The appellant who
argued his case in person asked us to compare the position
of persons belonging to other Central Services and said that
in so far as they were concerned the rules provide for a
selection at every stage and in this connection he drew our
attention to explanation (iii) to r. 13 of the Central Civil
Services (Classification, Control and Appeal) Rules, 1957
which reads thus:
626
"The following shall not amount to a penalty
within the meaning of this rule
*
*
(iii) non-promotion whether in a substantive
or officiating capacity of a Government
servant, after consideration of his case, to a
Service, grade or post for promotion to which
he is eligible;
and sought to support the argument by reference to this
explanation. He also pointed out that there is no corres-
ponding provision in the All India Services (Discipline and
Appeal) Rules. This argument is not without substance.
The learned Additional Solicitor General, however referred
us to explanation (3) to r. 3 of these Rules which runs
thus:
"A refusal to promote a member of the Service,
after due consideration of his case, to a post
or grade to which promotions are made by
selection, does not amount to withholding of
promotion within the meaning of this rule."
Clearly, this provision will apply only where appointment is
to be made to a post by selection and the question we have
to decide is whether the post of a Superintendent of Police
is of that nature. The language of this provision is
different from that to which we have adverted earlier.
Then the learned Additional Solicitor General, as also the
High Court, relied upon explanation 4 to r. 3. Rule 3
provides for penalties including withholding of increments,
promotion, reduction in rank i.e., to a lower post or time-
scale or to a lower stage in a time-scale. The -explanation
reads thus :
"The reversion to a lower post of a member of
the Service who is officiating in a higher
post, after a trial in the higher post or for
administrative reasons (such as the return of
the permanent incumbent from leave or
deputation, availability of a more suitable
officer, and the like) does not amount to
reduction in rank within the meaning of this
rule."
The question, however, is whether it applies to a case like
the present. No doubt, this explanation speaks, of a person
who was given a trial in the higher post being
627
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 22
reverted for administrative reasons including availability
of a more suitable officer. This may be a condition of ser-
vice but if it means that a person who has a right to hold a
post in the senior scale would be liable to be demoted if an
officer junior to him, but more suitable, is available it
would run contrary to the provisions of Art. 311(2) and
would be ultra vires. But it would be a valid provision if
we consider it to apply only to promotions to posts to which
the incumbent has no right. In our opinion, the whole
scheme of the rules indicates that a person borne on the
junior scale of pay has a right to hold a post on the senior
scale of pay depending upon the availability of a post and
his seniority in the ’Junior scale of pay. We should not be
understood as saying that this right extends to the
appointment to a post carrying pay above time scale of pay
or a post carrying a special pay. The rules governing
appointment to such posts were not placed before us. If a
person holding a post in the senior scale, though in an
officiating capacity is found to be unfit to hold that post,
action will have to be taken against him as required by r. 5
of Discipline and Appeal Rules because his reversion to a
post in the lower scale would amount to reduction in rank
within the meaning of Art. 311 of the Constitution as held
in Dhingra’s case(1). In the case before us Mr. Wadhwa was
not reverted for an administrative reason like the
unavailability of posts but for a different reason which we
will indicate while dealing with the second point raised by
him. Despite the fact that he holds a certain rank in the
gradation list persons who also belong to the Indian Police
Service and who were recruited to it subsequent to him have
continued to hold or have been appointed to hold posts car-
rying salary in the senior scale. This would itself
indicate that the action taken against him was by way of
penalty or punishment. For, he has not only been reduced in
rank but his promotion to the senior scale has also been
withheld. This could only be done by holding a departmental
enquiry and affording him an opportunity to show cause
against the action proposed to be taken against him.
Nothing of the kind was done and, therefore, on
(1)(1958] S.C.R. 828.
628
this ground alone the writ petition ought to have been
granted.
On the other ground also the writ petition must succeed.
The learned Additional Solicitor General very fairly placed
before us the file concerning the reversion of the appellant
which we find from the judgment of the High Court was also
placed before it. The following extracts from that file
would be relevant :
"As the regular enquiry into Shri Wadhwa’s
conduct might take long, probably it will be
advisable to shift him from Ferozepore to some
other place. His personal file is placed
below."
This was apparently a note of the Senior Superintendent of
Police. It is dated October 6, 1958 and was marked to the
Inspector General. Below that there is a note of some other
officer which begins with the following query :
"Can’t we revert him and then proceed with
further enquiries on the charge of not
carrying out the orders of his senior
officers?"
Then it is stated that Mr. Wadhwa is not yet ripe and fit
for the duties of a Superintendent of Police and then the
note says :
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 22
"We may, therefore, get the State Government’s
approval to his reversion on account of his
unsatisfactory record. The departmental
enquiry could be proceeded with after his
reversion."
It will thus be clear that the main object with which his
reversion was sought was to facilitate the departmental en-
quiry. No doubt, a reference is made to the unsuitability
of the appellant for the post of Superintendent of Police.
But that is not what mainly actuated his superior in re-
commending his reversion. Then, as the next note in the
file would show, actually a show cause notice was prepared
and a recommendation was made to the Inspector General to
send it to the Chief Minister for his approval. Thereafter
there is a long note of the Inspector General in which
reference is made to Explanation 4 to r. 3 of the Discipline
and Appeal Rules and it is said that in view of this
provision no show cause notice need be issued to the
appellant. This suggestion of the Inspector General was
629
accepted by the Chief Minister and that is how the appellant
came to be reverted.
A perusal of the file thus shows that instead of suspending
the appellant during the pendency of the enquiry against him
which was expected to take considerable time to finish,
resort was had to his reversion on the vague grounds that he
was a ’problem child’ and an ’immature person’. We quite
appreciate that while a departmental enquiry is being held
against a person in respect of a serious offence it would
not be in the public interest to allow him to hold a
responsible position. But in that case the more
straightforward course would be to suspend him and not to
resort to a devious method of the kind which the Government
thought it fit to employ in this case. If as a result of
the departmental enquiry the person arraigned is found not
guilty or is awarded a minor punishment he may well be able
to revert to the post which he was occupying. We are told
that in the departmental enquiry held against the appellant,
though he has been found remiss, the only punishment awarded
to him was stoppage of one increment without prejudice to
his future. If that is the correct state of affairs one
would have expected that the appellant, had he been
suspended, would have been restored to his former post in
the light of the actual action taken against him on the
basis of the findings of the Enquiry Officer. But, as a
result of what the Government has done he loses the benefit
of such a result. In the circumstances we have no doubt in
coming to the conclusion that the order of the Government is
mala fide.
On both these grounds, therefore, we allow the appeal as
well as the writ petition and quash the order dated November
3, 1958 reverting him to the post of Assistant
Superintendent of Police from the post of Superintendent of
Police. Costs of this petition here and in the High Court
will be paid by the respondent State.
Appeal allowed.
630