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PETITIONER: GURDEV SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT27/01/1971

BENCH: MITTER, G.K. BENCH: MITTER, G.K. RAY, A.N.

CITATION:  1971 AIR 1580            1971 SCR  (3) 550  1971 SCC  (3) 324

ACT: Service--Indian    Police   Service    Scheme -Appellant interviewed  and  placed in List II under the  Scheme  while officiating  as  Superintendent, of Police-If  inclusion  in List conferred any rights on him-Whether could ,be  reverted to substantive post of Deputy Superintendent of Police.

HEADNOTE:  The  appellant originally belonged to the Police Service  in  the  State of Patiala and was promoted to officiate  at  a  Superintendent  of Police in February 1950 in the  erstwhile  State of PEPSU.  After the Indian Police Service Scheme  was  extended to PEPSU in 1950, the appellant was one of  several  persons interviewed by the Federal Public Service Commission  and his name was placed on what was styled in List II in the  Scheme.    He   continued   working   as   an    officiating  Superintendent  of  Police without being  confirmed  in  the  post.   On  December  1,  1954,  he  was  reverted  to   his  substantive rank of Deputy Superintendent by an order of the  Inspector-General of Police.  The appellant thereafter filed  a  suit  claiming that the order of reversion was  bad.   He  alleged  that  the inclusion of his name in List 11  of  the  Scheme  gave  him  a right to  continue  as  an  officiating  Superintendent  of Police for five years and  his  reversion  within  that  period to his substantive post amounted  to  a  punishment.   He alleged there was thus non-compliance  with  Art.-  311 of the Constitution.  He also ’  complained  that  while  he was reverted, persons who were junior to  him,  in  the  sense that their names had not been included in any  of  the  Lists  under the Scheme, were allowed  to  continue  as  officiating  Superintendents of Police; there was  therefore  discrimination  as against him.  The case of the  respondent  State  was  that the reversion had been effected  purely  on  administrative grounds as a Superintendent of Police who was  returning to the State had to be accommodated, and there was  no  vacancy in which the appellant could be allowed to  work  as Superintendent of Police.  The Trial Court held that  the  impugned  order  was not made by way of punishment  and  the  plaintiff  had failed to prove there was any  discrimination  against him.  An appeal to the High Court was dismissed.  On  appeal to this Court,  HELD : The reversion was justified on administrative grounds

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and  there  was no bar to such reversion by  reason  of  the  inclusion of the appellant’s name in List 11.  The said list  merely  ensured  that  the officers whose  name  were  borne  thereon  would  be watched for the space of five  years  and  they might be absorbed in the All India Service even  within  the said period as a result of periodical reviews.  Although  reversion  on the ground of unfitness was mentioned  in  the  scheme  the possibility of such reversion when there was  no  available post in the cadre of Superintendents of Police was  not  ruled out.  As the officers in List 11 had no tight  to  be  absorbed in the Indian Police Service  immediately,  the  direction  in  the scheme that "officers placed in  List  II  will continue to hold their present post" merely meant  that  they  would not be made to go out of their posts  except  on  justifiable  grounds.   Holding  a post  in  an  officiating  capacity as a Superintendent of Police did not entitled  the  appellant  551  to continue in that post even if officers senior to him  who  were  on  leave  or  had  been sent  out  of  the  State  on  deputation  were to come back to the State and there was  no  room in the cadre to absorb them all. [556 C]

JUDGMENT:  CIVIL APPELLATE JURISDICTION           Civil Appeal No. 1018  of 1967.  Appeal  from the judgment and decree dated January 16,  1967  of the Punjab and Haryana High Court in Regular First Appeal  No. 358 of 1964.  M.C.  Setalvad, Bishan Narain, Jawahar Lal Gupta  and  P.  C.. Bhartari, for the appellant.  Harbans Singh and R. N. Sachthey, for the respondent.  The Judgment of the Court was delivered by  Mitter,  J.-The  appellant who originally  belonged  to  the  police  service in the State of Patiala and was promoted  to  officiate  as  a Superintendent of Police on  11th  February  1950  in the erstwhile State of PEPSU filed a  suit  against  the State of Punjab in January 1961 for a declaration to the  effect  that  the order of the PEPSU  Government  dated  1st  December   1954  reverting  him  to  the  post   of   Deputy  Superintendent  of  Police (the substantive post  which  was  formerly held by him) was unconstitutional and void and that  he  was  entitled  to all the rights by way  of  arrears  of  salary and allowances etc. of the post of Superintendent  of  Police  and that he continued as such in that capacity  even  after  the  date  of  the  impugned  order.   The  suit  was  dismissed by the Subordinate Judge of Patiala and his appeal  to  the  Punjab High Court met with no beter fate.   He  has  come  to  this Court by a certificate granted  by  the  High  Court under Art. 13 3 (I) (c) of the Constitution.  The  relevant facts are as follows.  The  appellant  started  his  career  in the police service in the year 1942  as  an  Assistant  Superintendent of Police in the former  State  of  Patiala.  On the formation of the State of PEPSU he  started  to function in the same capacity in the said State.  In 1950  he was promoted to officiate as a Superintendent of  Police.  It appears that a scheme known as the Indian Police Service  Scheme  was  extended  to  PEPSU  in  the  year  1950.   The  appellant was one of several persons who were called up  for  interview  before the Federal Public Service  Commission  in  June 1950 under the orders of the PEPSU Government and  his  name  was placed on what was styled the Second List  in  the  above  scheme after the interview.  He continued working  as

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an  officiating Superintendent of Police without being  con-  firmed  in that post.  On December 11, 1954 he was  reverted  to  552  his  substantive rank of Deputy Superintendent of Police  by  an  order  of  the Inspector-General of Police  and  he  was  directed  to  make  over  charge  to  one  S.  Ajaib  Singh,  Superintendent of Police. As he was on leave at that time he  was  given liberty to proceed on leave from that date  after  submitting a formal charge report.  The  appellant’s case before the Subordinate Judge  in  sub-  stance was that the inclusion of his name in List II of  the  scheme  mentioned  gave  him  a  right  to  continue  as  an  officiating Superintendent of Police for five years and  his  reversion  within  That  period  to  his  substantive   post  amounted to a punishment : the order of reversion was bad as  there  was no compliance with thE provisions of Art. 311  of  the  Constitution.   He also complained that  while  he  was  reverted  persons who were junior to him in the  sense  that  their names had not been approved by the Special Recruitment  Board  for  inclusion in any of the Lists set forth  in  the  Police  Service  Scheme were allowed to  continue  in  their  posts  as officiating Superintendents of Police : the  order  of  reversion  was bad because of discrimination.   He  thus  complained of loss of seniority and postponement of  chances  of promotion in violation of his rights.  The defence set up in the written statement of the State  of  Punjab was that the reversion was not by way of penalty  and  did not affect the appellant’s chances of promotion.  It was  further  pleaded that the inclusion of the appellant’s  name  in List II did not entitle him to be absorbed immediately in  the Indian Police Service cadre.  Neither did it confer  any  rights  of seniority over other officers of the  same  rank.  The  revision  had been effected  purely  on  administrative  grounds as there was no vacancy in which he could be allowed  to  work  ’as a Superintendent of  Police  and  consequently  there  was no reduction in rank of the appellant.  Art.  311  of the Constitution did not in the circumstances of the case  apply to the appellant.  The issue on which the appellant lost before the trial Judge  was  "Whether the order dated 1st December,  1954  reverting  the plaintiff to the post of Deputy Superintendent of Police  was  illegal, unconstitutional and void and not  binding  on  him  for reasons given in paragraph 7 of the plaint  ?"  The  learned  Subordinate  Judge  held  that  the  order  of  1st  December  1954  was not made by way of  punishment  and  the  plaintiff   had   failed  to  prove  that  there   was   any  discrimination  against him in favour of any persons  junior  to him.  No  oral evidence was adduced at the trial stage.  When  the  matter  appeared  before  the High Court  in  the  appellate  stage. the appellant wanted to have himself examined  orally  and the High Court allowed that application.  The plaintiff-  appellant was then  553  examined  before  the Subordinate Judge.  He stated  in  his  examination-in-chief that when he was reverted from the rank  of Superintendent of Police three persons, Ram Singh, Daljit  Singh  and Harpaul Singh who were also working in  the  same  capacity  as  himself  and  officiating  in  the  cadre   of  Superintendents of Police but whose names were not borne  on  List  II of the Police Service Scheme on 1st  December  1954  were allowed to function as before : besides them there  was  another  person Kanwar Sain who although junior to  him  was  allowed  to  continue  as Superintendent  of  Police,  Civil

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Defence, in an officiating capacity.  His further  statement  was  that after 1st December 1954 two persons by Name  Piara  Lai  and  Karam Singh were promoted  as  Superintendents  of  Police in March 1955 and June 1956 respectively and on these  occasions his case was not considered for promotion. In  his  his cross-examination he admitted that if the Indian  Police  Service  Scheme had not been extended to PEPSU,  Ram  Singh,  Harpaul  Singh and Daljit Singh would have to be treated  as  senior to him in the civil list.  As the stand taken by the appellant rests on his claim based  on the inclusion of his name in List II of the Indian Police  Service Scheme it is necessary to examine the same and  find  out what right it gave him.  The Scheme, an exhibit in  this  case, shows that it was meant to provide "for the  extension  of  the Organisation of the Indian Police Service"  so  that  senior police officers could be available to the  Government  of the States and the Union of States in India.  The primary  object of the extension was to maintain and where  necessary  introduce   a   standard  of  efficiency  at   the   highest  administrative  level  in  the  States  comparable  to  that  maintained in all Provincial Governments and at the  Centre.  The Scheme was extended to numerous States including  PEPSU.  Clause 4 of the Scheme shows the initial constitution of the  service.   It  laid dowai steps to afford  opportunities  to  existing  incumbents  of  the posts to be  encaged  and  all  officers  holding  posts  of  similar  status  were  to   be  considered   to  be  the  first  and  primary   source   for  recruitment to the State cadre of the Indian Police  Service  at  its initial constitution.  This was done by  each  State  Government setting up a Selection Board in consultation with  the  Government of India.  The Board was to review cases  of  all  officers  of the State Government  of  the  description  mentioned, make ’a preliminary selection from among them  of  all  officers  of  the State  Government  of  the  specified  descriptions  who were suitable for inclusion in one or  the  other  of  the  three lists referred to  in  the  subsequent  paragraph.  The First List was to contain names of  officers  who  were considered suitable for immediate  appointment  to  the   Indian  Police  Service  subject  to  probation   with  reference  to  the  minimum All India  Standard  adopted  in  assessing  the suitability of Provincial  Service  Officers.  The second list was to "contain names of  554  officers  who  though  not  up  to  the  required   standard  immediately  showed sufficient promise to render  it  likely  that   they  would  attain  such  standard,   with   further  experience  during  a  period  not  exceeding  five  years."  Officers  in List I were to be immediately appointed to  the  Indian  Police Service in the State cadre concerned  subject  to a probation.  The scheme provided that-  "Officers  in  List 11 will continue to hold  their  present  post  but will not be absorbed in the Indian Police  Service  immediately.   Their  work will be watched during  the  next  five  years  and  they will be absorbed  in  the  All  India  Service  as a result of periodical reviews as and when  they  are  found fit for the service.  Those of them who  are  not  found  fit  within the period of five years will  either  be  reverted  to  posts outside the cadre of the  Indian  Police  Service  or retire as the State Government  concerned  might  think fit, unless they are also included in List 111."  The Order of the Inspector-General of Police dated  December  1, 1954 was worded as follows  "I  am directed to inform you that, on having been  relieved  by  S.  Ajaib  Singh,  Superintendent  of  Police.  you  are  reverted  to your substantive rank of Deputy  Superintendent

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of  Police,  with effect from to-day.  You  may  proceed  on  leave from to-day after submitting formal charge report."  By  itself  the order is unexceptionable in that  it  merely  directed  the  appellant who was serving in  an  officiating  capacity  to go back to his substantive post.  There  is  no  stigma  cast  on  him  and no  adverse  remark  against  his  character  or  efficiency.   If it be a  fact  that  he  was  reverted  for administrative reasons he could  not  complain  except on the ground that the inclusion of his name in  List  II  gave him a right to hold the post of the  Superintendent  of Police in an officiating capacity for five years.   Apart  from the consideration of the rights based on the  inclusion  of  his  name in the said list he could  have  no  grievance  about  the retention of Ram Singh, Daljit Singh  and  Harpal  Singh in the cadre of officiating Superintendents of Police.  He could only base his complaint on the retention of  Kanwar  Sain  who was _junior to him in the cadre in  preference  to  himself.   Kanwar Sain, it appears from the notes  regarding  the representation of the appellant with regard to reversion  made  by  the  Inspector General of  Police,  could  not  be  reverted  as he was at the material point of time  on  depu-  tation from Madhya Pradesh Government on particular terms on  contract basis and it could not have been in the interest of  Government  to  terminate  his  services  earlier  than  the  scheduled period  555  It  is  also of interest to note that the reversion  of  the  appellant  was ordered after mature consideration.   A  note  prepared  at the office of the Inspector General  of  Police  which also bears the endorsement of the Chief Secretary  and  the  Chief  Minister  shows that Ajaib Singh  Gill  who  had  completed 23 years and 7 months of service was due back from  leave  on  1st December 1954 and he had to be  retained  for  another  year’ and five months before he could be  pensioned  off.   As there was no job of S.P. lying vacant in PEPSU  at  the  moment it was suggested that the appellant who was  the  "junior (most) D.S.P." officiating as S.P. should revert and  S. Ajaib Singh should be posted in his place.  If  the  above note was a genuine document-and  we  have  no  reason to hold, that it was otherwise-it is quite clear that  the  appellant was not sought to be reverted because of  any  shortcoming  but  because room had to be made for  S.  Ajaib  Singh  GM  and  the  axe fell on the  appellant  as  he  was  considered  to  be the person at the bottom of the  list  of  officers  officiating  as Superintendent of Police.   It  is  true that Kanwar Sain’s name does not occur in this note but  if Kanwar Sain was on deputation from Madhya Pradesh Govern-  ment  on a contract basis no exception can be taken  to  his  having been retained in preference to the appellant.  It appears that in dismissing the appeal of the appellant to  the  High  Court.  the  learned  Judges  proceeded  on   the  assumption that the Indian Police Service scheme was legally  binding and its provisions would have the same effect as the  statutory rules and regulations.  We may proceed to  dispose  of the appeal on the same assumption.  The learned Judges of  the High Court took the view that the appellant’s grievance,  even  based  on List 11 could not be upheld because  he  had  been  found unfit for retention in List 11.  The High  Court  apparently  came  to  take this view of the  strength  of  a  document  which  was exhibited as C-2.  The letter  Ex.  C-2  dated  September  8,  1956  was  addressed  by  the   Deputy  Secretary to the Government of India to the Chief  Secretary  to  the Government of PEPSU.  It purports to show  that  the  Chief  Secretary’s memorandum to the Government of India  on  August  13,  1956  containing the assessment  of  the  State

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Government in respect of the work of Siasat Singh Sekhon and  Gurdev Singh Sindhu and the finding that these two  officers  were not fit to be recommended for appointment to the Indian  Police  Service  cadre  in accordance  with  the  provisions  contained in paragraph 4(iii) (b) of the said extension  was  accepted  by the Government of India.  As the letter of  the  Chief  Secretary  dated 13th August 1956  was  not  produced  before  the court we are not in ’a position to say when  the  assessment of the work of the appellant in connection  with-  the retention of his name in List 11 was made, i.e., whether  it was before 1st December 1954 or subsequent thereto and in  our view the  556  High  Court  should  not  have  relied  on  this   document.  Moreover  the  ground  for reverting the  appellant  to  the  substantive post of Deputy Superintendent of Police as borne  out  by  the note prepared in the office of  the  Inspector-  General of Police and acceded to by the Chief Minister  made  no reference to any such assessment.  It is also  noteworthy  that no such ground was put forward in the written statement  where  the  only plea raised was founded  on  administrative  convenience.  Even though we find ourselves unable to uphold the judgment  of the High Court based on the contents of Ex.  C-2, we take  the view that the reversion was justified on administrative-  grounds and there was no bar to such reversion by reason  of  the inclusion of the appellant’s name in List 11.  The  said  list merely ensured that the officers whose names were borne  thereon  would  be watched for the space of five  years  and  they might be absorbed in the All India Service even  within  the said period as a result of periodical reviews.  Although  reversion  on the ground of unfitness was mentioned  in  the  scheme  the possibility of such reversion when there was  no  available post in the cadre of Superintendents of Police was  not  ruled out.  As the officers in List II had no right  to  be  observed  in the Indian Police Service  immediately  the  direction  in  the scheme that "officers placed in  List  II  will continue to hold their present post" merely meant  that  they  would not be made to go out of their posts except  on  justifiable  grounds.   Holding  a post  in  an  officiating  capacity  as a Superintendent of Police did not entitle  the  appellant  to continue in that post even if officers  senior  to  him who were on leave or had been sent out of the  State  on  deputation were to come back to the State and there  was  no room in the cadre to absorb them all.  All that paragraph  4(iii)  (b) ensured was that if they were found  fit  within  five  years they would be absorbed in the All India  Service  cadre.   If  they were not found fit after the end  of  that  period they could be reverted to posts outside the cadre  of  the  Indian  Police Service or made to retire  unless  their  names  were also included in List III--a  contingency  which  has  not  arisen in this case.  In our  view,  although  the  order  of  the  High Court cannot be upheld  on  the  ground  mentioned  in the judgment, the order cannot be quashed  for  reasons indicated by us.  ’Me appeal is therefore dismissed,  but,  in the circumstances of this case we make no order  as  to costs.  R K. P.S.                                             Appeal  dismissed.  557