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PETITIONER: THE STATE OF ANDHRA

       Vs.

RESPONDENT: GADDAM VENKATAPPAYYA

DATE OF JUDGMENT: 08/12/1960

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) DAS, S.K. SARKAR, A.K. MUDHOLKAR, J.R.

CITATION:  1961 AIR  779            1961 SCR  (3)  45

ACT: Police Service-Officiating Sub-Inspector-Order of  reversion as  Head  Constable-Validity-Rules retating  to  the  Madras Police Subordinate Service, rr. 3, 4 and 5.

HEADNOTE: The  respondent,  holding  the substantive rank  of  a  Head Constable  in  the Madras Police Service,  was  promoted  to officiate  as  a  probationary  Sub-Inspector  and,  on  the completion  of  the  period  of  probation,  placed  in  the category  of  approved probationers  for  confirmation  when substantive vacancies arose.  Instead of being confirmed  he was, for administrative reasons, reverted to his substantive post  as  the  number  of vacancies  in  the  post  of  Sub- Inspectors was not sufficient to include him.  Having failed to  obtain  redress from the Government, he moved  the  High Court under Art. 226 of the Constitution. Annexure  1 of r. 3 of the service rules provided  that  the percentage of promotions from the- rank of Head Constable to that  of Sub-Inspector was to be "upto not more than 30%  of the   cadre",   but  provided  no  limitation   for   direct recruitment,  r. 4 provided that no vacancy shall be  filled by the appointment of a person who had not yet commenced his probation when an approved probationer or a probationer  was available;  cl.  (a)  of r. 5 provided  that,  for  want  of vacancy,  the  probationers were to be discharged  first  in order of juniority and thereafter the approved  probationers in  order of juniority and cl. (b) provided that this  order of  discharge  might be departed from  in  cases  involving, among others, exceptional administrative inconvenience. The Single judge, who heard the matter, held that there  was a  violation of r. 3 of the Service Rules and  directed  the State  not  to give effect to the order of reversion  if  by virtue of his seniority he could be included within the  30% prescribed  for rank-promotees by that rule.   The  Division Bench,  on appeal, disagreed with the trial judge as to  the scope of r. 3 but dismissed the appeal holding that the rule as to juniority prescribed by r. 5 of the service rules  had not been strictly observed.  The State filed an appeal on  a

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certificate granted by the High Court. Held,  that  the words "upto and not more than  30%  Of  the cadre"  in the Annexure 1 to r. 3, construed in the  context of   the  provision  relating  to  direct   recruits   which prescribes  no  limitation, clearly fix 30  as  the  maximum percentage of promotions 46 from  the  rank  of  Head Constables to  the  post  of  Sub- Inspectors  and  leave the appointing  authorities  free  to adopt any other percentage below that figure.  There  could, therefore, be no infraction of the rule if the percentage of rank-promotees was less than 30% of the total number of  the Sub-Inspectors on’ the date of the reversion in question. Rule  4,  which  regulates the  right  of  probationers  and approved  probationers to confirmation, applies only to  the stage  prior  to confirmation when the  integration  of  the rank-promotees and the direct recruits takes place so as  to form a united service and the proportion prescribed by r.  3 has effect.  That rule has to be separately applied to  the- two  classes  and, consequently, there was no  violation  of that rule in appointing direct recruits to substantive posts in preference to the respondent. Under  r. 5(a) the juniority for purposes of reversion  has, on  the same reasoning, to be determined separately for  the direct  recruits  and  the  rank-promotees  who   constitute separate classes. Even otherwise, the impugned order could be sustained  under r. 5(b) in view of the case of administrative  inconvenience made by the Government and accepted by the Courts below.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 506 of 1957. Appeal  from the judgment and order dated July 21, 1955,  of the High Court of Andhra, Guntur, in Writ Appeal No. 122  of 1954. K.   N. Rajagopala Sastri and D. Gupta, for the appellant. T.   V. B. Tatachari, for the respondent. 1960.   December 8. The Judgment of the Court was  delivered by AYYANGAR., J.-This appeal by the State of Andhra is from the judgment of the High Court, Andhra, dated July 21, 1955,  on a’ certificate under Art. 133(1) (c) of the Constitution. The respondent joined the Madras Police Force as a Constable on September 1, 1939.  He became a permanent Head  Constable in 1946 and was promoted to officiate as a Sub-Inspector  on October  1,  1947, when his probation commenced.   By  order dated   September  24,  1950,  he  was  declared   to   have satisfactorily  completed  his period of probation  and  was brought to the "A" list with effect from September 10, 1950. He 47 was still merely officiating as a Sub-Inspector, the  effect of his being placed in List "A" being that he came into  the category  of an "approved probationer", i.e., fit for  being confirmed as Sub-Inspector when substantive vacancies arose. On  August 3, 1952, the District Superintendent  of  Police, Krishna,  issued  an order reverting the respondent  to  the rank  of  Head Constable with effect from August  14,  1952, i.e.,  to  the  post which he substantively  held,  for  the reason  that there was not a sufficient number of  vacancies in  the post of Sub-Inspectors for being filled by him.   It may be mentioned that such reversion was not confined to the respondent  alone  but extended to ’a very large  number  of

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officiating  Sub-Inspectors,  who were  similarly  promoters from  the  rank of Head Constables.  The  reverted  officers petitioned  to the Inspector-General of Police and in  reply thereto and in further explanation and clarification of  the reasons for the reversions the Inspector-General of  Police, Madras,  issued  a memorandum on January 15,  1953,  in  the following terms:  "MEMORANDUM.               Sub:  Officiating Sub-Inspector  Reverting as               Head    Constables-Seniority    over    direct               recruits Petitions.               As  direct  recruits  are  recruited   against               vacancies  specially  reserved  for  them  and               cannot  be  reverted for  want  of  vacancies,               seniority  between  directly  recruited   Sub-               Inspectors and promoted Sub-Inspectors  should               be  determined separately.   Their  contention               that  they  should not have been  reverted  in               preference   to   direct  recruits   is   not,               therefore,  correct.  Their reversion as  Head               Constables is in order." The respondent thereafter submitted a memorial to Government in  which  the principal challenge was to the  view  of  the Government that the directly recruited Sub-Inspectors formed a category distinct from the promotee-Sub-Inspectors as  not being  countenanced  by the relevant rules relating  to  the constitution  of  the  Police  Establishment.   Not   having obtained  any  redress  by  reason  of  his  memorial,   the respondent 48 filed before the High Court of Madras a petition under  Art. 226 of the Constitution (Writ Petition No. 524 of 1953)  and prayed  therein that the State of Madras may be directed  by the  issue of a writ of mandamus to refrain  from  enforcing the  order reverting him as Head Constable but  to  consider his  claim to be confirmed as Sub-Inspector on the basis  of his   seniority  in  the  list  of  approved   probationers. Balakrishna Iyer, J., who heard the petition allowed it  and issued  a  direction to the State "to  forbear  from  giving effect  to  the’  order of reversion if  the  petitioner  by virtue  of his seniority among promoters can be included  in the 30 per cent. already referred to".  We shall be  dealing in detail with the nature and scope of the rule as to the 30 per  cent. referred to here, which formed the basis  of  the learned  Judge’s  order  in its proper place  and  will  not interrupt the narration of the events which have led to  the appeal  now before us.  The State preferred an  appeal  from this  judgment  which was transferred to the High  Court  of Andhra after that Court. was formed.  The learned Judges who heard  the appeal differed from the learned Single Judge  in his view as to the scope of the rule as to 30 per cent.  but dismissed   the  appeal  holding  that  the  Government   in directing the reversion of the promotee-probationers had not observed   strictly  the  relevant  rule  as  to   juniority prescribed in rule 5 of the Service Rules, to which rule  we shall  refer in due course.  The State of Andhra  thereafter moved  the  High Court for the grant of  a  certificate  and having obtained it, has filed this appeal. Though in his petition under Art. 226 filed before the  High Court  of  Madras,  the  petitioner  had  alleged  that  his reversion from the officiating post of Sub-Inspector to  his substantive  post as Head Constable was a reduction in  rank within the meaning of Art. 311(2) of the Constitution, i.e., a reduction by way of punishment effected without giving him an  opportunity to show cause therefor, this contention  was

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abandoned early in the proceedings before the Court and  the case  has proceeded throughout on both sides on the  footing that the reversion was effected solely for administrative                              49 reasons  and  not for any misconduct by way  of  punishment. Indeed,  it  may be mentioned that when the  respondent  was normally  due for promotion to the substantive post of  Sub- Inspector-without  reference  to the judgment  of  the  High Court-he was duly promoted to that post and he now  occupies the  post  of  a Sub-Inspector drawing  the  increments  and salary fixed therefor. Article  311(2)  being out of the way.  the  questions  that arise fall under two heads: (1) Was there a violation of the Service  Rules  when  the respondent was  reverted  as  Head Constable? (2) If there was such a violation, do breaches of Service  Rules by themselves constitute an  infringement  of the  legal rights of officers to whom they apply,  entitling them to seek remedies therefor before Courts. The  rules  on the construction of which the answer  to  the first  point depends are those framed, inter alia, under  s. 243  of the Government of India Act, 1935,  entitled  "Rules relating to the Madras Police Subordinate Service".  Rule  3 which  relates  to  recruitment and which  was  held  to  be violated, by the learned Single Judge ran in these terms: "Rule 3. Method of appointment and promotions:- (a)  Appointment to the several classes and categories shall be made as indicated in Annexure 1.                         ANNEXURE   I Category 2    Method of    Limitation   Appointing               appointment               authority      (1)         (2)         (3)          (4) Sub-Inspec-  Promotion   Up to not      In the mofus- tors         from Head   more than      sil the D.I.G.              Constables  30% of the     Police con-                          Cadre          cerned           Direct           recruitment    Nil            do This is followed by rules 4 and 5 which read:               "Rule 4. Right of probationers and approved               probationers to appointment to vacancies:-A 7               50               vacancy in any class or category shall not  be               filled by the appointment of a person who  has               not yet commenced his probation in such  class               or category when an approved probationer or  a               probationer  therein  is  available  for  such               appointment."               "Rule  5. Order of discharge  of  probationers               and approved probationers:-               (a)   The  order  in  which  probationers  and               approved probationers. shall be discharged for               want of vacancies shall be-               first, the probationers in order of juniority;               and  ,second,  the  approved  probationers  in               order of juniority.               (b)   The order of discharge laid down in sub-               rule(a)  may be departed from in  cases  where               such order would involve excessive expenditure               on   traveling   allowance   or    exceptional               administrative inconvenience." The  other rules merely carry out the principles  underlying those extracted and do not need to be set out. To  appreciate  the points urged before us  by  the  learned counsel for the appellant-State on the proper interpretation of  these rules, it is necessary to set out the  contentions

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respectively  urged by the two parties in the  Courts  below and  how they were dealt with.  On behalf of the  respondent the points urged were: (1)  That on a proper construction of Rule 3,  promotee-Sub- Inspectors  referred  to in departmental parlance  as  rank- promotees,  as distinguished from those  directly  recruited were  entitled to be appointed to a minimum of 30 per  cent. of  the  cadre strength and that this rule was  violated  in that  at  the time of the respondent’s reversion  the  force consisted  only of less than 25 per cent. of  rank-promotees and more than 75 per cent. of those directly recruited.   If the  rule as to the proportion of appointments as laid  down in  Rule 3 had strictly been followed there would have  been no necessity for reverting the respondent as Head Constable. (2)  The3O per cent. and the 70 per cent. laid 51 down  in  r.  3 applied only at the  stage  of  the  initial recruitment  of  Sub-Inspectors  and  that  when  once  that recruitment  was  made  and the probation  of  the  officers started,  no difference could under the rules be  thereafter made between the two classes of appointees but that both  of them constituted one unified force the members of which were entitled  to  be  appointed to  substantive  posts  as  full members of the Service solely on the basis of their inter se seniority (apart from misconduct or inefficiency, etc.). The appointment  to  substantive  posts  of  officers   directly recruited  in  preference to persons  like  the  respondent whose  probation  had  commenced  at  an  earlier  date  was therefore a violation of r. 4 of the Service Rules. (3)  If  at any time the cadre strength was reduced  by  the abolition  of  temporary  posts  there  might  have,  to  be reversions,  but  in  reverting  officers  the  rule  as  to juniority laid down by r. 5(a) had to be strictly  followed. This   rule  made  no  distinction  between   Sub-Inspectors appointed directly and rank-promotees.  Both formed a single category  and among them those who had not  completed  their probation  had  to  be reverted  first  and  thereafter  the approved  probationers in the order of their juniority.   In the   present  case  the  respondent  urged  that   approved probationers like himself who were senior to several of  the officiating  Sub-Inspectors  directly  recruited  had   been reverted out of turn in violation of r. 5(a). (4)  If in the circumstances stated by the Government (which would  be  mentioned  later), the  directly  recruited  Sub- Inspectors  could  not properly be reverted because  of  the assurances  given to them, Government were bound  to  retain all rank-promotee approved probationers as officiating  Sub- Inspectors  until  they could be  appointed  in  substantive vacancies as full members thereof. In answer to these contentions the case which the State  put forward was as follows:- (1)  The  rule  as  to  the  proportion  between  the  rank- promotees  and direct recruits laid down by r. 3  read  with the  Annexure,  fixed only the maximum percentage  of  rank- promotees.  The words "up to, not 52 more  than" meant and could in the context mean  only,  that the  maximum proportion of rank-promotees could be  only  30 per cent.  This was made clear by there being no  limitation placed  on  the  proportion of direct  recruits.   In  other words,  the 30 per cent. was the ceiling fixed and  not  any minimum and the rule in effect guaranteed direct recruits  a minimum  proportion of 70 per cent.  There was therefore  no violation  of  this  rule  when  the,  proportion  of  rank- promotees  fell  to  a  little below 25  per  cent.  at  the

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relevant date. (2)  Even if r. 3 had been strictly followed the  respondent would  have  derived no benefit from the operation  of  that rule  because he was well below the level of  rank-promotees who would even then had to be absorbed. It may be  mentioned that  it  was  because of this feature  that  the  order  of Balakrishna lyer, J., took    the  form  of  directing   the Government"to  forbear  from giving effect to the  order  of reversion if the petitioner by virtue of his seniority among promotees can be included among 30 per cent." (3)  On a proper construction of the rules, the  proportions laid down in r. 3 applied whether or not at the stage of the initial recruitment, certainly at the stage of  appointments to  substantive posts, i.e., absorption as full  members  of the  permanent strength of the cadre.  It was their  further contention   based  on  the  above,  that  for   considering confirmations  provided for by r. 4 the category  of  direct recruits  had  to be treated as a class different  from  the category  of  rank-promotees and there was  no  question  of seniority  as  between members of the two  groups  but  only within each group.  On this basis the State Government urged that at the stage of absorption governed by r. 4 the rule as to  proportion  had to be worked out and  that  consequently there had been no violation of that rule. (4)  There  had  been no violation of r. 5  either,  on  two grounds  (1)  based  on denying that  there  was  a  unified category  of Sub-Inspectors and in putting forward that  the two classes which made up the Service, viz., direct recruits and rank-promotees formed 53 different  categories, and (ii) that even if they  formed  a single  category  of officers after their  initial  appoint- ments,  there  had been no violation of the rule  fixed  for reversion by r. 5(a) by reason of the special  circumstances of  the case which brought their action within the  specific provision  in  r.  5(b).   In  connection  with  this   last submission it was pointed out that at the time of the police action in Hyderabad a large number of persons were recruited direct as Sub-Inspectors to whom an assurance had been given that  they  would not be reverted.  A large number  of  such temporary   appointments  were  made  and   these   directly recruited Sub-Inspectors had to be provided with posts when temporary posts were getting abolished.  This introduced  an administrative  problem  which  could  be  solved  only   by reverting the rank-promotees. We  shall now proceed to a consideration of the points  thus in  controversy between the parties and which were urged  on either side before us.  The first point to be dealt with  is as  to whether there had been an infraction of r. 3  of  the Service Rules by reason of the proportion of  rank-promotees being  less  than 30 per cent. of the total number  of  Sub- Inspectors  in  service  at the  date  of  the  respondent’s reversion.   As  has already been pointed out,  the  learned Single  Judge  had  rested his decision  in  favour  of  the respondent  on an infraction of this rule, but  the  learned Judges  of  the High Court in appeal had taken  a  different view.  Learned Counsel for-the respondent sought to  support the  view that the words "up to, not more than 30 per  cent" in the rule meant up to a minimum of 30 per cent. the effect of the addition of the words "  not more than" being  merely to  eliminate fractions and permit the number to be  rounded off to the nearest lower integer.  It would be seen that the learned  Single Judge had stressed the use of the words  "up to" and practically gave no effect to the words "  not  more than"  in arriving at the construction that he adopted.   We

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consider  that this construction is erroneous,  particularly in the context of the provision as regards direct  recruits, in  regard  to  whom there is no limitation  placed  on  the proportion which they 54 could  have in the Service.  Taken in conjunction with  this provision it is clear that the words "up to, not more  than" merely  fix the maximum percentage of rank-promotees in  the category, leaving it to the appointing authorities to  adopt any  percentage below this figure.  We consequently  endorse the  view which the learned Judges of the Andhra High  Court took  in dissenting from the construction which the  learned Single  Judge placed on the scope of r. 3. The reversion  of the  respondent  cannot,  therefore, be  challenged  on  the ground that there had been an infraction of r.    3  of  the Service Rules. The next question is as to whether r. 4 of the Service Rules by which confirmations were regulated, had been violated  in promoting  the  more junior direct recruits  to  substantive posts in preference to rankpromotees like the respondent who were  senior  to  them  in service in  the  sense  that  the latter’s  probation as officiating Sub-Inspectors  commenced earlier.   The application of these rules in the context  of the  facts  of this case depends largely  on  whether  rank- promotees  and  officers directly recruited form or  do  not form  the same class or category becoming  integrated  into, one Service on their initial appointment to the Service.  It is  common ground that the two classes become integrated  as members  of  a  unified Service after  appointment  as  full members of the Service.  The point in controversy is limited to the period between the date of their initial  appointment and  their absorption as full members.  If up to  that  date they  formed two categories and the seniority in each  group ha,,; to be reckoned separately, the order of the Government would be perfectly in order and constitute no breach of  the rules.   But  if  on the other hand  officers  recruited  by either  of  the two modes-promotions from the rank  of  Head Constables  and  Sub-Inspectors directly  recruited-form  an integrated  and unified force from the very commencement  of their  appointments,  then  on  the  application  of  r.   4 confirmations ought to depend on mere seniority (subject  to factors  relevant to merit or demerit) as  officiating  Sub- Inspectors  without regard to the manner in which they  were originally appointed.  Though the 55 learned  Single  Judge  did not directly  pronounce  on  the effect of r. 4, the Andhra High Court held that the rule  of seniority.prescribed  by the rule had been violated.   After expressing their disagreement with the learned Single  Judge in his view that the minimum of 30 per cent. laid down by r. 3 had been violated, they observed:               "Nor  does it follow that we  can  countenance               the argument of the learned Government Pleader               that   irrespective  of  the   percentage   of               promoters  on the cadre at a given  time,  all               vacancies can be filled up, if the  Government               so  chooses,  only with direct  recruits.   We               think  that from both the classes of  approved               probationers,  be it direct recruits or be  it               candidates from the ranks, selection should be               made  without  any  distinction,  provided  of               course that so far as promotees are  concerned               the percentage of 30 is not exceeded.  Now, it               is   admitted  by  the  Government  that   the               percentage of promotees, was only 24.5 at  the

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             time when the petitioner was sent back as Head               Constable.   That being so, it cannot be  con-               tended for the State that the ceiling will  be               exceeded if the petitioner is promoted.  As we               read the rules, when once an officer qualifies               as an approved probationer, no distinction can                             be  made  between  him  and  a  direct  recrui t               approved probationer." We are unable to agree with the reasoning or the  conclusion here  expressed.  It would be seen that the  learned  Judges have,  though tacitly, accepted the case put forward by  the Government, and in our view correctly, that the  integration of  the two groups is only after the stage of absorption  as full members of the Service, and that at that stage the rule as to the proportion laid down in the annexure to r. 3 comes into operation.  If the 30% which is the limit set for rank- promotees for absorption as full members is merely a ceiling imposed for the benefit of direct recruits, as rightly  held by  the learned Judges, it is difficult to see how the  rule could be Held to be violated because the proportion of rank- promotees  confirmed  fell  below the  figure  of  30.   We, therefore, consider that there was no violation of the  rule as to seniority 56 prescribed by r. 4 in the appointment of the direct recruits to substantive posts before the absorption of rank promotees like the respondent. We shall next proceed to deal with r. 5 which deals with the power of Government to effect reversions and the  conditions and limitations prescribed there for. It would be seen that cl. (a) of r. 5 substantially reverses for the purpose of discharge or reversion the order in which confirmations  are  to be made as set out in r. 4.  We  have held  that  the respondent had no right under the  rules  to insist on his being confirmed, on the terms of r. 4 read  in the  light of r. 3. On the same line of reasoning  it  would follow  that as direct recruits and rank-promotees  belonged to  distinct classes the juniority for reversion had  to  be determined separately for each class and not on the basis of the two classes forming part of a unified force before  con- firmation.   If’  this  test  were  applied,  it  cannot  be contended that the reversion of the respondent infringed  r. 5(a). But  this apart, the impugned order could also be  sustained on  the basis of the provision contained in cl. (b) of r.  5 which reads:               "The order of discharge laid down in  sub-rule               (a)  may be departed from in cases where  such               order  would involve excessive expenditure  on               travelling     allowance    or     exceptional               administrative inconvenience." In  the present case the Government explained  their  reason for  the  order  for  reversion  of  rank-promotees  in  the affidavit  which  they filed to the writ petition  in  these terms:               "His  reversion was necessitated by  the  fact               that a large number of Sub-Inspectors on other                             duty in Hyderabad State reverted to this  Stat e               and  that a number of temporary posts  created               for  special  purposes  during  the  disturbed               period immediately following the police action               in Hyderabad had to be abolished and that  the               direct     recruited    Sub-Inspectors     had

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             necessarily  to be absorbed as  Sub-Inspectors               as they cannot be asked to work in any lower                                     57               post  being  direct recruits to  a  particular               category,  viz.,  that of  the  Sub-Inspector.               This reversion of rank-promoted Sub-Inspectors               was  rendered  absolutely  necessary  in   the               exigencies  of service and for  administrative               purposes  and as such, it cannot be deemed  to               be  arbitrary or contrary to rules or  in  the               nature  of punishment as alleged by the  peti-               tioner." It  was  this circumstance that was stated before  the  High Court  of Madras in the Writ Petition as that which  brought the   impugned  order  of  reversion   within   "exceptional administrative inconvenience" provided for by the last words of  the rule.  The learned Single Judge accepted as  correct the  facts  stated by the Government as the reason  for  the reversion, stating:               "Mr.     Seshachalapathi    explained     that               Government  were in a difficult position as  a               consequence of the members taken in connection               with the police action in Hyderabad.  A  large               number  of persons were directly recruited  as               Sub-Inspectors  on  the  assurance  that  they               would  not be ousted.  I do not  suggest  that               Government  should  go back on  any  assurance               that  they  may  have given  to  these  direct               recruits.   Far  be it from  me  to  encourage               anything that might savour of bad faith on the               part of Government...... But I would still say               that  in order that Government may keep  faith               with  those  whom they recruited  directly  as               Sub-Inspectors they cannot break faith with or               ignore  the rights of those who were  promoted               as Sub-Inspectors." If  the facts were accepted as correct, and we  might  point out  that their accuracy was never challenged at  any  stage either in the High Court or before us, it appears to us that the  order of reversion passed would be justified  as  being covered by the last words of cl. (b) even if the order  laid down  in r. 5(a) were infringed.  In these circumstances  it is not clear why the learned Judge should have observed: "The Government do not rest their case on Rule 5(b)" when the facts stated by Government and accepted by 8 58 him  brought  their  action well within the  scope  of  that clause.   In their memorandum of grounds in Writ Appeal  No. 122  of  1954 which the State filed to the  High  Court  the appellants  urged: "The learned Judge failed  to  appreciate the  special circumstances of the situation  which  rendered the  reversion  necessary in the instant  case".   When  the matter  was  before  the High Court of  Andhra  the  learned Judges  observed"The learned Judge stated in  his,  judgment that  the Government do not rest their case on  Rule  5(b)". In  their turn they too accepted the case of the  Government as regards the circumstances which necessitated the order of reversion  and  observed: "The  Government  frankly  stated, however, that they were in a difficult position because  of certain  measures  which  they were  compelled  to  take  in connection with the police action in Hyderabad when a  large number of persons were directly recruited as  Sub-Inspectors with  the  assurance  that they would  be  entertained  per- manently.  In order to keep that assurance with such persons they were constrained to revert the rank-promotees but there

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is  no rule which enables the Government to do so." We  must express our dissent from the last sentence extracted  above, because  r.  5(b) makes specific provision for an  order  of discharge laid down in cl. (a) being departed from in  cases where  such order would entail  "exceptional  administrative inconvenience" and on the facts accepted both by the learned Single  Judge  and  by the High Court of  appeal  the  words extracted were attracted. Before  leaving r. 5 there is one other matter to  which  we desire to advert and that relates to the observation of  the High  Court in the judgment now under appeal which seems  to imply  that  if the Government found  itself  in  difficulty owing  to  the  assurances given to  the  officers  directly recruited, they could under the rules have solved it, not by ordering   the  reversion  of  the  rank-promotees  but   by continuing them in their officiating posts until they  could be absorbed as full members of the Service.  This was one of the  contentions  urged by the respondent  and  the  learned Judges say: 59               "It  seems  to  us  clear  that  whether  they               imposed  merely a ceiling or whether there  is               an  obligation upon the Government to fill  up               30  per  cent.  of the  vacancies  from  among               promotees, the State cannot say, on the facts,               before  us,  that there are no  vacancies  for               promotees as such." It  looks  to  us impossible to support  this  view  on  any construction  of the rules.  In effect it means either  that temporary  posts  could not be abolished, or  that  approved probationers  could not be reverted.  The first  alternative could not obviously have been meant and the other is plainly contrary  to the terms of r. 5(a) which makes provision  for the  reversion  of approved probationers.  Of course,  as  a measure  of  relief  to  their  subordinates  and  to  avoid hardship  to  them Government might retain people  in  their officiating  posts,  but it is quite a  different  thing  to import  a legal and enforceable obligation on their part  to do so. In the view that we have taken that there has been no breach of  the  Service  Rules in ordering  the  reversion  of  the respondent  as a Head Constable, the question as to  whether an infraction of a Service Rule confers a legal right  which could  be  agitated  in Court does not  arise.   We  do  not propose, therefore, to consider that question and indeed  we did not call upon learned counsel for the appellant to argue that part of his case. The appeal is accordingly allowed, the judgment of the  High Court set aside and Writ Petition No. 524 of 1953 dismissed. In  view  of the order of the High Court dated  February  3, 1956, by which the appellant was granted a certificate under Art. 133(1)(c) of the Constitution subject to the  condition that  the  respondent would be entitled to his  taxed  costs incurred  in  this Court in any event  from  the  appellant, there will be an order that the appellant will pay the costs of the respondents in the appeal, in this Court. Appeal allowed. 60