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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

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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

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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.

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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

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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.

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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

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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

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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

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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

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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

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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"

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             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

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             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

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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

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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

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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

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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

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             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

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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

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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

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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 :

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             "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