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PETITIONER: STATE OF UTTAR PRADESH & ORS.

       Vs.

RESPONDENT: SUGHAR SINGH

DATE OF JUDGMENT22/11/1973

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH

CITATION:  1974 AIR  423            1974 SCR  (2) 335  1974 SCC  (1) 218  CITATOR INFO :  RF         1976 SC1766  (2,3,5,7,14,16)  RF         1976 SC2547  (6,18,21)  D          1980 SC1459  (7)  RF         1981 SC 965  (6,7)  RF         1986 SC1626  (26,33)  R          1987 SC2408  (5)

ACT: Constitution  of  India-Arts. 311, 14 and 16-  Reversion  of temporary Government servant from his officiating  post-When juniors  allowed to continue Reversion if violative of  art. 311-Post not abolished nor any administrative reason  shown- Whether violative of arts. 14 & 16.

HEADNOTE: The  respondent,  a  permanent Head Constable  in  the  U.P. Police  Force, was appointed in 1961 as officiating  Platoon Commander  in  the combined cadre of  sub  Inspector,  Armed Police and Platoon Commander.  In 1966, an adverse nary  was made  in  his  character roll and he  was  reverted  to  the substantive post of Head Constable in 1968.  At the time  of reversion  he was one among a group of about  200  officers, most of whom were junior to him.  The High Court quashed the order of reversion to the post of Head Constable. On  the question whether the order of reversion was made  in violation of Art. 311 of the Constitution or in violation of any   right  of  the  respondent  under  Art.  16   of   the Constitution. Dismissing the appeal, HELD:     An  order of reversion is in its immediate  effect bound  always to be a reduction in rank.  Even  a  reversion from  a higher but temporary or officiating rank to a  lower substantive  rank  is  in a sense a  reduction.   But,  such orders of reversion are not always reduction in rank  within the  meaning  of  Art.  311.  If  the  officer  is  promoted substantively  to a higher post or rank, he gets a right  to that  particular  post  or  rank and  if  he  is  afterwards reverted to the lower post or rank which he held before,  it is a "reduction In rank" in the technical sense in which the expression  is used in art. 311.  The real test in all  such cases  is to ascertain if the officer concerned has a  right to the post from which he is reverted.  It cannot be ordered

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except in compliance with the provisions of art. 311.  If on the  other hand, the officer concerned has no right  to  the post,  he can be reverted without attracting the  provisions of art 311.  But even in this case, he cannot be reverted in a manner which will show conclusively that the intention was to  punish him.  The order itself may expressly  state  that the   officer  concerned  is  being  reverted  by   way   of punishment.   In  fact the order may in various  other  ways cast a stigma on the officer concerned.  In all such  cases, the order is to be taken as a punishment.  Sometimes  again, the  order of reversion may bring upon the  officer  certain penal consequences like forfeiture of pay and allowances  or loss of seniority in the subordinate rank or the stoppage or postponement  of future chances of promotion in  such  cases also the Government servant must be regarded as having  been punished  and his reversion to the substantive rank must  be treated  as  a reduction in rank.  In such a case  art.  311 will be attracted. [342H; 343A-D] In  the instant case the order of reversion is not  attended with  any  stigma.   There  is  nothing  to  show  that  the respondent  has lost his seniority in the  substantive  rank and  there  is no evidence to show that there has  been  any forfeiture  of  his  pay or allowances or any  loss  in  the seniority  in the substantive rank.  The mere fact that  the respondent will be deprived of he post of Platoon  Commander is  not  a penal consequence.  Such deprivation  is  in  the usual  consequence  of  an  order  of  reversion  from   the officiating post to Which an incumbent has no right to hold. In a case like this what is important to see is whether  the order  of reversion entails any penal consequences  and  not the motive behind the reversion. [345A-E] Parshotam  Lal Dhingra v. The Union of India, [1958]  S.C.R. 828, State of Punjab and Another v. Sukh Raj Bahadur, [1968] 3  S.C.R.  23, State of Orissa v. Ram  Narayan  Das,  [1961] S.C.R.  606,  R. C. lacy.  State of Bihar, C.A. No.  590  of 1962  decided on 23-10-63, Madan Gopal v. State  of  Punjab, [1963] 3 S.C.R. 716.     Jagdish  Miter v. Union  of  India, A.I.R. 1964 S.C. 449, A. G. Benjamin v. 336 Union of India, C.A. No. 1341 of 1966 decided on  13-12-1966 and Ram Govt Chaturvedi v. State of Madhya Pradesh,.  [1970] 1 S.C.R. 472, referred to. Union  of  India  v. Gajendra Singh  [1972]  5  S.C.R.  660, Divisional  Per sonnel Officer v. Raghavendrachar, [1966]  3 S.C.R.  106, Union of India v. Jesva. Ram, A.I.R. 1958  S.C. 905,  Madhav  v.  State of Mysore, A.I.R. 1962 S.C.  81  and State of Bombay v. Abraham, A.I.R. 1962 S.C. 794, followed. But,  the  order was liable to be quashed on the  ground  of contrave  nation o articles 14 and 16 of  the  Constitution. The  complaint  that  200  head  constables  wht  had  taken training  as Cadet Sub-Inspectors of Armed Police after  the respondenand who were junior to him have still been  allowed to retain their persent statu as Sub-Inspector and have  not been  reverted  to their substantive post of  Hea  Constable must be sustained.  No possible explanation for this extreme form  of  dis crmination has been shown.  It is  also  clear that there was no administrative reason for this  reversion. There was no suggestion that the post had been abo lished or that   the  respondent  was,  for  administrative   reasons, required  to  go bacl, to- his own post of  Head  Constable. [347C-E] State of Mysore v. P. R. Kulkarni, A.I.R. 1972 S.C. 2170 and The  State  of Bihar and Others v.  Shiva  Bhikshuk  Mishra, [1971] 2 S.C.R. 191, followed.

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JUDGMENT: CIVIL APPELLATE JURISDICTION  Civil Appeal No. 1110 of 1971. From  the judgment and decree dated the 8th September,  1970 of  the  Allahabad High Court in Special Appeal No.  826  of 1969. G.   N. Dikshit and O. P. Rana, for the appellants. R.   K.  Garg,  S. C. Agarwala and V. J.  Francis,  for  the respondent. The Judgment of the Court was delivered by- MATHEW, J. This appeal, by certificate, is directed  against the  judgment  and  decree dated September 8,  1970  of  the Allahabad  High Court.  The short facts of the case  are  as follows.   The respondent Sughar Singh was a permanent  head constable  in the U.P. Police Force between 1950  and  1960. Some  time in 1960, he was deputed for training as  a  cadet sub-inspector  at  the  Armed  Police  Training  Centre   at Sitapur.   On March 16, 1961, Sughar Singh was appointed  an officiating Platoon Commander.  He worked in that post  till August, 1968.  While working as a Platoon Commander, on July 22,  1966,  the respondent was served with a notice  by  the Senior  Superintendent  of Police, Kanpur, in which  he  was asked  to show cause within 10 days’ of the receipt of  that notice  as to why the following adverse entry should not  be entered in his character roll               "1966-is suspected to have got entries of date               of   birth  and   educational   qualifications               altered  on  the  authority  of  a  fictitious               certificate  which had to be  corrected  later               on.  Severly warned." The  respondent submitted an explanation in accordance  with the  terms of this notice on July 30, 1966.  The  "planation was not, however, found acceptable and an adverse entry  was actually made in his character roll in 1966.  On August  12, 1968, the Deputy Inspector General of Police, Kanpur  Range, U.P. passed an order to the following effect 337               "Order No. 1207/P.14.Q.-No. T 13 B 68               Order-On  his  reversion  from  the  post   of               Officiating  SubInspector, Armed Police,  Shri               Sughar Singh is taken back on his  substantive               post of Head Constable". The  order  is  in  Hindi but we have  set  out  an  English translation  of  the order which we found  included  in  the records. The respondent challenged this order of reversion by a  writ petition filed in the High Court of Judicature at Allahabad. His  petition was, at first dismissed by a learned  Singl  e Judge  of  the  High  Court on May 12,  1969.   He  filed  a special,  a  Division  Bench.  One of  the  Judges  of  this Division                 the appeal and quashed the order of reversion.   The  other  learned Judge, however,  was  of  a different  view  and held that the respondent’s  appeal  was liable  to  be  dismissed.   The  matter,  thereafter,   was referred to a third learned Judge who found in favour of the respondent  and quashed the order of reversion.  In view  of the  opinion of the third learned Judge, the special  appeal filed  by  the  respondent  was allowed  by  a  judgment  of September  8,  1970  and the  order  reverting  the  present respondent  to his post of head constable was quashed.   The appellants have now come on appeal before this Court against the order of the Allahabad High Court. The  short question that arises for determination is  as  to whether the order of August 12, 1968, was made in  violation

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of article 311 of the Constitution of India or in  violation of  any  right  of the respondent under article  16  of  the Constitution. For  answering  this  question the  first  essential  is  to determine what was exactly the nature of the appointment  of Sughar  Singh  when he was posted as  a  Platoon  Commander. Both parties accept the proposition that the rank of Platoon Commander is the same as that of a Sub-Inspector of  Police. The appellants contend that Sughar Singh was never appointed substantively  to  the post of Sub-Inspector of  Police  and that  he  was merely officiating as a Platoon  Commander  in August 1968 when he was reverted to his-substantive post  of Head Constable.  The respondent on the other- hand, contends that before he was appointed as a Platoon Commander, he  had been appointed as a Sub-Inspector of Police and that even if his appointment to the post of a Platoon Commander was in an officiating  capacity,  his substantive rank was that  of  a Sub-Inspector  of  Police.  In support of  this  contention, reliance was placed on the framing of the order dated  March 21 1961 which was in the following terms "Order-On completion of the practical training on March  16, 1961,  the following S.I.A.P. Cadres are allotted to  P.A.C. for posting as offg.  Platoon Commanders : -------------------------------------------------------------- Name         Distt/Unit of lien                   Residerce -------------------------------------------------------------- xx                xx                                 xx Sughar Singh       Agra                             Etawah xx                  xx                                 xx           Sd. M.U. Abmald I.P.S.        Dy. Inspr.  Gen. of Police, Headquarter, U.P.". --------------------------------------------------------------- 338 The  order  was made in respect of 15  head  constables  and reads  as  if all the officers mentioned  therein  who  were posted  as officiating Platoon ,Commanders already  belonged on  the relevant date to the S.I.A.P. Cadre i.e., they  were sub-inspectors  in  the  Armed  Police.   The   respondent’s counsel  argued  that the order specifically  described  the respondent as a Sub-Inspector belonging to the Armed  Police Cadre and the obvious intent of that order was to allot  him to  the  Provincial  Armed  Constabulary  in  the  post   of Officiating  Platoon  Commander.   The  argument,  in  other words,   was  that  independently  of  and  prior   to   the appointment  of  the  respondent to the post  of  a  Platoon Commander,  he  had  been  enjoying the  status  of  a  Sub- Inspector.    It  was  further  contended  that  since   the respondent’s  status  as a Sub-Inspector of  Police  is  not qualified   as  either  officiating  or  temporary,  it   is impossible  to resist the conclusion that on  completion  of his  training  he  had  already been  appointed  as  a  Sub- Inspector substantively. The  order of March 21, 1961 was merely an order of  posting and   not  an  order  indicating  the  appointment  of   the respondent to, a particular cadre.  We are unable to  accept this  argument of the respondent & counsel.   To  understand the position clearly, one has to refer to certain provisions of  the  Police Regulations under which the  respondent  had been selected for promotion from the post of Head  Constable to the rank of Sub-Inspector in the Armed Police :               "406(b)  Armed Police-Permanent promotions  to               the rank of sub-inspector in the armed  police               are made by Deputy Inspectors General from the               list  of  those  who have  ,qualified  at  the               course   prescribed   under   paragraph   448.

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             Superintendents may promote in officiating  or               temporary vacancies.               447.  Recruitment to the rank of sub-inspector               Armed Police/Platoon Commander will be made in               the following manner               " (a) 80 per cent of the posts both  temporary               and  permanent in the combined cadre of  sub-               inspector,  Armed  Police/  Platoon  Commander               will  be  filled in by selection of  men  from the r anks.               "(b)  The remaining 20 per cent of  the  posts               both  temporary and permanent in the  combined               cadre  of Sub-Inspector, Armed  Police/Platoon               Commander   will  be  filled  in   by   direct               recruitment.               "For category (a) the Range Deputy  Inspectors               General  of Police, Deputy Inspector  General,               Provincial  Armed Constabulary and the  Deputy               Inspector  General of Police  Headquarters  in               the cases of the Railway Police, win  nominate               from time to time as required by the Inspector               General such number of head constables of  the               Armed Police as may be specified.               "For  category (b) selection of the  required-               number  of  candidates  will  be  made  by   a               committee consisting of the               339               Inspector   General,  the   Deputy   Inspector               General Provincial Armed Constabulary and  one               more  Deputy  Inspector General  nominated  by               Inspector General.               "448(i)  Candidates.  nominated  or   selected               under paragraph 447, will undergo a course  of               training  of 7 months’ duration at  the  armed               training centre Sitapur including one  month’s               practical  training  in the  Provincial  Armed               Constabulary, Units.               (ii)  Before  taking training under the  above               sub-para,   candidates  selected  under   para               447(b) shall undergo a successful  preliminary               training  for  a period of two months  at  the               Armed Training Centre, Sitapur.               "448-A.   Relative seniority will be  governed               by the date of passing the Sub-Inspector Armed               Police  Course  and for men passing  the  same               course by the position obtained in the.  final               examination  of  sub-inspector  Armed   Police               Course  between two men obtaining equal  marks               in the same final examination (i) promoted man               will  take seniority over  directly  recruited               candidate  (ii)  if  both  men  are   directly               recruited  the  age will  be  the  determining               factor and in the case of the ranker cadets it               will be the length of service". Certain things are clear from the above regulations.   There is  a combined cadre of Sub-Inspectors of Armed  Police  and Platoon  Commanders.  ’Mat means there is no  difference  in rank  between a Sub-Inspector of Armed Police and a  Platoon Commander.   Eighty per cent of the posts of this cadre  are filled  up by promotion from the, ranks and twenty per  cent by  direct  recruitment.   These  appointments  whether   by promotion  or by direct recruitment are made to posts  which may  be temporary or permanent.  When appointments are  made by  promotion,  the promoters are nominated from  among  the head  constables  of  the  Armed Police.   As  soon  as  the

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selection of’ nominees is made, they have to undergo first a preliminary  training  for a period of two  months  and,  if successful in that training, a further training of 7  months at  the  Armed Police Training Centre, Sitapur.   There  are certain rules for determining the relative seniority of  the promotees  inter se and also vis-a-vis the direct  recruits. We are not concerned with those rules in this appeal. In  the light of these regulations and from the facts  set out in the different affidavits on record, it is clear  that the  respondent  was selected for training as a  cadet  Sub- Inspector under Regulation 447 of the Police Regulations and on  his  successful  completion  of  the’  training  he  was promoted  to  the combined cadre  of  ’Sub-Inspector,  Armed Police/Platoon Commander".  The order of March 21, 1961  was the  order posting the respondent and his  other  colleagues who were successful in the training to certain vacant  posts in   that  combined  cadre  of  Sub-Inspector  and   Platoon Commander  for  the, first time.. The order is  not  happily worded.  The order seems. to make 340 a  kind of distinction between the rank of Sub-Inspector  of the Armed Police Cadre and the rank of a Platoon  Commander, though, in fact, there was no such distinction.   Regulation 447   (a)  makes  that  position  indubitably  clear.    The respondent’s  contention  that he was first  appointed  Sub- Inspector  and  then posted as a  Officiating  Platoon  Com- mander,  is based on this obvious erroneous drafting of  the order of March 21, 1961.  Had the respondent been  appointed in  the  first instance to the post of a  Sub-Inspector  and then  posted  as  a Platoon Commander, it  would  have  been possible  for  him to produce the first order by  which  he claims to have been promoted to the cadre of  sub-inspector. He  produced  no such order.  In fact, there can  be  little doubt that there, was no such order.  The order of March 21, 1961 was an order passed immediately after the completion of the  practical  training on March 21, 1961.  That  is  clear from  the  order  itself.  There is no room  for  any  order intervening the completion of the practical training and the passing  of  the posting order on March  21,  1961.   Having regard  to these considerations, it is impossible for us  to accept  the  respondent’s  contention  that  he,  had   been appointed  substantively  to the rank  of  Sub-Inspector  of Police.   In  our opinion, his first appointment was  as  an officiating  Platoon  Commander  and he was  never  given  a substantive  rank in the combined  cadre  of.Sub-Inspectors, Armed Police and Platoon Commanders. We  now turn to the question whether the order of  reversion of  the  respondent  was  either  a  reduction  in  rank  in contravention  of  article  311 of  the  Constitution  or  a contravention  of the respondent’s fundamental  right  under article  16  of the Constitution.  Though the  law  in  this matter has been laid down in a large number of decisions  of this  Court, considerable difficulty arises in applying  the various  principles  enunciated by those  decisions  to  the facts of any- particular case. The first decision which has now become a locus classicus on the subject is the decision in Parshotam Lal Dhingra v.  The Union  of India(1).  The principles that were laid  down  in that case are as follows               (1)   Article 311 of the Constitution of India               makes  no distinction between  permanent  and               temporary  posts  and extends  its  protection               equally  to  all government  servants  holding               permanent or temporary posts or officiating in               any of them.

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             (2)   The   protection  of  article   311   is               available  only  where dismissal,  removal  or               reduction in rank is sought to be inflicted by               way of punishment and not otherwise.               (3)   If   the  termination  of   service   or               reduction in rank is not by way of punishment,               article 311(2) is not attracted.  To determine               whether the termination or the reduction is by               way of punishment one has to consider  whether               the  servant  has the right to hold  the  post               from which he has been either (1)  [1958] S.C.R. 828. 3 41 removed or reduced.  In the case of a probationary or  offi- ciating  appointment to a permanent or temporary post  there is  no  such right.  This does not mean, however,  that  the termination of service or reduction in rank of a servant who has  no right to the post can never be dismissal or  removal or reduction by way of punishment.  If government  expressly chooses to penalise the servant for misconduct,  negligence, inefficiency or the like by inflicting on him the punishment of  dismissal,  removal or reduction,  the  requirements  of article   311 must be complied with.               (4)   A reduction in rank must be a punishment               if it carries   penal consequences with it and               the two tests to be applied    are:               (i)   Whether  the servant has a right to  the               post or the rank; and               (ii)  whether   evil  consequences   such   as               forfeiture  of  pay and  allowances,  loss  of               seniority in his substantive rank, stoppage or               postponement  of future chances  of  promotion               follow as a result of the order ?               Where   either  of  these  tests  apply,   the               reduction  in  rank  must be  one  within  the               meaning of article 311(2) of the  Constitution               and will attract its protection. The  principles  formulated in Parshotam Lal  Dhingr’s  case have furnished the principal guidelines in all future  cases relating to  dismissal,  removal or reduction  in  rank  of Government servants.As  we have  already  said,however, the matter is not altogether free of difficulty      even after the formulation of these principles. Depending on the nature and circumstances of each individual case it  has often been      necessary  to clarify and  modify  these principles  in certain respects. In this process,  sometimes new but analogous principles have been evolved and sometimes the old principles have been themselves elaborated, analysed and re-formulated in a different language. It  is  necessary  at this stage to  refer  to  one  special difficulty  which  has  been  created  by  the  process   of elaboration  and reformulation which we have mentioned  just now.  Sometimes in applying the principles of Parshotam  Lal Dhingra’s case to the facts of a particular case, one aspect had  to be emphasised in view of the peculiar  circumstances of  that  case  and in doing so this Court  gave  a  special formulation  which  covered the facts of  that  case.   That principle was later found either inadequate or  inapplicable in another case Where the facts and circumstances have  been slightly  different  and  which called  for  emphasis  on  a different aspect of the rules.  In this way, this Court  has found  it  necessary to mould, the principles  to  suit  the needs of the varying circumstances of different cases.   The original  principles were not intended to be  abandoned  but re-shaving  of  the  principles became  necessary  and  even

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unavoidable to fit them accurately and appropriately to  new set of circumstances.  This has often led to formulation  of principles  with  varying contours  which  superficially  at least  seem to suggest that some of them are  anomalous  and even contradictory.  If, however, 342 the  prnciples are construed with reference to the facts  of any, particular casefor  which they have been  evolved, it will, we believe be found thatthere  is no  fundamental discrepancy or contradiction in the principles. Confusion has arisen particularly in respect of cases  where this  Court has had to deal with orders of  government  from the aspect of the motive underlying those orders.  What’  is the  weight  to  be given to motive in  deciding  whether  a particular order is penal in character and therefore falling within  the mischief of article 311 of the  Constitution  or whether  it has been passed for departmental  considerations and  in exigencies of public service. It is well  recognised that  very  often  the  motive  of  a  particular  order  of government  and the language and terms of the  order  itself are  not in harmony.  In many, cases though government  take action under the terms of a contract of employment or  under the  specific service rules for the purpose  of  terminating the  service  or reducing the rank of an officer,  the  real motive or inducing factor which influences the government to take  action  is  different  and  is  connected  with   some disqualification  or inefficiency of the officer.  In  other words.  government while pretending to act in terms  of  the contract  of service or service rules, in reality  wants  to get rid of the officer concerned or to reduce him to a lower rank by way of punishment for his misconduct or inefficiency or  disqualification.  In such a case, the action  taken  by government is in an innocuous form but the real intent of it is penal.  Such a situation was contemplated by Das, C.J. in Parshotam Lai Dhingra’s case.  He observed               "It  is true that the  misconduct,  negligence               inefficiency or other disqualification may  be               the  motive  or  the  inducing  factor   which               influences the government to take action under               the  terms  of contract of employment  or  the               specific  service  rule,  nevertheless,  if  a               right exists, under the contract or the rules,               to terminate the service, the motive operating               in  the mind of the government is  as  Chagla,               C.J. has said in Shrinivas Ganesh v. Union  of               India   (A.I.R.   1956   Bom.   455)    wholly               irrelevant.   In short, if the termination  of               service  is founded on the right flowing  from               contract  or  the service rules,  then,  prima               facie the termination is not a punishment  and               carries  with it no evil consequences  and  so               article 311 is not attracted." Following  this enunciation of the principle this Court  has in many later cases refused to give any weight to the motive operating  in  the mind of the authority  which  passes  an order  terminating  the service of a  temporary  servant  or reducing  the  servant  in rank so long  as  the  particular action taken was "founded on the right flowing from contract or the service rules." Since  we  are  concerned  in  this  case  with  a  case  of reversion-  we  propose  to confine  our  attention  to  the different  circumstances in which an order of reversion  may be made.  An order of reversion is, in its immediate  effect bound always to a reduction in rank.  Even a reversion  from a higher but temporary or officiating rank to a lower

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343 substantive rank is in a sense a reduction.  But such orders of  reversion  are not always reduction in rank  within  the meaning  of  article  31  1.  If  the  officer  is  promoted substantively  to a higher post or rank, he gets a right  to that  particular  post  or  rank and  if  he  is  afterwards reverted to the lower post or rank which he held before,  it is a "reduction in rank" in the technical sense in which the expression  is  used in article 31 1. The real test  in  all such  cases is to ascertain if the officer concerned  has  a right  to the post from which he is reverted.  If he  has  a right  to  the  post then a reversion is  a  punishment  and cannot be ordered, except in compliance with the  provisions of  article  3  1  1. If, on the  other  hand,  the  officer concerned  has  no  right to the post, he  can  be  reverted without attracting the provisions of article 3 1 1. But even in  this case, he cannot be reverted in a manner which  will show conclusively that the intention Was to punish him.  The order itself may expressly state that the officer  concerned is being reverted by way of punishment In fact the order may in  various  other  ways  cast  a  stigma  on  the   officer concerned.  In all such cases, the order is to be taken as a punishment.   Sometimes  again’ the order of  reversion  may bring  up-on  the officer certain  penal  consequences  like forfeiture  ,of pay and allowances or loss of  seniority  in the  subordinate  rank, or the stoppage or  postponement  of future  chances  of  promotion:  in  such  cases  also   the government servant must be regarded as having been  punished and his reversion to the substantive rank must be treated as a  reduction  in rank.  In such a case article 311  will  be attracted. In  State  of  Punjab and Another v.  Sukh  Raj  Bahadur(1), Mitter, J..    after  analysing the decisions of this  Court in Parshotam Lal Dhingra v.   Union  of India(2),  State  of Orissa  v.  Ram  Narayan  Das(3) R.  C.  Lacy  v.  State  of Bihar(4), Madan Gopal v. State of Punjab(5), Jagdish  Mitter v.  Union  of  India(6)  and A.  G.  Benjamin  v.  Union  of India(7), has formulated the following propositions               1.The  services of a temporary servant  or               a  probationer  can be  terminated  under  the               rules  of his employment and such  termination               Without  anything more would not  attract  the               operation of article 311 of the Constitution.               2.The circumstances preceding or attendant               on the order of termination of service have to               be examined in each case, the motive behind it               being immaterial.               3.If  the order visits the public  servant               with   any  evil  consequences  or  casts   an               aspersion against his character or  integrity,               it  must  be considered to be one  by  way  of               punishment,  no matter whether he was  a  mere               probationer or a          temporary servant. (1) [1968] 3 S.C.R. 234. (2) [1958] S.C.R. 828. (3) [1961] 1 S.C.R. 6()6. (4) C.A. No 590 of 1962 decided on 23-10-63. (5) [1963] 3 S.C.R. 716.(6) A.I.R. 1964 S.C. 449. (7) C.A. No. 1341 of 1966 decided on 13-12-1966. 10-522SCI/   74 344               4.An  order of termination of  service  in               unexceptionable  form preceded by  an  enquiry               launched  by the superior authorities only  to               ascertain  whether the, public servant  should

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             be  retained in service, does not attract  the               operation of article 311 of. the Constitution.               5.If  there be a  full-scale  departmental               enquiry  envisaged  by  article  311  i.e.  an               Enquiry Officer is appointed, a charge.  sheet               submitted,   explanation   called   for    and               considered,   any  order  of  termination   of               service  made  thereafter  will  attract   the               operation of the said article." In Ram Gopal Chaturvedi v. State of Madhya Pradesh(1),  this Court  refused  to interfere with an order  terminating  the services of an officer who had been temporarily appointed to the Judicial Service of Madhya Pradesh under rule 12 of  the Madhya  Pradesh  Government Servants (Temporary  and  Quasi- Permanent  Service) Rules, 1960, without passing any  stigma on  the  officer  concerned  and  merely  stating  that  his services were terminated from a specified date.  Even though the  order of termination had been preceded in that case  by an  informal enquiry into the conduct of the officer with  a view to ascertain if he should be retained in service,  this Court  followed the decision in State of Punjab v. Sukh  Raj Bahadur (supra) and observed               "On the face of it the order did not cast  any               stigma   on  the  appellant’s   character   or               integrity  nor did it visit him with any  evil               consequences.   It  was not passed by  way  of               punishment  and the provisions of article  311               were not attracted." In  the  Union  of India v. Gajendra  Singh(2),  this  Court sustained an order passed by the Union of India reverting an officiating Naib Tehsildar to his permanent post of  Kanungo on  the  ground  that he could  not  pass  the  departmental examination.   This  Court clearly held in  that  case  that "appointment  to  a post on officiating basis is,  from  the nature  of employment, itself of a transitory character  and in  the absence of any contract or specific rule  regulating the conditions of service to the contrary, the implied  term of such an appointment is that it is terminable at any time. The  Government servant so appointed acquires no  rights  to the  post.   But  if.  the order  entails  or  provides  for forfeiture  of  his  pay or allowances or the  loss  of  his seniority  in  the  substantive  rank  Or  the  stoppage  or postponement  of his future chances of promotion  then  that circumstance   may  indicate  that  though,  in  form,   the government had purported to exercise its undoubted right  to terminate   the  employment,  in  truth  and  reality,   the termination was by way of penalty,". Let  us  now consider whether in the light  of  the  various cases decided by this Court the order of reversion  amounted to a reduction in rank within the meaning of article 311 (2) of the Constitution.  We will apply all the different  tests laid down by this Court one by one.  First, the order is not attended  with  any stigma.  The order  merely  states  that Sughar  Singh  is reverted and that he is  reverted  to  his substantive (1) [1970] 1 S.C.R. 472. (2) [1972] 3 S.C.R. 660. 345 post  of head constable.  By no stretch of  imagination  can this  language  be construed as I casting a  stigma  on  the respondent.  Secondly, there is nothing to show that  Sughar Singh has lost his seniority in the substantive rank.  It is true  that some of his colleagues who were also holding  the substantive  post  of head constable and who had  also  been appointed in an officiating capacity to the post of  Platoon

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Commanders were not reverted on the day when the  respondent was  reverted.   But  that cannot be  regarded  as  a  penal consequence  by way of loss of seniority in the  substantive rank.      In     Divisional    Personnel     Officer     v. Raghavendrachar(1), this Court has clearly held that where a number  of  employees  are  placed on a  senior  list  on  a provisional basis they do not get-any indefeasible right  to retain their seniority on that provisional basis so that the reversion  of  a  person  who  was  in  the  list  does  not constitute  a  reduction in rank merely on the  ground  that persons lower in the rank have not been reverted.   Thirdly, there,  is  no  evidence to show and, in fact,  it  was  not contended  on behalf of the respondent that there  has  been any  forfeiture of his pay or allowances or any loss in  the seniority  in  the  substantive  rank  which  is,  one  must remember,  the  rank  of  Head  Constables.   On  a  careful scrutiny  of  the  order of reversion we  do  not  find  any indication that it affects the seniority of Sughar Singh  in his  substantive rank or that it affects his chances of  his future  promotion  from that rank.  It is true  that  Sughar Singh will be deprived by the order of reversion of the post of  Platoon  Commander but that is not  considered  a  penal consequence.   Such deprivation is the usual consequence  of any  order of reversion from the officiating post  which  an ’incumbent has no right to hold.  Such deprivation has  been held  by this Court not to be an order attended  with  penal consequences (see Union of India v. Jeewan Ram(2). It  has been suggested that the motive behind the  reversion was really the infliction of punishment.  There was a formal proceeding  held against the respondent and the  explanation that  he  had  submitted in reply to the  charges  made  out against him had not been accepted by his superior  officers. The  order of reversion which came soon after this must,  it was  suggested,  be  connected with  the  disciplinary  pro- ceedings  and  the  order  of reversion  must  be  taken  as motivated  by the desire to punish him.  The reply  to  this suggestion  is two-fold.  The proceedings had been drawn  up two  years before the order of reversion.   The  proceedings were limited in nature.  The only punishment proposed in the proceedings was the making of certain adverse entries in the character  roll.  That penalty, had already been imposed  on the  respondent.   There is nothing to show that  after  two years  the authorities proposed to rake up that  matter  and inflict  a heavier punishment on the respondent  than  they had previously proposed and also inflicted.  Besides, it  is well-known that in a matter like this we are concerned  only with the question whether the order of reversion entails any penal  consequence.   We are not concerned with  the  motive behind  the reversion (see Madhav v. State of Mysore(3)  and State of Bombay v.  Abraham (4). (1)  [1966] 3 S.C.R. 106. (2) A.1.R. 1958 S.C. 905. (3) A.I.R. 1962 S.C.R.  11. (4) A.I.R. 1962 S.C. 794. 346 The  respondent’s  counsel  then  challenged  the  order  of reversion  on another ground.  He pointed out that at  least 200  head  constables who had taken training as  Cadet  Sub- Inspectors  of Armed Police at Sitapur after the  respondent and  who  were  junior to the  respondent  have  still  been allowed to retain their present status as Sub-Inspector  and have  not  been reverted to their substantive post  of  Head Constable.   Unless  this can be justified as a  measure  of punishment, the reversion of the respondent would amount  to discrimination   in  contravention  of  the  provisions   of

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articles 14 and 16 of the Constitution.  The facts on  which this contention is based are found in paragraphs 7 and 20 of the  petition.   The  contention itself is to  be  found  in ground  No. 3 of the writ petition.  The complaint, we  must say,  is  one  which  has  to  be  sustained.   No  possible explanation in this extreme form of discrimination has  been shown  to us.  Indeed, it appears from the judgment  of  the third learned Judge who heard the petition in the High Court that  in  answer  to a question put  by  him,  the  standing counsel  appearing  for the State clearly  stated  that  the order of reversion was a result of the adverse entry made in the  appellant’s  confidential  character  roll.’  If   this statement  of  the  learned  standing  counsel  has  to   be accepted, it is impossible to resist the suggestion that the respondent’s  order  of  reversion was really  an  order  of punishment  in  disguise in which event the  order  must  be struck  down  for non-compliance with  the  requirements  of article  311  of the Constitution.  The  appellant  in  fact faces  a  dilemma.  If it was not a case of  punishment,  it becomes  difficult  to explain why this  discrimination  was made  against  the respondent visa-vis at  least  200  other officers  who were junior to him in the  substantive  cadre. That  would  make  the order liable to  be  struck  down  as violative of article 16 of the Constitution.  Reference  may be  made to State of Mysore v. P. R. Kulkarni(1),  where  an order  of  reversion was struck down by this  Court  on  the ground  of "unjustifiable discrimination" which brought  the order  within  the  mischief of articles 14 and  16  of  the Constitution.   If, on the other hand, the order has  to  be justified  with  reference  to  the  adverse  entry  in  the character  roll,  it  becomes not merely a  case  of  double punishment,  but also a case of infringement of article  311 of  the  Constitution.  It is true that the  order  ex-facie does  not show anything which can suggest the  contravention of  article  311  of  the  Constitution.   We  have  already analysed the order and discussed that aspect of the  matter. But  the compelling logic of the totality  of  circumstances attending the order of reversion indicates that if the order is not discriminatory and has to be justified with reference to  the proceedings against the respondent and  the  earlier order  regarding  his character roll, it  is  impossible  to avoid  the criticism that it was really a punishment in  the garb  of an order of reversion.  In the State of  Bihar  and Others  v. Shiva Bhikshuk Mishra(2), this Court  was  called upon to consider the effect of an order of reversion  passed on a member of the Bihar Police Force who, while holding the substantive  post  of Sergeant, was  promoted  to  officiate temporarily as Subedar Major in 1948 but was subsequently in 1950  reverted to his substantive post.  The High  Court  of Patna  found that the reversion was not in the usual  course or for administrative reasons but it was after the finding (1) A.I.R. 1972 S.C. 217O.  (2) [1971] 2 S.C.R. 191. 347 on an enquiry about some complaint against the plaintiff and by  way  of punishment to him.  The matter  having  come  on appeal  to this Court, this Court held that the form of  the order  is not conclusive of its true nature and might  often be a cloak or camouflage for an order founded on misconduct. This Court further observed:               "It may be that an order which is innocuous on               the  face and does not contain any  imputation               of misconduct is a circumstance or a piece  of               evidence  for finding whether it was  made  by               way  of punishment or administrative  routine.

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             But the entirety of circumstances preceding or               attendant  on  the  impugned  order  must   be               examined and the over-riding test will  always               be whether the misconduct is a mere motive  or               is the very foundation of the order." In  the instant case we have no doubt in our mind  that  the peculiar circumstance that from out of a group of about  200 officers  most  of whom are junior to  the  respondent,  the respondent  alone has been reverted to the substantive  post of  Head Constable makes it absolutely clear that there  was no administrative reason for this reversion.  In fact  there was  no  suggestion  at  any time  made  on  behalf  of  the appellant   that  the  post  has  been  abolished  or   that respondent  was, for administrative reasons, required to  go back  to Ms own post of Head Constable.   This  circumstance only corroborates what the learned standing counsel for the State admitted before the High Court that the foundation  of ,the  order  of reversion is the adverse entry made  in  his character  roll.   In this view of the matter,  we  have  no doubt.  that the order was passed way of punishment,  though all  outward indicate show the order to be a mere  order  of reversion.   Even if it were not so, we have no  doubt  that the  order  would be liable to be quashed on the  ground  of contravention of articles 14 and 16 of the constitution. In  these  circumstances, the appeal mu% be  dismissed  with costs and we do so. Before  parting  with this case, we think it  only  fair  to mention  that in  Writing this judgment  we  have  derived considerable  assistance  from  a  draft  of  the   judgment prepared  by  our late-.Brother Mukherjea, J.  ,who  sitting with us, heard the case in the first instance. B.P.R.                           Appeal dismissed, 348