August 27 v. UNION OF INDIA & Anr.

S. K. DAS, Acting Chief Justice.-This is an appeal by special leave. The appellant is a member of the In dian 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 con firmed on November 30, 1953. The time-scales of pay admissible to a member of the Indian Police Service con sist of the junior scale, the senior scale and selection grade ; see r. 3 of the Indian Police Service (Pay) Rules, In pursuance of sub-rule (1) of r. 4 of the Indian 1954. Police Service (Cadre) Rules, 1954. the Central Govern ment made regulations known as the Indian Police Ser (Fixation of Cadre Strength) Regulations, 1955. Under these regulations, Punjab has 57 senior posts 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. T@ this aspect 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 Gov ernments, and 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 sen ior time-scale, be fixed at the corresponding stage in the senior time-scale as shown in Schedule I of the Indian ( c) posts carrying pay above the case we shall advert 39-2 S. C. India/64 1963 p, C. Wadhwa v. Union of India and Anr. S. K. Das Acg. C. /. 602 SUPREME COURT REPORTS [1%4] Police Service (Pay) Rules, 1954; seer. 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 Addi tional Superintendent of Police, Ferozepore. The order dated January 18, 1958 stated that the appellant was per mitted to officiate as Superintendent of Police and post ed as Additional Superintendent of Police, Ferozepore, vice Shri Siasat Singh granted leave from January 27, 1958. Because of this officiating promotion, the appel lant'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 car ried a special pay of Rs. 100.00 per month. The appel lant 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 apparent ly did not satisfy the Government. 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 Superin tendent 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 substan tive rank of Assistant Superintendent of Police from the date he was relieved and on reversion the appellant was posted as Assistant Superintendent of Police at Amrit sar. 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 appellant attacks the order of reversion; but before we do so, we may complete the statement of facts. The ap pellant 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, permis sible under the rules, to the Government of India against r -· - -.. 1963 P. C. Wadhwa v. Union of India and Anr. S. K. Das Acg. C. /. 4 S.C.R. SUPREME COURT REPORTS 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 Pe tition 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, 1%1 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 ap pellant 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 avail able 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 ; there fore, the order of reversion made against the appellant on November 3, 1958 was in effect a reduction in rank with 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. Alter native! y, the appellant has contended that on the principles laid down by this Court in Parshotam Lal Dhingra v. Union of India('), 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 promo tion ; therefore, although in form the Government had purported to exercise its right to revert the appellant to ( 1) [1958] S.C.R. 828. - - 1963 P. C. Wadhwa v. Union of India and Anr. S. K. Das Acg. C. f. 604 SUPREME COURT REPORTS [1964] his substantive rank, the order of reversion really amount ed to a reduction in rank by way of punishment, irrespec tive of whether the appellant had a right to be appoint ed 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 pro visions of Arts. 14 and 16 of the Constitution. In their written statements, 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 sen ior 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 un der 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 attract ed 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. the res pondents 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 offi ciating 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 rever sion. 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 administra tive reasons (such as the return of the permanent incum bent from leave or deputation, availability of a more suit able 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 irn- -r - - -.. 1963 P. C. Wadhw• v. Union of India and Anr. S. K. Dar Acg. C. f. 4 S.C.R. SUPREME COURT REPORTS 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 ap pellant 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 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 pu nishment and to the framing the reasons which led 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 appel lant, nor was the appellant debarred from future promo tion 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 of the appellant, namely, whether he had a right to a vacancy in the senior scale as and when such a va cancy 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 (Rec ruitment) Rules, 1954 says inter alia that the number of persons recruited by promotion from amongst the mem bers of a State Police Service (usually Deputy Superin tendents of Police) shall not exceed 25 per ~ent of - - 1963 P. C. Wadhwa v. Union of India and Anr. S. K. Das Acg. C. /. 606 SUPREME COURT REPORTS [19641 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 Ser It vice (Appointment by Promotion) Regulations, 1955. 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 time and after approval by the Union Public Service Com mission, 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 the Indian Police laid down in 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 ju nior 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 In support of his con Service is available for that post. tention the appellant has relied on Indian Police Service (Regulation of Seniority) Rules, 1954, particularly r. 6 thereof which says inter alia that there shall be pre pared every year for each State Cadre a gradation list con sisting of the names of all officers borne on that Cadre arranged in order of seniority in accordance with the pro visions of the said rules. • - - is done by We are unable to accept this line ·of argument as correct. Under r. 4 of the Indian Police Service (Recruit ment) Rules, 1954 recruitment the Indian Police Service two methods: (1) by a competitive examination ; and (2) by promotion of substantive mem bers of a State Police Service. Under r. 3 of the Indian Police Service (Cadre) Rules, 1954 there shall be consti tuted for each State or. group of States an Indian Po ljce Service c;adre. The strength and composition of each 1963 P. C. Wadhwa v. Union of India and Anr. S. K. Das Acg. C. /. 4 S.C.R. SUPREME COURT REPORTS 607 the Cadres constituted under r. 3 shall be deter mined 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 fil led by promotion and 43 by direct recruitment. Amongst the senior posts are included the posts of the Inspec tor General of Police, Deputy Inspectors General of Police, Assistant Inspectors General of Police, Principal, Po lice 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 would be entitled as of right to all the senior posts including the post of Inspector Ge neral of Police, Deputy Inspectors General of Police etc. This, we do not think, can be correct, and indeed the ap peilant does not so contend. Under r. 8 of the Indian Police Service (Cadre) Ru les, 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 ei1titled as of right to go into the senior scale or to hold every post in the senior scale. The appellant has drawn our atten tion to r. 9 (b) of the Indian Police Service (Cadre) Ru les, 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 per son 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 <lo not think that 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 tem porary appointment. We think that the matter is govern (Pay) Rules, 1954. ed by the Indian Police Service 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 - - 1963 P. C. Wadhwa v. Union of India and Anr .. S. K. Das Acg. C. f. 608 SUPREME COURT REPORTS [1964] 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 ot service. Such a bar would serve no useful purpose the majority of cases, because all officers would automati cally 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 pur pose and may be quoted here. "4. (2) The pay of a member of the Service in 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 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 "appoint ment to a post on the senior time-scale" show by neces sary 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 • - ·• - 1963 P. C. Wadhwa v. Union of India and Anr. S. K. Das Acg. C. /. 4 S.C.R. SUPREME COURT REPORTS 609 the pay indicated for that to these posts there 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 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 III, shall, for so long as he holds that post, be entitled to draw that post in the said Schedule. The rule makes it clear that there must first be an appointment to a post specified in Sche dule III and then a member of the Service appointed to that post is entitled to draw the pay indicated in Sche dule III. When we go to Schedule III we find that the posts mentioned therein are classified under t9ree heads, A, B and C. Category A relates to posts above the time scale of pay and includes the posts of Inspector Gene ral of Police and Deputy Inspectors General of Police. The appellant concedes 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, Adju_tant, 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 pro per! y 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 express terms says that any member of the Service ap pointed 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 impor tant and shows clearly enough that the appointing autho rity 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 cate gory C posts; but the argument is that no such right exists - ~- - 1963 P. C. Wadhwa v. Union of India and Anr. S. K. Das Acg. C. /. 610 SUPREME COURT REPORTS [1964] in the appointing authority in the matter of category \Ve do not see how in view of the express B posts. 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 Ill 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 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 down the procedure to be followed for imposing penalties and states that no order shall be passed impo sing 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 defend ing himself. In the Central Civil Services (Classification, Control and Appeal) Rules, 19~7, a distinction is drawn between penalties which are minor in nature such as cen sure, withholding of increments or promotion and reco very 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, compul sory retirement, removal or dismissal from service. No such distinction appears to have been made in the All 1955 India Services 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 tor. 3 of which Explanation (4) is important for our purpose. This Explanation reads thus : (Discipline and Appeal) Rules, ¥ ' - ' 1963 P. C. Wadhw11 v. Union of India and Anr. S. K. Das Acg. C. f. 4 S.C.R. SUPREME COURT REPORTS 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." intended reversion when reversion was not The High Court was of the view that the case of 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 de putation nor by the availability of a more suitable officer. The High Court took the view that the instances men tioned in the Explanation were not exhaustive and the phrase "and the like" was intended to cover other instances be by way of punishment or penalty. Whether the rever sion of the appellant in the present case was by way of punishment or penalty, apart from the alleged for feiture of his right to go automatically to the senior scale, is a question which we shall presently consider in rela tion 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 merdy by reason of his seniority and even when he is officiating in a higher post he may be re verted 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 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- - } - 1963 P. C. Wadhwa v. Union of India and Anr. S. K. Das Acg. C. J. 612 SUPREME COURT REPORTS [1%4] 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 earli If the words "appointed to a post" are to be er quoted. interpreted in the same way, then there is no escape from the position that there is no automatic right of appoint ment to a post on the senior time-scale. We have therefore come to the conclusion that 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 ap pellant that in any view of the matter his reversion invol ved penal consequences to him within the meaning of the rule laid down in Parshotam Dal Dhingra's case('). 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 If the 'punishment or it may be an innocuous thing. 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 If, however, he has no and privileges of that rank. right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank llut the mere will not ordinarily be a punishment. fact that the servant has no title to the post or rank and the Government has, by contract, express or implied, or under the rules, 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. - - 1963 P. C. Wadhrutr v. Union of India and Anr. S. K. Das Acg. C. f. 4 S.C.R. SUPREME COURT REPORTS 613 terms of the rules, tails or provides for the forfeiture of his pay or al lowances or the loss of his seniority in his substan tive rank or the stoppage or postponement of his fu that circumstance ture chances of promotion, then may indicate that although in form the Government had purported to exercise its right to terminate employment or to reduce the servant to a lower rank the contract of employment under the truth and reality the Gov or under ernment has terminated the employment as and by way of penalty. The use of the expression "termi In spite of the nate" or "discharge" is not conclusive. use of such innocuous expression, the court has to ap ply the (1) whether the servant has a right to the post or the rank or (2) whether he has been visited with evil conse If the quences of the kind hereinbefore referred to. case satisfies either of the two tests then it must be held that the servant has been punished and the ter mination of his service must be taken as a dismissal or removal from service or the reversion to his subs tantive 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 ser vice or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant." tests mentioned above namely, laid down The appellant has contended that his case comes under the in Parshotam Lal Dhingra's second test case('), namely that he has been visited with penal consequences like loss of pay, loss of seniority and stoppage or postponement of his future chances of pro motion. 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 re version was not due to the return of the permanent incumbent from leave or deputation or for any adminis It is also admitted that officers junior to trative reason. ·----rr [1958] S.C.R. 828. 1963 P. C. Wadhwa v. Union of India and Anr. S. K. Das Acg. c. ]. 614 SUPREME COURT REPORTS [1%4] instituted against him on July 18, 1958. the appellant continued to officiate in the senior 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 It was further stated that his re found to be immature. version had nothing to do with the departmental pro ceedings It appears from the judgment of the High Court that the personal file of the appellant was produced before learned Judges and on examining the personal file the learned Judges found that the reasons which prompted instance were the appellant's reversion in the present not the reasons which led to the framing 0£ a charge sheet against him. The same personal file has also been produ ced 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 F erozepore 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 InsJ?ector 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. W adhwa 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 ap proval to his reversion on account of his unsatisfac tory record. The departmental enquiry could be pro ceeded with after his reversion." The extracts quoted above show that the appellant was really reverted by way of punishment. The depart mental proceedings were instituted against him on July 18, 1958. On 6-10-1958 it was noted that as the regular en .quiry 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 sug- gested for reversion was unsatisfactory conduct. No details ~- 1963 P. C. Wadhwa v. Union of India and Anr. S. K. Das Acg. C. f. 4 S.C.R. SUPREME COURT REPORTS 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 sug gestion is that if his work was unsatisfactory, his incre ment 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 rever sion 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 offi ciating rank from which he is reverted, for every rever sion 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 suf fered loss of seniority as also postponement of future chan ces of promotion to the senior scale. A matter of this kind has to be looked at from the point of view of subs It is indeed true, as was tance rather than of form. pointed out in Parshotam Lal Dhingra's case('), 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 na ture is the effect of all the relevant factors present there If on a consideration of those factors the conclu in. sion is that the reduction is by way of punishment in volving 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- (') [ 1958] S.C.R. 82 8. • 1963 P. C. Wadhwa v. Union of India and Anr. S. K. Das Acg. C. /. Mudholkar /. 616 SUPREME COURT REPORTS [1964] ted and the officer must be given a reasonable opportu nity 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 vio lation of the provisions of Art. 311 of the Constitution. In view of this finding it is unnecessary to go into the further question of any violation of the fundamental rights guaranteed under Arts. 14 and 16 of the Constitu tion. We would accordingly allow this. appeal and quash the order of reversion passed against the appellant on No vember 3, 1958. The appellant will be entitled to his costs of this court and the High Court. MuoHOLKAR, J.-This is an appeal by special leave from the judgment of the High Court of Punjab dismis sing the appellant's writ petition under Art. 226 of Constitution. The appellant is a member of the Indian Police Ser vice 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 No vember 30, 1953. On January 27, 1958 he was appoint ed 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 Superin tendent 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 Ad ditional 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- l ~ __ .> • Jo( 1963 P. C. Wadhwa v. Union of India and Anr. Mudholkar /. - ·-- - • - 4 S.C.R. SUPREME COURT REPORTS 617 tor General of Police, Jullunder, was appointed as an En quiry Officer. On November 3, 1958 the appeilant was re verted to the post of Assistant Superintendent of Police and posted at Amritsar. The appellant thereupon prefer red 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 Superinten dent 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 Cons titution were not complied with, his reversion was illegal. The second ground was that the action of the Govern ment in reverting him was mala It is common ground that persons junior to the appellant in the grada tion list were either continued to officiate as Superinten dents of Police after the reversion of the appellant or were appointed to officiate as Superintendents of Police whik the appellant continued to he Assistant Superintendent of Police. The main question, therefore, for consideration is whether the appellant's reversion amounts to a punish ment. fide. The determination of this question would depend up on the answer to he 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 en quiry made under the Discipline and Appeal Rules. The High Court, while negativing the contention of the ap pellant, observed that this Court held in Parshotam Lal Dhingra v. Union of India(') 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 per manent 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. ( ~0-2 S. C. lndia/64. 618 SUPREME COURT REPORTS [1964] 1963 P. C. Wadhwa ·v~ Union of lndia' and Anr. Mudholkar f. more than three years or has been certified by the appoi~t::----.,kil fit for appointment in a quasi-per- ing authority as manent capacity. The learned Judges, however, over- looked 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 It may be mentioned Services Act, 1951 (LXI of 1951). 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 Go vernment 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 con sist 0f three classes of persons : (a) members of the In dian 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 pro motion 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 appoint ment shall be made except after recruitment by one of the methods specified in r. 4. Rule 9 provides for rec ruitment by promotion. Sub-rule (2) of that rule pro vides 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 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. 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 It is sufficient to say ...,. ' j l l 1963 P. C. Wadhwa v. Union of India and Anr. Mudholkar /. • •• 4 S.C.R. SUPREME COURT REPORTS 619 Police Service were to be made in accordance with these Lists. It would be relevant here to make a m.ention 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 un der 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 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 constitu ted under r. 3. Rule 5 provides for the allocation of mem bers 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. Consequent ly the post which he holds would be cadre post. These rules do not differentiate between posts held in 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 ser vice it must be filled by a cadre officer and none else ex cept 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 tem porary appointment of non-cadre officers to cadre posts and rule 10 deals with keeping cadre posts vacant. In pur suance of the power conferred by r. 4(1) the Central the cadre Government has made regulations fixing 1963 P. C. Wadhwa v. Union of India and Anr. Mudholkar /. 620 SUPREME COURT REPORTS [1964] streqgth 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 0£ senior post but includes also junior posts. In addi rion 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. 350-350-380-380-30- 500-E.B.-30-770-10-850 (19 years). The senior scale (6th year or under)-40-1000-1000-1050-1050- Rs. 600 (22 years). The selection grade 1100-1100-1150 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 time-scale as at the corresponding stage in the senior 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 irn; re ments 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 ser vice. 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 due not on the expiry of one year from the 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 -.. 1963 P. C. Wadhwa v. Union of India and Anr. Mudholkar /. 4 S.C.R. SUPREME COURT REPORTS 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 State Governments, specified in Section A, (b) posts car Indian Police rying pay in the senior time-scale of the Service under the State Governments including posts car rying 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 mem bers of the Service, specified in Section C. In category (a) so far as the State of Punjab is concerned the posts are those of Inspector General of Police and Deputy Ins pector(s) General of Police; posts in category (b) in that State are: Assistant lnspector(s) General of Police, Super intendent(s) of Police of District(s), Additional Super intendent( s) of Police and others. The posts in cate ( c) are posts held under the Central Govern ment and not under the State Government. It will be seen that the posts of Superintendents of Police and Addi tional Superintendents of Police in category (b) are inclu ded in Sec. B of Schedule III. It is urged by the learn ed 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 appoint ed to the posts therein in the same manner as to posts in Sections A and C. No doubt a formal order of appoint ment 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 <lea! with the question of appointment at all. purpose: that of indicatin& 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 des cribes the posts dealt with in that section as those carrying senior scale of pay and provides mainly for two mat ters concerning such posts namely, calculation of selec tion posts and competency of the State Government to It will thus be seen grant special pay and allied matters. Its heading clearly discloses - •• --I I 1963, P. C. Wadhwp_ v. Union of India and Anr. Mudholkar /. 622 SUPREME COURT REPORTS [1964) 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 offi cer 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 (Fixa tion of Cadre strength) Regulations, 1955, framed un der sub-rule (1) of Rule 4 of the Indian Police Ser vice (Cadre) Rules, 1954, or any post declared equiva lant 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 rec ruited 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, privi leges, discipline etc., of the members of the Indian Po lice Service, there is not a single rule which specifically deals with the appointment of an Assistant Superinten dent 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 :i person hold ing a post carrying a pay in the ju!lior 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 .. 1963 P. C. Wadhwa v. Union of India and Anr. Mudholkar f. 4 S.C.R. SUPREME COURT REPORTS 623 has to be freshly appointed to a post carrying a salary in the senior scale of pay. This may be apparently be cause 'appointment' connotes only initial appointment to the Service. recruitment. Now, according In this situation we have got to deduce the precise legal position from the large body of rules to which we It seems clear beyond doubt that in so have referred. 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 mo ment appointments made by special recruitment or emer learned Additional Solicitor General, what is guaranteed to a per son who is appointed to the posts of Assistant Superin tendent 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 Super intendent of Police has no right to hold a post car rying 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 se lection 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 Po lice 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 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 hap pen 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 Govern ment 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 appropriate proce- 1 - ,, . - 1963 P. C, Wadhwa v. Union of India and Anr. Mudholkar /. 624 .SUPREME COURT REPORTS [1964] 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 Addition al Solicitor General on the point cannot, therefore, be It is true that we are not direct! y concerned in accepted. 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, name ly, 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 con templates 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 tqe 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 witliheld, 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(1), 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 legiti mate grievance. But the result of this is different from · that of not allowing a person to hold a post in the se nior 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 Po lice 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 In Schedule I framed under rr. 4(2) were meaningless. - .... ' - 1963 P. C. Wadhwa v. Union of India and Anr. Mudholkar /. • •• 4 S.C.R. SUPREME COURT REPORTS 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 rec ruited 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 junior scale for that year being the salary 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 Superinten dent of Police, the minimum salary for which was fixed If a question of selection were involved, at Rs. 600.00. surely choice could never fall upon a person who has the service. The circumstance just been recruited 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 consideration of the comparative merits of a group of offi cers in the junior scale inter se but only upon a considera tion of their seniority. We have already indicated 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 appoint ment of a selection committee and preparation of 'select lists'. Thus where a question of selection was invol ved the procedure has been laid down in the rules. 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 we have no doubt that express provisions relating to the manner in which the selection has to be made wonld have found place in rules. The appellant who argued his case in person asked us to compare the position of persons belonging to other Cen tral Services and said that in so far as they were concer the rules provide for a selection at every stage and in this connection he drew our attention to expla the Central Civil Services nation (Classification, Control and Appeal) Rules, 1957 which reads thm : 13 of to r. (iii) 1963 P. C. Wadhwa v. Union of India and Anr. Mudholkar f. 626 SUPREME COURT REPORTS [19641 * * * * * "The following shall not amount to a penalty within the meaning of this rule : * (iii) non-promotion whether in a substantive or offi ciating 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 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 subs tance. The learned Additional Solicitor General, however referred us to explanation (3) to r. 3 of these Rules which · run_s 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 mean ing 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 provi sion 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 •• • 1963 P. C. Wadhwa v. Union of India and Anr. Mudholkar J. 4 S.C.R. SUPREME COURT REPORTS fi27 to promotions 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 provi sion if we consider it to apply only posts to which the incumbent has no right. In our opi nion, 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 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 If a person holding a post in the senior placed before us. scale, though in an officiating capacity is found to be un fit to hold that post, action will have to be taken against him as required by r. 5 of Discipline and Appeal Ru les 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('). 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 per sons who also belong to the Indian Police Service and who were recruited to it subsequent to him have con tinued 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 rank but his promotion to the senior scale has also been withheld. This could only be done by holding a depart mental 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. ( j - 1963 P. C • .Wadhwa v. Union of lndia and Anr. Mudholkar f. - SUPREME COURT REPORTS [1964] 628 this ground alone the writ petition ought to have been granted. , On the other ground also the writ petition must sue' ceed. The learned Additional Solicitor General very fair the file concerning the reversion of ly placed before us the appellant which we find from the judgment of the High Court was also placed before it. The following ex tracts 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 per sonal 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 que ry: "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 the note says : "We may, therefore, get the State Government's ap proval to his reversion on account of his unsatisfac tory record. The departmental enquiry could be pro ceeded with after his reversion." It will thus be clear that the main object with which his re version 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 Gene ral to send it to the Chief Minister for his approval. There after there is a long note of the 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 Inspector General ., 1963 P. C. Wadhwa v. Union of India and Anr. Mudholkar f. 4 S.C.R. SUPREME COURT REPORTS 629 accepted by the Chief Minister and that is how the appel lant came to be reverted. A perusal of the file thus shows that instead of sus pending 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 ser ious 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 If as a result of the departmental enquiry the per case. son 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 depart mental 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 If that is the correct state of affairs one would future. 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 In the circumstances we have no doubt in such a result. coming to the conclusion that the order of the Govern ment is mala fide. On both these grounds, therefore, we allow the appeal :is 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 allowd. .. i