# F. S. Nariman, Addi. Sol. Gen. for Union of India, P. P. Rao v. C. Mahajan, R. N. Sachthey and Girish Chandra for respcndent

- **Citation:** [1975] 1 S.C.R. 586
- **Court:** Supreme Court of India
- **Decided:** 1974-07-30
- **Bench:** A. N. Ray, K. K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/f-s-nariman-addi-sol-gen-for-union-of-india-p-p-rao-v-c-mahajan-r-n-sachthey-6357
- **Pages:** 4

## Headnote

Indian
Ad111inistrative Service (Cadre) Rules, 1954 rr. 4 and 9-Afembers of
State Civil Service appointed to cadre posts and equiralent posts and l/reu
rererted-Procedure under Art. 311, it should be followed.
Fundamental Rule 9(19) provides that a government servant officiates in a post
\vhen he performs its duties while another holds a lien on it. and also that the
Central G·overnment n1ay appoint a government servant to officiate in a post on
\vhich another does not hold a lien. The proviso tor. 4 {2) of the Indian Administrative Service
(Cadre) Rules, 1954, provides that the State Government may
under certain conditions and for a certain period, add to a State or joint
cadre one or more posts carrying duties of like nature to cadre posts; and r. 9
of the Indian Administrative Service (Cadre) Rules provides that subject to certain
conditions the State Government may fill temporarily a cadre post in a State by
a person \vho is not a cadre officer.
Some of the appellants were appointed by the State Government to cadre posts
in the Indian Administrative Service and others were appointed to senior duty posts
\Vhi;h
were declared as equivalent to cadre posts in the Indian Administrative
Service. All of them were reverted to their substantive posts in the State Civil Service.
They challenged the reversion on the ground that it was punitive and that the pro·
cedure under Art. 311 should have been follo\ved. The High Court overruled the
contention.
Disn1issing the appeal to this Court,
HELD : (1) Unless a person has a right to a post, an order of reversion from
that post cannot
amount to dismi~al or removll within the meaning of Art. 331
and, a person gets a right to a post only when he is substantively appointed to it.
Therefore, if the appointments of the appellants were officiating appojntments of
either type mentioned in F. R. 9(19), the revision to State Civil Service \VOuld not
attract Art. 311. [588 G-589 A]
Parshotam Lal Dhingra v. Union of India [1958] S. C. R. 828, The State of
Bon1bay v. F. A. Abrahani [1962] Supp. 2 S. C. R. 92, at 97, Divisional Personnel
Officer, Southern Railway v. S. Raghavandrachar, [1966] 3 S. C.R. 106, Union of
India and Another v. Gajendra Singh etc. [1972] 3 S. C. R. 660 and Union of India v.
M. L. Capoor and Ors. A. I. R. 1974 S. C. 87, 103 foJlowed.
(2) Since the appointees to the Cadre posts in the Indian Administrative Service
\Vere appointe<l under r. 9 of the Indian Administrative Service (Cadre) Rules, the
appointments could not have been made in any capacity other than in an officiating
capacity. [587 H-588 A]
(3) As regards the other appellants also though the order of appointment does
not indicate that the appointments were in officiating capacity, the fact that they
retained their lien in their posts in the State Civil Services shows that that 1hey were
not appointed substantively to the senior duty posts but only in an officiating
capacity. [588B-C, D-E]
CIVIL
APPELLATE
JURISD!CTJO>i : Civil
Appeal
No. 1098
1970.
Appeal from the Judgment and Order dated 9th January, 1968
of the Punjab and Haryana High Court in Civil Writ No. 2301 of
1966.
R. K. Garg, S. C. Agarwal, S. S. Bhatnagar and V. J.
Francis,
for the appellants.
A
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'
c
+
D
E
F
G
•
H
'
.J
i
G. s. GILL '" PUN.JAB (Mathew, J.)
587
A
F. S. Nariman, Addi. Sol. Gen. for Union of India, P. P. Rao,
V. C. Mahajan, R. N. Sachthey and Girish Chandra for respcndent
nos. 2 and 3.
B
c
D
E
F
G
H
N. S. Bindra S. K. Mehta and 0. P. Sharma for respondent No. I.

## Text

586
G. S. GlLL AND ORS.
]',
THE STATE OF PUNJAB & ORS.
July 30, 1974
[A. N. RAY, C. J. AND K. K. MATHEW, J.]
Indian
Ad111inistrative Service (Cadre) Rules, 1954 rr. 4 and 9-Afembers of
State Civil Service appointed to cadre posts and equiralent posts and l/reu
rererted-Procedure under Art. 311, it should be followed.
Fundamental Rule 9(19) provides that a government servant officiates in a post
\vhen he performs its duties while another holds a lien on it. and also that the
Central G·overnment n1ay appoint a government servant to officiate in a post on
\vhich another does not hold a lien. The proviso tor. 4 {2) of the Indian Administrative Service
(Cadre) Rules, 1954, provides that the State Government may
under certain conditions and for a certain period, add to a State or joint
cadre one or more posts carrying duties of like nature to cadre posts; and r. 9
of the Indian Administrative Service (Cadre) Rules provides that subject to certain
conditions the State Government may fill temporarily a cadre post in a State by
a person \vho is not a cadre officer.
Some of the appellants were appointed by the State Government to cadre posts
in the Indian Administrative Service and others were appointed to senior duty posts
\Vhi;h
were declared as equivalent to cadre posts in the Indian Administrative
Service. All of them were reverted to their substantive posts in the State Civil Service.
They challenged the reversion on the ground that it was punitive and that the pro·
cedure under Art. 311 should have been follo\ved. The High Court overruled the
contention.
Disn1issing the appeal to this Court,
HELD : (1) Unless a person has a right to a post, an order of reversion from
that post cannot
amount to dismi~al or removll within the meaning of Art. 331
and, a person gets a right to a post only when he is substantively appointed to it.
Therefore, if the appointments of the appellants were officiating appojntments of
either type mentioned in F. R. 9(19), the revision to State Civil Service \VOuld not
attract Art. 311. [588 G-589 A]
Parshotam Lal Dhingra v. Union of India [1958] S. C. R. 828, The State of
Bon1bay v. F. A. Abrahani [1962] Supp. 2 S. C. R. 92, at 97, Divisional Personnel
Officer, Southern Railway v. S. Raghavandrachar, [1966] 3 S. C.R. 106, Union of
India and Another v. Gajendra Singh etc. [1972] 3 S. C. R. 660 and Union of India v.
M. L. Capoor and Ors. A. I. R. 1974 S. C. 87, 103 foJlowed.
(2) Since the appointees to the Cadre posts in the Indian Administrative Service
\Vere appointe<l under r. 9 of the Indian Administrative Service (Cadre) Rules, the
appointments could not have been made in any capacity other than in an officiating
capacity. [587 H-588 A]
(3) As regards the other appellants also though the order of appointment does
not indicate that the appointments were in officiating capacity, the fact that they
retained their lien in their posts in the State Civil Services shows that that 1hey were
not appointed substantively to the senior duty posts but only in an officiating
capacity. [588B-C, D-E]
CIVIL
APPELLATE
JURISD!CTJO>i : Civil
Appeal
No. 1098
1970.
Appeal from the Judgment and Order dated 9th January, 1968
of the Punjab and Haryana High Court in Civil Writ No. 2301 of
1966.
R. K. Garg, S. C. Agarwal, S. S. Bhatnagar and V. J.
Francis,
for the appellants.
A
' .,..
'
c
+
D
E
F
G
•
H
'
.J
i
G. s. GILL '" PUN.JAB (Mathew, J.)
587
A
F. S. Nariman, Addi. Sol. Gen. for Union of India, P. P. Rao,
V. C. Mahajan, R. N. Sachthey and Girish Chandra for respcndent
nos. 2 and 3.
B
c
D
E
F
G
H
N. S. Bindra S. K. Mehta and 0. P. Sharma for respondent No. I.
The Judgment of the Court was delivered by
MATHEW. J.-The appellants filed a petition before the High Court
of Punjab under Articles 226 and 227 of the Constitution for quashing
the orders passed by the State of Punjab reverting them from the posts
held by them in an officiating capacity in the cadre and ex-cadre posts
of senior scale of Indian Administrative Service to their substantive
posts in the State Civil Service from which they were promoted.
The appellants contended before the High Court that the orders
of reversion were punitive in character and, therefore, attracted the·
provisions of Article 311 of the Constitution and since they were given
no reasonable opportunity to make their representations against the
reversion, the orders were bad, and prayed for quashing them. The
High Court overruled the contention and dismissed the petition_ This
appeal, by certificate, is against that order.
The case of the appellants in the writ petition was that their names
were included in the Select List prepared under Regulation 4 of the
Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as the 'Promotion Regulations')
and that they thereby acquired right to be appointed to the cadre and
ex-cadre posts in the Indian Administrative Service. In paragraphs
II and 13 of the writ petition, they said that in the State of Punjab
there were two types of posts in the Senior Duty Scale, namely, (i)
Cadre posts which are specified in the Schedule to the Indian Administrative Service (Cadre) Rules, 1954 and, (ii) ex-cadre posts; that the
ex-cadre posts were created by the State Government from time
to time according to exigencies of service and in matters of pay, promotion and other benefits. the ex-cadre posts were declared equivalent
to a cadre post and that they were appointed to senior duty posts and
ex-cadre in 1963 and 1964.
The creation of ex-cadre posts by State Government can only be
in terms of the second proviso to Rule 4 (2) of the Indian Administrative Service (Cadre) Rules, 1954. That proviso reads as follows:
'Provided further that the State
Government
concerned
may add for a period not exceeding one year and with the
approval of the Central Government for a further period not
exceeding two years, to a State or Joint Cadre one or more
posts carrying duties or responsibilities of a like nature to cadre
posts."
Even if it be assumed that the State Government could appoint
any person to these excadre posts, the appointment must necessarily
he temporary appointment. So far as appellants 1, 3 and 5 are concerned, there can be no doubt that since the appointments were made
by the State Government to cadre posts in the Indian Administrative
588
SUPREME COURT REPORTS
[1975] 1 S.C.R.
s~rvi cc, the appointments could not have been in any capacity other
than in an officiating capacity under Rule 9 of the Jndian Administrative Service (Cadre) Rules. Mr. Garg for the appellants contended
that appellants 2, 4 and 6 to 12 were appointed to senior duty posts
which were declared as equivalent to cadre posts in the Indian Administrative Service and as the orders of appointment did not indicate
that they were appointed in any officiating capacity, the appointments
must be deemed to be substantive in character. No doubt, the orders
of appointment of these appellants do not say that they were appointed
in an officiating capacity; and in paragraph 15 of the writ petition,
they said that they were appointed to various senior duty posts not
in an officiating capacity. This averment was denied by the Government of India. In the affidavit in reply, the appellants stated that it
was wrong to equate regular officiating appointments with stop-gap
or local arrangements. They said that officiation is of two kinds,
one, officiation of a subordinate service official against a post in a
superior service in a stop-gap or local arrangement when the regular
incumbent of the post is, say, on leave and the other, officiation of
a regular recruit on appoinment to service in which he is to be confirmed
and made substantive permanent in due course on availability of a
substantive vacancy and that "the officiating appointments of the appellants in the senior scale of the I. A. S. was of the second type". The
appellants also
said that they retained their .Jien in their posts
in the State Civil Service which would make it clear that they were
not appointed substantively to the senior duty posts, but only in an
-0fficiating capacity. The judgment of the High Court also proceeds
on the basis that these appellants were appointed in an officiattng
capacity to senior duty posts. These appellants had no case that they
were substantively appointed to any posts.
There can be two types of officiating appointments. Fundamental
Rule 9(19) provides:
"9(19) Officiate. A Government servant officiates in a post
when he performs the duties of a post on which another person
holds a lien. The Central Government may, if it thinks fit,
appoint a Government servant to officiate in a vacant 'post on
which no other Government servant holds a lien".
If the appqintments were
officiating appointments, whether
of
the type mentioned in the first portion of the meaning of the word
'officiate' in P.R. 9(19) or in its latter part, there can be no doubt that
the reversion of the appellants to their substantive posts in the State
Civil Service would not attract the application of Article 311 unless
the orders of reversion cast stigma and were, therefore, punitive in
character. There is no case that" orders of reversion cast any stigma
upon the appellants.
Parshotam'Lal Dhingra '" Union of India (1)
is clear authority for the proposition that unless a person has a right
to a post, a simple order of reversion from that post cannot amount to
dismissal or removal within the meaning of Article 311 and that a person
(I) [1958] S.C.R. 828.
A
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F
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t
B
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G. s. GILL v. PUNJAB (Mathew, J.)
589
gets a right to a post only when he is substantively appointed to
it.. This is what their Lordships said at p. 842:
"It is, therefore, quite clear that appointment to a permanent
post iii a Government service, either on probation, or on an
officiating basis, is, from the very nature of such employment,
itself of a very transitory character and, in the absence of any
special contract or specific rule regulating the conditions of the
service, the implied term of such appoinment, under the
ordinary law of master and servant, is that it is terminable
at any t;me.
In short, in the case of an appointment
to a permanent post in a Government service on probation or on
an officiating basis, the servant so appointed does not acquire
any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation
or an officiating basis can do, if his service is terminated at any
time".
This passage was quoted with approval in The State of Bombay
'" F. A. Abraham (1).
See also Dil'isional Personnel Officer Southem
Railway '" S. Raghal'endrachar (2) and Union of India and Another
ll
'" Gajendra Singh etc. (l)
As appellants I, 3 and 5 were appointed under Rule 9 of the Indian
Administrative Service (Cadre) Rules, there can be no doubt that the
State Government was competent to terminate their appointments
at any time (see U11io11 of l11dia '" M. L. Capoor a11d Others (4).
E
The appellants have not made out their case as specified in the writ
petition or as urged by them before the High Court.
We hold that the High Court was right in its conclusion.
We
dismiss the appeal. No order as to costs.
V.P.S.
(1) [1968] Sup. 2 S.C.R. 92, at
(2) [1966] 3, S.C.R. 106.
{3) [1972] 3, S.C.R. 660.
Hl A.l.R. 1974 SC. 87, 103.
Appeal dismissed.