# Kalyan Singh v. Stattof U.P

- **Citation:** [1962] Supp. 2 S.C.R. 92
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 59 of 1961
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kalyan-singh-v-stattof-u-p-2359
- **Pages:** 9

## Headnote

1961
Kalyan Singh
v.
Stattof U.P.
ijllafl J.
92
SUPREME OOURT REPORTS [1962) SUPP.
Nor is there any substance in the last contention. The orders pa.88cd under 88. 68F(2)(a) and
(b) flow from the publication of the scheme duly
approved and the issue of an order, which is not
quasi-judicial but administrative, by the Secretary
on behalf of the Regional Transport Authority is
not open to challenge. It is not the case of the
Petitioner in W. P. 20!!/u I in which alone. this
contention is raised that the order unauthori8ed:
what is contended iR above this contention is raised
that the order is being quasi-judicial, power to make
it cannot be delegated. But for reasons already set
out the order is not quMi· judicial; it is purely
administrative.
In our view, therefore, th& appeal and the
petitions must fail, and are dismissed with costs.
THE STATE OF BOMBAY
v.
F. A. ABRAHAM
(P. B.
G.A.JENDR.AGADK.AR, A. K. SARKAR, K. N.
W A.NCHOO, K. C.
DAS GUPTA and N. RAJAGOPA.LA
AYYANGAR, JJ.)
Government Seruant-0.Jficialing Po1t-ReverUd from, for
uniatis/actory work-I/ amoulll& lo p»niall,,..,.t-Re/wal by
Government to furni&la reaaon of rever6icm if prot1u IAal tlu ,....,._
•icm waa tn lhe nature of pvniahment-Government of I11dia
Acl, 1936(26 Ueo. 6 Lia. 21; •· UO(J)-Conatitution of Illdia,
Art. 311.
The respondent who held the substantive post of lnspe~
tor of Police and had been officiating as the Deputy Superintendent of Police was reverted" to his original rank of lmpector
without being given any opportunity of being heard in reJPCCt
of the reversion.
His request to furnish him with reasona of
his reversion was refu.aed. Later a Departmental enquiry was
held behind his back in respect of certain allegations of mis.-
conduct made agaimt him in a conidcntial communication
from the District Superintendent of Police to· the Deputy
Inspector-General of Police but these allegatiom W"'..rc not
proved at the enquiry. The Inspector-General of P~licc
however thereafter wrote to the Government that the respondent's previous record was not aatilfactory and that he had
·2s.c.R.
SUPREME COURT REPORTS
93
.been promoted to .,officiate as DeJ)Uty S_uperintenrlent of Police
in the expectation
that
he
\Vould turn a new J~af )J11t the
complaint made in th~ confidential m "moranrlurn \vas a cle'lr
proof that the respohtj.~nr \V~ habitually rlishone"t and dfrl not
deserve promotion.
As the order of reversion \Vas maintained
Jjy the Government, inspite of the representati'lns 1nacle by t~c
respondent, he
filed a suit challenging the order.
The _suit
'w.AS
decreed by the Court of first instance and the decree \Va:.s
affirmed by the High Court on appeal.
Held, that a person
officiat,ing in a post has no
righ~ to
hold it for all times.
A person who is given an officiating post
to test his . suitability to be made permanent later, holds it on
~he implied term that he,would have to he
rev1•rted if he was
found unsuitab·le.
A reversion in such a case on the grc 11hd of
'unsuitability is
an
action· in accordance with the terdi~ on
'vhich the officiating post was being held and is nOt a reduction in
rank by way of punishment
to ,vhich s. 240 of the
Government of India Act, 1935, v .. ·ould be attracted.
The
oll~rvation in M. A.
W~heed ~- State nf Madhya
Pradesh, (r954) N. L. J. 305, that when a perso,1 officiating in
a post is rCve,rted for unsatisfactory tvork; that reversion
amounts to reduction in rank disapproved.
~he Government's rcfu~al to supply the· respond·ent, wi.th
the reasons for reverting him cqill~ not prove thit.t th6 rtvers1on
was by way .. of punishment. The departmental enquiry held
later in this case does rot proVe ·that the respoDdent waS
reverted by way of punishment. The Government had the
tight to consider the su.itability of the respondent to the post
to 'l'hich he had been· appointed to officiate.
·i
State of Bihar v. G~pi Kishore P~a.,ad, A. I. R. I 960 s:C.
689, referred to,

## Text

1961
Kalyan Singh
v.
Stattof U.P.
ijllafl J.
92
SUPREME OOURT REPORTS [1962) SUPP.
Nor is there any substance in the last contention. The orders pa.88cd under 88. 68F(2)(a) and
(b) flow from the publication of the scheme duly
approved and the issue of an order, which is not
quasi-judicial but administrative, by the Secretary
on behalf of the Regional Transport Authority is
not open to challenge. It is not the case of the
Petitioner in W. P. 20!!/u I in which alone. this
contention is raised that the order unauthori8ed:
what is contended iR above this contention is raised
that the order is being quasi-judicial, power to make
it cannot be delegated. But for reasons already set
out the order is not quMi· judicial; it is purely
administrative.
In our view, therefore, th& appeal and the
petitions must fail, and are dismissed with costs.
THE STATE OF BOMBAY
v.
F. A. ABRAHAM
(P. B.
G.A.JENDR.AGADK.AR, A. K. SARKAR, K. N.
W A.NCHOO, K. C.
DAS GUPTA and N. RAJAGOPA.LA
AYYANGAR, JJ.)
Government Seruant-0.Jficialing Po1t-ReverUd from, for
uniatis/actory work-I/ amoulll& lo p»niall,,..,.t-Re/wal by
Government to furni&la reaaon of rever6icm if prot1u IAal tlu ,....,._
•icm waa tn lhe nature of pvniahment-Government of I11dia
Acl, 1936(26 Ueo. 6 Lia. 21; •· UO(J)-Conatitution of Illdia,
Art. 311.
The respondent who held the substantive post of lnspe~
tor of Police and had been officiating as the Deputy Superintendent of Police was reverted" to his original rank of lmpector
without being given any opportunity of being heard in reJPCCt
of the reversion.
His request to furnish him with reasona of
his reversion was refu.aed. Later a Departmental enquiry was
held behind his back in respect of certain allegations of mis.-
conduct made agaimt him in a conidcntial communication
from the District Superintendent of Police to· the Deputy
Inspector-General of Police but these allegatiom W"'..rc not
proved at the enquiry. The Inspector-General of P~licc
however thereafter wrote to the Government that the respondent's previous record was not aatilfactory and that he had
·2s.c.R.
SUPREME COURT REPORTS
93
.been promoted to .,officiate as DeJ)Uty S_uperintenrlent of Police
in the expectation
that
he
\Vould turn a new J~af )J11t the
complaint made in th~ confidential m "moranrlurn \vas a cle'lr
proof that the respohtj.~nr \V~ habitually rlishone"t and dfrl not
deserve promotion.
As the order of reversion \Vas maintained
Jjy the Government, inspite of the representati'lns 1nacle by t~c
respondent, he
filed a suit challenging the order.
The _suit
'w.AS
decreed by the Court of first instance and the decree \Va:.s
affirmed by the High Court on appeal.
Held, that a person
officiat,ing in a post has no
righ~ to
hold it for all times.
A person who is given an officiating post
to test his . suitability to be made permanent later, holds it on
~he implied term that he,would have to he
rev1•rted if he was
found unsuitab·le.
A reversion in such a case on the grc 11hd of
'unsuitability is
an
action· in accordance with the terdi~ on
'vhich the officiating post was being held and is nOt a reduction in
rank by way of punishment
to ,vhich s. 240 of the
Government of India Act, 1935, v .. ·ould be attracted.
The
oll~rvation in M. A.
W~heed ~- State nf Madhya
Pradesh, (r954) N. L. J. 305, that when a perso,1 officiating in
a post is rCve,rted for unsatisfactory tvork; that reversion
amounts to reduction in rank disapproved.
~he Government's rcfu~al to supply the· respond·ent, wi.th
the reasons for reverting him cqill~ not prove thit.t th6 rtvers1on
was by way .. of punishment. The departmental enquiry held
later in this case does rot proVe ·that the respoDdent waS
reverted by way of punishment. The Government had the
tight to consider the su.itability of the respondent to the post
to 'l'hich he had been· appointed to officiate.
·i
State of Bihar v. G~pi Kishore P~a.,ad, A. I. R. I 960 s:C.
689, referred to,
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 59 of 1961.
Appeal from the judgment and (focree dated
March 14, lll57, 0f the Bombay High Court· at
Nagpur, in first Appeal No. 7tJ of 1956.
'
N.
S. Bindra and R. H. Dhehar, for the
appellant.
Frank Anthony, J. B. Dadachanji, 0. G. Mathur
and Ravinrl,er Nara·in. for the respondent.
.
1961. Depemh,er 12:
The Juqgment of the
9ourt was delivered by
961
Tks <::ta•i: oj P
..i
'
f. 4
-1lu.,,1 "'
1161
.s1-..1-_,
Y.
I' .A. Abr.M.•
Sork"' J.
94
SUPREME OOURT REPORTS [1962] SUPP.
SARKAR, J.-This is an appeal by the State of
Maharashtra against the judgment of the High
Court at Nagpur confirming the decree of the Addi.
tional District Judge, Nagpur, declaring that the
order reverting the respondent from the rank of
officiating Deputy Superintendent of Police to the
rank of Tnspector of Police, wa.s illegal and void,
and granting certain consequential re)iPfs.
The judgment of the High Court and the
learned Additional District Judgo seem to us to be
clearly unHustainable.
The Courts below held that
the respondent had been reduced in rank in viol&·
tion of the terms of s. 240(3) of the Government
of India Act, l!l35, which corresponds to A1t. 311
of the Ccnstitution, inasmuch as he was not given
an opportunity to show ca.use against the order
proposed to be made. It is not in dispute that the
opportunity had not lieen given. Jn our view,
however, for reasons to be prf'sently stated, the
respondent was not entitled to that opportunity.
On .Tune 8, 1948, the respondent, was holding
the post of Inspector in the Central Provinces and
Berar Police Service.
He was appointed to
offiCiate as Deputy Superintendent of Police with
Pffect frbm June 9, 1948. On January 27, 1949, his
R<lrvices were lent to the Hyderabad Government
i:1 connection with the police action then being
taken there. On February 5, 1949, he wa.s eent
back to the Central Provinces and Berar. On
February 19, 1949, the Inspector fleneral of Pnlioe,
Central Provinces anrl Berar, passed an order which
reads as follows :
"Shri F. A. Abra.ham (respondent) Deputy
l'uperintendent Police. Parbhani, is reverted
to rank of Inspector."
It is this orC:er which was sought to be Impugned
by the reiipOll<ient --in the suit out of which this
appeal a.rises.
..
2 S.C.R.
SUPREME COURT REPORTS
95
After the order of revernion had bern made
the respondent, on February 23, I 949, a~ked for
the reason for which he was reverted. On Ma.rch 3,
1949, the Government refused to communicate the
reasons to him.
On May 25, 1949, a nonfidentrnl
memorandum was sent by the District Suoerintendent of Police, Parbhani, to the Deputy Inspector
General of Police, Aurangabad, in which he stated
that he had conducted an inquiry into certain
allegations of corruption made against the respondent while he was acting in the service of the
Hyderabcid Government at Parbhani and he thought
that those allegations were of substance.
Thereupon, the Deputy InspPctor General of Police,
Aurangabad, held a departmPntal inquiry regarding
these allegations and round that thev had not been
proved. This inquiry had been held behind the
back of the respondent. Notwithstanding this, the
order reverting the respondent was maintained.
There is a letter addressed by the Insp3ctor General
of Police to the Chief Secretary to the Government
of Madhya Pradesh, dated August 19, 1950, written
after the departmenta) inquiry wherein it is stati;d
that the respondent's previom. record was not satisfactory and that he had been promoted to officiate as
Deputy Superintendent of Police as the Government
wits in need 0f officers and that he had been given
a chance in the expectation .that he would
~urn a
new leaf but the complaint made In the confidential
memorandum was a clear proof that the officer
was habitually dishonest and did not deserve pro-·.
motion. The respondent made representations to
the Governll'.ent to revise the order revertin~ him
to the lower rank' but the Government expressed
its inability to do so. It may be stated here that
on the promulgation of the Constitution the Central
Provinces and Berar became the State of Madhya
Pradesh in the Indian Union.
In the judgment under appeal the High Court
followed its earlier decision in M.A. Waheed v. State
1961
Tht St 1~t of Bornbay
v.
Ff of . .fhTaham
Sff.rkar J,
JNI
Tl. 8t•I< •f B..U'l)'
••
P.A. Allra~-
s,,,..,,J.
96
SUPRBICE COURT REPORTS [1982) SUPP.
of Madhya Pffllif.sk (1) in which it b&d hf'en held
that if a person officiatiruz i-n a higher post is
r~vertecl to hit orij?ina.I poRt in the norm&! course,
that is, on aotount oft he Ce!ll!&tion of the va.oancy
or his failure to acquire the required qualification,
the reversion dut's not amount to a reduction
in rank hut if he is reverted for
unsatisfactorv
work,
then
the
r1·version amounts to
reduction in rank. The Hi11:h rourt helrl that the
Government's plea. that the respondent had been
promotPd as there was dearth of officer8 was an
afterthought and that the fact that the respondent
had hr1·n giYen a. chance to ofticiatt• in the higher
post p1 lmr1 fnr.i{! showed that ho was fit to hold
that post. The High Court also held that the Government's refusal to communicate to the respond1mt
the reaAons f'or
hi~ revPrsion or to give him the
report nf the inquiry, imlirated that tho Govern·
ment Wall revertinl( him on the ground that his
work was not satisfactory. It, thf'refon', came to
the concl11sion on the authoritv of .W. A. Waheed's
OOAe (')that the respondent m·u~t he held to have
rnduced in P&nk and this reduction in rank was
illegal M the r<>spomknt had not bt•"n givl'n an
opport11nity to show <'ause aga.inRt it.
w .. ar<> unable to agree with the ob.~ervation in
Jf. A. lf aheed's r.a.~e(') that when a prrson officiatin)!
in a post, is rev<>rted for unsatisfactory work, that
wversion amount~ to a rPcfoction in rank. A person
offi~iating in a post. has no right to hold it for all times.
He may have he<>n given th .. officiating poRt because
the permanent in1'umheut wa,; not o.vailable, ha·:in)!
gone on leavo or bPing away for soml.' other reasons.
\Vhen the pnman<'nt incumbPnt 'e<1mcs ha<"k, the
pn~on officiating
is
naturally r<·Vt'rtml
to his
original post..
This is n(l reduction in rank for it
waH the very term on which he had bPPJI giHn the
officiating post.
Again, sometimes a pnson is given
ill
~19541 N. I. J. ~05.
•
I
I ,.
I
2S.C.R.
SUPREME COURT REPORTS
97
an officiating post to test his suitability to be mado
permanent in it later. Here a"ain. it is an imp!i<?d
term of the officiating appoi;;'tment that if he is
found unsuitable, he would have to go back. If,
therefore, the appropriate authorities find him unsuitable for the higher rank and then revert him
back to his original lower rank, the action taken is
in accordance with the terms on which the officiatin!!
post had been given. It is in no way a punishment
and is not, therefore, a reduction in rank. It has
been held bv this Court in Parshotam Lal Dhingra
v. Union of Inrlia (1) that,
"It is, therefore,
quite clear that
appointment to
a permanent post · ffi 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 appointment, under the ordinary law of master and servant, 'is that it
is terminable at any time. 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 on an officiating
basis can do, if hie service is terminated at
any time."
The respondent had of course no right to the post
of Deputy Snperintendent of Police to which he
had been given an officiating appointment and h"
does not contend to the contrary. He cannot
therefore,
without more, eomplain if he is sent
back to his original post. This is what happened
in this case even if it be taken that the respondent
(I) (1958] S.C.R. 828, 842.
1961
1he Stale of 8omha.1
'"
F. A. Abrcrh'lm
Sark1.r J.
1961
The S~t'Jte of Bombay
v.
F.A. Abraham
Sarkar J.
98
SUPREME COURT' REPORTS [1962] SUPP.
had been reverted to his· original rank because
he was
found unsuitable for the higher rank to
which he had bern given an officiating appointment.
It -is however true that even an officiating
person may be reverted to his original rank by
way of punishment. It was therefore, observed
in Dhingm'8 cn~e (')at p. 863,
" Thus if the order entails or provides
for the forfeiture of his pay or allowances
or the loss of his seniority in his substantive
rank or the stoppage or postponement of his
future chances of promotion, then that circumstances may indicate that although in form
the Government had purportrd to exerci8e
its right to terminate the employment or to
reduce the servant to a lower rank under the
terms of the contract of
employment or
undN the rules, in truth and reality the
Government has tnminated the employment
as and by way of pena,lty."
It is quite clear that th.;, circumstances mentioned
in this observation have not occurred in the present
case.
The reversion has not in any way affected ·
the respondent so far as his condition and prospect of service are concerned.
He, ef course, lost
the benefit of the appointment to the higher rank
but that hy itself cannot indicate tb;i.t the rever·
sion was by way of punisbn. ent because he _had no
right to continue in the hi~her post or to the benefit.s arising from it. He had been reverted in exercise of a right which the Governml'nt had under
the terms of the officiating empl0ym.ent.
Th« High
Court s~ems to us to have been in- error in thinking
that the ·Governμ1ent's refusal to supply the .responfi.,nt with the reasons why .action was ta.ken
against him proved that the reversion was a reduction in ·rank by way of punishm'ent; the refusal
o>innot prove that. It may give r.ise to a suspicion
ab1;mt the motive which
led tho Government
(ii
[1"581~.C.fL828.-842.
2 ·S.C.R.
SUPREME COURT REPORTS
99
to take the action, but it is now firmly established that if the action is justifiable under t'he terms
of the employment, then the motive
inducing
the action
is irrelevflnt in deciding the question
whether the action had been taken by way of
punishment: see Parshotam Lal Dhingra's case (1)
at p. 862. It does not require to be repeated
now that unless the reversion is by way of punishment, s, 240 (3) is not attracted.
The High Court seems to have been in error
also in drawing an inference from the holding of
the departmental
inquiry
that the respondent
must have been reduced in rank by way of punishment. The departmental inquiry was held long
after the order reverting the respo~dent bad been
passed and could not have been the occasion for
the
reversion of the respondent. The Government had the right to consider the suitability of
the respondent to hold the position to which he had
been appointed to officiate. It was
entitled for
that purpose to make inquiries about his suitability. This is all that the Government <lid in
this case. This inquiry cannot show,
whatever
the findings may have been, that the reversion
earlier made was by way of punishment.
Mr.
Anthony for the respondent referred
us to State of Bihar v. Gopi Kishor Prasad (2) in
which it was observed,
" But, if instead
of terminating such
a person's service without any enquiry, the
employer chooses to hold an enquiry into his
alleged miscowl net,. or ineffici<mcy,
or for
or some similar reason, the termination of
service i~ by way of punishment, because it
puts a stigma on his
compctenco and thus
affect his future career."
That case dealt with the discharge of a probationer
officer on the ground that he was unsuitable.
The observation there made was considered by this
(1) [1958] S.C.R. 828, 8{2.
(2)
A.J.R. 1960, S.C. G89.
1961
he Stati of Bombay
'
F.A. Abraham
Sarkar J,
JUI
Tiu Stat' of Bo~
v.
F . • t. A,r-aAam
S•rA:ar J.
100 SUPREME COURT REPORTS [1962) SUPP.
Court in the later case of The State of Oria,,a
v. Ram Nrirri11an [)a,, (1) where it was said,
"The third proposition in the latter eai;e
referR to an enquiry into allegations of misconduct or inefficiencv with a view, if they
were found estahlishe"d, to imposing punish
0
-
rnent and not to an enquiry whether & probationer should be confirmed."
We would repeat that in the present caae the enquiry was concerned with ascertaining the euita.
bility of the respondent for the higher rank and
was not a punishment.
At one stage Mr. Anthlfny was inclined to
argne that the enquiry was really a part of the
original order of reversion and that it had been
deliheratc.l>· puatpone.d so as to avoid the applicability of ~.
240(3) of the Government of India
Act, 1935.
Xo such case is made in the plaint.
Neither Wll.8 it rn&de in the Courte below nor can
it be based on their findings.
Such & o&se cannot
now be made.
We think, therefore, that the appeal mllltt
be allowed with costs throughout and we order
&ccord.ingly.
Appeal allowed.
(I) (C.A, No. 61 of 1959, uoropor~)