# P. C. WADHWA v. UNION OF INDIA & ANR

- **Citation:** [1964] 4 S.C.R. 598
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** S. K. DAs, AcTING C.J, K. SuB~A RAo, RAcHUBAR DAYAL, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-c-wadhwa-v-union-of-india-anr-3177
- **Pages:** 32

## Headnote

Police Service-Officer officiating in the senior
tinie~scale
served with charge sheet-Before enquiry reverted to substantive
post-tvhether entitled as of right to promotion to senior scaleWhether order of reversion amounts to "reduction in rank"-
Constitution of India, Art. 311-lndian Police Service (Pay)
Rub, J 954, r. 3-lndian Police Service (Cadre) Rules, 1954, rr. 3,
4(1), 8, All India Service (Discipline and Appeals) Rules, 1955
Explanation 4, r. 3-lndian Police Service (Recruitnient)
Rules,
1954, r. 3.
The appellant is a inernber of the Indian Police Service.
I--le
joined the service in 1952 and \Vas confinned in 1953.
In 1958
the appellant was promoted to officiate in the senior tin1e-scale
and was posted as Additional Superintendent of Police at Ferozepore, in the place of one Siasat Singh who was granted leaYe,
and his pay was fixed at Rs. 600.00 per month.
He earned an
incren1ent and his pay was raised to Rs. 640.00 per month.
In
July 1958 he \Vas served \.Vith a charge sheet and was called upon
to submit his defence and he submitted
his
reply.
Before
the enquiry started he i,vas reverted to his substantive rank
ot
Asstt. Superintendent of Police by an order dated November 3,
1958. I-Iis reversion was not due to "the return of the permanent
incumbent from leave or deputation" or for any ;;,idmin.i5trative
reason.
Other officers junior to the appellant continued to offi.
ciate in the senior scale while he was reverted.
The personal file of the appellant which was produced both
before this Court and the High Court showed that the
reason
given by the respondent for the reversion of the appellant \Vas
that he \Vas tried as Superintendent of Police and was found to
be immature and was not true.
The file also n:vealed
a
note
made by the Senior Superintendent of Police on 6-10-58 to the
effect that as the regular enquiry into the conduct of the appel.
lant would take a long time it was advisable to revert him.
The appellant filed before the High Court of Punjab a
peti~
tion under Art. 226 of the Constitution of India against the order
of reversion.
The 1--Iigh
Court disn1issed
the
pctitioll.
'The
present appeal was by way of special leave granted by this Court.
It \Vas contended that under the relevant rules governing the
Indian Police Service, a men1ber thereof was entitled as of right
to be promoted to a post in the senior scale as and when a vacancy (except a vacancy in the promotion guota) arose
therein
and no
one
senior to
him was
available for
that post,
that
11pon the facts and circumstances of the case the order of reversion
was in effect a reduction in rank within the meaning of Art.
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4 S.C.R.
SUPREME COURT REPORTS
599
311(2) of the Constitution and that inasmuch a• he was not
given an opportunity of shoiving cause against the said order ther~
was a violation of
~t.\rt. 311.
I\elying on the principle laid do\vn
in Purshottam Lui Dhingra \'. Union of India, [1958] S.CJZ. 828
the appellant alternatively contended that the order of reversion
involved
penal consequences and operated
as a
punishment.
The respondent denied that the appellant had any right to
be appointed to a vacancy to a senior scale as claimed by
hi1n
since such appointment \Vas not automatic and it involved a process of selection. 'fhis bein~ the position the reversion order did
not amount to a reduction in rank so as to attract the provision
of Art. 311(2).
As to the alternative contention of the appellant
the respondent re-plied that since the order of reversion \Vas made
for the reason that the appellant was found to he unfit and immature to hold a senior post, it could not be eai<l that his reve!'-
sion amounted to a punish111ent.
Held : (per K. Subba Rao, Raghubar Dayal an<l J. R. Mudholkar, JJ.) A consideration of the various rules would 1nake it
clear beyond doubt that a person in the junior ti1ne-scale of the
service is as much a cadre officer as one holding a post in
~he
senior ti.1ne-scale or a post ahove the time-scale.
The
effic

## Text

_Characters 0–39,905 of 76,903. This is a partial read: ask again with offset=39905 for what follows._

1963
August 27
598
SUPREME COURT REPORTS
[1964]
P. C. WADHWA
v.
UNION OF INDIA & ANR.
(S. K. DAs, AcTING C.J., K. SuB~A RAo, RAcHUBAR DAYAL,
N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLKAR, JJ.)
Police Service-Officer officiating in the senior
tinie~scale
served with charge sheet-Before enquiry reverted to substantive
post-tvhether entitled as of right to promotion to senior scaleWhether order of reversion amounts to "reduction in rank"-
Constitution of India, Art. 311-lndian Police Service (Pay)
Rub, J 954, r. 3-lndian Police Service (Cadre) Rules, 1954, rr. 3,
4(1), 8, All India Service (Discipline and Appeals) Rules, 1955
Explanation 4, r. 3-lndian Police Service (Recruitnient)
Rules,
1954, r. 3.
The appellant is a inernber of the Indian Police Service.
I--le
joined the service in 1952 and \Vas confinned in 1953.
In 1958
the appellant was promoted to officiate in the senior tin1e-scale
and was posted as Additional Superintendent of Police at Ferozepore, in the place of one Siasat Singh who was granted leaYe,
and his pay was fixed at Rs. 600.00 per month.
He earned an
incren1ent and his pay was raised to Rs. 640.00 per month.
In
July 1958 he \Vas served \.Vith a charge sheet and was called upon
to submit his defence and he submitted
his
reply.
Before
the enquiry started he i,vas reverted to his substantive rank
ot
Asstt. Superintendent of Police by an order dated November 3,
1958. I-Iis reversion was not due to "the return of the permanent
incumbent from leave or deputation" or for any ;;,idmin.i5trative
reason.
Other officers junior to the appellant continued to offi.
ciate in the senior scale while he was reverted.
The personal file of the appellant which was produced both
before this Court and the High Court showed that the
reason
given by the respondent for the reversion of the appellant \Vas
that he \Vas tried as Superintendent of Police and was found to
be immature and was not true.
The file also n:vealed
a
note
made by the Senior Superintendent of Police on 6-10-58 to the
effect that as the regular enquiry into the conduct of the appel.
lant would take a long time it was advisable to revert him.
The appellant filed before the High Court of Punjab a
peti~
tion under Art. 226 of the Constitution of India against the order
of reversion.
The 1--Iigh
Court disn1issed
the
pctitioll.
'The
present appeal was by way of special leave granted by this Court.
It \Vas contended that under the relevant rules governing the
Indian Police Service, a men1ber thereof was entitled as of right
to be promoted to a post in the senior scale as and when a vacancy (except a vacancy in the promotion guota) arose
therein
and no
one
senior to
him was
available for
that post,
that
11pon the facts and circumstances of the case the order of reversion
was in effect a reduction in rank within the meaning of Art.
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..
4 S.C.R.
SUPREME COURT REPORTS
599
311(2) of the Constitution and that inasmuch a• he was not
given an opportunity of shoiving cause against the said order ther~
was a violation of
~t.\rt. 311.
I\elying on the principle laid do\vn
in Purshottam Lui Dhingra \'. Union of India, [1958] S.CJZ. 828
the appellant alternatively contended that the order of reversion
involved
penal consequences and operated
as a
punishment.
The respondent denied that the appellant had any right to
be appointed to a vacancy to a senior scale as claimed by
hi1n
since such appointment \Vas not automatic and it involved a process of selection. 'fhis bein~ the position the reversion order did
not amount to a reduction in rank so as to attract the provision
of Art. 311(2).
As to the alternative contention of the appellant
the respondent re-plied that since the order of reversion \Vas made
for the reason that the appellant was found to he unfit and immature to hold a senior post, it could not be eai<l that his reve!'-
sion amounted to a punish111ent.
Held : (per K. Subba Rao, Raghubar Dayal an<l J. R. Mudholkar, JJ.) A consideration of the various rules would 1nake it
clear beyond doubt that a person in the junior ti1ne-scale of the
service is as much a cadre officer as one holding a post in
~he
senior ti.1ne-scale or a post ahove the time-scale.
The
efficiency
bar contained in r. 6(2) of the Pay Rules has no bearing on
the appointment of a person whose incre111ent has been
barred
to a post in the senior scale. The wording of this rule lends support to the conclusion that in the service \Vhat counts is the
length of service of a member and not even whether
he
has
or has not passed the departn1ental examination.
Had it been
the intention of the (}overnn1ent to bring in the elen1ent of
selection in
~o far as
promotion of Assistant Superintendents
of Police to the posts of Superintendents of Police is concerned
exprc'.;S provisions would have found place in the rules.
The whole scheme of the rules indicates that a person in
the junior scale of pay has a right to hold a post on the senior
scale of pay subject to the availability of a post in the
senior~
scale of pay and his seniority in the junior scale of pay.
If a
person ho_lding a post in the senior scale, though in an officiating
capactty, is found to be unfit to hold that post action will have
to be taken against him as required~ by r. 5 of Discipline
and
Appeal llules because his reversion to a post in the lower scale
would a1nount to a reduction in rank within the n1eaning of Art.
311.
From the facts and circumstances of the case it is found tI1at
t~e appellant h~s not only been reduced in rank but his promotion to the senior scale also has been withheld and this could bedone only by holding a departmental enquiry.
The appellant was reverted to
facilitate
the
<lepart1nenta!
enquiry a.gainst him and the order of the Government was there-
:!'
fore ma/a fide.
1963
P. C. Wadhwa
v.
Union oj
India and
Anr.
1963
P. C. Wadhwa
v.
Union of
Indio •nd
Anr.
600
SUPREME COURT REPORTS
(1964]
Held
(per S. K. Das, Acting C.J. and 'N. Rajagopala Ayyangar J.)
An officer in the junior scale has no right to go automa·
tically into the senior scale.
On the contrary the suitability of a
cadre officer is a relevant consideration even in the matter of
a
temporary appointment.
The Indian Police Service (Pay) Rules,
1954, which provides for t\VO independent scales spread over\ a
period of years, seem to indicate that an officer in the junior scale
cannot claim such automatic promotion.
The provision
for
an efficiency bar at the stage "'·hen the salary of a junior officer
reaches Rs. 590.00 also lea<ls to this conclusion.
The expression
"on appointn1ent to a post on the senior time~scale" occurring in
r. 4(2) and the provision in r. 8 which states that any member
of the service appointed to hold a post specified in Schedule II
shall be entitled, as long as he holds that post, to dra'~ the pay indicated for that post also support this
conclusion.
Explanation
(4) tor. 4 of the All India Services (Discipline and Appeal) Rules,
1955, sho\vs clearly that a member of the service cannot claim
the right to officiate in a higher post merely by reason of his
seniority and even when he is officiating in a higher post
he may be
reverted after a trial in that post or for adn1inistrative reasons and such a reversion does not amount to a
reduction in rank.
When a person is reverted to his substantive rank, the question of penal consequences in the matter of forfeiture of pay
or loss of seniority must be considered in the context of his substantive rank and not with reference to his officiating rank
fro1n which he is reverted for every reversjon must necessarily
1nean that the pay \vill be reduced to the pay of the substantive rank.
A matter of this kind has to be looked from the point of
view of substance rather than of form.
All the relevant factors
should be taken into consideration and if on such a consideration
the conclusion is that the reduction is by way of punishment
involving penal consequences to the officer even though the Government has a right to pass the order of reduction the provisions of Art. 311 \vill be attracted and the officer must be given
a reasonable opportunity of showing cause ·against the proposed action.
On an examination of the facts and circumstances of the case
it is found that the appellant was reverted by way of punishment" but he \Vas given no opportunity of showing cause against
the action proposed to be taken against him.
Therefore the
order of reversion was in violation of Art. 311 of the Constitution.
C1v1L APPELLATE JuR1so1cTION : Civil Appeal No. 720
of 1962.
Appeal by special leave from the judgment and order
dated January 20, 1961, of the Punjab High Court in Civil
Writ No. 752/1959.
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4 S.C.R.
SUPREME COURT REPORTS
601
The appellant appeared in person.
S. ·v. Gupte, Additional Solicitor-General for India,
Mohinder Singh Punnu, Deputy Advooate-General for the
State of Punjab, N. S. Bindra, R. H. Dhebar, R. N. Sachthey and P. D. Menon, for the respondents.
August 27, 1%3. The Opinion of S. K. Das, Acting
C.J., and Rajagopala Ayyangar, J. was delivered by S. K.
Das, Acting C.J. The Judgment of K. Subba Rao, Raghubar Dayal and Mudholkar, JJ. was delivered by Mudholkar, J.
S. K. DAS, Acting Chief Justice.-This is an appeal
by special leave. The appellant is a member of the Indian Police Service. He joined that service on October
3, 1952 as a result of a competitive examination ·held in
1951, and was posted in the State of Punjab. He was confirmed on November 30, 1953. The time-scales of pay
admissible to a member of the Indian Police Service consist of the junior scale, the senior scale and selection
grade ; see r. 3 of the Indian Police Service (Pay) Rules,
1954. In pursuance of sub-rule (1) of r. 4 of the Indian
Police Service (Cadre) Rules, 1954. the Central Government made regulations known as the Indian Police Service (Fixation of Cadre Strength) Regulations,
1955.
Under these regulations, Punjab has 57 senior posts in
the Indian Police Service out of which some have to be
filled by promotion in accordance with r. 9 of the Indian
Police Service (Recruitment), Rules, 1954. T@ this aspect
of the case we shall advert later.
The number of
junior posts is also laid down in the regulations. The
Indian Police Service (Pay) Rules, 1954, also lays down
in Schedule III-(a) posts carrying pay above the timescale of pay of the Indian Police Service under the State
Governments, (b) posts carrying pay in the senior timescale of the Indian Police Service under the State Governments, and
( c) posts carrying pay above the timescale 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 timescale. The pay of a member of the Service in the junior
time-scale shall, on appointment to a post on the senior time-scale, be fixed at the corresponding stage in the
senior time-scale as shown in Schedule I of the Indian
39-2 S. C. India/64
1963
P. C. Wadhwa
v.
Union of
India and
Anr.
S. K. Das
Acg. C. f.
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 Additional Superintendent of Police, Ferozepore. The order
dated January 18, 1958 stated that the appellant was permitted to officiate as Superintendent of Police and posted as Additional Superintendent of Police, Ferozepore,
vice Shri Siasat Singh granted leave from
January 27,
1958.
Because of this officiating promotion, the appellant's pay was fixed at Rs. 600.00 which is the lowest pay
in the senior scale. On April 19, 1958, the appellant was
transferred and posted as Additional Superintendent of
Police, Punjab Armed Police, Ferozepore. This post carried a special pay of Rs. 100.00 per month. The appellant earned one increment on October 3, 1958 and his
basic pay was raised from Rs. 600.00 to Rs. 640.00 per
month. On July 18, 1958 the appellant was served with
a charge sheet and was called upon to submit a reply in
defence. The appellant submitted a reply which apparently did not satisfy the Government.
An enquiry was
ordered, and an officer was appointed to hold the enquiry.
However, before the enquiry started the appellant was
reverted to his substantive rank of Assistant Superintendent of Police by an order dated November 3, 1958.
The post of Assistant Superintendent of Police is a post
in the junior scale and the order dated November 3, 1958
stated that the appellant was reverted to his substantive rank of Assistant Superintendent of Police from the
date he was relieved and on reversion the appellant was
posted as Assistant Superintendent of Police at Amritsar. It is this order dated November 3, 1958 which is
the main subject of attack in the present appeal.
We shall presently state the grounds on which the
appellant attacks the order of reversion; but before we
do so, we may complete the statement of facts. The appellant challenged the order of reversion by means of a
Writ Petition filed in the Punjab High Court. This Writ
Petition was however dismissed as premature, on the
ground that the appellant had filed an appeal, permissible under the rules, to the Government of India against
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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 dismissed the appeal by an order dated May 8, 1959. The
appellant then filed a second Writ Petition in the Punjab
High Court out of which the present appeal has arisen.
This second Writ Petition was first placed before a single
Judge who referred it to a larger Bench. The Writ Petition was ultimately heard by Khosla, C.J. and Dulat, J.
They dismissed the petition. The appellant then moved
this court for special leave and having obtained such leave,
has brought the present appeal to this court from the
order of the High Court dated January 20, 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 appellant has been that under the relevant rules governing
the Indian Police Service, a member thereof is entitled
as of right to be promoted to a post in the senior scale as
and when a vacancy (except a vacancy in the promotion
quota) arises therein and no one senior to him is available for that post; at the time when the appellant was
reverted, officers junior to him in the I.P.S. cadre of the
Punjab State were officiating in the senior scale ; therefore, the order of reversion made against the appellant on
November 3, 1958 was in effect a reduction in rank within the meaning of Art. 311 (2) of the Constitution for
it operated as a forfeiture of his right, and inasmuch as
the appellant was given no opportunity of showing cause
against the said order of reversion, there was a violation
of the provisions of Art. 311 of the Constitution. Alternative! 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 promotion ; 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. /.
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 amounted to a reduction in rank by way of punishment, irrespective of whether the appellant had a right to be appointed to a vacancy in the senior scale. These are the two
main grounds on which the appellant has attacked the order
of reversion. He.has also raised a contention that the order
of reversion was malafide, improper and against the provisions of Arts. 14 and 16 of the Constitution.
On behalf of the respondents, the main contention
has been that under the relevant rules the appellant had
no absolute right to be appointed to a vacancy in the senior scale as and when such vacancy occurred therein
and nobody senior to the appellant was available for it.
The stand taken on behalf of the respondents is that under r. 4(2) of the Indian Police Service (Pay) Rules, 1954
appointment to a post on the senior time-scale is not
automatic, because such appointment involves a process
of selection ; therefore, there was no forfeiture of any right
of the appellant by the order of reversion made against
him and the provisions of Art. 311 (2) are not attracted to it. As to the alternative contention of the appellant
the reply of the respondents has been that the order of
reversion made against the appellant was not made by way
of punishment.
In their written statements, the respondents have stated that the order of reversion was
not made as a measure of punishment or penalty, but
was made because the appellant who was tried as officiating Superintendent of Police was -not found fit and
ripe enough for being entrusted with the duties and responsibilities of a Superintendent of Police. It was further
averred that the departmental enquiry instituted against
the appellant had nothing to do with the order of reversion. The respondents relied on Explanation ( 4) to r. 3
of the All India Services (Discipline and Appeal) Rules,
1955, which says that the reversion to a lower post of
a member of the service who is officiating in a higher
.post, after a trial in the higher post or ·for administrative reasons (such as the return of the permanent incumbent from leave or deputation, availability of a more suitable officer, and the like) does not amount to reduction
in rank within the meaning of r. 3 which deals with
penalties that may, for good and sufficient reasons, be irn-
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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 appellant to show cause against the action proposed to be
taken and there has been no violation of the provisions
of Art. 311 of the Constitution. The respondents have
also denied that the order of reversion made against the
appellant was malafide or improper or that it violated the
fundamental rights guaranteed under Arts. 14 and 16 of the
Constitution.
We may now briefly state the findings which the
High Court has arrived at. The first finding of the High
Court was that the appellant did not hold the officiating
post of a Superintendent of Police as a matter of right
and his case was covered by Explanation ( 4) referred to
above; therefore, the order of reversion did not amount
to reduction in rank within the meaning of Art. 311 (2)
of the Constitution. Secondly, the High Court found that
the reversion of
the appellant to his substantive rank
of Assistant Superintendent of Police was not by way of punishment and the reasons which led to the framing
of a charge sheet against the appellant were not the reasons
which prompted the order of reversion. Therefore, the
order of reversion was not per se an order of punishment
and did not inflict any stigma or stain upon the appellant, nor was the appellant debarred from future promotion to the senior scale. The High Court did not deal
with the question whether the order was malafide nor
with the question whether the order of reversion violated
any of the fundamental rights guaranteed under Arts. 14
and 16 of the Constitution, presumably because these were
not pressed in the High Court.
We proceed now to consider the first point urged on
behalf of the appellant, namely, whether he had a right
to a vacancy in the senior scale as and when such a vacancy occurred, except a vacancy in the promotion quota.
It is perhaps necessary to explain here what the promotion
quota means. Rule 9 of the Indian Police Service (Recruitment) Rules, 1954 says inter alia that the number of
persons recruited by promotion from amongst the members of a State Police Service (usually Deputy Superintendents of Police) shall not exceed 25 per ~ent of the
1963
P. C. Wadhw•
v.
Union of
India and
Anr.
S. K. Dar
Acg. C. f.
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 Service (Appointment by Promotion) Regulations, 1955. It
is sufficient to state here that a committee is constituted
to make a selection and a list of suitable officers is prepared. The selection for inclusion in such a list is based
on merit and suitability in all respects with due regard
to seniority. The Select List is considered from time to
time and after approval by the Union Public Service Commission, forms the Select List of the members of the State
Police Service from which the promotion quota is filled.
It is conceded on behalf of the appellant that a vacancy
in the promotion quota is not filled automatically and
that the regulations laid down in the Indian Police
Service (Appointment by Promotion) Regulations,
1955
clearly indicate that there is a process of selection in the
matter of filling up the promotion quota.
The argument of the appellant is that there is no such
selection with regard to vacancies in the senior scale
other than vacancies in the promotion quota ; therefore,
a member of the Indian Police Service who is in the junior scale is entitled as of right to go into the senior
scale in a vacancy other than a promotion quota vacancy,
provided that nobody senior to him in the Indian Police
Service is available for that post. In support of his contention the appellant has relied on the Indian Police
Service (Regulation of Seniority) Rules, 1954, particularly
r. 6 thereof which says inter alia that there shall be prepared every year for each State Cadre a gradation list consisting of the names of all officers borne on that Cadre
arranged in order of seniority in accordance with the provisions of the said rules.
We are unable to accept this line ·of argument
as
correct. Under r. 4 of the Indian Police Service (Recruitment) Rules, 1954 recruitment to the Indian Police
Service is done by two methods: (1) by a competitive
examination ; and (2) by promotion of substantive members of a State Police Service. Under r. 3 of the Indian
Police Service (Cadre) Rules, 1954 there shall be constituted for each State or. group of States an Indian Poljce Service c;adre. The strength and composition of each
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4 S.C.R.
SUPREME COURT REPORTS
607
of the Cadres constituted under r. 3 shall be determined by regulations made by the Central Government.
These regulations are known as the Indian Police Service
(Fixation of Cadre Strength) Regulations, 1955.
We
have already stated that so far as Punjab is concerned,
there are 57 senior posts out of which 14 have to be filled by promotion and 43 by direct recruitment. Amongst
the senior posts are included the posts of the Inspector General of Police, Deputy Inspectors General of
Police, Assistant Inspectors General of Police, Principal, Police Training School etc. If the argument of the appellant
were to be pushed to its logical extreme, then a member
of the Indian Police Service would be entitled as of right
to all the senior posts including the post of Inspector General of Police, Deputy Inspectors General of Police etc.
This, we do not think, can be correct, and indeed the appeilant does not so contend.
Under r. 8 of the Indian Police Service (Cadre) Rules, 1954, save as otherwise provided in the rules, every
cadre post shall be filled by a cadre officer.
That does
not however mean that a cadre officer is ei1titled as of
right to go into the senior scale or to hold every post
in the senior scale. The appellant has drawn our attention to r. 9 (b) of the Indian Police Service (Cadre) Rules, 1954.
That relates to the temporary appointment of
a non-cadre officer to a cadre post and the rule lays down,
inter alia, that a cadre post may be filled by a person who is not a cadre officer if the State Government is
satisfied that there is no suitable cadre officer
available
for filling the vacancy. We <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 temporary appointment. We think that the matter is governed by the Indian Police Service
(Pay)
Rules, 1954.
Every person recruited to the Indian Police Service by
a competitive examination remains on probation for
a
period of two years; see r. 3 of the Indian Police Service
(Probation) Rules, 1954. Thereafter, on his confirmation,
he starts on the junior scale. The Indian Police Service
(Pay) Rules, 1954, lay down two independent scales of
1963
P. C. Wadhwa
v.
Union of
India and
Anr.
S. K. Das
Acg. C. /.
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 automatically 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 in
the majority of cases, because all officers would automatically go into the senior scale long before the eleventh year
unless they were kept back by way of punishment.
Rule 4 of the aforesaid rules lays down that the initial
pay of a direct recruit shall be fixed at the minimum of
the junior time-scale. R. 4(2) is important for our purpose and may be quoted here.
"4. (2) The pay of a member of the Service in the
junior time-scale shall, on appointment to a post on
the senior time-scale, be fixed at the corresponding
stage in the senior time-scale as shown in Schedule
I:
*
*
*
*
*
.,,
The learned Additional Solicitor-General who has argued
the case on behalf of the respondents has rightly drawn·
our attention to the words "on appointment to a post on
the senior time-scale" occurring in r. 4(2). His argument
is that those words indicate that the competent authority
must appoint a member of the Indian Police Service to a
post on the senior time-scale before he can claim the pay
fixed for the senior time-scale as shown in Schedule I ; in
other words, the argument is that the words "appointment to a post on the senior time-scale" show by necessary implication that the appointing authority has the right
either to- appoint or not to appoint a member of the
Indian Police Service to a post on the senior time-scale
•
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·•
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~-
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4 S.C.R.
SUPREME COURT REPORTS
609
and there is no automatic advance from the junior to the
senior scale. We think that this contention of the learned
Additional Solicitor-General is correct. Rule 8 of the
Indian Police Service (Pay) Rules, 1954 is also relevant in
this connection and fortifies the argument of the learned
Additional Solicitor-General. That rule says that any
member of the Service appointed to hold a post specified
in Schedule 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 rule makes it clear that there
must first be an appointment to a post specified in Schedule III and then a member of the Service appointed
to that post is entitled to draw the pay indicated in Schedule III. When we go to Schedule III we find that the
posts mentioned therein are classified under t9ree heads,
A, B and C. Category A relates to posts above the timescale of pay and includes the posts of Inspector General of Police and Deputy Inspectors General of Police.
The appellant concedes that to these posts there is
no automatic right to promotion.
Category B relates
to posts in the senior time-scale and includes, so far as
Punjab is concerned, the posts of Assistant Inspectors General 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 proper! 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 rule in
express terms says that any member of the Service appointed to hold a post specified in Schedule III shall, for
so long as he holds that post, be entitled to draw the
pay indicated for that post in the said Schedule. The
expression "for so long as he holds that post" is important and shows clearly enough that the appointing authority has a right to appoint or not to appoint a member of
the Service to a post in Schedule III. It is conceded that
such a right exists in the matter of category A and category C posts; but the argument is that no such right exists
1963
P. C. Wadhwa
v.
Union of
India and
Anr.
S. K. Das
Acg. C. /.
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
B posts.
\Ve do not see how in view of the express
terms of r. 8 any such distinction between category A
and category C posts on one side and category B posts on
the other can be made. In our view, r. 8 shows beyond
any doubt that the posts of Superintendents of Police
which are mentioned in category B of Schedule 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 lays
down the procedure to be followed for imposing those
penalties and states that no order shall be passed imposing any of the penalties specified in r. 3 on a member
of the Service unless he has been informed in writing of
the grounds on which it is proposed to take
action
and has been afforded an adequate opportunity of defending himself. In the Central Civil Services (Classification,
Control and Appeal) Rules, 19~7, a distinction is drawn
between penalties which are minor in nature such as censure, withholding of increments or promotion and recovery from the pay of an officer any pecuniary loss caused
to Government by his negligence, and other punishments
of a major character such as reduction in rank, compulsory retirement, removal or dismissal from service.
No
such distinction appears to have been made in the AllIndia Services
(Discipline and Appeal) Rules,
1955
save for certain exceptional cases mentioned in sub-rule
(10) of r. 5. Under r. 3 of the said rules there are seven
kinds of penalties one of which is "reduction in rank including reduction to a lower post or time-scale, or to a
lower stage in a time scale". There are certain Explanations tor. 3 of which Explanation (4) is important for our
purpose. This Explanation reads thus :
¥ '
-
'
-
}
-
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."
The High Court was of the view that the case
of the
appellant was covered by the aforesaid Explanation even
though the reversion of the appellant was not caused by
the return of the permanent incumbent from leave or deputation nor by the availability of a more suitable officer.
The High Court took the view that the instances mentioned in the Explanation were not exhaustive and the
phrase "and the like" was intended to cover other instances
of
reversion
when reversion was
not intended to
be by way of punishment or penalty. Whether the reversion of the appellant in the present case was by way
of punishment or penalty, apart from the alleged forfeiture of his right to go automatically to the senior scale,
is a question which we shall presently consider in relation to his alternative argument. At the present moment,
we are considering the question from the point of view
as to whether there has been any forfeiture of his right
to go automatically into the senior scale.
In our view
Explanation ( 4) to r. 3 shows clearly
enough
that a
member of the Service cannot claim the right of officiating
in a higher post merdy by reason of his seniority and
even when he is officiating in a higher post he may be reverted after a trial in that post or for
administrative
reasons and such reversion does not amount to reduction
in rank within the meaning of r. 3. The existence of
such a rule negatives the claim of the appellant that
he has the right to officiate in a post on the senior scale,
and any reversion from that officiating post amounts to
reduction in rank within the meaning of Art. 311 of the
Constitution.
There is a third aspect of the question. We have
stated 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 Ser1963
P. C. Wadhw11
v.
Union of
India and
Anr.
S. K. Das
Acg. C. f.
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 appointed 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 "appointed to a post in the selection grade". The words
show by necessary implication that an officer may or may
not be appointed to a post in the selection grade. Exactly
the same words occur also in r. 4(2) which we have earlier quoted. If the words "appointed to a post" are to be
interpreted in the same way, then there is no escape from
the position that there is no automatic right of appointment to a post on the senior time-scale.
We have therefore come to the conclusion that the
first contention urged on behalf of the appellant that he
has a right to go automatically into the senior scale is not
correct and cannot be upheld.
We turn now to the alternative argument of the appellant that in any view of the matter his reversion involved penal consequences to him within the meaning of
the rule laid down in Parshotam 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
'punishment or it may be an innocuous thing. If the
Government servant has a right to a particular rank,
then the very reduction from that rank will operate as
a penalty, for he will then lose the emoluments
and privileges of that rank. If, however, he has no
right to the particular rank, his reduction from an
officiating higher rank to his substantive lower rank
will not ordinarily be a punishment. llut the mere
fact that the servant has no title to the post or the
rank and the Government has, by contract, express or
implied, or under the rules, the right to reduce
him to a lower post does not mean that an order of
reduction of a servant to a lower post or rank cannot
in any circumstances be a punishment. The real
test for determining whether the reduction in such
cases is or is not by way of punishment is to find out
if the order for the reduction also visits the servant
with any penal consequences. Thus if the order en-
{1) [1958] S.C.R. 828.
-
-
4 S.C.R.
SUPREME COURT REPORTS
613
tails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance
may indicate that although in form the Government
had purported to exercise its right to terminate the
employment or to reduce the servant to a lower rank
under the terms of the contract of employment
or under the rules, in truth and reality the Government has terminated the employment as and by
way of penalty. The use of the expression "terminate" or "discharge" is not conclusive. In spite of the
use of such innocuous expression, the court has to apply the two tests mentioned above namely,
(1)
whether the servant has a right to the post or the rank
or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to. If the
case satisfies either of the two tests then it must be
held that the servant has been punished and the termination of his service must be taken as a dismissal
or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank
and if the requirements of the rules and Art. 311,.
which give protection to Government servant have
not been complied with, the termination of the service or the reduction in rank must be held to be
wrongful and in violation of the constitutional right
of the servant."
The appellant has contended that his case comes under the
second test laid down in Parshotam Lal Dhingra's
case('), namely that he has been visited with penal
consequences like loss of pay, loss of seniority and
the
stoppage or postponement of his future chances of promotion.
This is an aspect of the matter which has caused us
great anxiety. The admitted position is that the appellant
was reverted to the post of an Assistant Superintendent
of Police by an order dated November 3, 1958. The reversion was not due to the return of the permanent
incumbent from leave or deputation or for any administrative reason. It is also admitted that officers junior to
·----rr [1958] S.C.R. 828.
1963
P. C. Wadhrutr
v.
Union of
India and
Anr.
S. K. Das
Acg. C. f.
1963
P. C. Wadhwa
v.
Union of
India and
Anr.
S. K. Das
Acg. c. ].
614
SUPREME COURT REPORTS
[1%4]
the appellant continued to officiate in the senior scale
while the appellant was reverted. In its written statement
the respondent State took the stand that the appellant
was tried as Superintendent of Police and on trial he was
found to be immature.