# THE STATE OF ANDHRA v. GADDAM VENKATAPPAYYA

- **Citation:** [1961] 3 S.C.R. 45
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeal No. 506 of 1957
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-andhra-v-gaddam-venkatappayya-2028
- **Pages:** 15

## Headnote

Police Service-Officiating Sub.Inspector-Order of reversion as
Head Constable-Validity-Rules relating to the Madras Police
Subordinate Service, rr. 3, 4 and 5.
The respondent, holding the substantive rank of a Head
Constable in the Madras Police Service, was promoted to officiate
as a probationary Sub-Inspector and, on the completion of the
period of probation, placed in the category of approved probationers for confirmation when substantive vacancies arose.
Instead of being confirmed he was, for administrative reasons,
reverted to his substantive post as the number of vacancies in
the post of Sub-Inspectors was not sufficient to include him.
Having failed to obtain redress from the Government, he moved
the High Court under Art. 226 of the Constitution.
Annexure r of r. 3 of the service rules provided that the
percentage of promotions from the rank of Head Constable to
that of Sub-Inspector was to be "upto not more than 30% of
the cadre", but provided no limitation for direct recruitment,
r. 4 provided that no vacancy shall be filled by the appointment
of a person who had not yet commenced his probation when an
approved probationer or a probationer was available; cl. (a) of
r. 5 provided that, for want of vacancy, the probationers were to
be discharged first in order of juniority and thereafter the
approved probationers in order of juniority and cl. (b) provided
that this order of discharge might be departed from in cases
involving, among others, exceptional administrative inconve~
nience.
The Single Judge, who heard the matter, held that there
was a violation of r. 3 of the Service Rules and directed the
State not to give effect to the order of reversion if by virtue of
his seniority he could be included within the 30% prescribed for
rank-promotees by that rule. The Division Bench, on appeal,
disagreed with the trial Judge as to the scope of r. 3 but dismissed the appeal holding that the rule as to juniority prescribed by
r. 5 of the service rules had not been strictly observed. The
State filed an appeal on a certificate granted by the High Court.
Held, that the words "upto and not more than 30% of the
cadre" in the Annexure r tor. 3, construed in the context of the
provision relating to direct recruits which prescribes no limitation, clearly fix 30 as the maximum percentage of promotions
r960
DectJmber
6 8.
The Slate of
Andhra
v.
Gadd am
Venkatappayya
Ayyangar ].
46
SUPREME COURT REPORTS
[1961)
from the rank of Head Constables to the post of Sub-Inspectors
and leave the appointing authorities free to adopt any other
percentage below that figure. There could, therefore, be
no infraction of the rule if the percentage of rank-promotees
was less than 30% of the total nu11Jber of the Sub-Inspectors on
the date of the reversion in question.
Rule 4, which regulate9 the right of probationers and
approved probationers to confirmation, applies only to the stage
prior to confirmation when the integration of the rank-promotees
and the direct recruits takes place so as to form a united service
and the proportion prescribed by .r. 3 has effect. That rule has
to be separately applied to the two classes and, consequently,
there was no violation of that rule in appointing direct recruits
to substantive posts in preference to the responde11t.
Under r. 5(a) the juniority for purposes of reversion has, on
the same reasoning, to be determined separately for the direct
recruits and the rank-promotees who constitute separate
classes.
·
Even otherwise, the impugned order could be sustained
under r. 5(b) in view of the case of administrative inconvenience
made by the Government and accepted by the Courts below.

## Text

,..
3 S.C.R. SUPREME COURT REPORTS
45
THE STATE OF ANDHRA
v.
GADDAM VENKATAPPAYYA
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
N. RAJAGOPALA AYYANGAR and
J. R. MUDHOLKAR, JJ.)
Police Service-Officiating Sub.Inspector-Order of reversion as
Head Constable-Validity-Rules relating to the Madras Police
Subordinate Service, rr. 3, 4 and 5.
The respondent, holding the substantive rank of a Head
Constable in the Madras Police Service, was promoted to officiate
as a probationary Sub-Inspector and, on the completion of the
period of probation, placed in the category of approved probationers for confirmation when substantive vacancies arose.
Instead of being confirmed he was, for administrative reasons,
reverted to his substantive post as the number of vacancies in
the post of Sub-Inspectors was not sufficient to include him.
Having failed to obtain redress from the Government, he moved
the High Court under Art. 226 of the Constitution.
Annexure r of r. 3 of the service rules provided that the
percentage of promotions from the rank of Head Constable to
that of Sub-Inspector was to be "upto not more than 30% of
the cadre", but provided no limitation for direct recruitment,
r. 4 provided that no vacancy shall be filled by the appointment
of a person who had not yet commenced his probation when an
approved probationer or a probationer was available; cl. (a) of
r. 5 provided that, for want of vacancy, the probationers were to
be discharged first in order of juniority and thereafter the
approved probationers in order of juniority and cl. (b) provided
that this order of discharge might be departed from in cases
involving, among others, exceptional administrative inconve~
nience.
The Single Judge, who heard the matter, held that there
was a violation of r. 3 of the Service Rules and directed the
State not to give effect to the order of reversion if by virtue of
his seniority he could be included within the 30% prescribed for
rank-promotees by that rule. The Division Bench, on appeal,
disagreed with the trial Judge as to the scope of r. 3 but dismissed the appeal holding that the rule as to juniority prescribed by
r. 5 of the service rules had not been strictly observed. The
State filed an appeal on a certificate granted by the High Court.
Held, that the words "upto and not more than 30% of the
cadre" in the Annexure r tor. 3, construed in the context of the
provision relating to direct recruits which prescribes no limitation, clearly fix 30 as the maximum percentage of promotions
r960
DectJmber
6 8.
The Slate of
Andhra
v.
Gadd am
Venkatappayya
Ayyangar ].
46
SUPREME COURT REPORTS
[1961)
from the rank of Head Constables to the post of Sub-Inspectors
and leave the appointing authorities free to adopt any other
percentage below that figure. There could, therefore, be
no infraction of the rule if the percentage of rank-promotees
was less than 30% of the total nu11Jber of the Sub-Inspectors on
the date of the reversion in question.
Rule 4, which regulate9 the right of probationers and
approved probationers to confirmation, applies only to the stage
prior to confirmation when the integration of the rank-promotees
and the direct recruits takes place so as to form a united service
and the proportion prescribed by .r. 3 has effect. That rule has
to be separately applied to the two classes and, consequently,
there was no violation of that rule in appointing direct recruits
to substantive posts in preference to the responde11t.
Under r. 5(a) the juniority for purposes of reversion has, on
the same reasoning, to be determined separately for the direct
recruits and the rank-promotees who constitute separate
classes.
·
Even otherwise, the impugned order could be sustained
under r. 5(b) in view of the case of administrative inconvenience
made by the Government and accepted by the Courts below.
CIVIL APPELLATE JURISDICTION:
Civil Appeal
No. 506 of 1957.
Appeal from the judgment and order dated July
21, 1955, of the High Court of Andhra, Guntur, in
Writ Appeal No. 122 of 1954.
K. N. Rajagopala Sastri and D. Gupta, for the
appellant.
T. V. R. Tatachari, for the respondent.
1960. December 8.
The Judgment of the Court
was delivered by
AYYANGAR, J.-This appeal by the State of Andhra
is from the judgment of the High Court, Andhra,
dated July 21, 1955, on a certificate under Art. 133(1)
(c) of the Constitution.
The respondent joined the Madras Police Force as a
Constable on September 1, 1939. He became a permanent Head Constable in 1946 and was promoted to
officiate as a Sub-Inspector on October 1, 1947, when
his probation commenced. By order dated September
24, 1950, he was declared to have satisfactorily completed his period of probation and was brought to the
"A" list with effect from September 10~ 1950. He
3 S.C.R. SUPREME COURT REPORTS
47
was still merely .officiating as a Sub-Inspector, the
effect of his being placed in List "A" being that he
came into the category of an "approved probationer",
i.e., fit for being confirmed as Sub-Inspector when substantive vacancies arose. On August 3, 1952, the
District Superintendent of Police, Krishna, issued an
order reverting the respondent to the rank of Head
Constable with effect from August 14, 1952, i.e., to the
post which he substantively held, for the reason that
there was not a· sufficient number of vacancies in the
post of Sub-Inspectors for being.filled by him. It may
be mentioned that such reversion was not confined to
the respondent alone but exte~ded to · a very large
number of officiating Sub-Inspectors who were similarly promotees from the rank of Head Constables.
The reverted officers petitioned to the Inspector-General of Police aμd in reply thereto and in further ex:
planation and clarification of the reasons for the reversions the Inspector-General of Police, Madras, issued
a memorandum on January 15, 1953, in the following
·terms:
''MEMORANDUM.
Sub: Officiating Sub-Inspector -
Reverting as
Head Constables-Seniority over direct recruitsPetitions.
As direct recruits are recruited against vacancies
specially reserved for them and cannot be reverted
for want of vacancies, seniority between directly
recruited Sub-Inspectors and promoted Sub-Inspec-
. tors should be determined separately. Their contention that they should not have been reverted in
preference to direct recruits is not, therefore,
correct. Their reversion as Head Constables· is in
order."
The 'respondent thereafter submitted a memorial to
Government in which.the principal challenge was to
the view of the Government that the directly recruited Sub-Inspectors formed a category distinct from the
promotee-Sub-Inspectors as not being countenanced
by. the relevant rules relating to the constitution of
the Police Establishment. Not having obtained any
redress by reason of his memorial, the respondent
z960
The State of
Andhra
"·
Gaddam
Venkatappayya
Ayyangar J.
1960
Th• Slal• of
A11dhra
v
Goddam
v ... katappayya
Ayy•11gar ].
48
SUPREME COURT REPORTS
(1961)
filed before the High Court of Madras a petition under
Art. 226 of the Constitution (Writ Petition No. 524 of
1953) and prayed therein that the State of Madras
may be directed by the issue of a writ of mandamus
to refrain from enforcing the order reverting him as
Head Constable but to consider his claim to be confirmed as Sub-Inspector on the basis of his seniority
in the list of approved probationers.
Balakrishna
Iyer, J., who heard the petition allowed it and issued
a direction to the State "to forbear from giving effect
to the order of reversion if the petitioner by virtue of
his seniority among promotees can be included in the
30 per cent. already referred to". We shall be dealing
in detail with the nature and scope of the rule as to
the 30 per cent. referred to here, which formed the
basis of the learned Judge's order in its proper place
and will not interrupt the narration of the events
which have led to the appeal now before us. The
State preferred an appeal from this judgment which
was transferred to the High Court of Andhra after
that Court was forined. The learned Judges who
heard the appeal differed from the learned Single
Judge in his view as to the scope of the rule a.s to
30 per cent. but dismissed the appeal holding that the
Government in directing the reversion of the promotee-probationers had not observed strictly the relevant rule as to juniority prescribed in rule 5 of the
Service Rules, to which rule we shall refer in due
course. The State of Andhra thereafter moved the
High Court for the grant of a certificate and having
obtained it, has filed this appeal.
Though in his petition under Art. 226 filed before
the High Court of Madras, the petitioner had alleged
that his reversion from the officiating post of Sub-Inspector to his substantive post as Head ,Constable was
a reduction in rank within the meaning of Art. 311(2)
of the Constitution, i.e., a reduction by way of punishment effected without giving him an opportunity to
show cause therefor, this contention was abandoned
early in the proceedings before the Court and the case
has proceeded throughout on both sides.on the footing
that the reversion.was effected solely for administrative
3 S.C.R. SUPREME COURT REPORTS
49
reasons and not for any misconduct by way of
punishment.
Indeed, it may be mentioned that
when the respondent was normally due for promotion
to the substantive post of Sub-Inspector-without
reference to the judgment of the High Court-he was
duly promoted to that post and he now occupies the
post of a Sub-Inspector drawing the increments and
salary fixed therefor.
Article 311(2) being out of the way, the questions
that arise fall under two heads: (1) Was there a violation of the Service Rules when the respondent was
reverted as Head Constable? (2) If there was such a
violation, do breaches of Service Rules by themselves
constitute an infringement of the legal rights of officers to whom they apply, entitling them to seek remedies therefor before Courts.
The rules on the construction of which the answer
to the first point depends are those framed, inter alia,
under s. 243 of the Government of India Act, 1935,
entitled "Rules relating to the Madras Police Subordinate Service". Rule 3 which relates to recruitment
and which was held to be violated, by the learned
Single Judge ran in these terms:
"Rule 3. Method of appointment and promotions:-
(a) Appointment to the several classes and categories shall be made as indicated in Annexure I.
ANNEXURE I
Category 2
Method of
Linii!ation
appointment
(1)
(2)
Sub-Inspec- Promotion
tors
from Head
Constables
Direct
(3)
Up to not
more than
30% of the
Cadre
Appointing
authority
(4)
In the mofussil the D.I.G.
Police concerned
recruitment Nil
do
This is followed by rules 4 and 5 which read:
"Ru~e 4.
Right of 11robationers and approved
probat10ners to appomtment to vacancies:-A
1
r960
Th~ Stat1 of
A11dhra
v.
Gaddam
V enkatappayya
Ayyancar } .
The Stat1< of
A~1dhta
v.
Gaddam
Ve11kat1,ppayya
Ayyangar ].
50
SUPREME COURT REPORTS
(1961]
vacancy in any class or category shall not be filled
by the appointment of a person who has not yet
commenced his probat.ion in such class or category
when an approved probationer or a probationer
therein is available for such appointment."
"Rule 5. Order of discharge of probationers and
approved probationers:-
(a) The order in which probationers and approved probationers shall be discharged for want of
vacancies shall befirst, the probationers in order of juniority; and
second, the approved probationers in order of juniority.
(b) The order of discharge laid down in sub-rule
(a) may be departed from in cases where such order
would invoive excessive expenditure on travelling
allowance or exceptional administrative incon-
'rcnience."
The other rules merely carry out the principles
underlying those extracted and do not need to be set
out.
To appreciate the points urged before us by the
learned counsel for the appellant-State on the proper
interpretation of these rules, it is necessary to set . out
the contentions respectively urged by the two parties in the Courts below and how they were dealt
with. On behalf of the respondent the points urged
were:
(I) That on a proper construction of Rule 3, promotee-Sub-Inspectors referred to in departmental
parfance as rank-promotees, as distfoguished from
those directly recruited were entitled to be appointed
t.o a minimum of 30 per cent. of the cadre strength
and that this rule was violated in that at the time of
the respondent's reycrsion the force consisted only of
less tlrnn 25 per cent. of rank,promotees antl more than
75 per cont. of those directly recruited. If the rule as
to the proportion of appointments as laid clown in
Rule 3 had strictly been followed there Would have
been no ncuessity for reverting the re~pontlent as
Head Constable.
(2) The30 per cent. and the 70 per cent. laid
..
•·
.. -
. '
3 S.C.R. SUPREME COURT REPORTS
51
down in r. 3 applied only at the stage of the initial
recruitment of Sub-Inspectors and that when once
that recruitment was ma.de and the probation of the
officers started, no difference could under the rules be
thereafter ma.de between the two classes of appointees
but that both of them constituted. one unified force
the members of which were entitled to be appointed
to substantive posts a.s full members -0f the Service
solely on the ha.sis of their inter se seniority (apart
from misconduct or inefficiency, etc.).
The appointment to substantive posts of officers directly recruited
in preference to persons like the respondent whose
probation ha.d commenced a.t an earlier date was
therefore a violation of r. 4 of the Service Rules.
(3) If a.t a.ny time the cadre strength wa.s reduced
by the abolition of temporary posts there might have
to be reversions, but in reverting officers the rule as to
juniority la.id down by r. 5(a) had to be strictly followed.
This rule made no distinction between Sub-Inspectors appointed directly and rank-promotees. Both
formed a single category and among them those who
had not completed their probation had to be reverted
first. and thereafter the approved probationers in the
order of their juniority. In the present case the respondent urged that approved probe.tioners like himself
who were senior to several of the officiating Sub-Inspectors directly recruited he.d been reverted out of
of turn in violation of r. 5(a).
(4) If in the circumstances stated by the Government (which would be mentioned later), the directly
recruited Sub-Inspectors could not properly be reverted because of the assurances. given to them, Government were bound to retain all ra.nk-promotee approved
probationers as officiating Sub-Inspectors until they
could be appointed in substantive vacancies as full
members thereof.
In answer to these contentions the case which the
State put forward was as follows:-
(!) The rule as to the proportion between the
rank-promotees and direct recruits laid down by r. 3
read with the Annexure, fixed only the maximum percentage of ra.nk-promotees. The words "up to, not
The State of
Andhra
v.
Gaddani
J' enkatappayya
Ayyangar ].
The State of
Andhra
v.
Gaddam
Venkatappayya
Ayyangar ].
52
SUPREME COURT REPORTS
[1961]
more than" meant and could in the context mean
only, that the maximum proporation of rank,promotees could be only 30 per cent. This was made clear
by there being no limitation placed on the proportion
of direct recruits. In other words, the 30 per cent.
was the ceiling fixed and not any minimum and the
rule in effect guaranteed direct recruits a minimum
proportion of 70 per cent. There was therefore no
violation of this rule when the proportion of rankpromotees fell to a little below 25 per cent. at the
relevant date.
(2) Even if r. 3 had been strictly followed the
respondent would have derived no benefit from the
operation of that rule because he was well below the
level of rank-promotees who would even then had to
be absorbed.
It may be mentioned that it was
because of this feature that the order of Balakrishna
Iyer, J., took the form of directing the Government
"to forbear from giving effect to the order of reversion
if the petitioner by virtue of his seniority among promotees can be included, among 30 per cent."
(3) On a proper construction of the rules, the proportions laid down in r. 3 applied whether or not at
the stage of the initial recruitment, certainly at the
stage of appointments to substantive posts, i.e.,
absorption as full members of the permanent strength
of the cadre. It was their further contention based
on the above, that for considering confirmations provided for by r. 4 the category of direct recruits had to
be treated as a class different from the category of
rank-promotees and there was no question of seniority as between members of the two groups but only
within each group. On this basis the State Government urged that at the stage of absorption governed
by r. 4 the rule as to proportion had to be worked out
an\i that consequently there had been no violation of
that rule.
(4) There had been no violation of r. 5 either, on
two grounds (i) based on denying that there was a
unified category of Sub-Inspectors and in putting forward that the two classes which made up the Service,
viz., direct recruits and rank-promotees formed
;.
3 S.C.R. SUPREME COURT REPORTS
53
different categories, and (ii) that even if they formed a
single category of officers after their initial appointments, there had been no violation of the rule fixed
for reversion by r. 5(a) by rel'Lson of the special circumstances of the case which brought their actio_n within
the specific provision in r. 5(b). In connection with
this last submission it was pointed out that at the
time of the police action in Hyderabad a large number of persons were recruited direct as Sub-Inspectors
to whom an assurance had been given that they
would not be reverted. A large number of such temporary appointments were made and these directly
recruited Sub-Inspectors had to be provided with
posts when temporary posts were getting abolished.
This introduced an administrative problem which
could be· solved only by reverting the rank-promotees.
We shall now proceed to a consideration of the
points thus in controversy between the parties and
which were urged on either side before us. The first
point to be dealt with is as to whether there had been
an infraction of r. 3 of the Service Rules by reason
of the proportion of rank-promotees being less than
30 per cent. of the total number of Sub-Inspectors in
service at the date of the respondent's reversion. As
has already been pointed out, the learned Single
Judge had rested his decision in favour of the respondent on an infraction of this rule, but the learned
Judges of the High Court in appeal had taken a different view. Learned Counsel for. the respondent sought
to support the vie,w that the words "up to, not more
than 30 per cent" in the rule meant up to a minimum
of 30 per cent. the effect of the addition of the words
"not more than" being merely to eliminate fractions and permit the number to be rounded off to
the nearest lower integer. It would be seen that the
learned Single Judge had stressed the use of the words
"up to" and practically gave no effect to the words
"not more than" in arriving at the construction that
he adopted. We consider that this construction is
erroneous, particularly in the context of the provision
as regards direct recruits, in regard to whom there is
no limitation placed on the proportion which they
The State of
Andhra
v.
Gaddam
V enkatappayya
Ayyangar ].
The State of
Andhra
v.
Gadda•n
Venkatappay:ya
Ayyangar j.
54
SUPREME COURT REPORTS
(1961]
could have in the Service. Taken in conjunction with
this provision it is clear that the wor<ls "up to, not
more than" merely fix the maximum percentage of
rank-promotees in 'the category, leaving it to the
appointing authorities to adopt any percentage below
this figure. \Ve consequently endorse the view which
the learned Judges of the Andhra High Court took in
dissenting from the construction which the learned
Single Judge placed on the scope of r. 3. The reversion of the respondent cannot, therefore, be challenged
on the ground that there had been an infraction of
r. 3 of the Service Rules.
The next question is as to whether r. 4 of the Service Rules by which confirmations were regulated,
had been violated in-promoting-the more junior direct
recruits to substantive posts in preference to rankpromotees like the respondent who were senior to
them in service in the sense that the latter's probation
as officiating Sub-Inspectors commenced earlier. The
application of these rules in the context of the facts of
this case depends largely on whether. rank-promotees
and officers directly recruited form or do not form the
same class or category becoming integrated into one
Service on. their initial appointment to the Service. It
is common ground that the two classes become inte-'
grated ·as members of a unified Service after appointment as full members of the Service. The point in controversy .is limited to the period between the date of
their initial appointment and their absorption as full
members. Ifup to that date they formed two categories
and the ·seniority in each group has to be reckoned separately, the order of the Government would be perfectly
in order and constitute no breach of the rules. But if
on the other hand officers recruited by either of the two
modes-promotions from the rank of ~ead Constables
and Sub-Inspectors directly recruited-_ form an integrated an.d unified force from the very commencement
of their appointments, then on the application of r. 4
confirmations ought to depend on mere seniority (subject to factors relevant to merit or demerit) as officiating Sub-Inspectors without regard to the manner in
which· they were originally appointed. Though the
3 S.C.R. SUPREME COURT REPORTS
55
learned Single Judge did not directly pronounce on
the effect of r. 4, the Andhra High Court held that
the rule of seniority prescribed by the rule had been
violated. After expressing their disagreement with
the learned Single Judge in his view that the minimum of 30 per cent. laid down by r. 3 had been violated, they observed:
"Nor does it follow that we can countenance the
argument of the learned Government Pleader that
irrespective of the percentage of promotees on the
cadre at a given time, all vacancies can be filled up,
if the Gcvernment so chooses, only with direct
· recruits. We think that from both the classes of
· approved probationers, be it direct recruits or be it
.candidates from the ranks, selection should be made
without any distinction, provided of course that so
far as promotees are concerned the percentage of 30
is not exceeded. Now, it is admitted by the Govern-
. ment that the percentage of promotees, was only
· 24·5 at the time when the petitioner was sent back
as Head Constable. That. being so, it cannot be contended for the State that the ceiling will be exceeded if the petitioner is promoted. As we read the ·
rules, when once an officer qualifies as an approved
probationer, no .distinction can be made between
. him and a direct recruit approved probationer."
We are-unable to agree with the reasoning or the conclusion here expressed. It would be seen that the
learned Judges have, though tacitly, accepted the case
put . forward by the Government, and in our view
correctly, that the integration of the two groups is
only after the stage of absorption as full members of
the Service, and that at that stage the rule as to the
proportion laid down in the annexure to r. 3 comes
into operation. If the 30% which is the limit set for
rank-promotees for absorption as full members is
merely· a. ceiling imposed. for the benefit of direct recruits, as rightly held by the learned Judges, it is difficult to .see how the rule could be held to be . violated
because<:the proportion of rank-promotees confirmed
fell· below the figure of 30. We, th~refore, cons_ider
that.there :was no violation of the rule as to seniority
The State of
Andhra
v.
Gad dam
Venkatappayya
Ayyangar j.
The Stats of
Andhra
v.
Gadd am
v~nkatappayya
Ayyangar ].
56
SUPREME COURT REPORTS
[1961]
prescribed by r. 4 in the appointment of the direct
recruits to substantive posts before the absorption of
rank promotees like the respondent.
We shall next proceed to deal with r. 5 which deals
with the power of Government to effect reversions
and the conditions and limitations prescribed therefor.
It would be seen that cl. (a) of r. 5 substantially
reverses for the purpose of discharge or reversion the
order in which confirmations are to be made as set
out in r. 4. We have held that the respondent had
no right under the rules to insist on his being confirm.
ed, on the terms of r. 4 read in the light of r. 3. On
the same line of reasoning it would follow that as
direct recruits and rank-promotees belonged to distinct
classes the juniority for reversion had to be determined
separately for each class and not on the basis of the
two classe.s forming part of a unified force before confirmation. If this test were applied, it cannot be
contended that the reversion of the respondent infringed r. 5(a).
But this a.pa.rt, the impugned order could also be
sustained on the basis of the provision contained in
cl. (b) of r. 5 which reads:
"The order of discharge laid down in sub-rule (a)
may be departed from in cases where such order
would involve excessive expenditure on travelling
allowance or exceptional administrative inconvenience;"
In the present case the Government explained their
reason for the order for reversion of rank-promotees"
in the affidavit which they filed to the writ petition in
these terms:
"His reversion was necessitated by the fa.ct that a
large number of Sub-Inspectors on other duty in
, ~ydera.bad State reverted to this State and that a
number of temporary posts created for special purposes during the disturbed period immediately
following the police action in Hyderabad had to be
abolished and that the direct recruited Sub-Inspec·
tors had necessarily to be absorbed as Sub-Inspectors as they cannot be asked to work in any lower
, ..
3 S.C.R. SUPREME COURT REPORTS
57
post being direct recruits to a. particular category,
viz., that of the Sub-Inspector. This reversion of
rank-promoted Sub-Inspectors wa.s rendered absolutely necessary in the exigencies of service and for
administrative purposes and as such, it cannot be
deemed to be arbitrary or contrary to rules or in
the nature of punishment as alleged by the petitioner."
It was this circumstance that was stated before the
High Court of Madras in the Writ Petition as that
which brought the impugned order of reversion within
"exceptional administrative inconvenience" provided
for by the la.st words of the rule. The learned Single
Judge accepted as correct the facts stated by the
Government as the reason tor the revefsion, stating:
"Mr. Seshachalapathi explained that Government
were in a difficult position as a consequence of the
members taken in connection with the police action
in Hyderabad. A large number of persons were
directly recruited as Sub-Inspectors on the assurance
that they would not be ousted. I do not suggest
that Government should go back on any assurance
that they may have given to these direct recruits.
Far be it from me to encourage anything.that might
savour of bad faith on the part of Government ......
But I would still say that in order that Government
may keep faith with those whom they recruited
directly as Sub-Inspectors they cannot break faith
with or ignore the rights of those who were promoted as Sub-Inspectors."
If the facts were accepted as correct, and we might
point out that their accuracy was never challenged at
any stage either in the High Court or before us, it
appears to us that the order of reversion passed would
be justified as being covered by the last words of cl. (b)
even if the order laid down in r. 5{a) were infringed.
In these circumstances it is not clear why the learned
Judge should have observed:
"The Government do not rest their case on Rule
5(b)"
when the facts stated by Government and accepted by
8
The State of
Andhra
v.
Gadd am
Venkatappayya
AyyangaY J.
.z960
The Slate of
Andhra
v
Gaddam
Venkatappayya
Ayyangar j.
58
SUPREME COURT REPORTS
[1961]
him brought thE]ir action well within the scope of that
clause. In their memorandum of grounds in Writ
Appeal No. 122 of 1954 which the State filed to the
High Court the appellants urged: "The learned Judge
failed to appreciate the special circumstances of the
situation which rendered the reversion necessary in
the instant case". When the matter was before the
High Court of Andhra the learned Judges observed:
"The.learned Judge stated in his judgment that the
Government do not rest their case on Rule 5(b )". In
their turn they too accepted the case of the Government as regards the circumstances which necessitated
the order of reversion and observed: "The Government frankly stated, however, that they were in a
difficult position because of certain measures which
they were compelled to take in connection with the
police action in Hyderabad when a large number of
persons were directly recruited as Sub-Inspectors with
the assurance that they would be entertained permanently. In order to keep that assurance with such
persons they were constrained to revert the rank-promotees but there is no rule which enables the Government to do so." We must express our dissent from the
last sentence extracted above, because r. 5(b) makes
specific provision for an order of discharge laid down
in cl. (a) being departed from in cases where such
prder would entail "exceptional administrative inconvenience" and on the facts accepted both by the
learned Single Judge and by the High Court of appeal
the words extracted were attracted.
Before leaving r. 5 there is one other matter to
which we desire to advert and that relates to the
observation of the High Court in the judgment now
under appeal which seems to imply that if the Government found itself in difficulty owing to the assurances
given to the officers directly recruited, they could
under the. rules have solved it, not by ordering the
reversion of the' rank-promotees but by continuing
them in their officiating posts until they could be absorbed as full members of the Service. This was one
of the contentions urged by the respondent and the
learned Judges say:
.. ,
..
I
-
3 S.C.R. SUPREME COURT REPORTS
59
"It seems to us clear that whether they imposed
merely a ceiling or whether there is an obligation
upon the Government to fill up 30'per cent. of the
vacancies from among promotees, the State cannot
say, on the facts, before us, that there are no vacan.
cies for promotees as such."
It looks to us impossible to support this view on any
construction of the rules. In effect it means either
that temporary posts could not be abolished, or that
approved probationers could not be reverted. The
first alternative could not obviously have been meant
and the other is plainly contrary to the terms of r. 5(a)
which makes provision for •the reversion of approved
probationers. Of course, as a measure of relief to
their subordinates and to avoid hardship to them
Government might retain people in their officiating
posts, but it is quite a' different thing to import a legal
and enforceable obligation on their part to do so.
In the view that we have taken that there has
been no breach of the Service Rules in ordering the
reversion of the respondent as a Head Constable, the
question as to whether an infraction of a Service Rule
confers a legal right which could be agitated in Court
does not arise. We do not propose, therefore, to con.
sider that question and indeed we did not call upon
learned counsel for the appellant to argue that part
of his case.
The appeal is accordingly allowed, the judgment of
the High Court set aside and Writ Petition No. 524 of.
1953 dismissed. In view of the order of the High
Court dated February 3, 1956, by which the appellant
was granted a certificate under Art. 133(l)(c) of the
Constitution subject to the condition that the respon.
dent would be entitled to his taxed costs incurred in
this Court in any event from the appellant, there will
be an order that the appellant will pay the costs of
the respondents in the appeal, in this Court.
Appeal allowed.
1960
Th• Stat• of
Andhra
v.
Gaddam
V enAatappayya
Ayyangar J.