STATE OF UTTAR PRADESH & ORS. versus SUGHAR SINGH

STATE OF UTTAR PRADESH & ORS.

SUGHAR SINGH November 22, 1973

[K. K. MATHEW AND M. H. BEG, JJ.]

Constitution of India-Arts. 311, 14 and 16- Revmlon of trmporary Gov• ernmtnt strvant from his officlatlna post-When /unlor.r allowed to contlnu1-Revmlon If vlolat/v1 of art. 311-Post not abo/ishrd nor all)' admlnl1tratlv1 rt•· son shown-Whrthrr vlolatlv• of arts. 14 & 16.

The respondent, permanent Head Constable In tho U.P. Police Force, wu appointed in 1961 ·aa ()fftciatins Platoon Commander In the combined Cadre of Sub inlpector, Armed Police and Platoon Commander. In 1966, an advene entry was made in his character roll and he was reverted to the substantive post of Head Constable in 1968. At the time of reversion be waa one amona sroup of about 200 officers, most of whom were juniOr to him. The High Court quaabed the order of reversion to the post of Head Constable.

On the question whether the order of reversion was made in violation of Art. 311 of the Constitution or in violation of any right of tho raapondent under Art. 16 of the Constitution.

DlsmiMina tho appeal,

HELD : An order of reversion is in its immediate effect bound always to be reduction in rank. Even reversion from high~ but temporary or oftlciatina rank to lower substantive rank is in sense reduction. But, such ordera of reversion are not always reduction In rank within the meanina of Art. 311. If the officer is promoted substantively to higher post or rank, he gets right to that particular post or rank an'd if he is afterwards reverted to the lower post or rank which be held before, it is "reductlon in rank'' in the technical sensQ: in which the expression is used in art. 311. Tho real test in all 1ucb cage1 Is to aacertaln if the officer concerned baa right to tho post from whicb be !1 raverted. It cannot be ordered except in compliance with the provisions of art. 311. If on the other hand, the officer concerned hu no right to the pos~ he ci.n be reverted without attractinir th• provisions of ll!l. 311. Hut even in this cue. be cannot be reverted in manner which .lYill-tbO:W conclu· sively that the intention waa to punish him; Tho order_.ltae!Oilay expr011!y 1tate that the officer concerned is being reverted by way bf punishment. In fact the order may in various oth,er wiys cast stigma on the officer concerned. In all such cases, the order is tO: be·taken u punishment. Sometimes again, the order of reversion may bring UPoD .the officer c.ertain penal con.111equenccs like forfeiture of pay. and allowances or loss of seniority in the subordinate rank or the stoppage or postponement of future· chances of ·promotion : in such cases alao the Govern· ment servant must be regarded as having been punished and his reversion to the substantive rank must be treatod as reduction in rank. In such case art. 311 Will be atltacted.. [342H; 343A'D]

Jn the instant case the order of reversion is not attended with any stigma. There is nothing to show that the respondent has lost his seniority in the subst&D-tive rank and there is no evidence to show that there bas been any forfeiture of his pay or allowances or any loss in the seniority in the sub5tantive rank. The mere fact that the respondent will be deprived of the post of Platoon Commander is not penal oonsequence. Such deprivation is the usual consequence of . an order of reversion from the officiating post to which an incumbent has no right to hold. In case like this what is important to see is ~hethe~- the order • of reversion entails· any penal consequences and not the motive behind the reversion. [345A-EJ r. Parshotam Lal Dhingra v. The Union of India, [1958] S.C.R. 828, Stat< of Pun/ab and Anothtr v. Sukh Ra/ Bahadur, [1968] 3 S.C.R. 23, Stat< of Orl3'aNv. Ram Narayan Das, [1961] I S.C.R. 606, R. C. Lacy v. State of Blhar, C.A. o. 590 of 1962 decided on 2J.I0-63. Madan Gopal v. State of Pu11jab, [19631 3 S.C.R. 716. lagdlsh Miller v. Union of fndia. A.t.R. 1964 S.C. 449, A. G. Ben/amln v.Un/011 of India, CA. No. 1341 ol 1966 decided on 13-12-1966 and Ram Gopa/ Chaturvtdl v. Sta" of Madhya Prade.rh, [1970) l S.C.R. 472, referred to.

Union of T11dla v. Gafendra Singh [19721 5 S.C.R. 660, Dlvl•lonal Ptr· •onntl Of!ictr v. &ghavt11dracl1arl [1966] 3 S.C.R. 106, Union of India v. /11w•n Ram, A.l.R. 1958 S.C. 905, Mad 1av v. Statt of My•ort, A.I.R. 1962 S.C, 811 and Star. of Bombay v. A. braham, A.l.R. 1962 S.C. 794, followed.

But, the order was liable to be qua1bed on the iround ol contravention of articleo 14 and 16 of tho Constitution. The comploJnt that 200 head coiutableo who had taken troJnlna u Cadet Sub·lnapecton ot Armed Police alter tho rapondent and who were junior to him bavo otlll been allowed to retain their ponent 1tatu1 ns Sub·lnapector and have not been reverted to their 1ub1tantive poat ot Head Coiutable muat be sustained. No poulble explanation tor this extreme form ol di•· crimination bu been shown. It ii also Clear that there wu no admlni!tradvo reuon for this revenion. Thero wu no 1une1tion that the post bad been abo· llshed or that the respondent was, for administrative reasons, required to ao back to bis own post of Head Constable. [347C·E]

Stale of Mysore v. P. R. K11fkar11i, A.J.R. 1972 S.C. 2170, and The State of

Bihar and Others v. Shiva Bhlks/111k Mishra, [1971] 2 S.C.R. 191, followed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1110 of 1971.

From the judgment and decree dated the 8th September, 1970 of the Allahabad High Court in Special Appeal No. 826 of 1969.

G. N. Dikshit and 0. P. Rana, for the appellants.

R. K. Gsrg, S. C. Agarwala and V. l. Francis, for the respondent.

The Judgment of the Court was delivered by-

MATHEW, J. This appeal, by certificate, is directed against the judgment and decree dated September 8, 1970 of the Allahabad High Court. The short facts of the case are as follows. · The respondent Sughar Singh was permanent bead constable in the U.P. Police Force between 1950 and 1960. Some time in 1960, he was deputed for train-ing as cadet sub-inspector at the Armed Police Training Centre at Sitapur. On March 16, 1961, Sughar Singh was appointed an official· ing Platoon Commander. He worked in that post till August, 1968. While working as Platoon Commander, on July 22, 1966, the respon-dent was served with notice by the Senior Superintendent of Police, Kanpur, in wliich he was asked to show cause within 10 days' of the recdpt of that notice as to why the following adverse entry should not be entered in his character roll :

"1966-Is suspected to have got entries of date of birth and educational qualifications altered on the authority of nctitious certificate which had to be corrected later on. Severly 'varncd."

The respondent submitted an explanation in accordance with the terms of this notice on July 30, 1966. The explanation was not, how-ever, founc! acceptable and an adverse entry was· actually made in his character roll in 1966. On August 12, 1968, the Deputy Inspector General of Police, Kanpur Range, U.P. passed an order to the following effect :

"Order No. 1207/P.H.Q.-No, T 13 68

Order-On his reversion from the post of Officiating Sub-lnspcctor, Armed Police, Shri Sughar Singh is taken back on his substantive post of Head Constable".

Tho order is in Hindi but we have set out an English translation' of the order which we found included in the records.

The respondent challenged this order of reversion by writ petition filed in the High Court of Judicature at Allahabaq. His petition was at first dismissed by learned Single Judge of the High Court on May 12, 1969. He filed special appeal befote Division Bench. One of the Judges of this Division Bench allowed the appeal and quashed the order of reversion. The other learned Judge, however, was of '· different view and held that the respondent's appeal was liable to be· dismissed. The matter, thereafter, was referred to third learned Judge who found in favour of the respondent and quashed the order of reversion. In view of the opinion of the third learned Judge, the special appeal filed by the respondent was allowed by judgment of September 8, 1970 •l!d the order reve~ting the present respondent to his post of head constable was quashed. The appellants have now come on appeal' before this Court against the order of the Allahabad High Court.

The short question that ari&es for determination is as fo whether lhe order of August 12, 1968, was made in violation of article 311 of the Constitution of India or in violation of any right of the respondent· under article 16 of the Constitution.

For answering this question the first essential is to determine what v.:as exactly the nature of the appointment of Sughar Singh when he was posted as Platoon Commander. Both parties accept the proposi-tion that the rank of Platoon Commander is the same as that of Sub-Inspector of Police. The appellants contend that Sughar Singh was' never appointed substantively to the post of Sub-Inspector of Police and that he was merely officiating as Platoon Commander in August 1968 when he was reverted to his substantive post of Head Constable. The respondent on the other hand, contends that before he was appointed as Platoon Commander, he had been appointed as Sub-Inspector of Police and that even if his appointment to the post of Platoon Commander was in an officiating capacity, his substantive rank was that' of Sub-Inspector of Police. In support of this conten-tion, reliance was placed on the framing of the order dated March 21 1961 which was in the following terms:

"Order-On completion of the practical training on March 16, 1961, the following S.I.A.P. Cadres are allotted to P.A.C. for posting as offg. Platoon Commanders : ·

The order was made in respect of 15 head constables and reads as if .all the officers mentioned therein who were posted as officiatit1g Platoon Commanders already belonged on the relevant date to the S.I.A.P. Cadr~ i.e., they were sul>-inspectors in the Armed Police. The res-pondent's counsel argued that the order specifically described . the respondent as Sul>-Inspector belonging io the Armed Police Cadre and the obvious intent of that order was to allot him to the Provincial Armed Constabulary in the post of Officiating Platoon Com-mander. The argument, in other words, was that independently of and prior to the appointment of the respondent to. the post of Platoon Commander, he had been enjoying the status of Sub-Inspector; It was further contended that since the respondent's status as Sub-Inspector of Police is not qualified as either officiating or temporary, it is impossible to resist the conclusion that on completion of his train· ing he had already been appointed as Sub-Inspector substantively.

The order of March 21, 1961 was merely an' order of posting and not an order indicating the appointment of the respondent to parti· cular cadre. We are unable to accept this argument of the respondent's counsel. To understand the position clearly, one has to refer to certain provisions of the Police Regulations under which the respondent bad been selected for promotiol) from the post of Head Constable to the rank of Sub-Inspector in the Armed Police :

"406( b) Armed Police-Permanent promotions to the rank . of ·sub-inspector in the armed police are made by Deputy Inspectors General from the list of those who have qualified at the course prescribed under paragraph 448. Superintendents may promqte in pfficiating or temporary vacancies.

'447. Recruitment to the rank of sub·inspector Armed Police/Platoon' Commander will be made in the following manner:-"(a) 80 per cent of the posts both temporary and.perma-nent in the combined cadre of sub-inspector, Armed Police/ Platoon Commander will be filled in by selection of men from the ranks. "(b) The remaining 20 per cent of the posts both tempo-of the posts both tempo-the posts both tempo-rary and permanent in the combined cadre of Sub-Inspector, Armed Police/Platoon Commander will be filled in by direct recruitment. "For category (a) the Range Deputy Inspectors General of Police, Deputy Inspector General, Provincial Armed Constabulary and the Deputy Inspector General of Police Headquarters in the cases of the Railway Police, will 11omi-nate from time to time as required by the Inspector General such number of head constables of the Armed Police as may be specified.

"(b) The remaining 20 per cent of the posts both tempo-of the posts both tempo-the posts both tempo-rary and permanent in the combined cadre of Sub-Inspector, Armed Police/Platoon Commander will be filled in by direct recruitment.

"For category (b) selection of the required number of candidates will be made by committee consisting of the

Inspector General, the Deputy Inspector General Provincial Armed Constabulary and one more Deputy Inspector Gene-ral nominated by Inspector General.

"448(i) Candidates nominated or selected under para-graph 44 7, will undergo course of training of 7 months' duration at the armed training centre Sitapur including one month's practical traiaing in the Provincial Armed Constabu-lary Units.

(ii) Before taking training under the above sub-para, candidates selected under para 44 7 (b) shall undergo suc-cessful preliminary training for period of two months at the Armed Training Centre, Sitapur.

"448-A. Relative seniority will be governed by the date of passing the Sub-Inspector Armed Police Course and for men passing the same course by the position obtained in the final examination of sub-inspector Armed Police Course between two men obtaining equal marks in the same final examination (i) promoted man will take seniority over . directly recruited candidate (ii) if both men are directly recruited the age will be the determining factor and in the case of the ranker cadets it will be the length of service".Certain things are clear from the above regulations. There is combined cadre of Sub-Inspectors of Armed Police and Platoon Com-manders. That means there. is no difference in rank between Sub-Jnspector of Armed Police and Platoon Commander. Eighty per cent of the posts of this cadre are filled up by promotion from the ranks and twenty per cent by direct recruitment. These appointments whether by promotion or . by direct recruitment are made to posts which may be temporary or permanent. When appointments are made by promotion, the promotees are nominated from among the head constables of the Armed Police. As soon as the selection of nominees is made, they have to undergo first preliminary training for period of two months and, if successful in that training, further training of 7 months at the Armed Police Training Centre, Sitapur. There are certain rules for determining the relative seniority of the promotees inter se and also vis-a-vis the direct recruits. We are not concerned with those rules in this appeal.

In the light of these regulations and from the facts set out in the different affidavits on record, it is clear that the respondent was selected for training as cadet Sub-Inspector under Regulation 447 of the Police Regulations and on his successful completion of the training he was promoted to the combined cadre of 'Sub-Inspector, Armed Police/Platoon Commander". The order of March 21, 1961 was the order posting the respondent and his other colleagues who were successful in the training to certain vacant posts in that com--bined cadre of Sub-Inspector and Platoon Commander for the lint time. The order is not happily worded. The order seems to make

I JI kind of distinction between the rank· of Sub-Inspector of the Armed .Police Cadre and the rank of Platoon Commander, though, in fact, there was no such distinction. Regulation 447 (a) makes that posi-tion indubitably clear. The respondent's contention that be was first appointed Sub-Inspector and then posted as Officiating Platoon Com-mander, is based on this obvious erroneous drafting of the order of March 21, 1961. Had the respondent been appointed in the first inst-B ance to the post of Sub-Inspector and then posted as Platoon Com-mander, it would have been possible for him to produce the first order by which be claims to have been promoted to the cadre of sub-inspector. He produced no such order. In fact. there can be little doubt that there was no such order. The order of March 21, 1961 was an order passed immediately after the completion of the practical train-ing on March 21, 1961. That is clear from the order itself. There is no rOOJll for any order intervening the completion of the practical training and the passing of the posting order on March 21. 1961. Having regard to these considerations, it is impossible for us to accept the respondent's contention that he had been appointed substantively to the rank of Sub-Inspector of Police. In our opinion, his first appointment was as an officiating Platoon Commander and he was never given substantive rank in the combined cadre of Sub-Inspectors, Armed Police and Platoon Commanders.

We now turn ·to the question whether the order of reversion of the respondent was either reduction in rank in contravention of article 311 of the Constitution or contravention of the respondent's fundamental right under article 16 of of the Constitution. Though the law in this matter has been laid down in large number of decisions of this Court, considerable difficulty arises in applying the various principles enunciated ythose decisions to the facts of any particu-lar case.

fundamental right under article 16 of of the Constitution. Though the law in this matter has been laid down in large number of decisions of this Court, considerable difficulty arises in applying the various principles enunciated ythose decisions to the facts of any particu-lar case. The first decision which has now become locus clo;;sicus on the subject is the decision in Parshotam Lal Dhingra v. The Union of India(!). The principles that were laid down in that case are as follows :

(1) Article 311 of the Constitution of India makes no distinction ,between permanent and temporary posts anti extends its protection equally to all government servants holding permanent or temporary posts or officiating in any of them.

(2) The protection of article 311 is available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise.

( 3) If the terrnlnation of servcie or reduction in rank is not by way of punishment, article 311 (2) is not attracted. To determine whether the terrnlnation or the reduction is by way of punishment one has to consider whether the servant has the right to hold the post from which he has been either

(I) [1958] S.C.R. 828.

removed or reduced. In the ca~ of probationary or offi-ciating appointment to permanent or temporary post there is no such right. This does not mean, however, that the termination of service or reduction in rank of servant who has no right to the post can never be dismissal or removal or reduction by way of punishment. If gov.,rnment express· ly chooses to penalise the servant for mis-conduct, negli-gence, inefficiencY. or the like by infli~ti'!,g on him ~e punish-ment of dismissal, removal or reduct10n, the requirements of article 311 must be complied with.

( 4) reduction in rank must be punishment if it carries penal consequences with it and the two tests to be applied are :

(i) Whether the servant has right to the post or the rank; and

(ii) whether evil consequences s11ch as forfeiture of .pay and allowances, loss of seniority in his substantive rank, stoppage or postponement of future chances of promotion follow as result of the order ?

Where either of these tests apply, the reduction in rank must be one within the meaning of article 311 ( 2) of the Constitution and will attract its protection.

The principles formulated in Parshotam Lal Dhmgrds case have furnished the principal gllidelines in all future cases relating to .dis· missal, removal or reduction in rank of government servants. As we have already said, however, the matter is not altogether free of difl\· culty even after the formulation of these princ1ples. Depending on the nature and circumstances of each individual case it has often been necessary to clarify and modify these principles in certain respects. In this process, sometimes new but analogous principles have been evolved and sometimes the old principles have been themselves ela-borated, analysed and re-formulated in difl'erentlanguage.

It is necessary at this stage to refer to one special difficulty which has been created by the process of elaboration and reformulation wl)ich we have mentioned just now. Sometimes in applying the principles of Parshotam Lal Dhingrd s case to the facts of particular case; one aspect had to be emphasised in view of the .peculiar circumstances of that case and in doing so this Cpurt gave special formulation which covered the facts of that case. That principle was later found either inadequate or inapplicable in another case where the facts and circum-stances have been slightly different and which called for emphasis on different aspect of the rules.. In this way, this Court has found it necessary to mould the principles to suit the needs of the varying cir-cumstances of different cases. The original principles were not intend· ed to be abandoned but re,shapirig of the principles became necessary and even unavoidable to fit them accurately and appropriately to ·new set of circumstances. This has often led to formulation of principles with varying contours which superficially at least seem to suggest that some of them are anomalous and even contradictory. If, however,

the prniciples are construed with reference to the facts of any parti· cular case for which they have been evolved, it will, we believe, be found that there is no fundamental discrepancy or contradiction in the principles.

Confusion has arisen particularly in respect of cases where this Court has had to deal with orders of government. from the aspect of the motive underlying those orders. What is the weight to be given to motive in deciding whether particular order is penal ill character and therefore falling within the mischief of article 311 of the Consti· tution or whether it has been passed for departmental considerations and in exigencies of public service? It is well recognised that very often the motive of particular order of government and the language and terms of the order itself are not in harmony. In many· cases though government take action under the terms of contract of em· ·p1ormcnt or under the specific service rules for the purpose of termi· nallng the service or reducing the rank of an officer, the real motive or inducing factor which inlluences the government to take action is different and is ~onnected with some disqualification or ineiflciency of the officer. In other words. government while pretending to act in terms of the contract of service or service rules, in reality wants to get rid of the officer concerned or to reduce him to lower rank by way of punishment for his misconduct or inefficiency or disqualification. In such case, the action taken by government is in an innocuous form but .the real intent of it is penal. Such situation was cont~m­plated by Das, C.J. in Parshotam Lal Dhlngra's case. He observ· ed:

"It is true that the misconduct, negligence inefficiency or other disqualification may be the motive or the inducing factor which inlluences ·the government to take action under the terms of contract of employment ()r the specific service rule, nevertheless, if right exists, under the contract or the rules,· to terminate the service, the motive operating in the min\! of the government is, as Chagla, C.J. has said in Shrinivas Ganesh v. Union of India (A.I.R. 1956 Bom. 455) wholly irrelevant. In short, if the termination of ser· vice is founded on the right llowing from contract or the service rules, then, prlma facie the termination is not punishment and carries with it no evil consequences and so article 311 is not attracted."

Following this enunciation of the principle this Conn has in many later cases refused to· give any weight to the motive operating in the mind of the authority which passes an order terminating the service of temporary servai:;t or reducing the servant in rank so long as the particular action taken was "founded on the right flowing from contract or the service rules."

Since we are concerned in this case with case of reversion, we propose to confine our attention to the different circumstances in which an order of reversion may be. made. An order of reversion is in its immediate effect bound always to be reduction in rank. Even reversion from higher but temporary or officiating rank to lower

substantive rank is in sense reduction. But such orders ol rever-sion are not always reduction in rank within the meaning of article 311. If the officer is promoted substantively to higher post or rank, he gets right to that particular post or rank and if he is afterwards reverted to the lower post or rank which he held before, it is "re· duction in rank" in the technical sense in which the expression is used in article '311. The real test in all such cases is to ascertain if the officer concerned has right to the post from . which he is reverted. If he has right to the ~ost then reversion is punishment and cannot be ordered except in compliance with the provisions of article 311. If, on the other hand, the officer concerned has no right to the post, he can be reverted without attracting the provisions of article 311. Btit even iri this case, he cannot be reverted in manner which will show conclusively that the intention was to punish him. The order itself may expressly state that the officer concerned is being revert· ed by way of punishmen\ In fact the order may in various otqer ways cast stigma on the officer concerned. 'In all such cases, the order is to be taken as punishment. Sometimes again. the order of reversion may bring up0n the officer certain penal consequences like forfeiture of pay a.nd allowances or loss of seniority in the subordinate rank or the stoppage or postponement of future chances of promotion : in such cases also the government servant must be regarded as havini been punished and his reversion to the substantive rank must be treated as reduction in rank. In such case article 311 will be attracted.

In State of Punjab and Another v, Sukh Raj Bahadur([1]), Mitter, . J., after analysing the decisions of this Court in Parshotam Lal Dhinrra v. Union of lndia('), State of Orissa v. Ram Narayan Da~(') R. C. Lacy v. State of Bihar('), Madan GopaJ v. State of Punjab('), ~ag­dish Mitter v. Union of Tndia(') and A. G. Benjamin v. Union of India('), has formulated the following propositions :

I. The services of temporary servant or probationer can be terminated 1mder the rules of his employment and such termination without anything more would not attract the operation of article 311 ·of the Constitution.

2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being. immaterial. 3. If the order visits tb.e public servant with any evil consequences or casts an aspersion against his charac!er or integrity, it must be con<idered to Ge one bv way nf punish-ment, rio matter whether he was mere probationer or temporary servant, ·

/. (1) [196Rl 3 S.C.R. 2).4. (2) [19581 S.r:.R. R28. (3) [19511 t S.C.R. 611. (4) C.A. "10. 590 of 1962 dcc:c',d on 13-t0-6l. (5) [1963] 3 S.C.R. 716. (6) A.l.P. 1964 S.C. 449.

(1) C.A.. No. 134t of 1966 decided. on.Jl-12-196f.

IO-I:.522SCI/74

4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior autho-rities only to ascertain whether the public servant should be retained in service, does not attract the operation of article 311 of the Constitution.

5. If there be full-scale departmental enquiry envisaged by article 311 i.e. an Enquiry Officer is appointed, charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article."

In Ram Gopal Chaturvedi v. State of Madhy« Pradesh{'), this Court refused to interfere with an order terminating the services of an officer who had been temporarily appointed to the Judicial Ser· vice of Madhya Pradesh under rule 12 of the Madhya Pradesh Gov-ernment Servants (Temporary and Quasi-Permanent Service) Rules, 1960, without passing any stigma on the officer concerned and merely stating that his services were terminated from specified date. Even though the order· of termination had been preceded in that case by an informal enquiry into the conduct of the officer with view to ascertain if he should be retained in service, this Court followed the decision in State of Punjab v. Suklz Raj Bahadur (supra) and observed :

"On the face of it the order did not cast any stigma on the appellant's character or integrity nor did it visit him with any evil consequences. It was not passed by way of punish-ment and the provisions of article 3il were not attracted."

In the Union of India v. Gajendra Singh([2]), this Court sustained an order passed by the Union of India reverting an officiating Naib Tehsildar to his permanent post of Kanungo on the ground that he could not pass the departmental examination. This Court clearly held in that case that "appointment to post on officiating basis is, from the nature of employment, itself of transitory character and in the absence of any contract or specific rule regulating the conditions of service to the contrary, the implied term of such an appointment is that it is terminable at any time. The Government servant so ap· pointed acquires no rights to the post. But if the orper entails or provides for forfetiure of his pay or allowances or the loss of bis seniority in the substantive rank or the stoppage or postponement of his future chances of promotion then that circumstance may indicate that thou.!!h, in fonn, the government had purported to exercise its undoubted right to terminate the employment. in truth and reality, 'the termination was by \vay of penalty".

Let us_ now consider whether in the light of· the various cases decided bv this Court the order of reversion amounted to reduction in rank \Vithin the meaning cf article 311 (2) of the Constitution. We will apply all the different tests laid down by this Court one by one. First. tl1e order is not attended with any stigma. The order merely states tl1at Sughar Singh is reverted and that he is reverted to his substantive ----·

(!) ft970] 1 S.C.R. 472.

(2) [1972] 3 S.C.R. 660.

. u. P. STATE v. SUGHAR SINGH (Mathew, ],)

post of head constable. By no stretch of imagination can this language be construed as casting ~tigma on. the respondent. Secondly, there is nothing to show that Sughar Singh has lost his seniority in the sub-stantive rank. It is true that some of his colleagues who were also hold-ing the substantive post of head constable and who had also been appointed in an officiating capacity to the post of Platoon Commanders were not reverted on the day when the respondent was reverted. But that cannot be regarded as penal consequence by way of Joss of seniority in. the substantive rank. In Divisional Personnel Officer v. Raghavendrachar( [1]), this Court has clearly held that where number of employees are placed on senior list on provisional basis they do not get any indefeasible right to retain their seniority on that provisional basis so that the reversion of person who was in the list does not constitute reduction in rank merely on the grc1Und that persons lo\ver in the rank have not been reverted. Thirdly, there, is no evidence to sho\v and, in fact, it \Vas not contended on behalf of the rcspGndcnt that there has been any forfeiture of his pay or allo\vances or any loss in the seniority in the substantive rank wkich is, one must rcmomber, the rank of Head Constables. On careful scrutiny of tlie .order of reversion we do not find any indication that it affects the senio-D rity of Sughar Singh in his substantive rank or that it affects his chances of his future promotion from that rank. It is true that Sughar Singh will be deprived by the order of reversion of the post of Platoon Con1mander but that is riot considered penal consequence. Such deprivation is the usual consequence of any order of reversion from the officiating post which an incumbent has no right tc1 hold. Such deprivation bas been held by this Court not to be an order attended with penal consequences _(see Union of India v. Jeewan Ram(').

It has been suggested that the motive behind the reversion was really the infliction of punishment. There was formal proceeding held against the respondent and the explanation that be had submitted in reply to the charge~ made out against him had not been accepted by his superior officers. The order of reversion which came soon after this must, it was suggested, be connected with the disciplinary pro-ceedings and the order of reversion must be taken as motivated by the desire to punish him. The reply to this suggestion is two-fold. The proceedings had been drawn up two years before the order of rever-sion. The proceedings were limited in nature. The onlv punishment proposed in•the proceedings was the making of certain adverse entries in the character roll. That penalty had already been imposed on the respondent. There is nothing tcj show that after two years the autho-rities proposed to rake up that matter ·and inflict heavier punishment on the respondent than they had previously proposed and also inflicted. Besides, it is well-known that in matter like this we are concerned oaly with the question whether the order of reversion entails anv penal consequence. We are not concerned with the motive behind the 'version (see Madhav v. State of Mrsore(') and State of Bombav II v. Abraham('). ·

(2) A.l.R. 1008 S.C. c,o;.

(1) [1966] 3 S.C.R. 106..

(3) A.1.R. 1961. S.C.R. 8, lt.

(4) A.l.R. 1· 62 S.C. 79J.

The respondent's counsel then challenged the order of reversion on another ground. He pointed out that at least 200 head constables who had taken training as Cadet Sub-Inspectors of Armed Police at Sitapur after the respondent and who were junior to the respondent have still been allowed to retain their present status as Sub·lnspector and have not ,been reverted to their substantive post of Head Constable. Unless this can be justified as measure of punishment, the reversion of the respondent would amount to discrimination in contravention of the provisions of articles 14 and 16 of the Constitution. The facts on which this contention is based are found in paragraphs 7 and 20 of the petition. The contention itself is to be found in ground No. 3 of the writ petition. The complaint, we must say, is one which has to be sustained. No possible explanation in this extreme form of discrimina· tion has been shown to us. Indeed, it appears from the judgment of the third learned Judge who heard the petition in the High Court that in answer to question put by him, the standing· counsel appearing for the State clearly stated that the order of reversion was result of the adverse entry made in the appellant's confidential character roll. If this statement of the learned standing counsel has to be accepted, it is impossible to resist the suggestion that the respondent's order of reversion was really an order of punishment in disguise in which event the order must be struck down for non-compliance with the require· ments of article 311 of the Constitution. The appellant in fact faces dilemma. If it was not case of punishment, 1t becomes difficult to explain why this discrimination was made against the respondent vis-a-vis at least 200 other officers who were junior to him in the sul>-stantive cadre. That would make the order liable to be struck down as violative of article 16 of the Constitution. Reference may be made to State of Mysore v. P. R. Kulkarni(!), where an order of reversion was struck down by this Court on the. ground of "unjustifiable discrimi· nation" which brought the order within the mischief of articles 14 and 16 of the Constitution. If, on the other hand, the order has to be Justi-fied with reference to the adverse entry in the character roll, it .beoomcs not merely case of double punishment, but als6 case ol infringement of article 311 of the Constitution. It is true that the order ex-facie does not show anything which can suggest the contravention of article 311 of the Constitution. We have already analysed the order and dis· cussed that aspect of the matter. But the compelling logic of the totality of circumstances attending the order of reversion indicates that if the order is not discriminatory and has to be justified with reference to the proceedings against the respondent and the earlier order regard-ing his character roll, it is impossible to avoid the ariticism that it was really punishment in the garb of an order of reversion. In the State of Bihar and Others v. Shiva Bhikshuk Mishra('), this Court was called upon to consider the effect of an order of reversion passed on member of the Bihar Police Force who, while holding the substan· tive post of Sergeant, was promoted to officiate temporarily as Subedar Major in 1948 bu( was subsequently in 1950 reverted to his substantive post. The High Court of Patna found that the reversion was not in the - usual course or for administrative reasons but . it was after the finding

(l) A.I.R. 1972 S.C. 2170.

(2) [1971] 2 S.C.R. 191,

on an enquiry about some complaint against the plaintiff and by way of punishment to him. The matter having come on appeal to this Court, this Court held that the form of the order is not conclusive of its true nature and might often be cloak or camoufiage for an, order founded on misconduct. This Court further obseried :

"It may be that an order which is innocucus on the face 8 and does not contain any imputation of misconduct is circum· stance or piece of evidence for finding '\\'.hether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the over-riding test will always be whether the misconduct is mere motive or is the very foundation of the order."

In the instant case we have no doubt in our mind that the peculiar circumstance that from out of group of about 200 officers most of whom are junior to the respondent, the respondent alone has been reverted to the substantive post of Head Constable makes it absolutely clear that there was no administrative reason for this reversion; Jn fact there was no. suggestion at any time made on behalf of the apd~~:nt that the post has been abolished o.r· that respondent was, for · is-trative rell80lll, required to go back to his own post of Head Constable. Thi1 circumstance only corroborates what the learned standing counsel for the State admitte4 l)efore tho High Court that the foundation of the order of reversion is the adverse entry made in his character roll. In this view of tho matter, we havo 110 doubt thaf tho order was passed by way of punishment, thou&h all clutward lndicia show the order to be mere order of reversion. Even if it were not so, we have no doubt that the order Would be liable to be quashed OD the ground Of contra• vention of articles 14 and 16 of the Constitution.

In these circumstances, the appeal must be dismissed with costs and we do ao. p . Before parting with with this case, we think it only only fair to mention that

. Before parting with with this case, we think it only only fair to mention that in writing this judgment we have derived considerable assistance from c)raft of the judgment prepared by our late Brother Mukherjea, J. · who sitting with us, hearo the case m the first instance.