Arjun Dev Bali vs The Union of India (UOI) and Others

Chet Ram Thakur, J.—This is a petition by Shri A. D. Bali for quashing the order dated 11-2-1970 (Annexure M), whereby he has been shown as Deputy Superintendent of Police, and for a direction to treat him as Superintendent of Police since 23-6-1961 with all consequential benefits and with a further prayer for a direction to be issued to Respondents 1 and 3 to give him the selection grade since 18-1-1966 as a D.S.P. as against Respondent 23.

The facts may briefly be stated as:

The Petitioner was directly appointed as Inspector of Police on 26-5-1944 in the erstwhile princely State of Sirmur. He was con firmed as such on 26-5-1946. On the formation of the Himachal Pradesh he was taken over as Inspector of Police on 15-4-1948. He was confirmed as Inspector of Police in Himachal Pradesh with effect from 12-5-1950. He continued to work as such till 18-1-1954, when he was promoted to officiate from 14-1-1954 as D.S.P., vide Annexure B, and he continued as such till 19-6-1961 except for a short interval. He was promoted as officiating Superintendent of Police from 1-2-1957 to 16-8-1957, vide Annexure C. It has also been submitted that in the police department promotion from one rank to the other, i.e. from the rank of D.S.P. to the rank of S.P., before the formation of the Delhi and Himachal Pradesh Police Service and subsequently the Delhi, Himachal Pradesh and Andeman and Nicobar Islands Police Service, were made on the basis of approved panel or list. Reversion from the officiating post could not be done without removing one''s name from that panel. Removal of the name from the list has the effect of postponement of the chances of promotion and such removal would amount to reduction in rank and in that case a show-cause notice is a pre-requisite, as would be apparent from the letter, Annexure D, issued by the Under Secretary, Delhi Administration, on 8-8-1970. The Petitioner fulfilled all the requirements of the rules for bringing his name on the select list or on the approved panel for appointment as Superintendent of Police and his name was brought on the said panel.

On 29-6-1961 the Petitioner was promoted as Superintendent of Police (Border) with effect from 23-6-1961, and he continued as Superintendent of Police till 10-2-1970, as would be apparent from Annexure C. With effect from 27-11-1962 a joint Police Service for Himachal Pradesh and Delhi was constituted and the Petitioner was placed in this service and his name in the gradation list appears at serial No. 6. This Police Service was re-constituted in November, 1965, and named as DHADI Police Service. A provisional seniority list of the members of this Service was prepared and the Petitioner was shown at serial No. 5. On the reorganisation of the State of Punjab some police officers were allocated to Himachal Pradesh. With effect from 25-1-1971 the Petitioner was allocated to the cadre of Himachal Pradesh Police Service along with others, vide Annexure H. The post of Superintendent of Police from 29-6-1961 to 10-2-1970 held by the Petitioner was a caderised post under Rule 2(b) of the Indian Police Service (Cadre) Rules, 1954. According to Rule 9 of these rules the appointment of the Petitioner was not to any non-cadre post because the Petitioner uninterruptedly continued for over 96 months against six months mentioned in Sub-rule (4) of the said rules, with the concurrence of the Union Public Service Commission. Under Rule 7 of the Indian Police Service (Appointment and Promotion) Regulation Rules, 1955 he was appointed to the cadre post and as such he was on the select list. He was appointed as D.S.P. on 14-1-1954 and was confirmed as such with effect from 27-11-1964 against a cadre post and till 18-1-1966 he had completed 12 years service and under Rule 31(2) of the Delhi Himachal Pradesh Police Service Rules, 1961 he was eligible to be considered for appointment to the post of D.S.P. Selection Grade (Grade I) of Rs. 900/-but that right of the Petitioner was denied to him. He made representations but the same have not been decided although he was officiating as Superintendent of Police. Respondent 23 had been granted this selection grade whereas the Petitioner was denied the right and thereby he had been discriminated. Therefore, he prayed for a writ of mandamus to be issued to the Respondents 1 to 5 for granting selection grade to the Petitioner from 18-1-1966 to which he had a right.

By an order dated 7-7-1972 the Petitioner was allowed to cross the efficiency bar at the stage of Rs. 650/- in the D.S.P. pre-revised scale of Rs. 300-800, raising his pay to Rs. 680/- with effect from 18-1-1969. At that time he was officiating as Superintendent of Police, Bilaspur, and not as D.S.P. Although he had been allowed to draw his annual increments regularly in terms of Rule 24 so his conduct was good, yet he was reverted on 11-2-1970 as D.S.P., whereas Respondents junior to him were retained in service, and, therefore, according to him, he had been discriminated and Articles 14 and 16 of the Constitution have been violated.

It had further been submitted that the Lt. Governor, Himachal Pradesh, vide order, Annexure L, dated 27-8-1969, placed the services of the Petitioner at the disposal of the Inspector-General of Police, Delhi Administration. At that time he was officiating as Superintendent of Police. He reported his arrival at Delhi to the Inspector-General of Police on 11-2-1970. The latter issued an order, Annexure M, on the same date designating him as D.S.P. and posting him as Assistant Commandant Delhi Armed Police. By this action of the Respondents he was impliedly reverted as D.S.P. as he was appointed as such and the final implication is that his name stands removed from the select list prepared for appointment to the I.P.S. cadre (Superintendent of Police).

It had further been submitted that Respondent No. 13 was directly brought on the I.P.S. cadre in 1971 by a selection committee of which Shri B. S. Yadav, Respondent No. 3, was one of the members. Shri B. S. Yadav, Inspector-General of Police is the cousin brother of Respondent 13, therefore, he had a direct interest in him and he could not participate in the deliberation of the committee in which Respondent 13 was selected and this is against the principles of natural justice.

Further, there is a contravention of the Indian Police Service (Appointment and Promotion) Regulations, 1955 as at the time of selection of Respondent 13, he had already crossed the age-limit of 52. Similar was the case of Respondent 18, who too had crossed the age limit when he was inducted in the I.P.S. cadre. It is in these circumstances that the Petitioner has prayed for the reliefs, as already stated in the earlier part of the judgment.

The first point is about his reduction from the post of Superintendent of Police to that of D.S.P. The Petitioner contends that this reduction is illegal. To this the reply contained in the affidavit of Shri S. C. Vaish, Deputy Secretary to the Government of India, is that the Petitioner handed over the charge of the post of Superintendent of Police in Himachal Pradesh on 5-9-1969 (A.N.) and immediately proceeded on leave. He joined the Delhi Police as D.S.P. with effect from 11-2-1970. Further, it had been averred in para 21 that the appointment of the Petitioner as Superintendent of Police was on ad hoc basis and as such he had no claim to hold the said post. The Petitioner could be reverted to his substantive post and he was accordingly posted as D.S.P. in Delhi. The State of Himachal Pradesh has admitted that the Petitioner was promoted as officiating Superintendent of Police. This officiating appointment had to be made as after the constitution of the I.P.S. cadre for Delhi and Himachal Pradesh, no I.P.S. officer was available to man the post of Superintendent of Police and the Petitioner was allowed to continue as officiating Superintendent of Police in consultation with the Government of India/Union Public Service Commission under Rule 9 of the I.P.S. (Cadre) Rules, 1954. His reversion to the post of D.S.P. was no reduction in rank. His officiating appointment was made as a stopgap arrangement in the joint cadre of Delhi and Himachal Pradesh with effect from 25-7-1960. Further, it was averred that the Petitioner handed over the charge of the post of Superintendent of Police on 5-9-1969 and immediately proceeded on long leave and joined the Delhi police on 11-2-1970 as D.S.P. in his substantive post after availing of the joining time. His status during the aforesaid period of earned leave was as D.S.P. and not S.P., as he had been reverted to his substantive post. Shri R, S. Rai, Deputy Secretary (Home), Delhi Administration, filed the counter-affidavit on behalf of the Chief Commissioner, Union Territory of Delhi (Respondent No. 5). According to the reply, the Deputy Secretary to the Government of India, Ministry of Home Affairs, vide letter, dated 14-8-1969, intimated Shri U. N. Sharma, Chief Secretary, Himachal Pradesh Government that it had been decided to transfer Shri A. D. Bali, a member of the Delhi and Himachal Pradesh Police Service, to the Delhi Police immediately and that he may be relieved and instructed to report for duty to the Inspector-General of Police Delhi. Accordingly his services were placed at the disposal, of the Inspector General of Police, Delhi, by the Government of Himachal Pradesh, vide their office order, dated 27-8-1969. He being a member of the DHANI Police Service was posted as Assistant Commandant 1st Battalion, Delhi, in the rank of D.S.P. with effect from 11-2-1970 by the Inspector-General of Police, Delhi. So one thing that emerges from the averments of the Petitioner as also from the reply of the concerned Respondents is that the Petitioner stood promoted as officiating S.P. since 1961. But the submission of the Respondents was that it was only an ad hoc or stop-gap arrangement. However, this stand of the Respondents stands belied by Annexure C, which is a notification, dated 6-6-1961. By this notification Shri Bali, who figures at serial No. 4 of the notification, was promoted as officiating S.P. and transferred and posted as S.P. Border Security Force under the orders of the Lt. Governor of Himachal Pradesh. There is no mention of any stop-gap or any ad hoc arrangement. It is also not denied that the Petitioner continued to work as such since his first promotion vide Annexure C, till 11-2-1970. The submission of the Respondents was that his services were placed at the disposal of the Inspector-General of Police, Delhi. Annexure L is the order, whereby his services were placed at the disposal of the Inspector General of Police, Delhi. This order is dated 27-8-1969. This order no where states that Shri Bali had been reverted to his substantive post of D.S.P. from that date. No doubt it refers to some instructions contained in the Government of India, Ministry of Home Affairs, letter No. 15-19/69-DH(S), dated 26-6-1969 to the Lt. Governor of Himachal Pradesh. It also mentions that Shri Bali as a member of the DHANI Police Service. But that does not mean that he had been reverted because Shri Bali was substantively a member of the DHADI Police Service and he had been promoted from that Service to the post of officiating S.P. eversince June 1961. Therefore, this mention that Shri Bali, member of the DHANI Police Service presently posted as S.P. does not mean that this was a reversion order to his substantive post of D.S.P. Therefore, the stand of the Respondents that he had been reverted is not correct. The endorsement to this letter also belies the stand of the Respondents. In this endorsement he is referred to as Shri A.D. Bali, S.P. Bilaspur. Annexure M is the order made by the Inspector-General of Police, Delhi, on 11-2-1970 and it reads as:

On arrival from Himachal Pradesh, on 11-2-1970 (F. N.) Shri A. D. Bali, D.S.P. is posted to D.A.P. 1st Bn.

This is in fact the impugned order and it is not understood under what authority this order posting him as D.S.P. without making any formal order of reversion by the competent authority has been made. Annexure P filed by the Petitioner with his rejoinder also indicates that after he was relieved of his duties as S.P. Bilaspur he submitted his joining report to the Inspector General of Police, Delhi, on 11-2-1970 in his capacity as S.P. It is also supported by Annexures Q and R which purport to be the salary slips issued by the Accountant General that he had been drawing the pay as S. P. till 4-1-1970. It is not understood as to how and why the Petitioner was reverted as D.S.P. from the post of S.P. when from the documents it is clear that he was not holding any ad hoc or stop-gap arrangement post in the rank of S.P. since June 1961 till 11-2-1970. The Respondents have along with their supplementary affidavit filed the document, Annexure G, which purports to be a copy of letter from the Government of India, Ministry of Home Affairs, to Shri U. N. Sharma, communicating the decision of the Government of India to transfer Shri Bali, a member of the DHANI Police Service to the Delhi police immediately. But this communication does not amount to any order reverting Shri Bali and if it had been a reversion order, Shri Bali should have been informed of the same. In so far as the placing his services at the disposal of the Inspector General of Police, Delhi, is concerned the same is not material because there was a joint Police Service for Delhi and Himachal Pradesh and the other Union territories known as ''DHANI Police Service'' and also joint I.P.S. cadre, and as such Shri Bali could be posted any where within the Union territories. But it is not clear how the Inspector General of Police posted him as D.S.P. without any order or reversion from any quarter issued to him. In fact he was not the competent authority to pass any order of reversion. Shri Bali had been appointed as S.P. by the Lt. Governor, Himachal Pradesh, and subsequently approval of the Union Public Service Commission had been obtained. Therefore, he could not be reverted in this manner.

Learned Advocate-General has submitted in his written note that the Petitioner was appointed in an officiating capacity and he did not acquire any right to hold the post, and an officiating person could be reverted at any time and without any reason and support is being sought from R.S. Sial Vs. The State of U.P. and Others, . This case has got no applicability because there was a regular order of reversion passed by the competent authority. But in the instant case there is no order whereby he had been reverted by the comptent authority.

It is a common ground between the parties that in fact in November 1962 a joint Police Service for Delhi and Himachal Pradesh has constituted. The Petitioner was placed in this service and his name figures at serial No. 6 of the gradation list.

According to the reply in para 9 of the State of Himachal Pradesh a joint I.P.S. cadre for the Union territories was constituted with effect from 25-7-1960. Therefore, it is quite clear that the Petitioner was appointed to the post of S.P. only in June 1961, i.e. after the joint I.P.S. cadre for the Union territories had been constituted. It is pleaded that prior to the constitution of the Union territories police cadre, appointment to the post of S.P. used to be made by borrowing the services of the officers from other State Governments by promoting suitable Deputy Superintendents of Police of Himachal Pradesh in consultation with the Government of India, Ministry of Home Affairs/Union Public Service Commission. It is averred that officiating appointment had to be made as after the constitution of the joint I.P.S. cadre for Delhi and Himachal Pradesh no I.P.S. officer was available to man the post of S.P. However, it has been stated that the officiating appointment of the Petitioner was being continued in consultation with the Government of India/Union Public Service Commission under Rule 9 of the Indian Police Service (Cadre) Rules, 1954. This rule reads as:

Temporary appointments of non-cadre officers to cadre posts.--

(1) A cadre post in a State may be filled by a person who is not a cadre officer if the State Government is satisfied--

(a) that the vacancy is not likely to last for more than three

months; or

(b) that there is no suitable cadre officer available for filling

the vacancy

(2) where in any State, a person other than a cadre officer is appointed to a cadre post for a period exceeding three months the State Government shall forthwith report the fact to the Central Government together with the reasons for making the appointment.

(3) On receipt of a report under Sub-rule (2) or otherwise, the Central Government may direct that the State Government shall terminate the appointment of such person and appoint thereto a cadre officer and where any direction is so issued, the State Government shall accordingly give effect thereto.

(4) where a cadre post is likely to be filled by a person who is not a cadre officer for a period exceeding six months, the Central Government shall report the full facts to the Union Public Service Commission with the reasons for holding that no suitable officer is available for filling the post and may in the light of the advice given by the Union Public Service Commission give suitable directions to the State Government concerned.

Therefore, it is submitted that the appointment of the Petitioner as officiating S. P. was made under Rule 9 of the Indian Police Service (Cadre) Rules, 1954 (shortly called the Cadre Rules). According to Clause (a) of Sub-rule (1) of Rule 9, a cadre post in a State may be filled by a person who is not a cadre officer not for a period lasting more than three months or in a case when there is no suitable officer of the cadre available for filling the post. The Petitioner admittedly continued to hold this post of officiating S.P. for over 96 months, i.e. right from June 1961 till February 11, 1970. Therefore, it could not be said to be covered by Clause (a) or Clause (b) of Sub-rule (1) of Rule 9. The Respondents have also not been able to show whether the requirement of Sub-rule (2) of Rule 9 had been satisfied. Nor the requirements of sub-rules (3) and (4) of the aforesaid rule have been satisfied by the Respondents. They have not disclosed whether they complied with the provisions of the same if the Petitioner, who according to him, was not a person of the cadre, and was promoted and allowed to continue in an officiating capacity as S.P. for over 8 years which is admittedly a post of the I.P.S. cadre. There is no material on the record to satisfy this Court that the Respondents complied with Rule 9 of the Cadre Rules, in case the Petitioner who was a person not of the cadre and was appointed against the cadre post. So, if there is no material the only conclusion that must flow is that the Petitioner was not a non-cadre officer appointed against a cadre post under Rule 9 of the Cadre Rules of 1954, rather was a cadre officer and as such, and in my opinion, his reversion after such a long period could not be made [in this arbitrary fashion.

Assuming that it was a stop-gap or an ad hoc arrangement, the same also could not last for 8 years, as is held by D.R. Nim, I. P. S. v. Union of India 1967 S.L.R. (S.C.) 221. It is clear that when the Petitioner was appointed, there was a vacancy and that is why he had been appointed on officiating basis. No material has been placed on the record to establish that the Petitioner being a non-cadre officer was appointed against a cadre vacancy at that point of time when he was actually promoted as S.P. in 1961. Further his posting against a cadre post for such a long period exceeding eight years is a clear indicative of the fact that he was appointed as a cadre officer against a cadre post and this, therefore, negatives the stand of the Respondent that it was merely a temporary or stop-gap arrangement. Besides, his appointment was not only made by the Lt. Governor, rather the same was approved by the Government of India in consultation with the Union Public Service Commission.

The further submission of the Respondents is that he being a non-confirmed D.S.P. was not eligible for consideration for appointment to the I.P.S. cadre in the promotion quota at that time. This submission of the Respondents is falsified by regulation 4 of the Indian Police Service (Appointment by Promotion) Regulations, 1955 (shortly referred to as the Regulations) which makes a person eligible after completion of 8 years of continuous service (whether officiating or substantive) in a post of Deputy Superintendent of Police on 1st of January of that year when the Committee is to meet for considering the cases for promotion to the I.P.S. cadre. In the instant case it is not disputed that Shri Bali had been appointed as D.S.P. in 1954 and he was eligible for consideration under regulation 4 of the Regulations in 1962 because he was holding that post in a substantive capacity continuously. Therefore, it is wrong on the part of the Respondents to say that he was a non-confirmed D.S.P. and as such he was not eligible for being considered for the I.P.S. cadre in the promotion quota. This rule no where lays the condition that the person must be confirmed D.S.P. before he can be considered for promotion to the I.P.S. Therefore, there is a violation of Article 16 of the Constitution inasmuch as others of the same category were considered whereas he was not. The Petitioner had been ignored from consideration on a non-existent ground that is for want of confirmation as D.S.P. which is not the intention of regulation 4, as indicated above.

It is, therefore, obvious that the Petitioner, who had put in more than 8 years of continuous service as D.S.P. in a substantive capacity was eligible for consideration under regulation 4 for promotion to the I.P.S. cadre and to be placed on the select list as contemplated under regulation 5 of the Regulations. These regulations appear to have been more honoured in their breach than in their observance and the reasons for this may be best known to the Respondents as the same have not been disclosed except that he was non-confirmed D.S.P. which is not the requirement of regulation 4. Once he became eligible for consideration for promotion to the I.P.S. under regulation 4 and was found fit and suitable he was bound to be placed on the select list and his name could not be removed from the select list as is envisaged under regulation 7 once it had been approved by the Commission. This list was to be the list of members of the State Police Service. After that appointments to the cadre posts had to be made from the select list as contemplated under regulation 8. Regulation 9 states that the appointments of members of the State Police Service to the Service shall be made by the Central Government on the recommendation of the State Government in the order in which the names of the members of the State Police Service appear in the select list for the time being in force. It is admitted that the Police Service for the Union territories of Delhi and Himachal Pradesh had been constituted in the year 1961 and the Petitioner was eligible for consideration for promotion and to be placed on the select list in the year 1962. It is also admitted by the Respondents that the concurrence of the Union Public Service Commission and the Central Government for appointment as S.P. of Shri Bali had been obtained and from this the only conclusion that is inescapable is that he had been placed on the select list of I.P.S. and as such he was appointed against a cadre post of the I.P.S. and the stand taken by the Respondents appears to be wholly inconsistent and wrong that his appointment was made under Rule 9 against a cadre post as a non-cadre person because at that time no suitable candidates were available and that it was an ad hoc appointment. But, as already stated, the appointment continued for over 96 months, which by no strech of imagination can be termed as ad hoc as has been held by the Supreme Court in the authority cited above because such an arrangement on ad hoc or stop-gap cannot continue for such a long period of 8 years. Therefore, the submission of the Petitioner that his name has been placed on the select list of I.P.S. appears to be correct and the reversion of the Petitioner is therefore, unwarranted. His reversion could not be ordered unless his name had been removed from the select list and it amounts to punishment as there is clear violation of Article 311(2) of the Constitution, in as much as he was not afforded any opportunity before this action was taken against him. Order Annexure G filed by the Respondents with the supplementary affidavit cannot be said to be an order of reversion from an officiating post. It is an order of transfer made by the Central Government. If it was intended to revert Shri Bali from his officiating post as S.P. even then the order should have been communicated to him so that he could seek his appropriate remedy against the same. This order did not see the light of the day except when it was put up by way of defence by the Respondents in the supplementary affidavit.

This order could not be passed by the Inspector General of Police, Delhi. The competent authority for reverting Shri Bali was either the Lt. Governor, Himachal Pradesh, who had appointed him initially as S.P. or the Central Government but there is no such order, I think of the Lt. Governor, or the Central Government, reverting him to his substantive post of D.S.P. Therefore, this order cannot be sustained.

The second point is about discrimination. The Petitioner has made allegations in para 21 of the petition that Respondents 6 to 24 are junior to him and he has indicated the dates of their promotion as Superintendents of Police. He has also submitted that apart from the fact that they were junior they had not even been brought on the select list of the I.P.S. cadre initially, yet they were working as Superintendents of Police and out of these persons Sarvshri Sachinder Chaudhry, Sheel Kumar Saxena, Krishan Dutt Nayyar, P.D. Joshi, S.M. Sagar, Drigpal Singh Yadav, Achhar Singh Burathoki and Ravinder Kumar Kapoor, had not even been placed on the select list. The Petitioner was reverted whereas the Respondents, referred to above, though admittedly junior, were retained in service. Before the Petitioner could be reverted persons junior to him should have been reverted on the principle of ''last come first go'' and, therefore, there was violation of Articles 14 and 16 of the Constitution. It is admitted in para 12 of the return by the Government of India that the Respondents, though junior, were still holding the posts of Superintendents of Police or posts equivalent thereto. But their only stand is that since the Petitioner was appointed on ad hoc basis and as such he had no claim. But this contention appears to be wholly untenable, inasmuch as it is the question of discrimination. Persons junior to him could not be retained if there was a question of reversion because he was senior to them and had been promoted to officiate at an earlier date. Therefore, if reversion was to be made the junior-most had to be reverted. There is no question of right to hold a post. In the case of discrimination even a person who has no right can maintain his petition on the ground that he has been discriminated and in this be-half, I draw support and succour from E.P. Royappa v. State of Tamil Nadu and Ors. 1974 (1) S.L.R. (S.C.) 497, wherein it has been laid down as:

The ambit and reach of Articles 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is, therefore, no answer to the charge of infrigement of Articles 14 and 16 to say that the Petitioner had no right to the post of Chief Secretary but was merely officiating in that post. That might have some relevance to Article 311 but not to Articles 14 and 16.

Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public appointment.

In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant consideration because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to Mala fide exercise of power and that is hit by Articles. 14 and 16. Mala-fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice, in fact the latter comprehends the former. Both are inhibited by Articles. 14 and 16.

Further, in State of Uttar Pradesh and Ors. v. Sughar Singh (1974 (1) S.L.R. (S.C.) 435, the following principle has been laid down:

If the officer is promoted substantively to a higher post or rank, he gets a 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 a "reduction 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 a right to the post from which he is reverted. If he has a right to the post then a reversion is a 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. But even in this case, he cannot be reverted in a manner which will show conclusively that the intention was to punish him. The order itself may expressly state that the officer concerned is being reverted by way of punishment. In fact the order may in various other ways cast a stigma on the officer concerned. In all such cases, the order is to be taken as a punishment. Sometimes again, the order of reversion may bring upon the officer certain penal consequences 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 also the government servant must be regarded as having been punished and his reversion to the substantive rank must be treated as a reduction in rank. In such a case Article 311 will be attracted.

Therefore, from these authorities it is abundantly clear that even if an officer has no right to the post he cannot be reverted in a manner which will show conclusively that the intention was to punish him. In the instant case even though Shri Bali was officiating, although the Respondents say that he was appointed on ad hoc basis or on a stopgap arrangement which fact has been held to be untenable, he can complain of violation of Articles 14 and 16, because he has been arbitrarily and unfairly treated. His juniors have been retained, some of whom were, admittedly, not even on the select list, and had been appointed like the Petitioner much after the Petitioner was appointed on officiating basis as S.P. Therefore, even if it may be stated that the reversion was not by way of punishment yet no such exception can be taken for attacking the order on the ground that it was in contravention of Articles 14 and 16, because it was arbitrary land capricious. No such authority can be permitted to take any such arbitrary decision to affect the rights of a public servant. Some reasons have to be given and which are conspicuous by their absence. Therefore, on this ground the attack made by the Petitioner on the ground of infraction of Articles 14 and 16 carries weight and the order is liable to be struck down.

Assuming that the Petitioner was not eligible for consideration for promotion to the I.P.S. cadre even then after he had put in minimum service of 12 years in Grade II he was eligible for consideration for appointment to the selection grade of the Deputy Superintendents of Police, as contemplated under Rule 31 of the Delhi and Himachal Pradesh Police Service Rules, 1961, which reads as under:

Appointments to Selection Grade.--(1) Appointment of members of the service to the Selection Grade shall be made in consultation with the Commission on the basis of merit with due regard to seniority.

(2) An officer with a minimum of 12 years'' service in Grade II shall be eligible for being considered for appointment to the Selection Grade:

Provided that service in the duty post or an equivalent post, or in a State Police Service shall count towards the twelve-year period:

Provided also that where a person is considered for such appointment all persons senior to him in Grade II shall also be considered irrespective of the fact whether or not they fulfil the requirement as to the minimum of 12 years'' service.

The selection grade of Deputy Superintendents of Police is Rs. 900/-fixed, as provided under Sub-rule (1) of Rule 30 of the aforesaid rules. The notification Annexure J, dated 7-7-1972, shows that the Petitioner was permitted to cross the efficiency bar at the stage of Rs. 650/- in the revised pay scale of Rs. 300-25-475-EB-25-650-EB-30-800 from 18-1-1969. The Petitioner complaints against this fixation of his salary and he contends that he was entitled to selection grade which has been denied to him because under the rules he was qualified for the same. The Petitioner was promoted to officiate as D.S.P. vide order, Annexure B, dated 14-1-1954., He continued to work as such till 29-6-1961 when he was promoted as S.P. and he then continued to work as such till February, 1970, which means that even if he was not promoted as S.P. and continued as D.S.P. he was entitled to selection grade after having put in a minimum of 12 years'' service as D.S.P. He completed that period of 12 years, as required under Rule 31, for qualifying himself for consideration for the selection grade on 14-1-1966. The Petitioner has been allowed to cross the efficiency bar as is apparent from Annexure J. Therefore, it is quite obvious that there was nothing wrong with his conduct or performance so as to debar him from consideration for grant of selection grade. All persons who satisfied the requirement of Rule 31 fell within the field of eligibility irrespective of any other considerations. Further, he happened to be officiating for over 96 months, i.e. 8 years, as S.P. and this by itself is a certificate of his fitness for grant of the selection grade in the service of the Deputy Superintendents of Police. Therefore, the Petitioner has wrongly been denied this selection grade of D.S.P. to which he was otherwise entitled because he fulfilled all other requirements and the Respondents have not been able to show as to what were the circumstances that weighed with them for ignoring him for the grant of selection grade. However, the Respondents have put up a plea that the Petitioner had been considered for promotion to the selection grade of Deputy Superintendent of Police but he was found "not fit". But it is not indicated as to at what point of time he was actually considered and found "not fit". If that was so, what made the Respondents to appoint him to a higher post with higher responsibilities with higher emoluments even if it may be admitted that he being a non-cadre officer was appointed to the cadre post of I.P.S. for the non-availability of suitable I.P.S. officer. He continued to function as such for such a long period of over 8 years and that would belie the stand taken by the Respondents that he was not found fit for the grant of selection grade as D.S.P.

There was a plea taken by the Respondents that the petition suffers from laches and delay. But it may be stated that the order of reversion was passed on 11-2-1970. He immediately filed an appeal, copy of which is Annexure N, and which is still pending before the President. The Respondents denied knowledge of any such appeal. But since the Petitioner has filed a copy of the appeal it appears that he did file the same. Hence the question of delay requires no consideration.

In the light of the above, I hold that the order, Annexure M, reverting him is bad and I hereby quash the same. Further, in view of my finding that the Petitioner''s reduction from the rank of S. P. is in contravention not only of Articles 14 and 16 of the Constitution but also in contravention of Article 311 of the Constitution because this reversion amounts to reduction in rank by which there is loss of salary, chances of promotion and seniority and, therefore, I need not make any order that he shall get the selection grade in the scale of D.S.P. The Petitioner shall be deemed to have continued as S.P. as a result of the quashing of the order, Annexure M, which is without any authority.

No order as to the costs.