Gurdev Singh v. Punjab

550 GURDEVS~GH _'V .•_ STATE OF PUNJAB _JaTijU{lly_ 27, 1971 [G. K. MITTBR AND A. N. RAY, JJ.] _Service-Indian Police Service_ _Sche;,e-Appellant_ _interviewed and_ _ced in_ _List_ _11_ _un4er the Scheme_ _while_ _officiating_ _as_ Superintenden~ _of._ _ice-If_ _inclusion in_ _List_ _conje"ed_ _any_ _rights_ _on_ _hl"m-Whether_ _could_ _.be_ _reverted to substantive post_ _of 'Deputy Superintendent_ _of Police._ A B #### _c_ The appellant originally belonged to the Police Service in the Stat~ '·of Patiala and was promoted to officiate as a Superintendent of Police in .February 1950 in the erstwhile State of PEPSU. After the Indian Police Servic~ Scheme was extended to PEPSU in 1950, the appellant was one of several persons interviewed by the Federal . Public Service Commis sion and his name was placed on what was styled in Li~t II in the Sche~e. He continued working as an officiating Superintendent of Police without being confirmed in the post. On December 1, 1954, he was reverted to D his substantive rank of Deputy Superintendent by an order of the Inspecior-General of Police. The appellant thereafter filed a suit claimii1g that the order of reversion was bad. He alleged that the inclusion of his name in List II of the Scheme gave him a right to continue as an offici.at:ing Superintendent of Police for five years and his reversion within that period to his substantive post amounted to a punishmen1. He alleged there was thus non-c.Jmpliance with Art-:- 311 · of the C.on·stitution. He also complained that while he was reverted, persons who were junior to · E him; in the sense that their names had ·not been included in any of the Lists · under the Scheme, were allowed to continue as officiAting Supei'iniendents of1 Police; there was therefore d~crimination ~s against him. !be purely case on of\__the aCiministrative grounds as respondent State was a that Superintendent the reversion of tlad 1Police been who effected was ~ \·.< ~,·~ # .. ## • purely on aCiministrative grounds as a Superintendent of 1Police who was returning to the State had to be accommodated, ·and the£e was no vacancy in which the ap.Pellant could be allowed to work as Superintendent of F Police. 'The Trral Court held that the impugnee order was not made by way of punishment and the plaintiff had failed .to prove there was any discrimination against him. An appeal to the High Court was dis·missed. On appeal to this Court.· HELD : The reversion was justified on administ!'ative grounds and there was no bar to such reversion by reason of, the inclusion of the ·appellant's name in List II. The said list merely ensured that the officers G whose name were- borne thereon would be watched for the space of five years and tliey might be absdrbed in .the All India Service even within . ·the said period as a result of periodical reviews.. Although reversion on the ground of unfitness was mentioned in the scheme the possibility of such reversion when there was no available post in the cadre of Superin tendents of Police was not ruled out. As the officers· in List 11...-had no ·right to be absorbed in the Indian Police Service immediately, the direction in the scheme that "officers placed in List II. wilt continue to hold ·their present post'.' merely. mt:ant that t~ey would ~ot be made. to go out H of their' posts except on Justifiable groun3s. Holdmg a post ID an officiating capacity as a· 'Superintendent G>f Police.' did not entitled the appellant GURDEV SINGH _V._ PUNJAB _(Mitter,_ _J.)_ 551 A to continue in that post even if officers senior to him who were on leave or had been sent out of the State on deputation were to come back to the State and there was no room in the cadre to absorb them all. [556 Cl CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1018 of 1967. B Appeal from the judgment and decree dated January 16, 1967 of the Pu~jap and Haryana High Court in Regular First Appeal No. 358 of f9-64. M~ C. _Setalvad,_ _Bishan Narain,_ _Jawahar_ _Lal Gupta_ and P. _C._ _Bhartari,_ for the appellant. C _Harbans_ _Singh_ and _R._ _N._ _Sachthey,_ fOr the respondent. The Judgment of the Court was delivered by Mitter, J.-The appellant who originally belonged to the police service in the State of Patiala and was promoted to offiD ciate as a Superintendent of Police on 11th February 1950 in the erstwhile State of PEPSU filed a suit against the State of Punjab in January 1961 for a declaration to the effect that the order of the PEPSU Government dated 1st December 1954 reverting him to the post of Deputy Superintendent · of Police (the substantive post which was formerly held by him) was unconstitutio.na.I and void and that he was entitled to ~ll the rightS by way of arrears E of salary and allowances etc. of the post of Superintendent of Police and that he continued as · such in that capacity even after the date of the impugned order. The suit was dismiss~d by the Sub ordinate Judge of Patiala and his appeal to the Punjab High Court met with no beter fat~. He baS come to this Court by a certificate granted by the High Court under Art. 13 3 ( 1) (c) of the ConF stitution. G H The relevant f~cts are as follows. The appellant started his career in the police service in the year 1942 as an As.sistant Superintendent of Police in the former State of Patiala. On the formation of the State of PEPSU he started to function in the same capacity in the said State. In 1950 he was promoted to officiate as a Superint~ndent pf Police. It appears that a scheme known as the Indian Police .Service Scheme was extended to PEPSU in the year 1950. The a~pellant was one of several pe~ons w~o were called up for intervtew before the Federal Pubhc Se~ce Commission in June 1950 under the orders of the PEPSU Government and his name was placed on what was styled the Second List in the above scheme after the int«}rview. H~ continu~d working as an officiating Superintendent of Police wtthout bemg confirmed in that post. Qn December 1, 1954 he was reverted to 552 SUPREME COURT REPORTS [1971] 3 S.C.R. :his substantive rank of Deputy Superintendent of Police by an 'order of the Inspector-Gener4l of Police and he was directed to make over charge to oneS. Ajaib Singh, Superintendent of Police. As he was on leave at that time he was given liberty to proceed ·on leave from that date after submitting a formal charge report. A The appellant's case before the Subordinate Judge in sub- B stance was that the inclusion of his name in List II of the scheme mentioned gave him a right to continue as an officiating Superin .. tendent of Police for five years and his reversion within that period to his substantive post amounted to a punishment : the order of reversion was bad as there was no compliance with th.e provisions of Art. 311 of the Constitution. He also complained that while c he was reverted persons who were junior to him in the sense that their names -bad not been approved by the Special Recruitment Board for inclusion in any of the Lists set forth in the Police Service Scheme were allowed to cont.tue in their post..s as officiating Superintendents of Police _:_ the order _ol_ reversion was bad because ·Of discrimination. He thus complained of loss of seniority a.nd postponement of chances of promotion in violation of his rights. D - The defence set up in the written statement of the State of Punjab was that the reversion was not by wav _ot_ penalty and did not affect the appellant's chances of promotion. It was further pleaded that the inclusion of the appe1lant's name in List II did riot entitle him to be absorbed immediately in the Indian Police E $ervice cadre. Neither did it confer any rights of seniority over other officers of the same rank. The revision had been effected purely on administrative grounds as there was no vacancy ~n which he could be a11owed to work as a Superintendent of Police and ~onsequently there was no reduction in rank of the appellant. Art. 311 of the Constitution did not in the circumstances of the case F apply to the appellant. :, The issue on which the appellant lost before the trial Judge was "Whether the order dated 1st Decembet, 1954 reverting the plaintiff to the t>OSt of Deputy Superintendent _of_ Police was ille gal, unconstitutiOnal and void and not binding on him for reasons ·given in paragraph 7 of the plaint ?" The learned Subordinate J;udge held that the order of 1st December 1954 was not made }iy way of punishment and the pla.i1,1tiff had failed to prove that there w~s any discrimin'ation against him in favour of any persons j~ior to him. G _(_ i No oral evidence was adduced at the trial stage. When the H matter appeared before the High Court ·in the appellate stage. the appellant wanted to have himself examined orally and the High Court alJowed that application. The plaintiff-appel1ant was then A B ##### c D E F G H GURDEV SINGH _V._ PUNJAB _(Mitter,_ J.) 553 examined before the Subordinate Judge. He stated in his exami nation-in-chief that when he was reverted from the rank of Superintendent of Police three persons, Ram Singh, Daljit Singh and Harpaul Singh who were also working in the same capacity as himself and officiating in the cadre of Superinttmdent:; of Police but whose names were not borne on List II of the Police Service Sdleme on 1st December 1954 were allowed to function as before : besides them there was another person Kanwar Sain who although jwiior to him was allowed to continue as Superintendent of Police, Civil Defence, in an officiating capacity. His further statement was that after 1st December 1954 two persons by Name .Piara Lal and Karam Singh were promoted as Suparintendents of Police in March 1955 and June 1956 respectively and on these occasions his case was not considered for promotion. ln'his crossexamination he admitted that il the Indian Police Service Scheme had not ~n extended to PEPSU, Ram Singh, Harpaul Singh and Daljit Singh would have to be treated as senior to him in the civil list. As the stand taken by the appellant rests on his claim based on the inclusion of his name in List II of the Indian Police Service Scheme it .is -necessary to examine the same and find out what right it gave him. The Scheme, an exhibit in this case, shows that it was meant to provide "for the extension of the organisation of the Indian Police Service" so that senior police officers could be available to the Government of the States and the Union of States in India. The primary object of the extension was to maintain and where necessary introduce a standard of efficiency at the highest administrative level in the States comparable to that main~ tained in all Provincial Governments and at the Centre. The Scheme was extended to numerous States including PEPSU. Clause 4 of the Scheme shows the intial constitution of the service. It laid down steps to afford opportunities to existing incumbents of the posts to be encadred and all officers holding posts of similar status were to be considered to be the first and primary so~ ~r recruitment to the State cadre of the Indian Police Serv1ee at ·its initial constitution. This was done by each State Government setting up a Selection Board in cQilSultation with the Government of India. The Board was to review cases of $9fficers of the State Government of the description mentioned make 'a preliminary selection from among them of all officers of' the State Government of the specified descriptions who were suitable for inclusion in one or the other of the three lists referred to in the subsequent paragraph. The First List was to contain names of officers who were considered suitable for immediate appointment to, the Indian Police Service subject to probation with reference to the minimum All India Standard adopted in assessing the suitability of Provincia) SerVice Officers. The second list was to "cQD.tain names of 554 SUPRE~E COURT REPORTS [1971]3 S.C.R .. officers who though not up to the required standard immediately A showed sufficient promise to render it likely that they would attain such standard, with further experience during a period not exceed ing five years." Officers in List I were to be immediately appointed to the Indian· Police Service in the Stat,e cadre concenned subject to a probation. The scheme provided that- ~ "Officers in List ll will-~ontinue to hold their present post but will not be absorbed in the Indian Police Service immediately. Their work will be watched during the next five ye~rs and they will be absorbed in the All Lndia Service as a result of periodical reviews as and when they are found fit for the service. Those of them who are not found fit .. within the period of five years will either be reverted to posts outside th~ cadre of the Indian Police Servi~e or retire as the State Government concerned might think fit, unless they are also mcluded in List III." B ###### c The Order of the Inspector-General of Polioo dated December D ##### 1, 1954 was worded as follows : "1 am directed to inform you that, on having been relieved by S. Ajaib Sirigh, Superintendent of Police. you are reverted to your subStantive rank of Depucy Superintendent of Police, with effect from to-day. You may ptoeeed on leave from to-day after submitting formal E charge report." By itself the order is unexceptionable- in that it merely directed the appellant who was. serving in an officiating capacity to go back to his substantive, post. There is no stigma ca~t on him and no adverse remark . agai~st his character or efficiency. If it be a fact that he was reverted for administrative reasons he could - F not complain except on the ground that. the inclusion of his name in .List II gav¢ him a right to hold the post of the Superintendent -of Police in an officiating capacity for five years. Apart from the consideration of the rights based on the inclusion of his name in the said list be could h~"-e no ~rievance about the retention of Ram Singh, Daljit Singh and Harpal Singh in the cadre of offi- G ciating Superintendents of Pri1ice. He could only base his com· plaint on the retentioo of Kanwar Sain who was .iunior to him in the cadre in preference to himself. Kanwar Sain, it appears from the notes regarding the representation of the appellant with regard to reversion made,by the Inspector General _ot_ _Police. could not be reverted as he was at the material point of time on depu- H tation from Madhya Pradesh Government on particular terms /on contract basis and it could not have been in the interest of Government to terminate his services earlier than the scheduled period A B ##### c D GURDEV SINqH _V._ PUNJAB _(Mitter,_ i.) 555 It is also of interest to 1110te that the reversion of the appellant was ordered after matute consideration. A note prepared at the office of the Inspector General· of ·Police which also bears the en~ dorsement of the Chief Secretary and the Chief Minister shows that Ajaib Singh Gill who had completed 23 years and 7 months of service was due back from leave on 1st December 1954 and he had to be retained for another year and five months before he· could be pensioned off. As there was no job of S.P . .lying vacant in PEPSU at the moment it was suggested that the appellant who was the "junior (most) D.S.P." officiating as S.P. should revert and S. Ajaib Singh should be posted in his place.' If 'the above note was a genuine document-and we have no reason to bold that it was otherwise-it is quite clear that the appellant was not sought to be reverted because of any shortcoming but because room had to be made for s. Ajaib Singh Gill and the axe fell on the· appellant as he was considered to be the person at the bottom of the list of officers officiating as Superintendent of Police. It is trlJe that Kanwar Sain's name does noti occur in this note but if Kanwar Sain was on deputation from Madhya Prade&h GovemJnent on a contract basis no exception can be taken to his having been retained in preference to the appellant. '· It appears that in dismissing the ap~ of the ~:tppellant to the Higli Court. the learned Judges proceeded on the assumption E that the · India!i Police Service scheme was legally binding and its provisions would have the same effect as the statutory rules and regulations. We may proceed to dispose of the appeal on the same assumption. Th~ learned Judges of the High Court took the view that the appellant's grievance even based on List II could l}.Ot be upheld because he had been found unfit for retention in List II. The High Court apparently came to take this view of the F strength of a document which was e~ibi~d as C-2. The letter Ex. C-2 dated September 8, 1956 was addressed by the Deputy Secretary to the Government of India to the Chief Secretary to the Government of PEPSU. It purports to show that the Chief Secm-tary's memorandum to the Governme.nt of India on August f3, 1956 containing the assessment of the State Govei'IliDCilt in respect G of the work of Siasat Singh Sekhon and Gurdev Singh Sindhu and· the finding that these two officers were not fit to be recommended for appointment to the Indian PoJice Service cadre in accordance with the provisions contained in paragraph 4(ill) (b)- .ef the said extensiola was accepted by the Government of India. As the letter of the·€bief Secretary dated 13th August 1956 was not pro. H ducied befqte the court we are not in a position to say wbeft the ass~ (tf the work of the appellant in connection with· the re· tention oftlia JUline in Lilt II was made, _i.e.,_ whether it was befqre j lst December 1954 or subsequent thereto and in our view the ~918 Sup.C~J 556 SUPREME COURT REPORTS (1971] 3 S.C.R. High Court should not have relied on this document. Moreover A the ground for reverting the appellant . to the substantive post of Deputy Superintendent of Police as borne out by the note prepared in the office of the Inspector-General of Police and acceded to by the Chief Minister made no reference to any such assessment. It ### is also noteworthy that no such ground was put I forwat:d m (he written statement where the only plea raised was founded OJl. ad- B ministrative convenience. -...__ Even thou~ we find ourselves unable to upholdo-Jll_e judgment of t.he High Court based on the contents of Ex. C-2, we take the view tl;lat the reversion was justified on administrative grounds arul __ there was no bar to such reversion by reason of the inclusion C _CJl,_ tfte appellant's name in List II. The said list merely ensured that the officers whose names were borne thereon would be watched for the space of five years and they might be absorbed in the All India Service even within the said period as a result of .periodical reviews. Although reversion on the ground of unfitness was mentioned in the scheme the possibility of such reversion when there was no available post in the cadre of Superintendents of D Police was not ruled out. As the officers in List II bad no right to be observed in the Indian Police Service immediately the direction in the scheme. that' "officers placed in List II will continue to hold their present post', merely meant that they would not be made to go out of their posts except on justifiable gro~nds. Holding a post in an officiating capacity as a Superintendent of E Police did not entitle the appellant to continue in that post even if officers senior to him who were on leave or had been sent out of the State on deputation were to come back to the State and there was no room in the cadre- to absorb them all. All that paragraph 4(iii) (b) ensu~ed was ~hat if th,ey were found fit within five years they woul~ be absorbed i" the All India Service cadre. F If they were not found fit after the end of that period they could be reverted to posts outside 'the cadre of the Indian Police Service or made .to retire unless their names were a1so included ·in· ·List III-a contingency which has not arisen in this case. In our view, although the order of the High Court cann.qt be upheld on the ground mentioned in the judgment, the order cannot be quashed for reasons indicated by us. The appeal is therefore dismissed, G bu.t~ in the circumstances of this case we make no order as to coSts. RK.P.S. _Appeal dismissed._