V.S. Deshpande, J.
(1) The respondent Hans Raj, was a confirmed Assistant Sub-Inspector of Police, whose name was placed in list 'E' maintained under the Punjab Police Rule 13-10 and who was given an officiating promotion as a Sub-Inspector of Police. On 14-9-1957, the Assistant Inspector General of Police issued a circular laying 'down that all confirmed Assistant Sub-Inspectors of Police and all officiating sub-inspectors of Police and those who have been promoted on probation would be required to take the 'E' List (Clerical) Test. Those who failed to qualify in the examination would be reverted to their substantive rank of Assistant Sub-Inspector of Police. The respondent did net appear in the test at all and was, thereforee, reverted to his substantive rank of Assistant Sub-Inspector of Police and his name was also removed from the 'E' List. He thereupon filed a suit for declaration that the order of his reversion dated 3-2-1958 was bad mainly for the following reasons. The reversion being contrary to the Punjab Police Rules was a reduction in rank contrary to Article 311(2) of the Constitution and the reduction in rank was also discriminatory against the respondent contrary to Articles 14 and 16 of the Constitution. The defense was that the imposition of the test was in consonance with Punjab Police Rule 13-1 inasmuch as it was only a method of judging the efficiency and selection of proper men. Regarding the allegation of discrimination it was stated that the persons who received substantive promotions or confirmation without passing the test were those who were probationers. The respondent was nto a probationer and, thereforee, those precedents were of no help to the respondent.
(2) The trial court held that when the respondent was appointed to officiate as a Sub-Inspector of Police, the test was nto a term of the service Rules. It considered Punjab Police Rule 13-l(l) to mean that a test could be prescribed as a method of selection to the post of Sub-Inspector of Police, but it could nto be made a condition precedent for confirmation in that rank of a person who had already been promoted by previous selection. The prescription of the test, thereforee, amounted to changing the conditions of service, which was nto legally permissible. Further, the requirement of passing the test was nto equally applied to all the persons concerned. Some of the persons, who had failed to qualify in the test were allowed to continue to officiate as sub inspectors of Police, while the respondent was reverted. The order of reversion was, thus, bad both because it amounted to punishment without affording an opportunity to the respondent contemplated by Article 311(2) of the Constitution and also because there respondent was discriminated against in implementing the consequences of nto taking the test. The lower appellate court confirmed the decision of the trial court. Hence this second appeal by the Union of India.
(3) The questions for decision, thereforee, are:-
(1)Whether the order of reversion of the respondent amounted to reduction in rank contrary to the procedure laid down in Article 311(2) of the Constitution; and (2) Whether the reduction in rank or alternatively the reversion was contrary to Articles 14 and 16 of the Constitution as being discriminatory against the respondent. (1) In dealing with the first point, it is necessary to carefully understand the provisions of Chapter Xiii of the Punjab Police Rules dealing with promotions. The most important thing which has been overlooked nto only by both the learned lower courts, but also in the various decisions cited in support of the respondents case is that the promotion under Chapter Xiii is of two kinds, viz. (a) an officiating promotion and (b) a substantive promotion. Admittedly, the respondent had received only an officiating promotion. This was governed by the provisions of Rules 13-10 and 13-12. The substantive promotion of the respondent which would have meant is confirmation as a sub inspector of Police had yet to come. Substantive promotion was governed by Rule 13-1. The distinction between substantive promotion and the officiating promotion is clearly made in Rule 13 -9(2), which deals with List 'D'. But the same distinction is applicable to the provisions dealing with List 'E' also. This is borne out by the fact that Rule 13 -4 specifically deals with officiating promotions. Rule 13 -4(2) deals with officiating promotions to the rank of Sub-Inspector and Rule 13 -4(3) specifically deals with persons, who are in list 'E' as the respondent was. These officiating promotions are to be distinguished from promotions simplicities or substantive promotions referred to in Rule 13 -1(1). Rule 13 -1(1) applies to the substantive promotion of Police officers in all the lists including List 'E' as is shown by the provisions of Rule 13-1(3), which specifically referred to List 'E', which was the List in which the name of the respondent had been placed.
(4) The basic rule laid down in Rule 13-1(1) is that the substantive promotion or the confirmation in a permanent post was to be made ''by selection tempered by seniority. Efficiency and honesty shall be the main factors governing selection.' The learned trial court thought that the respondent had already been selected under this rule and, thereforee, requirements of efficiency and honesty were nto applicable to his case at all. As pointed out above, the trial court completely misunderstood the meaning of Rule 13 -1(1). This Rule fully applied to the case of the respondent inasmuch as the respondent was still to receive the substantive promotion or the confirmation as a Sub-Inspector of Police. This had to be done by selection from among the candidates placed in List 'E'. This selection had to be made on the basis of efficiency and honesty. The word 'efficiency' has a wide ambit. It is an omnibus expression covering many things, which have to be considered in judging whether a person is so good at his work as to be worthy of substantive promotion or confirmation. The assessment of the efficiency of a person can be subjective. But when there are many persons, who are to be judged and among whom the better once are to be selected, it would be undesirable to leave the assessment to mere subjective opinion of the confirming authority. For instance, persons who pass the all India competitive examination for recruitment to the Indian Administrative Service are placed on probation. During probation, their efficiency is assessed and the order of merit among them is formed on the basis of efficiency. Instead of leaving the assessment of efficiency to merely subjective judgment it was found to be just and fair to subject the candidates to various tests and examinations, so that the competitive efficiency of each of them would be more objectively determined. Such an objective standard reduces the scope of arbitrariness and nepotism. In State of Mysore v. S. R. Jayaram, (1), the Supreme Court examined the last part of Rule 9(2) of Mysore Recruitment of Gazetted Probationers' Rules, whereby the State Government reserved the right of appointing to any particular cadre any candidate whom it considered more suitable for such cadre. Apparently, the assessment of suitability by the State Government was entirely subjective under the said Rule. The Supreme Court criticised the said Rules in the following words:-
'THE Rules are silent on the question as to how the Government is to find out the suitability of a candidate for a particular cadre.............................. No separate examination is held to test the suitability of a candidate for any particular cadre.................... The Rules do nto give the Public Service Commission the power to test the candidate for a particular cadre or to recommend that he is more suitable for it. Nor is there any provision in the Rules under which the Government can test the suitability of a candidate for any cadre after the result of the examination is published. The result is that the recommendation of the Public Service Commission is nto a relevant material nor is there any other material on the basis of which the Government can find that a candidate is more suitable for a particular cadre. It follows that under the last part of Rule 9(2) it is open to the Government to say at its sweet will that a candidate is more suitable for a particular cadre and to deprive him of his opportunity to join the cadre for which he indicated his preference.'
(5) The court, thereforee, struck down the Rule as leading to unjust discrimination. The observation by the Court stated above clearly shows that the court would have preferred an objective test such as an examination for the assessment of the suitability of a candidate for a particular cadre in preferance to the entirely subjective method of such assessment, which could lead to discrimination. In my view, the same principle would apply to the present case. The authority empowered to confirm or substantively promote an officiating Sub-Inspector under Rule 13-1(1) was liable to act in a discriminatory manner if he were to judge the efficiency of the numerous person in List 'E' only subjectively. It was for this reason that the circular dated 14-9-1957, Exhibit PW/3/10 laid down an objective test for the assessment of the efficiency of the candidates in List 'E'. Such objective test was fair to all the candidates in List 'E' and protected them from possible discrimination or vagaries inevitable in a merely subjective test.
(6) In the Chief Secretary to the Government of Mysore v. S.C. Chandraiah, (2), the substantive promotion and confirmation of the respondent after his officiating promotion was nto subject to any such requirement of efficiency as is laid down in Rule 13 -1(1) in the present case. The confirmation in that case was to be automatic subject to seniority. This is why the imposition of the language test could nto be regarded as a condition, the fulfillment of which could be implied as being necessary before the respondent could be confirmed. In view of the fundamental distinction between the facts of the present case and Chandraiah's case, the decision in the latter case is nto applicable to the present case. It is true that Rule 13-1(1) does nto specifically empower the confirming authority to lay down the requirement of a test for assessing the efficiency of the candidates. As stated above however. Rule 13 -1(1) implies that the efficiency is to be judged by the confirming authority and leaves confirming authority free to judge it in a suitable manner. The test is a just and fair method of judging the efficiency. The power to prescribed the test is, thereforee, implied in the power to judge the efficiency. It is now well established that executive instructions such as the circular prescribing the test can supplement statutory rules particularly when the power to issue such on executive instruction is implied in the power given by the statutory rules. The Supreme Court decisions in Santram Sharma v. State of Rajasthan (3), Roshanlal Tandon v. Union of India (4) and B.N. Nagarajan v. State of Mysore (5) have shown beyond doubt that executive instructions, such as the circular laying down the test in the present case, can validly be issued to carry out the purposes of the statutory rules particularly when the power to issue the instruction is implicit in the power conferred by the statutory rule on the confirming authority. In view of the above mentioned Supreme Court decisions, the following decisions relied upon by the respondent are distinguishable.
(7) In State of Haryana v. Shamsher Jang (6), the departmental examination for promotion was nto shown to be implied in the statutory rules governing the promotion in considering whether executive instructions supplement the statutory rules .The above mentioned Supreme Court decisions were nto considered by the court. In Satpal Sharma v. State of Punjab (7), also the imposition of a test for promotion was nto shown to be necessary for the assessment of efficiency as in the present case. In Ram Kishan v. Inspector General of Police (8), the vital distinction between the officiating promotion and the substantive promotion pointed out above was nto brought to the notice of the court with the result that the court did nto consider the question whether the power to hold a test was implied in the power to judge the efficiency under the Punjab Police Rule 13 -1(1). In Lakshya Vir v. Punjab State (9), it was observed that under Punjab Police Rules 13 -1(1), 13 -1(2) and 13 -8(1) there could be other methods than the test to judge the efficiency of a candidate. With great respect, however, it may be pointed out that it is for the confirming authority to device a suitable method of judging the efficiency. If the test was a suitable method, it is nto for this court to suggest to the confirming authority to search for other suitable methods so long as the method of test cannto be said to be unsuitable or outside the power conferred by the Punjab Police Rule 13 -1(1). A mere reversion for failure to satisfy the test of efficiency and removal of the name from List 'E' was, thereforee, nto a reduction in rank at all within the meaning of Article 311(2) of the Constitution. This was also the view expressed in the State of Punjab v. Rajinder Singh (10).
(8) In Bansi Rani v. Secretary to the Government of Assam (11), an administrative memorandum issued by the Government of Assam under Fundamental Rule 56 laying down the procedure for testing the physical fitness and efficiency of an employee was upheld though, as in the present case, the statutory rule in that case also did nto expressly authorise the laying down of a physical fitness and efficiency test. The administrative instruction was apparently upheld because it carried out the purpose of a statutory rule. Similarly in Som Nath v. Union of India, (12), the power of the Government to issue administrative instruction on a point on which the statutory rules were silent was also upheld following the Supreme Court decisions already noted by me above.
(9) For the above reasons I disagree with the learned lower courts and hold that the requirement of the test laid down by the circular dated 14-9-1957 was merely a method of judging the efficiency under Punjab Police Rule 13-1(1) and was, thereforee, authorised by the said rule. It was, thereforee, valid and the reversion of the respondent could nto be challenged in so far as it was made because the respondent failed to appear at the test and thereby showed that he was nto efficient within the meaning of Rule 13-1(1) of the Punjab Police Rules.
(2)The respondent has pointedly pleaded in paragraph (i) of the plaint that several persons were confirmed as sub inspectors of Police without qualifying in the departmental test laid down by the circular dated 14-9-1957 and that the respondent alone was reverted for nto taking the test, an action which was discriminatory and contrary to Articles 14 and 16 of the Constitution. The only defense was that the persons who were confirmed inspire of their failure to take the test were probationers and their cases did nto stand on the same footing as that of the respondent who was only officiating as a Sub-Inspector of Police. This defense is untenable on the face of it. Firstly, the circular dated 14-9-1957 expressly applied to probationers as well as to persons officiating as Sub-Inspectors of Police. Both these categories of persons were required to take the test. The defense is, thus, contrary to the circular and, thereforee, totally fails to explain why several probationers were confirmed without taking the test, while the respondent alone was reverted for nto taking the test. Secondly, neither any Rules nor any administrative instructions have been brought to my notice to show if a probationer and a person appointed to officiate can be distinguished from each other by intelligible differentia. In fact, I granted a short adjournment to the learned Government counsel, Shri O.P. Malhotra, so that he may inquire from the police authorities about the basis of this distinction. Despite adjournment, however, the learned Government counsel was unable to state whether there is any distinction between a probationer and a person appointed to officiate as a Sub-Inspector, when both of them were in List 'E' and officiating as Sub-Inspectors of Police. As there was no intelligible differentia between the two, the further question whether such a differentiation has a rational connection with the object of judging the efficiency of the persons in List 'E' with a view to their confirmation does nto arise, As none -of these two tests of reasonable classification has been satisfied in the present case, it is clear that the respondent was discriminated against by being reverted for failure to take the test while other persons in list 'E' similarly situated with him were nto reverted for that reason. On this point alone, thereforee, this appeal deserves to fail. The appeal is, thereforee, dismissed, no order is made as to costs.