S. Rangarajan, J.
(1) The petitioner, who is a police officer, seeks in this writ petition to quash the order dated 6th September 1968 (copy of which is Annexure A to the petition) passed by the Inspector-General of Police Delhi transferring him as Sub-Inspector, Special Branch, from his position as officiating Inspector. He has prayed for a further direction that the officers junior to him may not be confirmed to his prejudice since, if he succeeds in the petition, he would be entitled to be placed in the rank of Inspector from the date of the impugned order which according to him is a case of illegal reversion to a lower post with out any inquiry. A few facts which have led to this petiton may be noticed.
(2) The petitioner was confirmed as Sub-Inspector of Police at Delhi on 13th September 1954, having joined the Punjab Police as a Constable on 1st October 1937, at Simla. He had been promoted as Head Constable on 27th September 1944 (not 1st September 1944, as stated in the petition) and as an Assistant Sub-Inspector on 1st April 1949 at Rohtak. On 29th August, 1950 (not 28th August 1950 as stated in the petition) he was posted as an Assistant Sub-Inspector at Delhi, and as Sub-Inspector at Delhi on 23rd January 1953. His name was brought into, what is called, the 'F' List in Decemer 1958 by the Inspector- General of Police (Punjab) on the recommendation of the Inps- Inspector-General of Police, Delhi. It is seen from the 'F' list (coyp of which is Annexure D) that the petitioner's name was at the top of that list. According to Rule 13.3 of the Punjab Police Rules, the Inspector-General of Police, who is charged with the duty of maintaining the promotion list ('F') of Sub-Inspectors and Sergeants, has to notify the Deputy Inspector-General of a Range when a substantive vacancy in the rank of Inspector is to be filled by an officer under his control. According to Rule 13 .15 recommendations on behalf of Sergeants and Sub-Inspectors considered fit for promotion to the rank of Inspector shall be submitted with their annual confidential reports on the 15th April each year to the Deputy Inspectors-General by Superintendents of Police in the prescribed form. After the Deputy Inspector- General makes his own recommendations about the fitness of the officers to be recmommended the Sub-inspectors will be admitted to 'F' list who would be placed in that list according to the date of permanent promotion to selection grade.
(3) Rule 16.33 relates to removal of name from a promotion list: this may follow from the award of punishment for a specific offence or even on general grounds. Even though a formal charge need not be framed or evidence recorded, in either case an order shall be recorded in writing and given effect to through an entry in the Order Book. The original order of the authority ordering removal shall be read out to the officer concerned, but a copy thereof shall not be given to him since no appeal was provided against it.
(4) The petitioner was at no time ordered to be removed from that list. What happened, however, was while keeping him in the 'F' list and while he had officiated as an Inspector (for about 6' years) the impugned order was passed on 7th September 1968 merely transferring him as Sub-Inspector to the Special Branch. The petitioner claims that he has had an unblemished record of service and had earned a large number of recommendation certificates for his exceptional ability. During his tenure as Inspector of Police, when he was posted in the Cid Crime Branch he won recommendation certificates and cash awards of the First. Second and Third classes. He further mentiones that during the 6' years he worked as Inspector he had spent two years in the Cid and the balance of the period in the Dap where he had no dealing with the public at all during which period there was not even any occasion for any complaint by the public. He also mentions that when he was thus reverted there were nearly 109 police Inspectors who were junior to him and were still countinuing in the Delhi Police, in an officiating capacity. He, thereforee, complains of having been discriminated against. Relying upon a press report (as per Annexure C) concerning the Delhi Administration wanting to get rid of 'old sinners' he states that the said order transferring him as Sub-Inspector was not made boda fide. He claims protection under Article 311 of the Constitution and states that he has been reduced by the impugned order, made without any inquiry and by way of punishment, to a substantive lower rank, thus visiting him with evil consequences. He also filed an appeal but he did not hear in reply.
(5) In an additional affidavit, which was placed on record at the time of the hearing on 18th February 1970, the petitioner gave details of the emoluments drawn by him prior to the impugned order and later; as a result of the said order he has been losing Rs. 245.40 p. per month by way of pay and allowances. The facts stated in this affidavit concerning his pay and allowances, both before and after the impugned order, were not disputed.
(6) It may also be noticed that pending this writ petition the petitioner was ordered to be retired as a Sub-Inspector of Police. It is, however, staled by the petitioner that the said order would not affect him, if he continued to be an Inspector of Police, despite the impugned reversion, (i. e.) if he succeeds in this writ petition. Deshpande J. had ordered, on 3rd April 1969, that pending the disposal of this writ petition the order retiring the petitioner would not be given effect to. But the question of his retirement and its validity could not, in the very nature of things, arise for determination in this writ petition, the same having been ordered pending this writ petition.
(7) The only question that has been argued in this writ petition is about the validity of the impugned order.
(8) In the return filed by Shri L. S. Bisht, Inspector-General of Police Delhi, dated 5th April 1969, the fact of the petitioner earning recommendation certificates was not denied; it was, however, asserted that his conduct had been adversely commented upon a number of times by his officers, whenever his work was not found satisfactory. But no details of these were furnished. It was only stated that he was once dealt with departmentally for malfeasance. Non-the--less, there was no specific contention that either the petitioner was reverted, or that it was because he was found un uitable. In the rejoinder filed by the petitioner he asserted that he never received any adverse report. His explantion was asked for once in a departmental proceedings but no charge was framed; he was honourably acquitted of those allegations made against him.
(9) The allegation in the affidavit filed by Shri Bisht is that the petitioner was holding a temporary post of officiating Inspector to which he had no right. He was, thereforee, transferred to his substantive rank by the Inspector-General of Police under the impugned order. The allegations of mala fides and discrimination were denied. It was specifically admitted that the petitioner was on the promotion list (F) and could be promoted to a higher rank at any time if found suitable to hold that rank and that the provisions of Article 311(2) were not attracted. It was still further admitted that 109 Sub-Inspectors, junior to the peittioner, were continuing to officiate as Inspectors. Apart from the bald allegation that this fact did not indicate that the petitioner was in any way discrimnated against from those Sub-Inspectors, no reason was alleged for reverting the petitioner when 109 persons junior to him were continuing to officiate as Inspectors.
(10) In the affidavit of Shri Kirpal Singh, Deputy Inspector- General, certain allegations were made for the first time. It was questioned that the petitioner was on the top of the 'F' list as on 2nd December 1958; a number of Sub-Inspectors, said to be seniors to the petitioner, were brought into the 'F' list on that date. It was further submitted that 39 Sub-Inspectors were admitted to the 'F' list on 7th October 1968; ten of them were promoted as Officiating Inspectors on 10th October 1968 and six of them promoted on 13th August 1969 (one of whom had already retired). Of special interest, in the present context, is the allegation (made for the first time) in that affidavit that three more Sub-Inspectors were in the 'F' list besides the petitioner and that 'they' were not considered suitable for promotion as Inspectors. It was baldly stated that 'the petitioner had not been adversely affected financially at Rs. 250.00 per month or any other amount.' This affidavit was filed in opposition to that filed by the petitioner by which he brought to the notice of the Court certain facts which happened during the pendency of the said writ petition showing mala fides ; they were wrongful since they were in violation of his Constitutional rights as a public servant. It is obvious that the respondents could not be allowed to take up the position that the petitioner was reverted on account of unsuitability when this was not the ground on which he was reverted and it was not urged in the return filed along with this writ petition. Still such an affidavit appears to have been filed as a result of the observations made in some cases decided recently that the case of reversion of a Government servant on being found unsuitable was not a case of attaching a stigma to him. This writ petition has, thereforee, to be disposed of on the basis of the return made to the writ petition; any further plea by the respondents seeking to support the action against the petitioner's reversion for unsatisfactory work could not be entertained. Such a plea, it seems to me, would be even directly contrary to the stand taken in paragraph 5 of the return filed by Shri Bisht viz that the petitioner was transferred to his substantive rank since he was holding a temporary post, especially when the said allegation is coupled with the absence of any reason as to why the petitioner alone was reverted, while 109 junior to him continued to officiate as Inspectors.
(11) Shri B. Sen sought to support the impugned order on the ground that the petitioner held only an officiating post and, thereforee, could be reverted to his substantive post as Sub-Inspector in spite of his having officiated for 6' years. He further contended that reversion on the ground of being found unsuitable did not carry with it a stigma. He relied for this position on the Union of India and Others v. R. S. Dhaba 1969 SLR 442. Ramaswami J., speaking for the Supreme Court no doubt observed that a Government servant, who is in an officiating post, had no right to hold it for ail time and that a Government servant held such post on the implied term that he will have to be reverted if his work was found unsatisfactory. In other words, Article 311 of the Constitution was not attaracted. Even temporary Government servants were no-doubt entitled to the protection of Article 311(2) if the Government took action against them by either dismissing, removing or reducing them in rank. His Lordship held that the impugned order of reversion passed in that case, after the Government servant had officiated for 11 years, on account of unsuitability after trial did not attach any stigma and hence was not actionable. But in order to rely on this decision it has to be shown that the reversion in this case was on a.ccount of the petitioner having been found unsuitable. That this was not the case has been already seen.
(12) Singling out the petitioner for reversion, instead of any of those 109 persons junior to him, without any reason disclosed, or even mentioned in the return, would be a clear case of the same offending Articles 14 and 16 of the Constitution.' Promotion to a Selection Post is covered under Article 16(1) and (2) by the majority decision in General Manager, Southern Railway v. Rangachari : (1970)IILLJ289SC .
(13) The attack on the impugned order on the ground of being mala fide, even apart from being discriminatory, is also justified because of Rule 16 .33 which lays down the procedure to be followed if an officer's name appearing on the promotion list is removed. That list was sought to be by-passed. It is worth recalling that in the return filed by Shri Bisht reliance was placed on the fact that name of the petitioner still continued to be in the 'F' list and that if he earned his right of promotion he would be promoted. The effort, thereforee, in the return was to make it appear that this was nothing more than an ordinary case of reversion; but then there was no answer to the allegation that the petitioner was being discriminated against since none of the 109 persons junior to him was reverted, but he was. It will be altogether futile, in view of the position explained above, to support the said order on the ground that the petitioner was found unsuitable for his post. The impugned order is clearly hit by articles 14 and 16 of the Constitution.
(14) This is not a case where all or any of the 109 persons junior to the petitioner need have been made parties to this petition. In the first place there was no such plea taken in the return that all or any of them had to be imp leaded as parties. Despite the absence of such a plea, it seems to me, there is no force in the argument put forward, and very feebly, that the petitioner should implead those persons as parties; it is not a case of those persons being promoted over the head of the petitioner, prior to his filing the writ petition. By reason of the impugned order alone the the petitioner was reverted as Sub-Inspector, even though 109 persons junior to him continued to officiate as Inspectors. It was precisely for this reason that the said impugned order was seen to be hit by Articles 14 and 16 of the Constitution. There is clearly no need to implead those 109 persons in this writ petition. If any of them got any advantage over the petitioner pending this writ petition that is not a matter which need detain us.
(15) The writ petition is accordingly accepted and the impugned order is quashed. No other directions are called for in this writ petition. The petitioner will get his costs from the respondents. Counsel's fee Rs. 200.00.