Durgadas Basu, J.
1. This application under Article 226 of the Constitution is directed against an order of reversion from the post of Assistant Commissioner of Police to that of Inspector of Police, made by the Government of West Bengal on 9-7-1954 and later notified in the Calcutta Police Gazette on 19-7-1954. The petitioner's Case, in Short is that he entered into service as a Sub-Inspector in the Calcutta Police Force on 10-71-1955 and promotedto the rank of Inspector of Police on (sic) 939 to which rank he was confirmed on 3-5-1943. Having secured numerous rewards on account of a successful service career, the petitioner was selected by a Selection Board to officiate as Assistant Commissioner of Police and placed on the list of Inspectors fit for promotion to the rank of Assistant Commissioner and was eventually appointed Assistant Commissioner of Police on 7-5-1948. The petitioner passed the Departmental Examination in higher standard and the result was declared by the Public Service Commission in May 1949 and published in the Calcutta Police Gazette, on 22-6-1949. On 8-2-52 the petitioner's name was included by a Selection Board in the list of officers fit for confirmation in the rank of Assistant Commissioner of Police. On 30-1-1954, the petitioner was appointed to act as Deputy Superintendent of Police, Enforcement Branch, Midnapore and the petitioner joined the same post on 10-2-1954.
2. On 24-7-1954 the petitioner was informed by a letter that he had been reverted to his substantive post of Inspector of Police with effect from 9-7-1954 on the ground that he was unsuitable for promotion to the post of Assistant Commissioner even on an officiating basis. His name was also struck off from the list of Inspectors fit for promotion to the rank of Assistant Commissioner. The petitioner challenges the above order on the following grounds:
(a) The petitioner's reversion amounts to a reduction in rank because it amounted to a penalty so as to affect his future rights. Such order accordingly, was invalid for a contravention of Article 311(2) of the Constitution, as no opportunity to show cause was given to the petitioner before making the order.
(b) The impugned order is without jurisdiction as it was made by the Chief Secretary and Homo Secretary and not by the State of West Bengal.
(c) The impugned order is mala fide.
(d) The petitioner having been transferred to the West Bengal Police by his appointment as Deputy Superintendent of Police on 30-1-1954 the impugned order of reversion from the post of Assistant Commissioner to that of Inspector of Police has not affected his appointment and status as Deputy Superintendent of Police in the West Bengal Cadre and is without Jurisdiction and invalid.
3. The respondents impleaded by the petitioner are:
(a) The Government of West Bengal (Respondent 7).
(b) Secretary, Home, Government of West Bengal (Respondent 1).
(c) Under Secy. Home, Government of West Bengal (Respondent 2).
(d) Commissioner of Police, Calcutta (Respondent 3).
(e) Inspector General of Police, West Bengal (Respondent 4).
(f) Deputy and Assistant Inspector-Generals of Police, West Bengal (Respondent 6 (5 and 6? Ed)).
4. The initial counter affidavit was filed on behalf of all the respondents on 4-4-1955 by SriSuhas Ranjan Das, Under Secretary, Home Department (Respondent 2). After an affidavit-in-reply was filed by the petitioner, a supplementary counter-affidavit was filed on 18-2-1959 by Sri S.N. Kay, the Chief Secy, to the Government of West Bengal on behalf of the Home Secy, and Under Secy, and again, after another reply, a third counter-affidavit was filed by Sri Nanda, Assistant Secy. of the Home Department on behalf of all the respondents, on 4-12-1961. The contents of these counter affidavits will be referred to in proper places.
5. The points urged on behalf of the petitioner, as stated earlier, will be dealt with by me serially.
6. Point-1. As has been stated, the petitioner's substantive rank after appointment was that of an Inspector in the Calcutta Police Force to which he was confirmed on 3-5-43. From this rank he was promoted to officiate as an Assistant Commissioner of Police on 7-5-48 (wide page 21 of Annexure A to the petition). Though the word 'Officiate' is not used in the Gazette notification at p. 21 of the Annexure it is admitted that it was an officiating appointment. On 30-1-1954 he was transferred from the Calcutta Police to the West Bengal Police by an order of the Government which is at p. 24 of Annexure A and runs thus:
'The Governor is pleased to appoint Sri Earn Chandra Choudhuri, Assistant Commissioner of Police, Calcutta, on leave, to act, until further orders as Deputy Superintendent of Police, Enforcement Branch, Midnapore, with effect from the date of his joining the post.
By order of the Governor.
S. N. Ray, Chief Secy, to the Govt. of West Bengal.
Copy forwarded to the Accountant General, West Bengal for information in continuation of this Department endorsement............
The transfer is made in the public interest'.
7. When the impugned order of reversion was made in July, 1954, the petitioner was thus holding the post of Deputy Superintendent of Police in the West Bengal Police Cadre. The order of reversion which was issued by the Under Secy, of the Home Department by his letter No. 392 GAC, dated 9-7-1954, addressed to the Commissioner of Police, Calcutta, (p. 28 of Annexure A) was as follows:
'......Govt. have carefully considered the caseor Sri Earn Ch. Choudhuri, offg. Asstt. Commr. of Police Calcutta, now temporarily employed as Dy. Supdt. of Police Enforcement Branch Midnapur for continuance in that rank on an offg. basis. The Public Service Commission, West Bengal, who were consulted in the matter have advised that Shri Choudhuri is unsuitable for promotion to a post of Assistant Commissioner of Police even on an officiating basis and that he should be reverted to his substantive rank.
2. I am to add that Government have accepted the recommendation of the Commission and have decided that Shri Choudhuri should he reverted to his substantive rank of Inspector of Police.
3. It is requested that Shri Choudhuri may be informed of the decision'.
8. On receipt of the above letter, Shri H. Ghose Choudhuri, Commissioner of Police, issued the following order (p. 26 of Annexure A) for communication to the petitioner through the Inspector General of Police, West Bengal, under whom the petitioner was then employed as Deputy Superintendent:
'Government have carefully considered the case of Shri Ram Chandra Choudhury Off. Asst. Commissioner of Police, Calcutta, now temporarily employed as Dy. Superintendent of Police, enforcement Branch, Midnapur, for continuance in that rank on an officiating basis in consultation with the Public Service Commission, West Bengal, and decided that Sri Chowdhury is unsuitable for promotion to a post of Assistant Commissioner of Police even on an officiating basis and he should be reverted to his substantive rank of Inspector of Police.
(Vide letter No. 392, GAC, dated the 9th July, 1954 from the Under Secy, to the Govt. of West Bengal, Home (G.A.) Department).
2. Shri Chowdhury is accordingly reverted to his substantive post of Inspector of Police with effect from 9-7-1954.
3. His name is taken off list No. 1 of Inspectors fit for promotion to the rank of Assistant Commissioner.
Sd. H.S. Ghose Chaudhuri.
Commissioner of Police, Calcutta.
Copy together with the copy of letter No. 392, GAC, dated the 9th July, 1954, from the Under Secy, to the Government of West Bengal, Home (G.A.) Department, is forwarded to the Assistant Inspector-General of Police, West Bengal, for information and communication to the officer concerned.'
9. Petitioner's case is that the aforesaid order of reversion amounts to a 'reduction in rank' within the meaning of Article 311(2) of the Constitution so that the order is void because no opportunity to show cause against such order was given to the petitioner, as required by that provision. The petitioner has, no doubt, been demoted to a lower post from a higher one by the impugned order. But it has been established by decisions of the highest authority that a mere reduction in the physical sense is not sufficient to attract the operation of Article 311(2); what is required is that such degradation must be by way of penalty.
10. It has been urged on behalf of the petitioner that the impugned order operates as a penalty for several reasons:
(i) That it has been made on the ground of alleged unsuitability of the petitioner for the higher post;
(ii) That it disqualifies the petitioner from holding -the higher post even on an officiating basis and thus debars him from any prospects of a better career for ever;
(iii) That by striking off the name of the petitioner from the panel of Inspectors fit for promotion to the rank of Assistant Commissioner, it takes away from the Petitioner any chances of promotion to that higher rank in the future, besides demoting him in praesenti.
(n) I shall deal with the reasons separately.
(I) Prior to the Supreme Court decision in Parshottam Lal Dhingra. v. Union of India, : (1958)ILLJ544SC , the view was, of course, taken in some cases, e.g. Bejoy Chand v. State of Assam, AIR 1954 Assam 12(15), Union of India v. Someswar, : AIR1954Cal399 that Article 311(2) was attracted whenever the termination of service or reduction was imposed on some ground which was capable of being explained, that is to say, against which it was possible for the Government servant to show cause, e.g., the ground of inefficiency or incapacity.
But the position has been clarified in Parshottam Lal's case, : (1958)ILLJ544SC (ibid), a decision which has been adhered to in all subsequent decisions of the Supreme Court without any dissent. In that case, the Court formulated the twofold tests of right to post or rank and penal consequences, to determine whether a particular order constituted a dismissal or reduction of rank within the meaning of Article 311(2). As regards 'reduction in rank', the Court envisaged two situations:
(i) If the government servant had a right to a particular rank, then the very reduction from that rank will operate as a penalty, so as to attract Article 311(2) for he will then lose the emoluments and privileges of that rank (p. 49, Ibid).
Earlier, the Court had expressed the view that when a Government servant is appointed to a post on an officiating basis, the government servant so appointed does not acquire any substantive right so that he cannot complain if his service is terminated at any time (p. 42). It follows from this that the present test for the application of Article 311(2) would not apply where a government servant had been promoted to a higher post on an officiating basis and thereafter reverted to his substantive lower post, for, by the promotion on an officiating basis, the Government servant had not acquired any right to hold the higher post or rank (p. 49 ibid).
As explained in later cases (e.g., State of Bombay v. F. A. Abraham, : (1963)IILLJ422SC the' motive or the ground behind the reversion is immaterial in such cases; in other words, Article 311(2) is not attracted where an employee is merely reverted from his higher officiating post to his substantive post (Madhav Laxman v. State of Mysore, : 1SCR886 even though the motive or ground for such reversion be misconduct, inefficiency, unsuitability or the like ( : (1963)IILLJ422SC Ibid).
(ii). But even in cases of such reversion, that is, where the employee had no substantive right to the post or rank from which he has been reverted, Article 311(2) may be attracted if an additional factor is present, namely, that besides the physical degradation or reversion to the lower post
'the order for reduction also visits the servant with any penal consequences' (p. 49. Ibid) ). On this point also, it is to be noted that in some earlier cases, (e.g., Balai v. N. Kay Choudhury, : AIR1954Cal495 , Bhojraj v. Saurashtra Government, AIR 1952 San 40 (42) ) it was supposed that in order to attract Article 311(2), an indispensable condition was the intention or motive of the superior authority to punish the employee for some misconduct. This condition has not been approved by the Supreme Court in Parshottam's case, : (1958)ILLJ544SC (ibid). The Supreme Court observed (p. 49) that what was crucial was whether the employee had a right to hold the post and, conversely, whetherthe Government had a right to terminate the service or reduce the employee in rank under the rules or the contract of employment. As regards misconduct, again, the Supreme Court had laid down that in every case punishment on a charge of misconduct is not an essential condition tot the application of Article 311(2). What is essential is whether the impugned order has any additional penal consequences other than mere termination of the service or reversion, as the case may be. 'Punishment' has thus come to be a technical concept for the application of Article 311(2). Thus observed the Court in Parshottam's case, : (1958)ILLJ544SC :
'The real test for determining whether the reduction in such case is or is not by way of punishment is to find out if the order for reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or reduce the servant to a lower rank under the terms of the contract of employment or under the rules in truth and reality the Government bad terminated the employment as and by way of penalty. The use of the expression 'terminate' of 'discharge' is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to the Government servant have not been complied with.......... the reduction in rankmust be held to be wrongful and in violation of the constitutional right of the servant.' It is clear from the above that the petitioner cannot succeed merely because the reversion has been ordered on the ground of his unsuitability to the higher post of Assistant Commissioner, but that he may succeed if he can show that the impugned order has entailed any penal consequence other than mere reversion from the officiating higher post.
For that, we must turn to the other points taken on behalf of the petitioner.
(II) It has been seen from the passage just quoted from the decision in Purshottam's case. : (1958)ILLJ544SC (p. 49, ibid) that one of the penal consequences which their Lordships envisaged as sufficient to attract Article 311(2) was:
'The stoppage or postponement of his future chances of promotion.' According to the petitioner, the impugned order has the above effect inasmuch as it conveyed the decision of the Government that the petitioner:
'Is unsuitable for promotion to a post of Assistant Commissioner of Police even on an officiating basis.' The test which is to be applied in order to find whether a person's future chances of promotion have been affected has been formulated by Sinha, J. in Dhajadhari v. Union of India, : (1958)IILLJ392Cal , and I find myself in complete agreement therewith. Almost in every case where an employee is reverted from an officiating higher post because of inefficiency or unsuitability, his future chances would be indirectly affected because the authorities competent to promote him in future will certainly take the fact of previous reversion into account to determine his suitability on the future occasion. This is, however, not sufficient to attract Article 311(2); had it been so, every case of reversion from an officiating higher appointment would have per se attracted Article 311(2). But that is not the import of the observations in Parshotam's case, : (1958)ILLJ544SC referred to above. But if there is anything in the order of reversion which would stand in the way of his earning future promotion to the higher rank even by his subsequent display of merit, it is certainly a penal consequence within the meaning of the dictum in Parushottam's case, : (1958)ILLJ544SC .
In a simple case of reversion from a higher officiating post, the only loss incurred by the employee is a deprivation of the higher emoluments attached to the higher post which he had no substantive right to hold. This is not a 'penal consequence' within the meaning of the dictum in Parushottam's case, : (1958)ILLJ544SC , as explained in the later cases of : 1SCR886 , and : (1963)IILLJ422SC . But in the case before me, something more has been inflicted upon the petitioner, and that makes the difference. The impact of the impugned order is indefinite and unlimited in point of time. It is not stated that he is reverted because he is found unsuitable for the higher post with his existing experience and attainments. It is, on the other hand, a decision that the petitioner is unsuitable for the higher post even on an officiating basis for ever. Certainly the selection Board or the other authorities who would select Inspectors for promotion to the rank of Assistant Commissioners would never consider the case of the petitioner in view of the terms of the foregoing order and it would never be possible for the petitioner to earn a promotion to the higher rank, even on an officiating basis, by rendering any amount of efficient service in future. Obviously this was putting a stop to any future chances of promotion, so far as the petitioner was concerned. It is immaterial whether or not the name of the petitioner has been formally struck off from List II i.e., the list of Inspectors considered fit to officiate as Commissioner of Police (as happened in tbe case of Dineshwar v. Chief Commercial Superintendent, Eastern Rly., : AIR1960Cal209 because the terms of the impugned order are, unmistakably of the same effect and this is substantiated by the fact that the petitioner has never again been considered fit to officiate as Assistant Commissioner during the next four years he was in service before Superannuation.
In my opinion, the impugned order is attended with a penal consequence within the meaning of the dictum of Parushottam case, : (1958)ILLJ544SC and is, accordingly, void for non-compliance with Article 311(2) of the Constitution.
III. On receipt of the impugned Government order which was contained in the letter No. 392-GAC./9-7-1954 addressed to the Commissioner of Police for implementation and communication to the petitioner, the Commissioner of Police forwarded the order at p. 26 of the Annexure, reproduced earlier. In this order, the Commissioner not only reproduced the contents of the Government order but added the following :
'His name is taken off list No. 1 of Inspectors fit for promotion to the rank of Assistant Commissioner.' On behalf of the petitioner it has been contended that this also adds to the order of reversion a 'penal consequence' within the meaning of the dictum in Purushottam's case, : (1958)ILLJ544SC . The stand taken on behalf of the Respondents in the counter affidavit, on the other hand, is that the addition of the foregoing words regarding list No. 1, while communicating the government order to the petitioner, is an ultra vires act of the Commissioner of Police for which the validity of the Government order cannot be affected. In my opinion, both parties appear to have been labouring under a misapprehension on this point.
It appears from Ann. R.I., an extract from the Gazette, that a Board consisting of the Commissioner of Police and all the Deputy Commissioners selects names of Inspectors, in order of merit, who are considered 'fit for promotion to the rank of Assistant Commissioner' and that the names are placed in two lists -- List 1 is a list of Inspectors who are considered fit for permanent promotion, while list II contains the names of officers who are considered fit for promotion on an officiating basis, if, therefore, the name of the petitioner has been removed from list 1, that act does not go beyond the Government order, since the petitioner had been reverted because he was not found fit for confirmation as Assistant Commissioner. It was, therefore, not necessary for the Government to plead that the act of the Commissioner of Police was ultra vires and that the Government was not responsible. On the other hand, had the Commissioner really added something new. Government would still have been responsible for that in law, because the order of the Government was communicated through the pen of the Commissioner and it is the resultant act which had affected the petitioner. On the other hand, so far as the petitioner is concerned, it should be pointed out that the order of striking off his name from list No. 1 does not aggravate the prejudice already done by the Government order by declaring the petitioner unfit even to officiate as an Assistant Commissioner, because unless he was given a chance to officiate, no question of his confirmation in the higher post could possibly arise. The petitioner cannot, accordingly, succeed under the present sub-head.
IV. Incidentally, it may be pointed out that there is another aspect from which the impugned order of the Government visited the petitioner with a penal consequence in addition to mere reversion, namely the loss of his emoluments for the post of Assistant Commissioner or Deputy Superintendent of Police (i. e., in the higher post) at least for the period between 9-7-1954 and 19-7-1954. It has been laid down both in Parshottam's case, : (1958)ILLJ544SC (ibid) and in Union of India v. Jeewan Ram, : AIR1958SC905 that loss of emoluments already earned by past service is a 'penal consequence' which would attract Article 311(2). In the case before me, though the order of reversion made by the Government, dated 9-7-1954 did not direct the reversion from any date prior to 9-7-1954 the Commissioner of Police, by his order dated 19-7-1954, did direct that the revision shall have effect from 9-7-1954 and from the petitioner's affidavit it appears that this order was actually communicated to him on 24-7-1954. It is also striking that the Inspector General, in pursuance of the above communication from the Commissioner of Police, by an order of his own dated September 2, 1954, gave effect to the order of reversion 'on paper' from 19-7-1954 (vide Ann. p. 32). Be that as it may, it is evident that at least up to 19-7-1954 the petitioner had rendered active service as Deputy Superintendent of Police, and that the order of reversion as it was given effect to by the Departmental superiors of the petitioner, deprived him of the difference in emoluments due to him for the service already renderd by him. As already indicated by me, the fact that this was not specifically directed by the government order but was effected by officers who were entrusted by the Government to implement the order makes little difference and it is not open to the Government to shake off the responsibility. In my opinion, this is another additional ground for impugning the order as 'penal' but I would not rest my decision on this ground.
12. Point (2). It was urged on behalf of the petitioner that the impugned order of reversion is invalid because it has been made by the Chief Secretary or the Home Secretary and not by the Governor and because it was not put up before the Minister-in-charge as required by the Rules of Business framed under Article 166(3) of the Constitution, In my opinion, the invalidity rests on a more fundamental ground.
(i) The petitioner was appointed to officiate as an Assistant Commissioner by an' order of the Governor, issued per notification No. 1340 G. A. of 7-5-1948 (vide Ann. p. 21). Even though that Notification is not on the record, it must have been similar to that at p. 24 of the Annexure by which the petitioner was appointed to act as Deputy Superintendent of Police. An order of the Governor, in view of Article 166(1), can be valid only if it is expressed in the name of the Governor, by the use of such words as 'By order of the Governor' as at p. 24 of the Annexure (vide State of Bombay v. Purshottam Jog, : 1952CriLJ1269 . An order of appointment 'until further orders', apart from any legal quibbles, can be terminated or varied only if a 'further order' of the Governor is issued. Obviously, the order at p. 28 of the Annexure is not such an order. It is an interdepartmental letter issued by an Under Secretary without mentioning the name of the Governor at all, as happened in the case of Ghaio Mal and Sons v. State of Delhi, : 1SCR1424 and it must be held that the requirement of Article 166(r) of the Constitution has not been complied with.
(ii) Of course, there are decisions to the effect that every executive action of the Governor need nut be expressed in the shape of a formal order. But it can hardly be contended that an order of dismissal, removal or reduction in rank which affects the legal rights of an employee which have even secured constitutional protection under Article 311, can be made by an inter-departmental correspondence. In Ghaio Mal's case, : 1SCR1424 (ibid) the question was whether a valid order granting a licence could be made on behalf of the Chief Commissioner of Delhi through an inter-departmental letter issued by the Under Secretary. The answer was in the negative and the Court concluded (p. 1439 of SCR) : (at p. 71 of AIR) that there had been no valid order granting a licence in the eye of law. The decision in Dattatreya y. State of Bombay, : 1952CriLJ955 was referred to in support of the contention that though the letter did not purport to be made in the name of the Chief Commissioner, extraneous evidence could be adduced to show that the order had in fact been issued by the Chief Commissioner. It was held that the decision in Dattatray's case, : 1952CriLJ955 was not applicable where there was no order at all but a-letter which did not even mention the Chief Commissioner. If the decision in Ghaio Mal's case, : 1SCR1424 be applicable to the facts of the case before me, it must be held that the letter at p. 28 of the Annexure of the communication of the Commissioner of Police at p. 26 of the Annexure does not constitute a valid order of the Governor reverting the petitioner from the rank of Assistant Commissioner of Police and, that he must be deemed to continue in the rank then held by him till the date of the petition. It may be mentioned that this State of affairs, continued till his superannuation which took place on 1-1-1958 (Ann. P. 11) i.e., subsequent to the filing of this petition.
(iii) The argument on behalf of the petitioner as to the impugned order having been made by the Secretaries without placing the matter before the Minister-in-charge appears to have been founded on the observations made by this Court in Shambhu Nath Ghose v. Bejoy Lakshrai Cotton Mills, : AIR1959Cal552 . It appears from the counter-affidavit filed by the Chief Secretary Mr. S. N. Ray, that the impugned order was made by the Home Secretary in consultation with him. On behalf of the respondents it has been contended that the Chief Secretary is empowered to make such order, without placing the matter before the Minister-in-charge, by virtue of the Standing orders made under Rule 15 of the Rules of Business.
In my opinion, the controversy on this point has been unnecessary inasmuch as the facts in S.N. Ghose's case, : AIR1959Cal552 (ibid) were different. In that case, there was a duly authenticated order, expressed in the name of the Governor. The question was whether the statutory condition precedent to making such order, namely, the requirement of 'satisfaction of the State Government' with respect to certain matters had been complied with before the order was made by the Governor. It was not contended that the personal satisfaction of the Governor was what had been required by the statute (p. 553 ibid), and it was also assumed that the satisfaction of the State Government was the satisfaction of the Minister-in-charge. The point was debated on this footing and thy question decided by the Court was whether this statutory function of satisfaction could be delegated by the Minister.
There is no statutory requirement of satisfaction in the case before me. On the other hand, there is no order expressed in the name of theGovernor at all. The question in the case before me falls within the purview of the decision in Ghaio Mal's case, : 1SCR1424 . Hence, it is of no avail, to uphold the impugned letter as an order of the Governor, even if the Rules of business of the standing orders made thereunder empowers the Chief Secretary to dispose of the master without placing it before the Minister.
In my opinion, the impugned order fails for contravention of Article 166(1) of the Constitution.
13. Point (3). Conscious as I am that a plea of mala fide rarely succeeds I find that in the present case, the circumstances attending the impugned order are glaring enough to substantiate the allegation.it is commonplace to state that mala fides does not necessarily involve a malicious intention. It is enough if the aggrieved party establishes:
(T) that the authority making the impugned order did not apply its mind at all to the master in question (Vide L. J. J. D'Souza v. State of Bombay, : 1956CriLJ935 ; or (ii) that the impugned order was made for a purpose or upon a ground other than what is mentioned in the face of the order of Puranlal Lakhanpal v. Union of India : 1958CriLJ283 . These principles have been applied by the Supreme Court in a case of reversion of a Government servant in the case of Sukhbans v. State of Punjab, : (1963)ILLJ671SC , to which I shall have occasion to refer more fullyhereafter.
In my opinion, the Petitioner before me has succeeded in establishing both.
I, When an authority is vested with a power but he is required to consult an advisory body before taking its decision, the responsibility for the decision or the final action that emerges is that of the authority who is entrusted with the power of Commissioner of Police v. Gordhandas, : 1SCR135 and it cannot simply act on the advice given by the advisory body, without applying its own mind. This principle was referred to in connection with preventive detention to hold that even though the authority empowered to issue the order acts on the report of the Police : 1956CriLJ935 , or on the advice of the Advisory Board constituted under the Preventive Detention Act : 1958CriLJ283 the responsibility for the relevant order remains with the authority who issues it. As was observed in the case of Puranlal, : 1958CriLJ283 (ibid) the object of associating an Advisory Body withthe statutory authority is only to provide a safe-guard against an abuse of unguided power and not to substitute the discretion of the advisory body with that of the statutory authority; if he fails to apply his mind and to exercise his discretion, the order will be vitiated by mala fides.
In the present case, the question to be considered by the Government was the suitability of the petitioner for promotion to the rank of an Assistant Commissioner. Article 320(b) of the Constitution requires that before taking any decision upon this question, Government should consult the Public Service Commission. But, as has been well established, the advice of the Public Service Commission is not binding upon the Government (D. Silva y. Union of India, : AIR1962SC1130 and even a failure to consult the Commission does not invalidate the resulting action of the Government (State of U. P. v. Manbodhan Lal Srivastava, (S) : (1958)IILLJ273SC . In short, it is indisputable that the Commission is an advisory body and, therefore, the Govt. cannot shield itself against a wrongful or illegal act on the plea that it was done on the advice of the Commission even though it may have to explain before the Legislature where it acts contrary to the advice of the Commission. It cannot blindly act upon the advice of the latter, without applying its own mind to the matter in question.
But that is what appears to have been done by the Government of West Bengal in this case, There is not the least of doubt that the petitioner would not have been reverted if the Commission had not given its advice to that effect. The reason is that the Government had prior to that advice more than fully considered the question of suitability of the petitioner who had also, on his part, complied with the requirements for promotion to the higher rank under the Departmental rules and regulations in force.
(a) So far as the Departmental requirements are concerned, it is admitted in the counter-affidavit of the Under Secretary, dated 4-4-55, that the petitioner was first considered fit for promotion in an officiating capacity, (para 5) by a Selection Board consisting of the Commissioner of Police and the Deputy Commissioners of Police. These are the Departmental superiors of the petitioner who must have come to their decision upon a consideration of their personal knowledge as to the efficiency of the petitioner as well as the remarks on the confidential Roll of the petitioner along with those of the other officers considered by them. These are the superior authorities upon which the Government acted in subsequently appointing the petitioner to the higher rank (in 1948) and, as we shall see, would also have confirmed him in that rank, had there been no report of the Commission.
(b) It is also admitted in the same counter-affidavit (para 8) that the petitioner passed, with distinction the Higher Standard Departmental examination of officating Assistant Commissioners.
Though the passing of this Examination does not confer any legal right upon a police officer to be confirmed as Assistant Commissioner, it is an objective qualification which makes him eligiblefor confirmation in that rank. The importance of this qualification may be appreciated if we look at it from the negative aspect, namely, that failure to pass it will render an officiating Assistant Commissioner liable to be reverted (Ann. R-9). By passing this examination, therefore, the petitioner advanced one step forward, namely, that after having been appointed Asst. Commissioner in an officiating capacity he earned the qualification of being continued in that rank, as early as 1949, and this result was announced by the Public Service Commission itself in the Official Gazette (Ann. p.22).
(c) It is no wonder, therefore, that the petitioner was considered fit for confirmation as Assistant Commissioner by the Selection Board, consisting of his Departmental Superiors, and his name was included in list I of officiating Assistant Commissioners fit for confirmation, in 1952, and this was also announced in the Gazette (Ann. p. 23 counter affidavit of Suhas Ranjan para 9).
(d) It was in the above state of affairs that the petitioner's case was referred to the Public Service Commission in 1953 at their request after the petitioner had already served as Assistant Commissioner for over 5 years and in 1954 the Commission considered him unsuitable even for officiating as Assistant Commissioner.
It is patent that this Court has no jurisdiction to condemn the view taken by the Public Service Commission or to revise it on the merits, so as to act as another super-advisory body to the Government. But where a charge of mala fides has been brought it is the duty of this Court, exercising the constitutional writ jurisdiction, to see whether the recommendation of the Commission was prima facie arbitrary or without foundation or whether the Government when it accepted the recommendation of the Commission, applied its own mind to the merits of the petitioner's case and the views so long entertained by itself in the matter.
In the foregoing background it is natural to inquire whether the Commission came to a contrary view upon the same materials as were before the Government, or the commission had before it any additional materials. In para 12 of the counter-affidavit filed by Suhas Ranjan, it had been stated that the Commission was asked to give its opinion with reference to the service records of the officers whose cases were sent up. Notwithstanding this, I was anxious to learn from the respondents if there was any other materials or consideration upon which the Commission, an independent body, might have been induced to hold a contrary opinion. The letter received by the Home Department from the Commission, dated 30-1-195.) has been shown to me. I am satisfied therefrom that the sole material upon which the Commission fanned its opinion was a 'Scrutiny of the records of service'. There is also no case that any additional entries in the records were placed before the Commission. The same materials which were before the Government and the Departmental authorities was thus before the Commission.
I have not only gone through the 236 items of records and commendations listed at pp. 8-19 of the Annexure to the petition but also the entries in the Service Book of the petitioner as well as his book of confidential Reports which are before me. To say the least the petitioner's record cannot fail to attract attention and the approbation received by him from different quarters is formidable. of course, he has included in his Annexure (p. 20) a list of 4 items of punishment which are all prior to 1947 and in para 4 of the counter-affidavit of Suhas Kanjan (para 4) there is set out an additional adverse remark of 1936 but that is all. The Service Book and the Book of Confidential Reports contain entries from November, 1925 and the petitioner superannuated in 1958. An officer of Police, no less than an officer on active military service, has to assume risk and responsibility at every moment of his career and the petitioner must be considered to be a remarkable specimen if he has met with reverses only on some five occasions during his long career of 33 years, whatever be the fluctuation in the subjective views entertained by particular superior officers having their own prejudices and idiosyncrasies. It was hardly possible for the Public Service Commission entrusted by the Constitution with the function of making an objective assessment, to overlook the objective commendations made by Judges, more than one, of the highest tribunal of the State as well as other superior tribunals, in course of their judicial findings upon the cases dealt with by the petitioner. Nor are there many POLICE Officers in the State who are recipients of the Indian Police Medal, or of recognition from the order of St. John and tbe like.
But, as stated by me earlier, it is not necessary for this Court to find fault with the advice given by the Commission, on its merits. The foregoing observations have been made to show that the Commission did not have any materials over and above that which had influenced the Selection Board to approve the petitioner for confirmation and for the Government to accept that recommendation in placing the petitioner in List T, prior to the transmission of the petitioner's case to the commission, which it should be noted, did not take place on the initiative of the Government but upon the insistence of the Commission, suo motu (vide Commissioner's letter No. 8090 PSC/ 17-11-1953 addressed to the Chief Secretary, and para 12 of the counter-affidavit of Suhas Ranjan that all cases of such temporary and officiating promotions mast be referred to them).
Let us now consider the action taken by the Government on receipt of the commission's recommendation that the petitioner should be reverted to his substantive rank (No. 539/P. S. C./30-1-54)-In para 16 of the counter-affidavit of Suhas Ranjan is unequivocally stated : - 'It is because the Commission advised that the petitioner was riot fit for the post of Assistant Commission that the order for his reversion as Inspector of Police, Calcutta was passed.'
The Government did not refer back the case of the petitioner to the Commission for a reconsideration, pointing out the materials upon which Government had, over a course of long years, considered the petitioner fit to be promoted as Assistant Commissioner and also to be confirmed there-in, Nor is it staged that since the Government itself discovered additional materials the Government felt inclined to agree with the Commission, after a re-assessment of the merits of the petitioner's case.
In my opinion, the counter-affidavit of Suhas Ranjan, filed on behalf of the Respondents, together with the other circumstances disclosed above, conclusively establishes that the Government mechanically acted upon the advice of the Commission, without applying its mind to the credentials of the petitioner upon which they had so long acted upon and to the question whether there were any changed circumstances furnishing a consideration for a contrary decision.
The above is sufficient for holding that the impugned order is invalid owing to mala fides.
In this connection; 1 would refer to the decision of the Supreme Court in : (1963)ILLJ671SC a case where the facts were even more difficult for the petitioner than in the present case, because the promotion to the higher rank in that case was 'on probation' and the order of reversion from that higher rank gave no reasons whatsoever. It was held that, nevertheless, it was open to the petitioner to show, from both antecedent and subsequent circumstances, that the order of reversion had not been made
'' in the bona fide exercise of the Government's undoubted right to revert a probationer because of his unsuitability for the higher post,' and one of the circumstances relied upon by their Lordships was the exceptional record of the petitioner there, which may be stated in their Lordships' own words: 'For, even Mr. Kashyab had in fact commended his work as Revenue Assistant in Jullunder. Further, the District Board, Jullunder had passed a resolution ...... expressing its appreciation in fighting the locust invasion. In addition the Commissioner wrote in his report ...... thatthe appellant stood first in the consolidation work in the Punjab ......... An extract from the secondprogress of work ......... is to the effect that theappellant stood first in the Division in connection with land revenue collection work and that he had also collected Rs. 2500/- for Red Cross which was 'an outstanding performance' and for which he received 'the Government of Punjab commendation certificate'.
He also received the 'President of India' Sanad and Silver Medal 'for his excellent work in the Census of 1951'. Shortly thereafter we find that the appellant was reverted.'
Similar observation can well be made in the case before me. Further, the fact that Government came to a contrary conclusion about the petitioner's suitability for the higher rank after he had already served in that rank with credit for a long period of over five years (during which period he has earned six increments) simply because the Commission held a contrary view on the same materials is another circumstance showing that the Government did not apply its mind to 'the order of reversion they made. The charge of mala fides becomes stronger against the Government the larger the time lag between an orderof officiating appointment and the order of reversion, particularly where the service record of the officer is remarkable. In my opinion, these circumstances go to establish mala fides on the part of the Government, in the light of observations of the Supreme Court; just quoted.
II. There is another aspect of mala fides. In the confidential Report for 1953, at p. 33 of the Confidential Report Book, produced before me, there is an endorsement to this effect -
'This officer was transferred to W. B. P. under Government orders as a result of inquiry by Anti-Corruption Department. I have written to the Home Secretary tc note the result of the inquiry in the C. C. Roll for future reference. Sd. H. S. Choudhry, Commissioner of Police,30-4-1954'.
This entry is of April, 1954, while the impugned order was made in July, 1954. appears from the File produced by the respondents that upon receipt of the Commission's recommendation, the Government sent down the Confidential Roll of the petitioner for making the Book up-to-date, by incorporating the Report for 1953, and the above endorsement was then made on the Report for 1953, which was, otherwise 'average', before returning the book to the Government. If the Home Secretary had looked into this endorsement, which he must have done, before deciding to issue the impugned order, it is evident that he had been influenced by a ground extraneous to that of 'unsuitability upon which the impugned order of reversion is founded ex facie, and upon which it is sought to be maintained. If there was any inquiry by the Anti-Corruption Department, that was certainly a charge of misconduct, other than mere immutability Under the present head it is needless to determine whether if the Government chose to penalise the petitioner on such charge, it was obligatory upon the Government to proceed in the manner required by Article 311(2), which has not been done. Suffice it to say, in the present context, that if, in making the impugned order, the endorsement referred to had entered into the judgment or consideration of the Government that would vitiate the impugned order by mala fides, because that is not a ground upon which the impugned order purports to have been issued.
Since, however, this ground has not been relied upon in the counter-affidavit and has been disclosed from the Confidential Roll produced at the hearing, I would not rest my judgment upon this sub-head of mala fides.
14. Point (4). The petitioner's case on this point is as follows: -
The question which was referred to the Public Service Commission for their advice was whether the petitioner was fit for promotion as an Assistant Commissioner, which was the post held by the petitioner in an officiating capacity when that reference had been made and this was the question answered by the Commission in the negative, by their letter of 30-1-54, addressed to the Home Secretary. The latter took some six months to come to his decision. In the meantime, by order dated 30-1-1954 (P. 24 of Ann. A, whichhas already been reproduced at pp. 3-4 (para 6 --Ed.) of this judgment), the Governor had appointed the petitioner
'to act, until further orders, as Deputy Superintendent of Police, Enforcement Branch, Midnapore.' The post of Deputy Superintendent is a post held in the Bengal Police Cadre under the Inspector-General, West Bengal, while the post of Assistant Commissioner is a post in the Calcutta Police Cadre under the Commissioner of Police. In July, 1954, when the order of reversion was made by the Government, the Petitioner was still in the Bengal Police, acting as Deputy Superintendent of Police. He was not recalled to the Post of Assistant Commissioner, for the purpose of issuing the order of reversion. He was reverted to the post of Inspector in the Bengal Police Cadre and in that Post he remained until the date of superannuation.
As has been seen at p. 4, ante (para 7--Ed.), though the order described the petitioner as
'Officiating Assistant Commissioner of Police Calcutta, now temporarily employed as Deputy Superintendent of Police,' the Government described the ground of reversion as follows:
'Tile Public Service Commission ......... whowere consulted in the matter have advised that Shri Choudhury is unsuitable for promotion to the post of Assistant Commissioner of Police ......... andthat he should be reverted to his substantive rank.' It is clear from the above and the decision of the Government which follows that the Government order intended to revert the petitioner from the post of Assistant Commissioner of Police to that of an Inspector in the Calcutta Police, which was his 'substantive rank', as pointed out at p. 3 (para 6 -- Ed.) of this judgment.
The petitioner's case on this point is founded on the assumption that the appointment as Deputy Superintendent was an independent appointment and that, accordingly, by accepting the Commission's recommendation to revert the petitioner from tbe post of Assistant Commissioner, the Government could not and did not intend to revert the petitioner from the Post of Deputy Superintendent and, if in fact, such has been the result of the action of the Departmental superiors who implemented the Government order, such action has been ultra vires and without jurisdiction so that the petitioner's appointment and rank as Deputy Superintendent has not been affected by the impugned orders, apart from any other consideration.
On behalf of the respondents, the aforesaid assumption of the petitioner's case on this point has been questioned. In paras, 10-11 of then counter-affidavit of Suhas Ranjan, it has been contended that the reversion of the petitioner from the post of Deputy Superintendent is a 'natural sequence of his reversion from the post of Assistant Commissioner because :-
(i) the appointment as Deputy Superintendent was also an officiating appointment;
(ii) the post of Deputy Superintendent was equivalent in rank and status to that of Assistant Commissioner;
(iii) the order of appointment as Deputy Superintendent had been made in terms of Section 3 of the West Bengal Police Act, 1952.
(i) On behalf of the petitioner it has been vehemently argued that the order of appointment as Deputy Superintendent (Vide p. 4 ante --(Para 6 -- Ed.) ) nowhere stated that it was as officiating appointment and that it was really a permanent appointment. Of course, it has not been described as an 'officiating' appointment, but the words 'to act until further orders' do not constitute a permanent tenure but only a temporary appointment. As explained in Parushottam's case : (1958)ILLJ544SC (ibid) the case of a temporary appointment differs little from an officiating appointment because in neither case has the employee any substantive right to the higher post or rank to which he is appointed in a temporary or officiating basis. It is, therefore, not correct to urge that there could not be any reversion from the post of Deputy Superintendent to which he had been appointed on 30-1-1954.
The real question for determination is whether the reversion from that appointment could be taken, in law, as a natural sequence of the reversion from the post of Assistant Commissioner.
(ii) The contention on behalf of the respondents that the post and rank of a Deputy Superintendent is equivalent to that of a Commissioner of Police has been belied by the Civil List for 1952, produced on behalf of the petitioner at the hearing. It appears therefrom that the post of Deputy Superintendent belongs to a separate cadre with a separate pay scale both at the start and the finish and with different stages of increment and efficiency bar. This is also evident from the Government letter dated 31-5-1954 at Ann. Rule 6, by which adjustment of the current pay of the petitioner had to be made by converting a part of his pay as Assistant Commissioner as 'personal pay'. All this is hardly compatible with the contention that the two posts were equivalent.
(iii) Section 3 of the West Bengal Police Act, 1952 provides 'it shall be lawful for the State Govt. to employ members of the police force of Calcutta. ......in any general police-district --......... andwhile so employed every such member of a Police force shall be deemed to be a member of the Police force of the area in which he is so employed and to be vested with the powers, function and privileges, and to be subject to liabilities of a member of the Police force of that area'.
The implications of the above provision are clear enough. There is no question, under this Act, of 'transfer' of any officer from the Calcutta Police to the general Police. The provision simply empowers the Government to 'employ' a member of the Calcutta Police to serve in any area outside the Calcutta areas if and when the public interest so requires. In the absence of such provision, two difficulties might have arisen.
(a) Any person appointed to the Calcutta Police might raise objections that he was not obliged to serve outside Calcutta;
(b) Questions as to the legal rights and liabilities of the person while he was so acting in the general police might arise. Hence, even thoughhe was not appointed to the general police, by the presumption of the statute, he would be considered as if he were a member of the general police, while so employed.
Where SECTION 3 is applied, a member of the Calcutta, Police, while so employed, retains his appointment as a member of the Calcutta Police; there is no transfer of his service and there is no change in the emoluments.
But the order of appointment of the petitioner as Deputy Superintendent does not appear to have been made in exercise of the above power, for the following reasons:
(i) The order (vide p. 4, ante) dots not speak of 'employment' in terms of the statute but of 'appointment'. The endorsement to the Accountant General describes it as a 'transfer'.
(ii) From the Confidential report No. 16. (quoted earlier), it is evident that the transfer to the West Bengal Police was ordered as a 'penalty' in view of some inquiries or remarks made by the Anti-Corruption Department. That some such thing was operating in the mind of the authorities is evident from Annexure A p. 29, by which he was ordered to be posted at some station 'away from predominantly industrial or railway areas'. These are not matters pertinent to the application of Section 3 of the above Act.
(iii) As referred to earlier (vide Ann. O) his pay etc., after the transfer was allowed not on the basis of his membership of the Calcutta Police but on the basis of membership of the West Bengal Police, and the petitioner had to make a representation (Ann. P), complaining of his losses.
(iv) The petitioner remained in the West Bengal Police until the date of his superannuation in 1958 and the order of discharge then made did not purport to discharge him from the Calcutta Police force but from the post of Inspector of Police, Purulia and the order was made by the Superintendent of Police of Purulia (Ann. R. 10).
(v) The most remarkable thing to be noticed in this connection is Ann. R. 12, a Letter addressed by the Government to the Inspector-General of police, West Bengal, on 21-12-57, on the eve of the superannuation of the petitioner:
'The undersigned is directed to say that Government authorise the Inspector-General of Police, West Bengal to place the services of Shri Ram Chandra Chowdhury, Inspector of Calcutta Police, now posted in West Bengal, at the disposal of the commissioner of Police. Calcutta, so that Shri Chowdhury who holds a lien on the Calcutta Police may be treated formally as an Inspector of Calcutta Police at the lime of his retirement on 1st January'. The very need for such an order at the end of the petitioner's career establishes the petitioner's case that the two cadres are separate, that he was transferred from one cadre to the other and that an order of the Government founded on the Commission's opinion that the petitioner was unsuitable for promotion to the rank of Assistant Commissioner and his reversion to the post of Inspector, Calcutta Police could not operate as an automatic or 'natural' reversion from the post of Deputy Superintendent to that of Inspector of the Bengal Police. What Government should have done wasto recall the petitioner from the Bengal Police to the Calcutta Police, to his post of officiating Assistant Commissioner and then to issue the impugned order of reversion against him. His unsuitability for the post of Deputy Superintendent has never been considered by the Government not to speak of the Commission. However technical this irregularity may seem to be, the petitioner is entitled to have advantage of it, because if he has not been validly reverted from the post of Deputy Superintendent, he is entitled to the difference is his arrears of pay in that capacity from 9-7-1954, till the date of his superannuation and also to a higher pension on the basis of his retirement while enjoying the pay of Deputy Superintendent instead of that of Inspector.
15. In my view, the impugned order of the Government as well as the implementing orders at pp. 26 and 32 of Ann. A are vitiated by lack of jurisdiction as well as mala fide because they show that the mind of the authorities was not applied to the matter before them.
16. To sum up, the impugned order of reversion must be held to be invalid and quashed on the following grounds:
(i) It is in contravention of Article 311(2) of the Constitution, because it takes away from the petitioner his future chances of promotion to the higher rank of an Assistant Commissioner, thus constituting a 'reduction in rank' within the meaning of that Article, without giving him an opportunity to show cause;
(ii) It contravenes Article 166(1) of the Constitution;
(iii) It is mala fides;
(iv) It is without jurisdiction.
17. Though it has not been contended on behalf of the respondents that the petition should fail on the ground that the petitioner has since retired from service under the respondent, I should mention that the petition has not been rendered meaningless or infructuous by reason of the retirement of the petitioner because if the impugned order be quashed, he would get relief in respect of arrears of pay and pension on the footing that , he has never been reverted from the post of Deputy Superintendent, West Bengal Police. In this respect, I would like to refer to the observations of the Division Bench in Rabindra v. Genera! Manager, Eastern Railway, 59 Cal WN 859 at p. 869 :
18. In the result, the petition be allowedand the impugned order be quashed by a Writ ofcertiorari. Let a Writ of mandamus be also issuedupon the respondents not to give effect to theimpugned order so as to revert the petitionerfrom the post of Deputy Superintendent, WestBengal Police, which the petitioner was holdingof the time of the impugned order. Since thepetitioner's representation and demand for justicewere not heeded to, he shall get his costs, hearingfee being assessed at five gold mohurs.