P.B. Mukharji, J.
1. This is an appeal from the judgment of D. N. Sinha, J. allowing an application of the petitioner-respondent Dhajadhari Dtta under Article 226 of the Constitution of India against the Union of India, Home (Police) Department, New Delhi; State of West Bengal of Police; Inspector-General of Police and the Chief Secretary, Government of West Bengal. Against that order, the State of West Bengal, represented by the Secretary Home (Police) Department; Inspector-General of Police and the Chief Secretary, Government of West Bengal have appealed.
2. The facts briefly arc as follows: The petitioner-respondent was appointed as a Sub-Inspector of Police on 2-1-1925. He was promoted as Inspector of Police in May 1942. He was confirmed in that post in November 1944. In April 1945 he was promoted as Deputy Superintendent of Police. He was confirmed in that post of Deputy Superintendent of Police in 1947 and his rank was the rank of Deputy Superintendent of Police. Thereafter, on 26-3-1948 he was allowed to officiate as Superintendent of Police from 1948 to 1951 until further orders. On 25-6-1951 the Government decided to revert him as Deputy Superintendent of Police, his substantive rank and posted him as such at Midnapore. The petitioner made a representation to the Government and sent also a Memorial to the State Government as also to the Central Government. Those representations did not succeed. On 7-5-1954 the petitioner gave a notice demanding justice and on 18-5-1954 obtained a Rule from this Court. Much of the edge of the Rule is lost. The petitioner has retired from service in the meantime. We are told that he retired sometime in 1955-56. There is therefore, no question of any reinstatement in the present facts. There is, therefore, no question here any more of setting aside the order of reversion with a view to reinstate the petitioner-respondent. The only point from the practical side is the question of arrears of pay and possibility of higher pension.
3. D. N. Sinha, J. made the Rule absolute on the 3rd April 1058. The present appeal is by the Government against that order.
4. The prayer in the petition and in fact, the whole controversy in this case is whether the order of reversion from the higher officiating rank to the lower substantive rank i.e. from the officiating post of Superintendent of Police to the substantive post of Deputy Superintendent of Police, was bad in law.
5. The learned Judge seems to have come to the conclusion on two main grounds. In the first place, he came to the conclusion that there was an ad hoc committee which advised the Government against the petitioner. The learned Judge was of the opinion that this ad hoc committee had no legal basis in the Constitution and/or in a Statute or Rules made thereunder. This point may be disposed of briefly as follows.
6. The State Government is the competent authority for making appointment to the post of Superintendent of Police which is a cadre post in the Indian Police Service. Therefore, as the appointing authority the State Government is competent to pass an order saying that a person officiating in the post of Superintendent of Police should revert or go back to bis substantive rank of Deputy Superintendent of Police. So long as the Government is such an authority, the question how Government informed its own mind by consulting the ad hoc committee or not, does not appear to be relevant and cannot vitiate the Government decision. The decision of course has to be the decision of the Government. That is so in the present case. This answers the point.
7. The real ground however on which the learned Judge made the Rule absolute was that he came to the conclusion that this kind ol reversion to the substantive posl was penal in its consequence. He appeared to take the view that the petitioner was not only reverted to the lower post, hut as he was not put in the 'fit list' his chances of promotion having regard to the margin of time for his retirement became remote. That according to the learned Judge was penalty. Therefore, he was of the opinion that the petitioner-respondent should have at any rate been heard on the question why he should not be reverted and the order of reversion should have been made after giving him an opportunity to be heard. For these reasons the learned Judge came to the conclusion that the order of reversion dated 25-6-1951 was bad and made the Rule absolute.
8. The decision of the learned Judge on a consideration of the facts and law on the subject cannot be sustained. A person who was officiating in a higher rank had no right to that higher rank so long as he is officiating and not confirmed therein. The very notion of a person officiating implies with it the term that he has no right to the post in which he is officiating. When I say 'right' I mean 'legal right'. Many persons who officiate in the higher rank go back to their own substantive rank and post and such reversions are not at all either demotion or reduction in rank or penalty.
9. The learned Judge referred to the well-known decision of the Supreme Court in Par-shottam Lal Dhingra v. Union of India : (1958)ILLJ544SC , the learned Chief Justice of India who delivered the judgment in that case observed as follows: -
'The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the 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 to 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 has terminated the employment as and by way of penalty.'
In that passage what the Supreme Court was considering was that under special facts and circumstances a reversion to the substantive post might amount to penalty. In describing the circumstance in which such reversion may amount to penalty mention was made of (1) forfeiture of pay or allowances; (2) loss of seniority in the substantive rank; (3) stoppage or postponement of future chances of promotion. Not one of these tests is satisfied in the facts of the present case. There has been no forfeiture of his pay or allowances. Forfeiture of pay or allowances is forfeiture of pay and allowances in his substantive rank or post. Every case of reversion from officiating higher post to the lower substantive post necessarily carries with it lower pay. But that is not what is intended by punishment in the above passage of the Supreme Court. There is also in this case no question of any loss of his seniority in the substantive rank. It is not proved or established that the petitioner lost seniority in his substantive rank. It is necessary to realise that Government service like any other service does not stand still but keeps on moving. If X is officiating in a post, other persons in that service do not stand still and other persons might be getting officiating appointments also in the meantime while X is officiating. Then, if X is reverted in his substantive post he cannot make a comparison with his reverted substantive post mid the cases of those persons who had since then officiating appointments to higher posts. That is why the Supreme Court was careful in saying that the test is loss of seniority in the substantive rank. The other test laid down by the Supreme Court is stoppage or postponement of his future chances of promotion. We do not iind here on the facts of this case that it has at all been established or proved that there has been a stoppage or postponement of the future chances of promotion of the petitioner respondent. The learned Judge seems to adopt this reasoning that because the petitioner had a little margin of time to retire this reversion to the substantive rank meant for all practical purposes stoppage or postponement of promotion. We do not think that reasoning can be accepted. The necessary consequence because of the short margin of time left in the tacts of this case is not the fault either of the petitioner or of the Government. It is necessary also to point out that because a person has once been found wanting in suitability for promotion to higher post in which he was officiating, it cannot be said that he will always necessarily not get any promotion in future. He may or may not. He may again qualify for the higher appointment. That will depend on the circumstances occurring subsequent tohis reversion.
10. In this connection it is necessary to refer io a later decision of the Supreme Court in State of Bombay v. F. A. Abraham : (1963)IILLJ422SC a decision which was not available to the learned Judge when he was giving his judg-ment under appeal. That was a case where the aggrieved person held the substantive post of an Inspector of Police when he was appointed to officiate as Deputy Superintendent of Police. Finally he was reverted tohis post as Inspector while he was officiating as Deputy Superintendent of Police. He challenged his order of reversion. The facts appear to be somewhat similar. It must however, be said that in that case before the Supreme Court there was an inquiry into certain allegations of corruption made against the service holder. There was in fact even a departmental inquiry regarding these allegations, but they were found to have been not proved. Indeed this inquiry was held behind the back of the service holder. Notwithstanding those facts the order of reversion was maintained by the Government and upheld by the Supreme Court. The facts in the present appeal before us are more in favour of the Government.
11. In Abraham's case : (1963)IILLJ422SC cited above it is laid down by the Supreme Court that
'a person officiating in a post has no right to hold it for all times. He may have been given the officiating post because the permanent incumbent was not available, having gone on leave or being away for some other reasons. When the permanent incumbent comes back, the person officiating is naturally reverted to his original post. The Supreme Court expressed the view that that was no reduction in rank for it was very term on which he had been given the officiating post. Again, sometimes a person is given an officiating post to test his suitability to he made permanent in it later. Here again, it is an implied term of the officiating appointment that if he is found unsuitable, he would have to go back.'
Therefore, the Supreme Court expressed the opinion
'that the appropriate authorities, it they have found him unsuitable for the higher rank and then revert him back to his original lower rank, the action taken is in accordance with the terms on which the officiating post had been given. It is in no way a punishment and is not, therefore, a reduction in rank.'
The reversion did not in any way affect him so far as his condition and prospects of service were concerned. In fact the Supreme Court there emphasised the fact that no doubt the Government servant lost the benefit of the appointment to the higher rank, but that by itself would notindicate that the reversion was by way of punishment because he had no right to continue in the higher post or to the benefits arising from it. The Supreme Court overruled the decision in M. A. Waheed v. State of Madhya Pradesh AIR 1954 Nag 229 (See the observation of the Supreme Court at p. 796 of the report quoted above). An observation was made by the Supreme Court : (1963)IILLJ422SC to the following effect:
'The High Court seems to have been in error in thinking that the Government's refusal to supply the respondent with the reasons why action was taken against him proved that the reversion was a reduction in rank by way of punishment; the refusal cannot prove that. It may give rise to a suspicion about the motive which led the Government to take the action, but it is now firmly established that if the action is justifiable under the terms of the employment, then the motive inducing the action is irrelevant in deciding the question whether the action had been taken by way of punishment'.
There has been a still more recent decision of the Supreme Court in Champaklal Chimanlal v. Union of India : (1964)ILLJ752SC . Wanchoo, J. : who delivered the judgment of the Supreme Court observed at p. 1861 as follows:
'Further, even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant.'
12. The reason for making reference to the above decisions is to meet some argument advanced at the Bar on behalf of the respondent that there was also certain allegation in this case that the petitioner was disobedient to the order of the Inspector-General of Police and that he was not physically fit or active. On that basis it was suggested that the Government motive was to penalise him by this reversion; but the question of motive is irrelevant in the present contest, according to the above decisions of the Supreme Court, because the petitioner had no right to the officiating post in the present case and therefore, his reversion was not a reduction in rank or demotion and was not a penalty or punishment. On behalf of the respondent, reliance was placed on an older Supreme Court decision in the State of Bihar v. Gopi Kishore Prasad : (1960)ILLJ577SC . That case only followed Dhingra's case. It was said that the case was completely covered by Dhingra's case. It was case of a probationer Sub-Deputy Collector and not a case of an officiating incumbent reverting to his substantive rank and post. We have already considered and applied the tests laid down in Dhingra's case.
13. For the reasons stated above, the judgment and the order of D. N. Sinha, J. are set aside and the appeal is allowed.
14. There will be no order as to costs.
15. I agree.