Full Judgment
M.L. Chaturvedi, J.
1. This is an appeal against an order of a learned Judge of this Court dismissing a petition filed by the appellant under Article 226 of the Constitution.
2. The appellant was employed as an Inspector in the Central Excise Department. On 20-8-1952 the Central Government issued a notification declaring that it had created a selection grade of Excise Inspectors and the selection grade would constitute 15 per cent. of the total cadre of Inspectors. In pursuance of the above notification on 27-2-1953, the Collector of Central Excise Allahabad, passed an order appointing the appellant and 59 others to the selection grade, and these appointments were to take effect from 1-8-1952.
In making these appointments the Collector had passed over a number of Senior Inspectors and they made a representation to the Central Board of Revenue and to the Government of India against the appointments made by the Collector. The representations were considered by the Government and it came to the conclusion that the Collector had not made the appointments on proper basis, as he had not taken seniority into consideration at all & the selection should have been based on consideration of seniority and fitness both.
Accordingly the Government wrote to the Collector on 7-8-1953 informing him that the basis of selection adopted by him was incorrect. He was asked to review his orders and make fresh appointments after applying the test of seniority-cum-fitness. He was also directed to issue notices to the persons appointed by him to the selection grade to show cause why the orders appointing them be not reviewed and their appointments cancelled. The Collector accordingly gave notice on 21-10-1953 to the Inspectors appointed by him to the selection grade asking them to show cause why their appointments be not cancelled. Some of the Inspectors submitted their explanations, and on 10-11-1953 the Collector passed an order reverting 40 persons to their previous post of Inspectors.
3. Two of the reverted Inspectors filed two writ petitions in this Court against the order of 10-11-1953, and two points were urged on behalf of The petitioners at the time of the hearing of the petitions. The first point was that the Collector, after having appointed the petitioners to the selection grade, had no jurisdiction to review the order subsequently and to revert them to the post of Inspectors (ordinary grade).
The second point was that this reversion amounted to reduction in rank within the meaning of the expression as used in Article 311(2) of the Constitution, and no proper opportunity to show cause against the proposed reversion having been given to the petitioners the order of their reversion was void. The learned Judge decided both the points against the petitioners and dismissed their petitions by his judgment dated 25-3-1955. This appeal is by one of the petitioners, namely, Sri G. K. Sinha.
4. The learned counsel for the appellant in the beginning submitted both the above points before us, but later on, in view of the decision of the Privy Council in the case of R. Venkata Rao v. Secretary of State 0043/1936 he conceded that the first point really had no force and confined his submissions to the second point, namely, the invalidity of the reversion order because of the provisions of Article 311(2) of the Constitution. On this point the learned counsel submitted that the appellant's reversion amounted to reduction in rank as he had been demoted from the post of Inspector (Selection Grade) to the post of Inspector (ordinary grade), and this reversion has further resulted in the reduction of his salary. It has also been argued that after the first notice having been sent to the appellant on 21-10-1953 and after taking his explanation, another notice should nave been given to him to show cause why he should not be reduced in rank.
5. But we think the case does not fall under Article 311(2) at all, as the reversion of the appellant and others, promoted along with him. was not for any fault of those officers but was the result of the decision of the Government that the Collector had not kept proper rules in view when making appointments to the selection grade of Inspectors. According to the scheme adopted by the Government for promoting Inspectors to the selection grade and which was conveyed to the Collector by means of a letter of the Government dated 20-8-1952, selection was to be made 'on the basis of seniority-cum-fitness'. The Collector had not taken seniority into consideration at all, and the Government accordingly held that the appointments made by him were not made after applying the proper tests and were consequently set aside. This reversion was In no way due to any fault of the officers who had been previously promoted by the Collector.
6. It is not every removal or reduction in rank of a Government servant which falls within Article 311 of the Constitution. In the case of Satish Chandra v. Union of India : [1953]4SCR655 , it was held by the Supreme Court that Article 311 had no application to a case where a contract of service wag being terminated by notice according to its terms. The point has been further clarified in the subsequent case of Shyam Lal v. State of U. P. : (1954)IILLJ139SC .
In this case Shyam Lal, a Superintending Engineer, was compulsorily retired by order of the Government before he had attained the age of superannuation. Such a compulsory retirement Was permissible under Rule 465-A of the Civil Service regulations provided the Government servant had completed 25 years of service, which Shyam Lal had done. Shyam Lal challenged this order on the ground that it amounted to his removal from service within the meaning of the word 'removal' as used in Article 311 of the Constitution without giving him any opportunity of showing cause against the proposed compulsory retirement. This contention of Shyam Lal was overruled by their Lordships on the ground that the word 'removal' as used in Article 311 implies that the officer has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. Their Lordships observed :
'The action of removal taken against him la such circumstances is thus founded and justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the officer. There is no such element of charge or imputation in the case of compulsory retirement.'
7. The above test was held to be one of the principal tests for determining whether a termination of service amounted to dismissal or removal. We think that a similar test must be applied in the case of an alleged reduction in rank. Applying the same test to the case before us, we think it should be held that the reversion of the appellant from the post of Inspector (selection grade) to the post of Inspector (ordinary grade) should not be held to be 'reduction in rank' within the meaning of the expression as used in Article 311 of the Constitution. The reversion of those officers was not on any ground personal to them, nor was it based on any imputation or change which could be explained by the officers.
Article 311(2) must have contemplated the giving of a notice to show cause where a cause could possibly be shown by the officer against the action proposed to be taken against him, but where an officer, as in this case, was not accused of any fault and the reversion was due to the promotion having been made without applying correct Rules, there would be no point in giving the officer an opportunity of showing cause. We think that the reasons, which led the Supreme Court to hold that an order of compulsory retirement did not amount to removal of the officer within the meaning of the word as used in Article 311 of the Constitution, fully apply to the present case as well, which is not a case of removal but may be a case of reduction in rank. In our opinion, the appellant was not entitled to any opportunity of showing cause under Article 311 against the proposal to revert, him and the order of his reversion is not inconsistent with Article 311 of the Constitution.
8. The appeal has no force and it is accordingly dismissed with costs.