TMI Blog1958 (4) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... after asked for a copy of the adverse report and finally on the 26th March, 1951 he was supplied with a gist of the adverse remarks which runs as follows : In 1948 he was found to have displayed no activities showing any signs of imagination. In 1949 he was reported to be rather inactive due to old age and was considered only suitable for desk work. In 1950 he was found to be leaving a lot of reserve work to the Reserve Officer and depending too much on him. At the end of 1950 he was also reported to be not quite fit for active duties due to his old age and for acquiring the bad habit of sleeping almost every day after lunch when he was expected to attend office. His attendance in office was also very irregular and inadequate. He had also failed to come to Calcutta to consult the D.I.G., I.B., who had ordered that all S. Ps. should pay periodical visit to the I.B. with their D. I. O's for discussions and instructions. 2. On the 22nd June, 1951 the Assistant Inspector General of Police, West Bengal, wrote to the petitioner that Government had approved of his reversion to his substantive rank and to post him at Midnapore as Deputy Superintendent of Police. It was stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served posts mentioned therein, which however does not include the post of a District Superintendent of Police. Every such appointment shall be provisional, and if the person so appointed was intended to hold the appointment for a period exceeding three months, he had to be reported to the Secretary of State and no employment for more than twelve months could be made without his sanction. On the 23rd January, 1950 came into operation a body of rules called The Indian Police Cadre Rules, 1950 . These Rules were promulgated by the Government of India, in the Ministry of Home Affairs, in exercise of the powers conferred by Sub-section (2) of Section 241 and Section 247 of the Government of India Act 1935, and the Agreement dated the 21st October, 1946 between the Government of India and the Governments of the Provinces. The Rules are six in number but there is an annexure which is stated to be a Memorandum regarding the constitution of an Indian Police Service to provide officers for the Central Government and the Governments of Assam, Bihar, Bombay. ..... and West Bengal. It was inter alia stated that the Central Government, and the Province of West Bengal had agreed to constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows ; On the 23rd January, 1950 the Government of India published a notification No. 40/49 A.I.S. containing rules called The Indian Police Cadre Rules, 1950 . As stated above, the Cadre Rules 1950 provide in the annexure thereof that rules regulating conditions of service were to be promulgated both by the Central Government as well as by the Provincial Governments. No rules have been framed by the Government of West Bengal. The Government of India sent a draft of certain rules for the above purpose but neither have they been framed, nor approved of by the Government of West Bengal. In the counter-affidavit filed by Subodh Nath Kundu, the Assistant Secretary, Home Department, General Administration Branch, of the Government of West Bengal, it has been stated as follows : No rules were framed by the Government of West Bengal. The Government of India sent a draft of the rules for the above purpose. Pending framing of such rules, the Government of West Bengal adopted the said draft rules ad hoc and have been substantially following the procedure laid down in such rules for promotion of Provincial Police Service Officers to Indian Police Service. Accordingly a selection com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears to me to be wholly irregular, and not warranted by any law. The appointing authority is the State Government. When it comes to promotion or reversion, it must either be done in accordance with rules such as have been framed in accordance with law, or the existing rules applicable to the Central Services or the Provincial Police Service, as the case may be, should be followed. What is being followed is something entirely arbitrary. A committee is appointed, without there being any rules for the appointment of such a committee, and the said committee is framing lists which again are not warranted by any law or rule, and this is affecting the promotion, reversion etc. of members of the Indian Police force. In this particular case, the matter did not go up to the Public Service Commission, but this so-called Selection Committee considered the records of the petitioner including the confidential remarks and reports and the petitioner was declared not fit to be promoted to the Indian Police Service. Consequent upon this recommendation, by a body which has no legal existence, the petitioner was reverted from his officiating appointment. Firstly, as I have pointed above, this comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t other things this was considered as a reason for sending him back to his substantive post. In my opinion, this was by way of a punishment. The question as to whether an order of reversion operates as a punishment or not has now been exhaustively considered by Das, C. J., in a recent decision of the Supreme Court in Parshotam Lal Dhingra v. Union of India, (1958)ILLJ544SC (B). The learned Chief Justice after an exhaustive delineation of the subject, summarised the position as follows :-- (1) Except in three cases, a Government servant has no right to his post, and the termination of service of a Government servant does not, except in these three cases, amount to a dismissal or a removal by way of punishment. (2) The three cases are as follows : (a) Where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val or reduction in rank in accordance with the conditions of service, express or implied? If it is, then it is not by way of punishment. (d) Whether the reduction in rank visits the servant with any penal consequences, viz., forfeiture of pay or allowances, loss of seniority in his substantive rank, stoppage or postponement of his future chances of promotion? If the answer is in the affirmative, although in form the Government might purport to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of contract of employment or under the rules, in truth and reality the termination etc. is by way of punishment. 7. It now remains for me to apply these tests to the facts of the present case. Assuming that the petitioner was rightly holding an officiating post, namely, that of a Superintendent of Police, there can be no question that he would not pass the first test because he had no right to hold the officiating post. The next question is, has his reversion visited him with any penal consequences? There is of course no forfeiture of pay or allowance or loss of seniority in his substantive post. The only question that has been agita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission, to be included in what is called the approved list . It is admitted that appointments to the Indian Police Service are made in order of merit in that list. The second fact to be noticed is that the petitioner was not thought a fit person to be put in the fit list . Thus, all his chances of going into the approved list had gone. The result may be summed up as follows. The petitioner was officiating in a higher post. The matter was considered as to whether he was a fit person to have been promoted to that post and whether he should have gone into the fit list . It was found that he was not a fit person and therefore he was neither put in the fit list , nor continued in his officiating post but reverted. Thus, two things have happened simultaneously. He is reverted to a lower post, and not put in the fit list . These are not isolated actions. He has been reverted because he was not put in the fit list , and he was not in the fit list , because amongst other things, he did not obey the order of his superior officer. It may be that in future he may have proved himself to be so efficient as to get himself into the fit list , but on the other hand, it cannot be denie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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