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Joginder Singh v. State Of Punjab

Punjab & Haryana High Court
Nov 12, 1968
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Legal Opinion Summary — Bal Raj Tuli, J.

Factual and Procedural Background

The plaintiff (a permanent servant of the State of Punjab with about 26½ years' service) filed suit on 21 February 1963 seeking a declaration that a Government order (endorsed to him as No. 21565-PH/EI dated 29 August 1962, with the principal order described as "nil") which reverted and reduced him from the post and rank of Executive Engineer to Assistant Engineer and posted him as Assistant Research Officer was illegal and void. The plaintiff's factual allegations include his selection and appointment as a temporary Assistant Engineer in 1956, later approval to proceed to the U.S. for post-graduate studies (Master of Science in Public Health Engineering), and his subsequent appointment on a provincial basis as Executive Engineer by order dated 4 April 1961, after which he was posted to the Beas Project and performed duties there.

On return from deputation, the plaintiff handed over charge as Executive Engineer on 20 August 1962 and was informed by an order (endorsed 20 August 1962, communicated 30 August 1962) that he was reverted to Assistant Engineer with effect from 20 August 1962. The plaintiff alleged the order amounted to reduction in rank, was punitive and passed without inquiry or opportunity to explain, and caused penal consequences including loss of pay for certain days and adverse effect on promotion and seniority.

Procedurally: the plaintiff's representation was rejected (endorsement dated 31 December 1962). He served a Section 80 notice on 17 December 1962 and then filed suit (21 February 1963). The trial court (Sub-Judge) decreed the suit on 30 May 1964. The State of Punjab appealed to the District Judge, Patiala, which appeal was allowed on 18 November 1964 and the plaintiff's suit dismissed. The plaintiff then filed the present appeal in this Court (High Court), which is the subject of this opinion.

Legal Issues Presented

  1. Whether the Government order (endorsed No. 21565-PH/EI dated 29 August 1962) reverting the plaintiff from Executive Engineer to Assistant Engineer and posting him as Assistant Research Officer was illegal, unconstitutional, ultra vires, without jurisdiction, mala fide, void, ineffective and against principles of natural justice (as pleaded in para 11 of the plaint).
  2. Whether reasonable opportunity as required by Article 311 of the Constitution of India was given to the plaintiff before passing the impugned order.
  3. Whether the suit is barred under Order 2 Rule 2, Civil Procedure Code.
  4. Whether the matter in dispute is not justiciable.
  5. Relief (declaratory relief sought by the plaintiff).

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

  • The impugned reversion order amounted to reduction in rank within the meaning of Article 311(2) of the Constitution because it was passed by way of punishment and visited him with penal consequences (loss of pay for certain days, delay or loss of promotion, loss of seniority).
  • The order was passed without compliance with Article 311(2) and service rules: he was not charge-sheeted, no explanation was called for, no enquiry was held and no show-cause notice was issued.
  • The order was mala fide, arbitrary, capricious and amounted to victimization and discrimination (claims that juniors were promoted over him and that similarly placed juniors retained posts).
  • The order was given retrospective effect to 20 August 1962 although he continued to work as Executive Engineer until 29 August 1962, resulting in forfeiture of pay for that period.
  • On appeal, counsel emphasized that the department had not sought the Public Service Commission's approval before reverting him and relied on the Supreme Court decision in State of Punjab v. Sukh Raj Bahadur (1968 SLR 701) for principles on Article 311 application to temporary servants/probationers.

Respondent's (State's) Arguments

  • The matter involved was not justiciable and the suit was barred by Order 2 Rule 2 CPC as an earlier suit allegedly contained the same claim (these were preliminary objections in the written statement).
  • The plaintiff's promotion as Executive Engineer was provisional/subject to the approval of the Public Service Commission; no such approval had been received and therefore his reversion was lawful and in accordance with terms of appointment.
  • Reversion from an officiating rank back to a lower officiating or substantive rank is not a reduction in rank attracting Article 311(2) and related safeguards.
  • The plaintiff's pay during joining time was only admissible on the lower post under the rules and the representation of the plaintiff was considered and rejected by the Government.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
State of Punjab and another v. Sukh Raj Bahadur, 1968 Service Law Reporter 701 The Court set out propositions on when Article 311 applies to temporary servants or probationers, including: (1) Full-scale departmental enquiry (charge-sheet, explanation, Enquiry Officer) attracts Article 311. (2) Termination of temporary/probation service under rules without more does not automatically attract Article 311. (3) Circumstances preceding the order must be examined; motive is immaterial. (4) If an order visits the public servant with evil consequences or casts an aspersion on character or integrity, it is punishment and Article 311 may apply. (5) An administrative enquiry to decide retention in post does not necessarily attract Article 311. The Court applied these principles to conclude that the impugned reversion did not attract Article 311. It treated the reports and confidential enquiries made by the Beas Project Administration as an administrative assessment of suitability for the officiating post (not a full-scale departmental enquiry), found no aspersion on character or integrity in the reversion order itself, and accepted that reversion to substantive rank after deputation and without Public Service Commission approval was consistent with the terms of his provisional appointment.

Court's Reasoning and Analysis

The Court proceeded by examining the nature and effect of the impugned order and the circumstances preceding it, applying the principles stated in the cited precedent concerning Article 311.

Key elements of the Court's analysis:

  1. Nature of appointment and reversion: The plaintiff had been appointed as Executive Engineer for deputation to the Beas Project on a provisional basis, subject to approval by the Public Service Commission. When his deputation ended and he returned to his parent department, the administration put him back to his substantive rank, which the Court treated as an expected administrative consequence of the provisional deputation appointment.
  2. Character of the impugned order: The impugned order (Exhibit P.10) simply stated that the plaintiff was reverted from the officiating post to his substantive rank on release from the Beas Project. The Court observed that the order did not itself cast any aspersion on the plaintiff's character or integrity.
  3. Nature of enquiries and reports: The Beas Project Administration had called for confidential and special reports (including a special report from the Superintending Engineer and a confidential letter from the General Manager) assessing the plaintiff's suitability for the officiating rank. Those reports indicated technical competence but criticised his control over subordinates and recorded complaints (including a Vigilance Department enquiry pending). The Court held such assessment-reporting to be a legitimate administrative inquiry to determine whether the officer should be retained in an officiating rank and not a "full-scale departmental enquiry" of the kind that triggers Article 311 protections.
  4. Application of precedent (Sukh Raj Bahadur): Applying the propositions from that case, the Court concluded the reversion did not amount to an order of punishment attracting Article 311 because:
    • There was no full-scale departmental enquiry involving charge-sheeting, appointed Enquiry Officer, or adversarial procedure before the order;
    • The order did not cast an aspersion on character or integrity in its form;
    • The administrative reports were confidential and aimed to assess suitability; such enquiries do not automatically engage Article 311.
  5. Effect on promotions and penal consequences: The Court acknowledged some adverse consequences (e.g., delay in promotion) but held that promotion is not a matter of right and that adverse consequences alone do not convert a reversion into punitive action attracting Article 311 unless the order also casts aspersions or is itself penal in character.
  6. Public Service Commission approval: The Court relied on the fact that the plaintiff's appointment was provisional and subject to PSC approval; the Commission refused approval when the case was placed before it, supporting the view that the reversion was in accordance with the terms of the provisional appointment.

On this basis the Court affirmed the District Judge's reasoning and findings on the central issue.

Holding and Implications

Holding: The Court dismissed the plaintiff's appeal and affirmed the decision of the District Judge that the reversion of the plaintiff from the officiating post of Executive Engineer to his substantive rank of Assistant Engineer was valid and did not amount to reduction in rank under Article 311 of the Constitution.

Implications:

  • Direct effect on the parties: The plaintiff's challenge to the reversion was rejected; the reversion order was held to be binding and lawful in the circumstances. The appeal was dismissed and the parties were left to bear their own costs.
  • On legal principle: The Court applied existing precedent (State of Punjab v. Sukh Raj Bahadur) to distinguish administrative assessments of suitability (including confidential reports and recommendations to recall an officiating officer) from a punitive departmental action that would attract Article 311 safeguards. The opinion does not purport to lay down a new precedent beyond applying those established principles to the facts of this case.
Show all summary ...

Bal Raj Tuli, J. - The plaintiff, who is a permanent servant of the Punjab State, filed a suit on the 21st of February, 1963, against the State of Punjab praying that a decree for declaration may be passed in his favour to the effect that the order dated nil of the Punjab Governemnt endoresed to him vide endorsement No. 21565-PH/EI, dated the 29th of August, 1962, from the Chief Engineer, Public Health Branch, P.W.D., Patiala, reverting and reducing him to the post and rank of Assistant Engineer and posting him as Assistant Research Officer from the post and rank of Executive Engineer is illegal, unconstitutional, ultra vires, without jurisdiction, mala fide, null and void, against the principles of natural justice and service rules, ineffective, inoperative and not binding on him and he continues to hold the post of Executive Engineer with effect from the 20th of August, 1962, and is entitled to all the rights, benefits, privileges and emoluments of the post of Executive Engineer with effect from the 20th of August, 1962, in the Public Health Branch, P.W.D., Punjab. This suit was decreed by Mohinder Kumar Bansal, Sub-Judge III Class, Patiala (C) on the 30th of May, 1964. The defendant filed an appeal against the decree in the Court of the District Judge, Patiala, which was accepted on the 18th of November, 1964, and the plaintiff's suit was dismissed with costs throughout. Feeling aggrieved from that decree the plaintiff has filed the present appeal in this Court. 2. According to the allegations in the plaint the plaintiff is a permanent servant of the Punjab State having a service of 26-1/2 years in Public Health Brnach on the date of suit. He was appointed as officiating Sub-Divisional Officer, P.W.D., in Pepsu on the 24th of November, 1955. Thereafter he appeared in the open competition before the Pepsu Public Service Commission on the 24th of January, 1956, and topped the merit list of 10 persons selected for 10 posts of temporary Assistant Engineers as per letter dated the 25th January, 1956, from the Chairman Public Service Commission, Pepsu, Patiala to the Government. Accordingly the plaintiff was offered appointment by the Pepsu Government as temporary Assistant Enginner by letter dated the 13th of February, 1956. After the merger of Pepsu and Punjab on the 1st of November, 1956, the plaintiff continued to serve as temporary Assistant Engineer in the new State of Punjab upto the end of December, 1958, and during this period the plaintiff performed his duties most efficiently, diligently and to the complete satisfaction of his higher authorities. He was approved by the Punjab State to proceed to U.S.A. for post-graduate studies in Public Health Engineering in 1959, and he was relieved from his duties on the 1st January, 1959. During his stay in U.S.A. the plaintiff qualified as Master of Science in Public Health Engineering (the highest qualifications) from the State University of Minnesota at his own expense and secured distinction. The plaintiff returned from the United States in March, 1961, and by order dated the 4th of April, 1961, (Exhibit P. 15) he was approved for being appointed as Executive Engineer on provincial basis in the scale of Rs. 625-40-1025/50-1275 pending final decision by the Punjab Public Service Commission and his services were placed at the dispoal of the General Manager and Secretary to Government, Punjab, Beas Project for appointment as Executive Engineer with immediate effect in the interest of Public Service. In pursuance of this order the plaintfiff reported for duty on the 6th of April, 1961, (Exhibit P. 16). He was, recommended for this post by the Chief Engineer, Punjab, P.W.D. Public Health Branch by his letter dated the 21st March, 1961 (Exhibit P. 44). 3. The Public Health Division for Beas Project at Talwara was created in August, 1961, and some of the field staff deputed to work under the plaintiff was found by him to be quite incapable, inefficient and untrustworthy about whom the plaintiff informed the higher authorities through several letters and personal contacts. He also requested the higher officers several times to transfer those members of the staff as they retarded the proper day-to-day working at the Project, but no action for their transfer was taken by the higher officers. In spite of the skeleton staff and various hurdles placed in his way, the plaintiff states that he managed "outstanding achievements" in all Engineering Public Health activities viz. (i) procured materials worth Rs. 30 lacs; (ii) surveyed, investigated, designed and drafted single-handed project estimates and consequently the detailed estimates to the tune of Rs. 110 lacs covering all the stations, and (iii) executed works to complete specifications worth Rs. 18 lacs within this short period of 15 months and thus completed the targets quite in time which is all on record. The plaintiff received orders dated the 18th of August, 1986, from the Director Construction, Talwara, to hand over charge as Executive Engineer to Shri Kartar Singh and to report back to his parent department i.e. Chief Engineer, Public Health Branch, Patiala, which the plaintiff complied with and handed over charge on the 20th of August, 1962, at Talwara, and submitted his joining report dated the 28th of August, 1962, as Executive Engineer to the Chief Engineer, Public Health Branch at Patiala. He, however, got Government Orders No. nil dated nil with the endorsement of the Chief Engineer, Public Health Branch, Patiala, dated the 20th of August, 1962, reverting him from the post and rank of Executive Engineer to that of Assistant Engineer with effect from the 20th August, 1962, and posting him as Assistant Research Officer in the Trade Waste and Effluent Division, Patiala. The plaintiff has challenged this order to be illegal, unconstitutional, ultra vires, without jurisdiction, null and void, mala fide, against the principles of natural justice and service rules, ineffective, inoperative and not binding on him for the reasons given below :- (a) That the impugned order dated nil tantamounts to his reduction in rank within the meaning of Article 311(2) of the Constitution as the said order has been passed by way of penalty and punishment against him. (b) That impugned order has been passed without any fault on his part and before reverting him to the post of Assistant Engineer and posting him as Assistant Research Officer, the provisions of Article 311(2) of the Constitution and other service rules have not been complied with. The plaintiff was not charge-sheeted and no explanation was called from him and no enquiry was held before imposing this punishment. He has not been afforded any reasonable opportunity of defending himself against the said punishment of reversion and reduction in rank and no show-cause notice was given to him. The punishment of reversion and reduction in rank has been imposed on him due to and founded on misconduct, inefficiency or some other disqualification, though the reasons for this punishment have not been disclosed to him. (c) That the impugned order of revision and reduction in rank of the plaintiff has affected him adversely and visited him with penal consequences, such as his pay and allowances have been forfeited, his chances of promotion have been postponed and stopped and many juniors to him have been promoted over his head ignoring his right and his seniority has been lost. (d) That the plaintiff has been reverted by pick and choose method, arbitrarily, capriciously, due to mala fides and victimization. There has been discrimination in reverting and deducting in rank when juniors to him have been promoted over his head and many juniors to him were allowed to retain their position as Executive Engineer which is against the provisions of Articles 14, 15 and 16 of the Constitution. (e) That the impugned order was endorsed on the 20th of August, 1962, and the plaintiff was informed of this order at Patiala on the 30th of August, 1962, but the order has been given retrospective effect from the 20th of August, 1962. The plaintiff has worked as Executive Engineer upto the 29th of August, 1962, but has been granted pay of Executive Engineer upto the 19th of August, 1962, so his pay has been forfeited from the 20th of August, 1962 to the 29th of August, 1962. 4. The plaintiff submitted representations against his reversion and reduction in rank to the Government through the Superintending Engineer, Public Health Branch P.W.D., (Central), Patiala, dated the 3rd September, 1962, which was rejected by the Government vide endorsement No. 741 dated the 31st December, 1962, of the Research Officer, Research Unit, Patiala. The plaintiff served a notice under Section 80, Civil Procedure Code, on the Punjab Government through the Chief Secretary on the 17th December, 1962, but received no reply thereto. He then filed the present suit for a decree for declaration as set out above. 5. The defendant, Punjab State, filed a written statement in which two preliminary objections were taken as under :- (i) That the matter involved in the suit is not justiciable. (ii) That the suit is barred by Order 2 Rule 2, Civil Procedure Code, as the plaintiff has failed to include his claim and relief in previous instituted suit, which is pending in Court `D'. 6. On merits it was admitted that the plaintiff had got 26-1/2 years service in the Public Health Branch in various capacities, he proceeded abroad at his own expense and was allowed leave of the kind due to him for the purpose. The obtaining of the decree of Master of Science from the University of Minnesota was also admitted. Most of the other allegations in the plaint were also admitted but it was asserted that reversion from an officiating rank to a lower officiating rank or substantive rank is not reduction in rank and that the promotion of the plaintiff was on the provisional basis which was nor approved by the Public Service Commission and hence the impugned order was quite legal, constitutional, within jurisdiction and according to service rules. It was also pleaded that as there was no reduction in rank, Article 311(2) of the Constitution and other service rules had no application. It was also pleaded that the plaintiff worked as an Executive Engineer upto the 20th of August, 1962 and under rules pay during the joining time order was admissible on the lower post only and that the representation of the plaintiff was considered and rejected by the Government of which the due information was given. 7. On the pleadings of the parties the following issues were framed by the learned trial Court :- (1) Whether the order dated nil of the Punjab Government endorsed under No. 2156-PH/E1, dated the 29th of August, 1962, is illegal, unconstitutional, ultra vires, without jurisdiction, mala fide, void, ineffective and against the principles of natural justice on the grounds mentioned in para 11 of the plaint ? O.P.P. (2) Whether reasonable opportunity as required by Article 311 of the Constitution of India was given to the plaintiff before passing the impugned order ? O.P.D. (3) Is the suit barred under Order 2 Rule 2, Civil Procedure Code ? O.P.D. (4) Whether the matter in dispute is not justiciable ? O.P.D. (5) Relief. 8. Issue Nos. 1 and 4 were decided in favour of the plaintiff and issue Nos. 2 and 3 against the defendants and as a result of his findings on Issue No. 1 the suit of the plaintiff for declaration was decreed by the learned trial Court on the 30th of May, 1964. The State of Punjab filed an appeal in the Court of the District Judge, Patiala, which was accepted on the 18th of November, 1964. Before the learned District Judge only issue No. 1 was argued and it was contended that the decision of the learned trial Court on that issue was wrong. After taking into consideration that evidence on the records the learned District Judge came to the conclusion that the plaintiff had been appointed as an Executive Engineer for being posted to Beas Project and not in his own department i.e. P.W.D. Health Department. His services were dispensed with by the administration to which he was sent on deputation and when he came back to his own department, he was put back in his proper place, i.e., the place which he held substantively before being promoted as Executive Engineer for being deputed to the Beas Project. He had no right to hold the post of Executive Engineer in Beas Project and when he was reverted back from that department to his own department he had to be put back as Sub-Divisional Officer as there was no post of an Executive Engineer lying vacant at the time of his reversion against which he could be absorbed. For this reason it was held that his reversion did not amount to reduction in rank within the meaning of Article 311(2) of the Constitution of India. It was further held that the plaintiff had been promoted provisionally and subject to the approval of the Public Service Commission to his appointment and admittedly no such approval had been received and thus the plaintiff had no right to hold the appointment, even if he had been promoted as Executive Engineer in his own department. The revision of the plaintiff from the post of Executive Engineer was held to be in accordance with the terms of his appointment, namely, that he was appointed provisionally and subject to his appointment being approved by the Public Service Commission. The approval of the Public Service Commission had not been received and the authority under which he was working was not satisfied with his work and, therefore, they refused to permit him to continue to work under them and sent him back to the present parent department. The order of his revision was held to be perfectly valid and not open to objection and that it was binding on the plaintiff. 9. Against the decree of the learned District Judge the present appeal has been filed by the plaintiff. 10. The learned counsel for the appellant has vehemently controverted the reasoning and the conclusions of the learned District Judge while deciding issue No. 1 in the suit. It has been contended that the order of the reversion has been passed by way of punishment. Penal consequences ensued from that order inasmuch as the appellant had not been allowed pay as Executive Engineer for 8 days of joining time and he had not been promoted after that reversion to-day although his juniors had been promoted. He was not given any charge-sheet, nor was his explanation called and no enquiry was held. The impugned order has, therefore, violated his fundamental right under Article 16 of the Constitution and he has been deprived of the safeguards guaranteed to him under Article 311(2) of the Constitution. It is also asserted that the post of Executive Engineer was available in the Public Health Department at the time when the plaintiff was reverted to that department on the 20th of August, 1962, inasmuch as Shri M.L. Prabhakar, who was junior to him, was officiating as Executive Engineer, Public Health Department at Amritsar. As regards the approval of the Public Service Commission, it is contended that it had not been sought by the department before he was reverted and, therefore, it cannot be said that he was reverted because the approval of the Public Service Commission had not been received. The Public Service Commission did not approve of his appointment in November, 1962, which was after his reversion and in view of the reports made by the Superintending Engineer or the General Manager of the Beas Project, which he had not been given an opportunity to explain or refute. The learned counsel has placed his reliance on a judgment of their Lordships of the Supreme Court in The State of Punjab and another v. Sukh Raj Bahadur, 1968 Service Law Reporter 701, in which the following propositions have been laid down for the application of Article 311 of the Constitution in the case of a temporary Government servant or a probationer :- "1. If there be a full-scale departmental enquiry envisaged by Article 311, i.e., an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article. 2. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. 3. The circumstances preceding or attendant on the order of termination of services have to be examined in each case, the motive behind it being immaterial. 4. If the order visits the public servant with any evil consequences or castes an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 5. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution." 11. Judged in the light of the principles laid down by their Lordships of the Supreme Court, the impugned order exhibit P.10 cannot be taken exception to by the petitioner. It is in an exceptionable form inasmuch as it only says that the appellant has been reverted from the officiating post of Executive Engineer to that of his substantive rank of an Assistant Engineer on release from the Beas Project. It does not cast any aspersion on the character or integrity of the appellant. The learned counsel for the appellant, however, submits that a copy of this order was forwarded to the General Manager, Beas Project Administration, Nangal Township, for information with reference to his confidential letter No. 1529-30/BP, dated the 8th August, 1962 and endorsement No. 13784-98-BPH-3821/60, dated the 20th August, 1962. The confidential letter of the General Manager, Beas Project Administration, dated the 8th August, 1962, is Exhibit P. 46 in which it is mentioned that certain complaints had been received against the appellant in respect of which reports were sent by the General Manager and on those reports the Governor of Punjab had passed the following order :- "It is observed that the action of Shri J.S. Ahluwalia, Executive Engineer, in approving the payment order is against the practices of the department, Governor desires that he should be warned not to commit such irregularities in future and that he should strictly act in accordance with the rules and practices of the Department." This warning was communicated to Shri Ahluwalia on the 23rd July, 1962. It was further stated that a special report on the work of the appellant had been called from Shri J.R. Tandon, Superintending Engineer, Talwara Civil Circle, and in the end it was stated that in view of the fact that the officer had acquired very bad reputation, he was no longer useful to the Beas Project Administration and might be replaced by a competent officer with reputation for integrity. A copy of the special report on the work of the appellant by Shri J.R. Tandon stated that - "He is technically sound and capable officer. He has prepared Project Estimates carefully for the execution of Public Health Works in connection with Talwara Township. During the last financial year he started from scratch and built up good stocks of materials. 2. But he lacks control over his subordinates. For the last three to four months, his S.D.Os. and S.Os., who are also on deputation like him, rebelled against his behaviour and treatment. Moreover there has been numerous complaints against his treatment and integrity. One such complaint has been entrusted to Vigilance Department, for investigation. The report from that Department is still awaited. In another case this officer has himself made a secured advance payment to one contractor while his S.D.O. was out on tour for a couple of days. I understand a warning is under issue for this action of the Executive Engineer. The usefulness and capacity of this officer, therefore, decreases." 12. It is evident that this special report was called in order to assess the suitability of the appellant for the post that he was holding and although he was stated to be efficient in his work, his overall performance was considered to be unsatisfactory and so it was opined that his usefulness and capacity had decreased. This report was in accordance with the rules of service and could not be made after notice. It was a confidential report and so was the letter of the General Manager, Beas Project Administration, dated the 8th August, 1962. This kind of enquiry in order to ascertain whether the appellant should be retained in his officiating rank does not attract the operation of Article 311 of the Constitution as held by their Lordships of the Supreme Court in the case of Sukh Raj Bahadur (supra). It was quite legitimate for the Beas Project Administration to make such a report because the appellant had been sent there on deputation. The recommendation of that administration for his recall cannot, therefore, be objected to. On his return to the parent department, he was appointed to his substantive rank. His grievance is that his junior Shri M.L. Prabhakar was then working as officiating Executive Engineer and he should have been given that post on reversion to this parent department. It may be remembered that in his officiating rank as Executive Engineer, he was found to be unsuitable primarily on the ground that he had no hold on his subordinates. His officiating appointment for the purpose of deputation was subject to the approval of Public Service Commission and when his case was referred to the Public Service Commission for approval, the Commission refused to give its approval. It cannot, therefore, be said that his reversion to the substantive rank of an Assistant Engineer amounted to reduction in rank within the meaning of Article 311 of the Constitution. 13. It is no doubt true that the order has led to some penal consequences in the sense that the appellant has not been promoted as Executive Engineer, thereafter, but promotion is not a matter of right of any public servant. The authorities have to judge the suitability of a particular officer for a higher rank to which he is to be promoted. The only right, a public servant has, is to be considered for the higher post. The impugned order does not debar him from promotion, nor does it cast any aspersion on his character and integrity and, therefore, cannot be said to be bad in law. 14. For the reasons given above, I affirm the decision of the learned District Judge on issue No. 1 and find no merit in this appeal, which is accordingly dismissed. In the circumstances of the case, however, I leave the parties to bear their own costs. Appeal dismissed.