H.R Sodhi, J.:— The petitioners in this writ petition is a member of the Indian Police Service and is borne on the cadre of the Punjab State. Before the merger of Patiala & East Punjab States Union with the erstwhile State of Punjab, was a member of the Papsu Police Service. On the 17th December, 1962 he was promoted as Superintendent of Police, Selection Grade, retrospectively in a permanent vacancy with effect from 20th of April 1960. By an order passed on 19th of January 1963 he was promoted to officiate as Deputy Commandant General, Punjab Home Guards, with effect from 17th of December, 1962 on which date the said post was deemed to have been created. The status of this post was made equivalent to that of a cadre post in the senior scale in the Indian Police Service carrying a salary of Rs. 1600-100-1800 per mensem. The petitioner continued to hold this status and was actually appointed as an Additional Deputy Inspector General of Police, PAP, on 9th of August 1965. He was then selected on 28th of January 1966 to get training at the National Defence College, New Delhi. While the petitioner was undergoing training in the Defence College, the State Government passed the impugned orders on 28th October, 1966, (Annexures VIII and IX) whereby the original orders for promotion passed as early as 17th of December, 1962 and 19th of January 1963. Annexures ‘I’ and ‘II’ stood cancelled with a direction that the petitioner would get no arrears of pay on account of these promotions to the selection grade and afterwards to a higher post nor was the State to claim the amount paid in excess to him. These orders were to take effect retrospectively from 20th April, 1960 from which date the petitioner for the first time got promotion as an officiating (Selection Grade) Superintendent of Police in a permanent vacancy. The validity of the orders was challenged in a writ petition filed in the High Court of Delhi on 25th of November, 1966. The petitioner seemed to believe that since the order was passed by the President Page: 565of India during the President's rule in the State of Punjab and Union of India was a respondent, the writ petition lay in that High Court. Shri Shamsher Singh, one of the I.P.S officers only was impleaded as respondent in addition to the President of India, the Union of India and the State of Punjab. This writ petition was later returned by the Delhi High Court on 4th of April, 1969 for presentation in this High Court and was admitted by the Motion Bench on 2nd of May 1969. It was ordered to be heard early. Respondents 5 to 17 are some of the members of the Indian Police Service who were impleaded later under an order of this Court passed on 29th of May, 1969.

2. Learned counsel for the petitioner has raised important question of law including the legality of the order of reversion passed retrospectively which, according to him, is penal in nature necessitating compliance with the provisions of Article 311 of the Constitution.

3. Some preliminary objections have also been raised by Mr. R.L Aggarwal, learned counsel for one of the respondents, but I do not propose to give any decision with regard to them.

4. After hearing learned counsel for the parties, I am of the view that it is a fit case where the assistance of another Judge or Judges for the hearing and disposal of the writ petition, as envisaged in Rule 1(b) of Chapter 3-B, of the High Court Rules and Orders, Volume V, is necessary. Apart from the questions of law arising in the case, judgment in writ petition which has already been pending, though not in this Court, for almost 3 years is appealable under Clause X of the Letters Patent and that may cause further dalay in the final adjudication of the rights of the parties in the matter of seniority and promotion. The papers of this case should, therefore, be laid before my Lord the Chief Justice for his sanction for constituting a larger Bench. Since the case is an old one, it is suggested that subject to the orders of the Hon'ble the Chief Justice, the writ petition be ordered to be fixed for hearing within next three weeks or as early as possible.

October, 12, 1970.Sd/- H.R Sodhi, JUDGE

JUDGMENT OF THE DIVISION BENCH

H.R Sodhi, J.:— This writ petition has been filed by Ranjit Singh who is a member of the Indian Police Service serving in the State of Punjab. He was originally a member of the Pepsu Police Service and after the merger of the erstwhile States of Pepsu and Punjab, he was promoted on 17th December, 1962, as an officiating Superintendent of Police, Selection Grade, by an order Annexure I. This promotion which was made against a permanent vacancy was to take effect retrospectively from 20th April, 1960, Some new posts were later created in the Home Defence/Punjab Home Guards Department by an order dated 19th January, 1963 (Annexure II), and the petitioner was appointed as Deputy Commandant General. This new post was equated in status and responsibility with cadre posts for the purposes of Indian Police Service (Pay Rules), 1965, carrying a salary in the grade of Rs. 1600-100-1800. The post was to continue for a period of one year or till the emergency created by the Chinese aggression was over, whichever was earlier. He was then posted as officiating Additional Deputy Inspector General of Police, Punjab Armed Police, at Jullundur Cantt, by an order dated 2nd August, 1965, Annexure IV, where he assumed charge on 9th August, 1965. In July, 1964, there came fall of the ministry headed by late-S. Partap Singh Kairon, and a new ministry was formed in August, 1964.

5. The State Government constituted on 12th August, 1964, as pet notification, Annexure ‘X’ and Establishment Board (described hereinafter as the Board) comprised of three Financial Commissioners, Chief Secretary and the Inspector-General of Police, to look into the cases of undeserved promotions supersessions or victimisations during the regime of late Kairon from 5th July, 1959 to 5th July, 1964. Some of the functions of the Board as stated in the aforesaid notification were as under:—

(1) To advice Government on representations in cases of undeserved supersession, demotion, reversion, or victimisation, and in cases in which special posts and grades were created or special powers and allowances were sanctioned for individual officers without justification, during the last five years.

(2) To examine on representation, or on its own initiative, the annual confidential reports recorded in the last five years in respect of officers holding key posts (excluding the members of the Board) in cases in which these reports give a biased assesment of the worth and capacity of these officers, and to forward to the Government its considered opinion about them for suitable notes being recorded on their Personal Files.

(3) To advise Government on all cases of cadre posts manned by non-cadre officers.

(4) To draw up a list of key posts and prescribed for each post the normal tenure as well as to advise Government on the suitability of officers for such key posts.

(10) ………

6. When the Board had been set up, a circular letter dated 19th August, 1964, Annexure XI, was issued by its Secretary to all administrative Secretaries inviting representations from individual Government employees against:

“(a) orders passed by the Government during the period 5-7-1959 to 5-7-1964, in

(i) cases involving undeserved supersession, demotion, reversion or victimisation, and

(ii) cases where special posts and grades were created or special powers and allowances were sanctioned for individual officers without justification; and

(b) remarks made during the aforesaid period in the confidential reports of officers who held or are holding key posts (excepting members of the Board), where these reports give a biased assessment of the worth and capacity of the officers.”

7. Key posts, as referred to in clause (b) above, were intended to include Superintended of Police, Assistant Inspectors-General of Police, and Deputy Inspectors-General of Police, as well. A dead-line for the receipts of these representations was fixed as 15 September, 1964, and any representation received thereafter was not to be considered. The Inspector General of Police vide his endorsement dated 20th August, 1964, forwarded a copy of the circular letter to all Heads of Police Offices in Punjab for Information and necessary action, making it clear that the representions referred to in the notification, would lie only in cases where orders were passed by the Government and not by any lesser authority. It is a common ground before us that in pursuance of the afore said open and general invitation, representations were made by respondents 5 to 17, against the promotion given to the petitioner by two orders, one of Page: 567which was of 17th December, 1962, appointing him as Selection Grade Superintendent of Police, and the other of 19th January, 1963, further promoting him to the grade and status of a Deputy Inspector General of Police. It seems to have been represented that the petitioner had been shown favours became of his relationship with late S. Partap Singh Kairon whose son, Shri Surinder Singh Kairon, was married to the wife's sister of the petitioner and thus the successive promotion of the petitioner were really an act of nepotism and not based on merit. It was asserted that the previous record of the petitioner which had been classified as outstanding while giving promotions to him was really not so and that he was at times found unable to deal with situations relating to law and order. A wrong criterion for promotions to selection post was alleged to have been followed for ulterior reasons both to give undue preference to the petitioner and to wreak vengeance against some of the respondents with whom late S. Partap Singh Kairon was not happy. The Board, after looking into the complaints made recommendations to the State Goverment which led to the two impugned orders, Annexures VIII and IX, both passed on 28th October, 1966. The order, Annexure VIII, was in supersession of four orders of the Governor of Punjab, one passed on 2nd July 1963, the other two on 3rd October, 1964 and one on 17th December, 1962. New promotions in the Selection Grade of the Indian Police Service in officiating capacity were ordered with effect from the date noted against each of the officers. The effect of supersession of the earlier orders was that the petitioner no longer stood promoted against the permanent posts of Selection Grade Superintendent of Police with effect from 20th April, 1960, and instead he was to be treated as having been promoted to that post first from 10th January' 1964 to 28th February, 1964, and then from 27th September, 1965, to 15th August, 1966, and onwards. In other words the petitioner during the period in which he actually held the post of Selection Grade Superintendent of Police and drew salary for that post was deemed to have been working only in the time scale, except for the periods referred to above, namely, 10th January, 1964 to 28th February, 1964, and 27th September, 1965 to 15th August, 1966, and onwards when he could get promotion in the normal course according to his seniority. It may be mentioned that when these Impugned orders were passed, the petitioner had gone for training at the National Defence College, New Delhi, for which he was selected by the new Ministry on 28th January, 1966. While wiping out the Service of the petitioner as Selection Grade Superintendent of Police and promoting the respondents retrospectively against different posts, it was directed by the President that the officers concerned who had been notionally promoted would not get arrears of pay on account of these promotions to the Selection Grade and that the excess pay already drawn shall be waived. The petitioner was one of those who could be said to have drawn excess pay since he was held by the Board to be not entitled to the post of Selection Grade Superitendent of Police, but he was, by virtue of the aforesaid direction, allowed to retain the excess amount of salary already drawn by him. The other impugned order, Annexure IX, superseded the orders of the Governor of Punjab, promoting Superintendents of Police to officiate as Deputy Inspectors General of Police during the period from 1st December, 1962 up to date, and the petitioners had been promoted as Deputy Inspector General during this period. Again the promotion of the petitioner as Deputy Inspector General was considered to be equally undeserved and his service as Deputy Inspector General was completely effaced by giving promotion to some of the respondents retrospectively. It is clear from the impugned order that the period for which the petitioner officiated in the higher rank of Deputy Inspector General would not be taken into account towards increments while fixing pay Page: 568whenever he would be appointed, if at all, as Deputy Inspector General. As regads the salary drawn in the higher rank of Deputy Inspecter General it was directed that excess pay would not be recovered from the petitioner who was being reverted from the officiating post of a Deputy Inspector General.

8. The petitioner filed a writ petition in Delhi High Court on 25th November, 1966, impugning the validity of these two orders as a result thereof be lad been reverted to the post of a time scale Superintended of Police and his previous service in the higher rank of an officiating Selection Grade Superintendent of Police and officiating Deputy Inspector-General washed out so as not to be available to him to press in future any claim for higher post on that basis. The petition was filed at Delhi presumably because the petitioner believed that the jurisdiction to decide the writ petition lay with the High Court there. Written statements were filed in that Court and it was on 4th April, 1969 that the petition was returned to the petitioner for representation to this Court. It was admittedly the Motion Bench on 2nd May, 1969, and it was afterwards that respondent 5 to 17 were implead as respondents under an order passed on 29th May, 1969. These respondents were added because of the preliminary objections that had been raised in the returns filed at Delhi.

9. When the writ petition came up before me on October 12, 1970, I requested my Lord the Chief Justice that in view of the question of law arising in the case and also because it was an old one and that an appeal under clause X of the Letters Patent would lie as a matter of right thereby causing further delay, it was preferable that the same is disposed of by a larger Bench. It is in these circumstances that the case is before us.

10. The following points have been canvassed before us for acceptance by Mr. J.N Kaushal, learned counsel for the petitioner:—

(1) That the impugned orders were passed in violation of the rule of natural justice inasmuch as no hearing was given to the petitioner before he was reverted from his officiating post as Deputy Inspector-General and Selection Grade Superintendent to the post of time scale Superintendent. It is urged that the reversion was not just of a routine type for administrative reasons as it entailed civil consequences necessitating an opportunity to the petitioner being afforded to show cause against the action proposed to be taken against him.

(2) That reversion in the circumstances of the present case was by way of punishment and that the punishment of reduction in rank has been imposed without proper inquiry as envisaged in Article 311(2) of the Constitution, Reference in this connection is made to rule 3 of the All India Services (Discipline & Appeal) Rules, 1953 (referred to hereinafter as the Rules), which provides the various types of penalties amongst which is included reduction to a lower post or time scale.

(3) That the State Government had no jurisdiction to review its earlier orders by which the petitioner was promoted to higher posts by selection be the same Government though it was at that time headed by a different Chief Minister.

(4) That the representation or memorials which led to reversion could not be entertained by the State Government as they lay only to the President of India under the Rules.

(5) That respondent 4 who is Joint Secretary to the Government and had filed an affidavit in Civil Writ No. 2837 of 1965 filed by shri Piare Lal supported the orders Annexures I and II by Page: 569which the petitioner was promoted and it does not lie now in the mouth of the same respondent acting on behalf of the State to take a different stand and disown the position taken up by him earlier to get the writ petition of Shri Piare Lal dismissed. The submission is that the Government cannot indeed be permitted to approbate and reprobate.

(6) That the impugned orders were discriminatory and mala fide inasmuch as Mr. J.C Vachher who was promoted along with the petitioner was not reverted by the State Government.

It may be stated at this stage that the contention was not actually pressed by the learned counsel.

11. In support of his first contention, namely, violation of rules of natural justice, the learned counsel has relied upon a judgment of their Lordships of the Supreme Court in State of Orissa v. Dr. (Miss) Binapani Dei, A.I.R 1967 S.C 1269, and this decision is in fact the main anchor on which the contention rests. The undermentioned cases have also been cited in support of the argument and in all of them reference is made to Binapani Dei's case:—

R. Musallapa Reddy v. The State of Andhra Pradesh, 1969 S.L.R 42; Ajeeb Singh Bakshi v. State of Haryana, 1969 S.L.R 400; S. Hardayal Singh, Assistant Excise and Taxation Officer. Ludhiana v. State of Punjab, 1970 S.L.R 903; Civil writ 1978 of 1969 (Shri Paras Ram Kumar v. The State of Punjab), decide by a Single Judge of this Court on 13th March, 1970; State of U.P v. Virendra Nath Srivastava, 1970 S.L.R 48: Union of India v. Madan Lal, 1971 S.L.R 51; and Wazir Chand v. Union of India, 1967 S.L.R 588.

12. Facts in Binapani Dei's case are quite distinguishable and decision of that case cannot be pressed into service to bring in the applicability of the rules of natural justice in case of reversion of a Government servant from an officiating post no matter that such reversion is the result of acceptance of some representations. As a matter of fact, except Hardayal Singh's case and Paras Ram Kumar's case, none other is in point. These two cases, based as they are on Binapani Dei's case have, in our opinion as stated hereinafter extended the rules of natural justice to situations where, with all respect to the learned Judges deciding them such rules cannot be made applicable. Dr. Miss Binapani Dei at the time of her appointment to Government service declared that her date of birth was April 10, 1910. In the normal course she would have been due for superannuation on the completion of the age of 55 years on April 10, 1965, and the benefit of the age of a superannuation having been raised from 55 years to 58 years, she could continue in service even for another three years. Some annonymous complaint was made to the Government that Miss Binapani Dei had given a wrong date of her birth which was actually April 4, 1907, and not April 10, 1910. The State Government, without affording an opportunity to her to furnish proof in support of her claim about the date of her birth, declared that she should be deemed to have retired from April 16, 1962, implying that the date of birth as given by her was not correct. She moved the High Court of Orissa under Articles 226 and 227 of the Constitution and several pleas were advanced on her behalf. The High Court held that the order of the State Government declaring Binapani Dei to have been superannuated on April 16, 1962, amounted to compulsory retirement before she had attained the age of superannuation and that the same could not be allowed to be done Page: 570without giving a reasonable opportunity to her to show cause against the action proposed to be taken against her. The order of the State Government was consequently quashed. An appeal by the State of Orissa was dismissed by the Supreme Court. It was in this context that their Lordships observed that:

“The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences… … … … … … … …

The State has undoubtedly authority to compulsorily retire a public servant who is superannuated. But when that person disputes the claim he must be informed of the case of the State and the evidence in support thereof and he must have a fair opportunity of meeting that case before a decision adverse to him is taken.”

13. An inquiry by the State Government with regard to the date of birth of Binapani Dei was in these circumstances held to be contrary to the basic concept of justice and an observation made that:—

“It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence.”

14. Here Binapani Dei had a legal right to continue to hold the post till the age of superannuation but she, without being given an opportunity to get the disputed question of fact about her age settled, by adducing evidence or furnishing any other proof, was removed from service on the ground that her date of birth was not what she had stated at the time of entry into service. In these circumstances, it was, therefore, held that the order of pre-mature removal involved civil consequences. The act of the State was obviously wrongful and grave a right to Binapani Dei to sue in a civil Court for the infringement of her legal right to continue to hold her post till superannuation and no ex-parte adjudication could be made in respect of her date of birth it does not appear to have been laid down by their Lordships that no matter whether there was infringement of an enforceable legal right or not, whenever there is reduction in rank or loss of seniority, emoluments or the like resulting even from the exercise of the lawful authority, the affected Government servant always gets under the rules of natural justice, a right to be afforded an opportunity to be heard before an order relating to any of such matters is passed.

15. Binapani Dei's case was considered by the Supreme Court itself in another case reported as Union of India v. Col. J.N Sinha, 1970 SLR 748. It is relevant to quote in extenso the observations made by Hedge, J. in this case when making a reference to Binapani Dei's case Shah, J., who delivered the judgment in Binapani's case on behalf of the Court was a member of the Bench in this case as well:—

“In Binapani Dei's case (supra), Dr. Binapani Dei's date of birth was refixed by the Government without giving her proper opportunity to show that enquiry officer's report was not correct. It is under those circumstances that this Court held that the order refixing the date of birth was vitiated for failure to comply with the principles of natural justices. Therein the Page: 571impugned order took away some of the existing rights of the petitioner.”

16. In J.N Sinha's case, compulsory retirement was held to involve no civil consequences it being laid down that “such a retirement does not take away any of the existing rights that have accrued to the government servant because of his past service”. Rule 56(j) of the Fundamental Rules which gives an appropriate authority a right to retire a Government servant if, in its opinion, it is in public interest to do so was being interpreted. The rule was held to confer an absolute power upon the competent authority and, as observed by their Lordships, if that authority bona fide forms an opinion, the correctness of that opinion could not be challenged before Courts. A grievance was made by Sinha that no opportunity was given to him to show cause against his compulsory retirement and this amounted to contravention of the principles of natural justice. The High Court accepted the contention but it was repelled by the Supreme Court on appeal by the Union of India.

17. In Musallapa Reddys's case (supra), what happened was that be and been promoted to an acting appointment which was described by the State as a temporary one. Whatever be the nature of that appointment, an appeal was preferred against it by one Mr. C.V Dikshitulu under the rules governing the service and which conferred such a right of appeal. Musallapa Reddy was not afforded an opportunity of being heard and an order was passed reverting him from the higher post. Rights of the parties inter se were thus determined on appeal bul without hearing one of them. A Division Bench of Andhra Pradesh High Court holding the functions of the appellate authority to be quasi-judicial and relying on the observations made by Shah, J. in Binapani Dei's case struck down the order of the State Government reverting the petitioner on the ground that the order prejudicial to Musallapa Reddy determining his rights could not be passed by the appellate authority without giving him a hearing.

18. Decision in Ajib Singh Bakshi's case (supra) decided by Tull, J. must be confined to its own facts. Ajeeb Singh's name was brought on the list of candidates for the post of Assistant Superintendent (Revenue and Records) and he was appointed as an officiating Assistant Superintendent (Revenue and Records), Deputy Commissioner's Office, Hissar, by an order dated 4th May, 1961. Commissioner of the Division concerned subsequently prescribed a minimum experience as a condition precedent for holding the higher post as a result whereof Ajeeb Singh's name was dropped from the list of approved candidates and he was reverted from the post of an Assistant Superintendent. He filed a writ petition in this Court and before the same could be disposed of, the Government reconsidered the matter and decided that Ajeeb Singh should be restored to his original position. Ajeeb Singh withdrew the writ petition on the basis of the orders made by the State Government. After reorganisation of the State of Punjab under the Punjab Reorganisation Act, 1966, Ajeeb Singh was allocated to Haryana and he continued to work there as Assistant Superintendent in the office of the Deputy Commissioner. The orders promoting Ajeeb Singh as an Assistant Superintendent were afterwards cancelled and be was held to be ineligible for promotion because he did not possess the minimum experience as required. This had the effect of depriving the petitioner of his chances of promotion for all times to come though on the date of his appointment he was found eligible. It was in such circumstances that Tuli, J. took the view that Article 311 was violated as the order, though not passed by way of punishment, entailed penal consequences. Binapani Dei's case was also relied upon and it was held that civil rights acquired by Ajeeb Singh had been affected and the principles of natural justice Page: 572required that he should have been given a notice of the proposed order to enable him to point out that the interpretation sought to be placed on various Government instructions and the rules was not correct. The hall mark of ineligibility depriving the petitioner of future chances of promotion was writ large in that case. When Article 311(2) of the Constitution was held to apply, an observation about, the applicability of the rules of natural justice was, therefore, more in the nature of an obiter.

19. Hardayal Singh's case (supra) too was decided by Tuli, J. The facts of that case are somewhat nearer to the one before us. Hardayal Singh was promoted as assistant Excise and Taxation Officer, but reverted afterwards on acceptance of representation of one of the respondents. Hardayal Singh was not heard but reverted from officiating post. The learned Judge was of the view that a reversion from officiating post resulted in loss of emoluments and continuous length of service and seniority in higher rank. Such an order was held to involve civil consequences and relying mainly in Binapani Dei's case the writ petition of Hardayal Singh was allowed and the order of his reversion quashed. Narula, J. took a similar view in Paras Ram Kumar's case (supra). Paras Ram Kumar was promoted to the post of an Assistant Accounts Officer against a temporary post. One Kashmira Singh who was a respondent in that case represented against the selection of Paras Ram Kumar and the State Government without issuing any notice to the latter directed his reversion to the substantive post. A writ petition filed by Paras Ram Kumar was allowed by the learned Judge and the impugned order quashed. Reliance was placed on Benapani Dei's case.

20. In Virendra Nath Srivastra's case (supra), a dam constructed under his supervision gave way on account of heavy rains causing considerable loss to life and property. There was a great furore in press and the public and the Minister of Irrigation and Power Department visited the spot. He made some inquiries from Virender Nath who was then officiating as Superintending Engineer and also from another who was an officiating Engineer. He and the Executive Engineer both were reverted immediately without assigning any reason, although a number of officers junior to them were allowed to continue. The writ petition filed by Virendra Natt Srivastava and another was allowed by the Allahabad High Court which was of the view that because of the reversion, his future chances of promotion had been denied to him or at least postponed for some time and that all such orders being quasi judicial in nature, it was necessary to have afforded an opportunity to Virendra Nath Srivastava to show cause against the proposed action. The order was also held to cast stigma and aspersions involving grave evil consequence to the aggrieved officers and these, according to the view taken by the Bench, amounted to infliction of punishment and thereby Article 311 was attracted. Some observations in Parshotam Lal Dhingra's case and Binapani Dei's case were relied upon in support of their view.

21. Madan Lal's case (supra) was one of a contest about seniority. After the merger of the erstwhile States of Punjab and Pepsu on 1st November, 1956, a tentative seniority list of the clerical staff of the Medical Institutions was circulated. Madan Lal submitted a representation that his seniority should be fixed amongst the Accountants from the date of his appointment in the parent State. His prayer was allowed and seniority fixed accordingly, as a result whereof his name appeared at a higher serial number. He was then promoted as a Head Clerk in 1964. Subsequently, some other clerks made representations to the Government of India and his seniority was changed without hearing him. Following Binapani Dei's case, a Division Bench of this Court upheld the judgment Page: 573of the learned single Judge and dismissed the appeal of the Union of India. It was held that fixing of seniority of a government servant of his dis-advantage was bound to seriously affect his future chances to promotion in service and it was, therefore, necessary to afford him an opportunity of being heard before his seniority was changed.

22. Wazir Chandra's case (supra) has also been relied upon in support of the proposition that rules of natural justice are applicable. Facts in that case do not even remotely give an assistance in answering the proposition before us Wazir Chand, a railway employee, had been at one stage paid arrears of salary and later ??? was decided by the department that he was not entitled to such arrears. A recovery with retrospective effect was ordered on the ground that a benefit had been wrongly given to him, but Wazir Chand was not afforded any opportunity to be heard. There was involved a disputed question of fact as to whether on a certain crucial date Wazir Chand had worked as a luggage guard or not. It was impossible to resolve such a controversy without hearing the person affected thereby and it was in such a situation that Narula, J. held that the ex-parte order of recovery and re-fixation of salary of Wazir Chand violated the rules of natural justice.

23. Mr. Mela Ram Sharma, learned Deputy Advocate General, strenuously urged that the State Government in the exercise of its executive power could revoke its decisions if it believed them to be incorrect and that a public servant, who has taken undue benefit under a wrong order gets no right to be heard if the Government proposes to undo the wrong, no matter even if the wrong is being remedied as a result of representations made in this behalf. Reliance was placed by the Deputy Advocate-General on a Full Bench decision of Patna High Court reported as S.A.F Abbas v. State of Bihar, A.I.R 1970 Patna 397. He invited out attention to some observations of their Lordships of the Supreme Court in J.N Sinha's case as well in which reference was made to Binapani Dei's case. In S.A.F Abbas's case, there was a dispute about seniority between two classes of members of the Administrative Service who came from different sources of recruitment. One class was comprised of the writ petitioners who were initially recruited to the Executive Branch of the Bihar Civil Service but were subsequently appointed to the Indian Administrative Service by promotion and the other consisted of direct recruits who joined service as a result of competitive examination held in terms of the All India Services Act, 1951, Seniority of these officers is required to be fixed in accordance with the Indian Administrative Service (Regulation of Seniority) Rules, 1954, which regulate seniority not only amongst the direct recruits inter se and the promoted officers inter se but also lays down the criteria for determining the relative ??? between officers recruited to the Service as a result of competitive examination and officers appointed by promotion from the State Civil Service. On a recommendation of the State Government which was accepted by the Government of India promoted officers were given seniority over direct recruits but representations were later made by direct recruits and Government of India changed its earlier decision holding on the basis of those representations that its previous order was incorrect and that the direct recruits should be held to be seniority the promoted officers with the result that seniority amongst the officers was then accordingly reshuffled. On a writ petition filed by the promo-tees to get the subsequent order of the Central Government quashed, one of the arguments raised was that decision had been taken by the Government without hearing the writ petitioners and it amounted to violation of the principles of natural justice.

24. Mr. C.K Daphtary representing one of the writ petitioners relied in this connection on a decision of the Supreme Court reported as Union Of India v. T.R Varma , A.I.R 1957 S.C 882 In T.R Varma's case validity of the procedure adopted by the inquiry officer was being challenged and it was observed in that context by their Lordships of the Supreme Court that the law acquired that such tribunals should observe rule of natural justice in the conduct of the inquiry. Binapani Dei's case was referred to but in another context altogether and not as laying down a broad proposition that rules of natural justice apply simply because an administrative decision cancelling an earlier one is taken on a representation made by a person ??? by the previous order. One of the points raised before the Full Bench was that an administrative order could not be quashed. In repelling this contention, the quotation from the judgnunt of Shah, J. in Binapani Dei's case to which quotation reference has already been made above, was relied upon. The Central Government, in S.A.F Abbas's case had, without hearing the writ petitioners, upset its previous order about fixation of seniority when for at least nine years the promoters had enjoyed the benefit of that order and held a higher post. The writ petition was dismissed.

25. On examination of all the authorities cited at the bar and the arguments founded thereon by the learned counsel, we find it difficult to hold that any rule of natural justice stood violated when the petitioner on reversion from the officiating posts of Deputy Inspector-General and Selection Grade Superintendent of Police was not afforded an opportunity to be heard. Howsoever widely rules of natural justice may be extended in order to ensure a just decision by a quasi-judicial or administrative authority, the answer to the question whether any and, if so, which of them, applies to a particular case must depend on the scheme of the Act and a rule or any other provision of law under which relations of the parties inter se are regulated. As observed by their Lordships of the Supreme Court in A.K Kraipak v. Union of India, 1969 S.L.R 445, such rules “operate only in areas not covered by any law validly made and do not supplant the law of the land but supplement it”. The Constitution which is Supreme in this country, embodies in Article 310 thereof, the general rule that every person in the service of the Union or a State Government holds office at the pleasure of the President or the Governor as the case may be. Article 311 which is more is the nature of proviso to Article 310 places restrictions on the absolute power of the President or the Governor by providing protection to a public servant against an arbitrary dismissal, removal or reaction in rank. The scope of these limitations and the extent of protection afforded to a public servant have been considered by their Lordships in Parshotam Lal Dhingra v. Union Of India, AIR 1958 S.C 36, and it is wholly unnecessary to repeat here the entire enunciation of law on the subject: Suffice it to mention that the ultimate analysis, the conclusion reached by their Lordships, so far as it is relevant for the instant case, is that “it is only in those cases where the Government intends to inflict those three forms of punishments that the Government servant must be given a reasonable opportunity to show cause against the action proposed to be taken in regard to him. It follows, therefore, that if the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Article 311(2)” which protection includes an opportunity to be heard. It is, thus, not every reduction in rank or reversion that will be treated as a punishment but it is so only when a Government servant has a right to a post or to a rank either under Page: 575the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right 4nd cannot, therefore, by itself be a punishment’. It will thus be seen that a Government servant holding an officiating post does not have any protection unless it is found that the impugned reversion was directed by way of a punishment and it makes no difference whether the officiating charge was held against a substantive vacancy or otherwise. Civil consequences in a general sense, meaning thereby loss of rank, seniority and emoluments etc., are always incidental to a reversion as whoseover is ??? must lose salary and rank of the higher post and in some cases even seniority in that post. These are consequcnces certainly unpalatable for the Government servant and may be described as evil for him but it must be remembered that no one has a right to continue in an ??? appointment. The Constitution makers did not intend to give ??? against any such consequences and the only protection given is when the case falls fairly and squarely within the ??? of Article 311, namely, when the public servant has been reverted by way of punishment. To invoke the principles of natural justice for giving protection to a Government servant against dismissal, ??? or reduction in rank, in cases beyond those falling under Article 311, will be tantamount to introducing a new kind of protection not contemplated by the Constitution. There may be a statute or rule of service giving further protection but our attention has not been invited to any such provision of law. In our opinion, it will make no difference that reversion from an officiating rank but not penal in nature has resulted by acceptance of some representations of the person or persons adversely affected by the officiating promotion of another so long as the action of the authority reverting a public servant is bona fide. In other words, the complex of the order which is administrative in nature does not change because the competent authority has looked into the matter and reconsidered its decision on some representation made to this effect. The representations may be helpful to such an authority in assessing the correctness and legality of the administrative decision taken by it and which is sought to be reviewed. When there is no legal right to hold a post and it is so in case of a public servant officiating in that post, no question of interference with or infringement of his legal right arises requiring an opportunity to be afforded to him to be heard to show cause against the proposed action.

26. We are equally not able to persuade ourselves to agree with the learned counsel that the impugned orders of reversion have been passed by way of punishment or, in other words, they entail penal or evil consequences so as to bring the cases within the ambit of Article 311(2) of the Constitution thereby necessitating an inquiry as envisaged therein. The consequence said to have ensued are that,———

(1) The petitioner did not draw his salary for the period from 25-4-1965 to 9-8-1965. When he was on leave and that as a result of the impugned orders be can no longer claim that salarly though doe to him.

(2) Officiating service of four years as Deputy Inspector-General and two years as Selection Grade Superintendent of Police has been completely washed away as a result of the retrospectivity of the reversion order. It is urged that necessary consequence is that whenever future chances of promotion arise, the petitioner will not be able to claim, in the matter of fixation of his initial salary, credit for having officiated as Deputy Inpector-General and Selection Grade Superintendent. The contention, in other words, is that the petitioner who was drawing pay of Rs. 1400/-P.M with effect from 20th April, 1960 as Superintendent of Police, Selection Grade, and then Rs. 1800/- P.M with effect from 17th December, 1964, because of having been placed with effect from 1962 in the pay scale of Rs. 1600-100-1800 as Deputy Inspector-General, will now be entitled, whenever promoted again as Deputy Inspector-General only to the starting salary of that post without getting the benefit of any increments towards fixation of the Initial pay.

(3) Benefit of further early promotion to a still rank has been taken away from him since the impugned orders have the effect of making him junior to all those whom he had superseded by being selected to selection posts.

27. Impugned orders Annexutes VIII and IX do not purport to prohibit the petitioner from recovering any arrears of salary for the period of his leave and what seems to be intended to be conveyed is that those officers who have been promoted notionally with effect from previous dates will not lay any claim to salary for the higher posts for the period of their deemed promotion. At any rate, there is no assertion in the writ petition that any demand for pay for this period was made by the petitioner and the same was refused. As regards the grievance of the petitioner that when he is promoted next as Deputy Inspector General, he is bound to suffer a monetary loss inasmuch as he will not be able to get his initial salary fixed by getting benefit of previous service in the same rank. Our attention has not been invited to any specific rule giving such a right to the petitioner. Emphasis was laid by the learned counsel on Sub-rule (4) of rule 5 of the Indian Police Service (Pay) Rules 1954, which have been framed by the Central Government after consultation with the Government of the States concerned the post of a Deputy Inspector-General is a scheduled post salary for which, as fixed under these rules, is given in Scheduled III. It is a service to which time scale of ??? do not apply. Increments admissible to an officer are regulated in a ??? with the appropriate orders in force, before commencement of the ??? rules. No such orders have been brought to our notice and usually it is duty in a post on time scale that counts for increments in that scale. Be that as it may, it is not necessary to adjudicate on the question whether the petitioner could claim increments on account of having officiated as a Deputy Inspector-General, because of the view we are hereinafter taking under contention No. 3 about the true import of the orders passed by the State Government.

28. If it is once held that the State Government had the authority to rescind its earlier orders giving irregular promotions to undo the wrong done by it, the consequences that are necessarily incidential to and flow from the rectification of a mistake are that any undeserved benefit taken under the rescinded order or orders can be ofno avail. The petitioner has thus to stand in a queue to take his chances of promotion in accordance with any rules or instructions that may be applicable to his service. There is equally no force in the argument that further promotion of the petitioner to Page: 577a higher rack is affected by the impugned orders or that any officer junior to him has been made senior. No right could indeed arise from an ??? appointment to a higher post and the petitioner on reversion therefrom was only relegated to his original position in the Service which he held before being selected to that post. No doubt, reduction in rank which includes reduction to a lower post or time scale is provided as one of the penalties in rule 3 of the All India Services (Discipline and Appeal) Rules, 1955, but it is so only when it is imposed on a member of the service as such. Sub-rule (4) of the rule, however, takes reversion out of the category of penalties if it is brought about for administrative reasons. The expression “administrative reasons” is of wide amplitude and has been used in contrast to imposition of a penalty. The order of reversion passed in the instant case, cannot by any stigma be said to cast stigma on the petitioner or to affect his emoluments in the time scale or his future chances of promotion. There is not a word said which could even remotely create a suspicion about his efficiency and integrity. All that has been done by the Government is that the petitioner is no being allowed to take an advantage under what the Government thought to be a wrong and illegal order. He beyond doubt, continues to enjoy, after reversion, all the privileges of the service in the time scale with chances of promotion unimpaired and we are informed that he has since been promoted as Deputy Inspector General. We must, therefore, hold that reversion in such circumstances cannot be deemed to be by way of punishment involving any penal or evil consequences and, that Article 311 of the Constitution is not attracted.

29. The next contention on behalf of the petitioner that the State Government had no jurisdiction to review its earlier orders giving officiating promotion to the petitioner is without substance. Before the competency of the State Government in this behalf is examined, it is necessary to state a few more facts. The State Government had issued instructions/orders by letter dated 4/17th September, 1956 (Annexure R. 4.B), to all Heads of Departments in the State, including the Registrar of the High Court, in regard to procedure to be followed in selection of officers for promotion to higher post. The Government was being faced with the problem of recognising a principle which should guide the departments in making promotions by selection so that chances of abuse could be ruled out as far as possible. Emphasis was laid on merit but seniority and exprience were also to be given due weight. Ranking lists for the purpose of promotion were directed to be prepared and a system of considering candidate in a slab of three was introduced it being laid down that unless a junior among them happened to be of exceptional merit and suitability, the senior was to be selected. The other two not selected out of a slab of three were not to be kept out for all times and whenever the next vacancy arose, these two were to be included in another slab. Clause (b) of sub-para (iv) of para 2 of this letter is in the following terms:—

“While making selection for purposes of promotion to higher selection posts, out of the three suitable candidates for each post, seniority would be ignored only in favour of that junior candidates who is considered to be of exceptional merit. No selection Commitee need be formed or a written test or an interview need be introduced for the purposes of selection.”

30. These instructions/orders in respect of procedure to be followed for selection to higher posts were operative and in force, being applicable to officers of the State Civil Service Class I as well, when the petitioner was Page: 578selected Grade Superintendent of Police and afterwards as Deputy Inspector General. The Ministry of Home Affairs Government of India, had suggested to the State Governments some other principles for promotion to selection posts in its circular letter dated 5th October, 1955,—(Annexure VII), with the writ petition, wherein it was stated that promotion to the Selection Grade or a selection post was to be based primarily on merit and not seniority in the service. Replies were received from different States and on a consideration of those replies, another letter dated 16th May, 1957 (Annexure VI), was addressed to the State Government wherein the principle of maintaining a select was reiterated and officers were desired to be classified as “outstanding”, “very good” and “good” on the ??? of merit. The names of the officers on the list so prepared were suggested to be placed in the order of these there categories without disturbing their seniority which each category. The principles ??? in the Home Ministrie's letters were not, however, adopted by the State of Punjab as a matter of policy as they were not endorsed to different department as was done in case of the instructions of September, 1956 (Annexure R4.B). We have it in the affidavit of Mr. B. Narasimhan, Under Secretary to Government of India, Ministry of Home Affairs, that the principles suggested by the Home Ministry were not followed in Punjab when the case for promotion of I.A.S officers Selection Grade was considered in the year 1963. It is also deposed by this officer that the instructions Annexures VI and VII, had been issued without consulting the State Governments though it was usual for it to consult all the States before making any changes in the rules, regulations, policy, etc. regarding I.A.S/I.P.S officers. It is further stated by him that the instructions were intended to be conveyed for information only. Neither in any of the affidavits of the petitioner nor in the course of arguments, it could be pointed out if the instructions of the Home Ministry, Government of India, which were only by way of information, were ever applied in the case of any service before the petitioner was promoted as Selection Grade Superintendent of Police by an order dated 17th December, 1962, with retrospective effect and later as Deputy Inspector General of Police on 19th January, 1963, Inspector-General of Police, respondent 4, has stated in affidavit that but for once when the petitioner was given a Selection Grade, the Central Government instructions were never followed either before or afterwards in any department including the Police Department. The petitioner had superseded many officers ??? one Shri Piare Lal who filed Civil Writ No. 2837 of 1965, which was dismissed by a Division Bench of this Court on 9th August, 1967. In that case, the Deputy Secretary in the Ministry of Home Affairs New Delhi, filed an affidavit (Annexure R. 4.A) on behalf of the Union of India, and it was stated therein that the memorandum No. O.M No. 1/4/55-RPS, dated the 16th May, 1957, was primarily applicable to Central Services and that copies of the same had been sent to the State Governments for adoption if they so desired if was further deposed that there were no set principles and procedure for promotion to Selection Grade and super time scale posts in I.P.S and that every State adopts its on criteria for the purpose. According to the affidavit of the Inspector-General, which we have no reason to disbelieve, the Central Government instructions, Annexures VI and VII, were examined in the office of the Chief Secretary but filed as they were not intended to be followed. Again Government of India's letter dated 16th May, 1957, lays down the criteria or principles to be adopted for promotion to selection grade posts of the Central Services whereas the other circular dated 5th October, 1955, providies for a procedure to be adopted for determining the manner in which the seniority of two officers promoted on different dates is to be decided. Whatever be the trur scope Page: 579of the two letters read together, the fact remains that from the material on the record, the only irresistible conclusion is that in the State of Punjab at the time of selection of the petitioner as Selection Grade Superintendent of Police and later as Deputy Inspector-General, the Instructions/orders that prevailed and were intended to be acted upon were those as contained in the memorandum No. 9129-C-56/3964 dated 4/17th September, 1956, (Annexure R. 4.B). There is another way of looking at the matter. Recruitment and conditions of service of persons appointed to All India Service, which expression includes Indian Police Services, are regulated by the All India Services Act, 1951. The Central Government is empowered under section 3 of this Act to make rules after consultation with the Governments of the States concerned. Whatever be the position with regard to appointments to selections posts in All India Services before the rules called the All India Services (Conditions of Service-Residuary Matters) Rules, 1960, frame under section 3 of the All India Services Act, 1951, came into force rule 2(b) of these Rule provides that until regulations are made by the Central Government after consultation with the Governments of the States concerned, rules, regulation and orders applicable to officers of the State Civil Service Class I, shall apply to persons of the All India Service as well who are serving in connection With the affairs of that State, subject, of course, to such exceptions and modifications as the Central Government may, after ??? with the State Government concerned, by order in writing, make. Admittedly, the instructions Annexure R. 4.B, were applicable to State Civil Service Class, I, at the time the petitioner was promoted and they had a binding effect with regard to the Indian Police Service not only because they would regulate generally the exercise of executive authority of the State and be a check against its arbitrary use but also because by virtue of the Residuary Rules of 1960, they got statutory sanction. In the matter of selections to selection posts, different yard sticks cannot be applied at different times though it is the prerogative of the competent authority to make a selection bona fide in public interest and no one has a right to be appointed to such a post merely on the ground of his seniority. Under the instructions, Annexure R. 4.B. too, merit is the main criterion, but seniority could be ignored only in exceptional circumstances. The petitioner was selected without following the instructions and selection was supported by reference to Central Government circular letters, Annexures VI and VII, which had not been adopted by the State Government. Even the Central Government instructions require the preparation of a ranking list but no such list seems to have been prepared though the petitioner must have been held to be outstanding when he was selected. It was in such a situation that the State Government reviewed its earlier decision giving officiating Selection Grade post and higher post as D.I.G to the petittoner the appointment of the petitioner to a higher post was, therefore, directly in contravention of insiructions Annexure R. 4.B and manifestly irregular. When the petitioner was reverted, selections were made according to the instructions as contained in Annexure R. 4.B. It is not the case of the State Government, respondent, that selection of the petitioner by orders Annexures I and II was actuated by any mala fide though private respondents have, in their returns made averments alleging mala fide against the then Chief Minister late S. Partap Singh Kairon. The petitioner was selected as early as the year 1962 and none of the respondents ever moved against his selection till the Board was set up. Moreover, except for their bald assertions, there is no material on the record to come to a conclusion that the promotions of the petitioner as Selection Grade Superintendent of Police and as Deputy Inspector-General in the regime of late S. Partap Singh Kairon, were actuated by any mala fide.

31. The sole question that arises for determination, therefore, is whether in such circumstances when the Government in its administrative capacity did not act on its instructions, non-compliance with which caused hardship to some officers senior to the petitioner, it was open to it to have afterwards its reviewed earlier orders in order to undo what it considered to be injustice and revert petitioner from a higher officiating post to a time scale post in pursuance of that cause. We have no manner of doubt that the State Government acted within the scope of its authority in recalling its previous orders bared on the adoption of the criteria in the matter of selection posts in the Indian Police Service which criteria really speaking was not applicable at all. No doubt, decision to promote the petitioner cannot be held to be based on extraneous consideration, but it was certainly incorrect leading to irregular promotions as the time honoured instructions/orders as contained in Annexure R. 4.B, laying down principles for such selections, were abruptly brushed aside and altogether a new years stick applied which was not adhered to even thereafter. It was palpably an erroneous administrative decision which affected several senior officers, and there is no rule of law which debars a Government, while acting administratively, from remedying the wrong done by itself. It was the duty of the Government to have followed its own instructions as issued per letter dated 4/17th September, 1956 (Annexure R. 4.B). Even the principles as stated in the Government of India's memoranda, Annexures VI and VII, were not adopted in their entirety nor the selection of the petitioner made strictly in accordance therewith. Every Administrative Authority has an inherent right to rectify its own mistakes unless there is some specific provision of law which prohibits such a course. An officer holding an officiating post has no vested right to be heard or to ??? that since he had obtained some benefit under a wrong decision made by a departmental authority, that decision be not rectified as it would result in the loss of that benefit to him. A Full Bench of this Court has held in Sunder Lal v. State of Punjab, 1970 S.L.R 59, that where the Government has taken a decision which later turns out to be not correct, it could not be said that the mistake must be allowed to be perpetuated and that the Government has no power to rectify that mistake even after the same is discovered. It has been further observed therein that if consequent upon the correction of the mistake an officer is reduced in rank, such reduction does not per se attract the applicability of Article 311 of the Constitution Reduction in such a case has further been held to be of a purely routine administrative type. It was a case where the writ petitioners were confirmed as early as 1st February, 1949, in certain posts because of an interpretation of some war service rules having been at that time given in their favour. The controversy about the correct interpretation was going on till the Government finally realised that it had ??? the rules and erroneously given benefit thereunder to the writ petitioners. The benefits so given were consequently with drawn and this led to the filing of a writ petition which was dismissed by majority judgment. The subsequent reconfirmations of the employees already confirmed with of the incidental revision in seniority were thus sub-stained Similar view was taken by a Full Bench of the Patna High Court in S.A.F Abbas's case (supra). A few of the observations in this regard may be quoted hereunder with advantage—

“In a matter of administration, it is open to the departmental authority to pass any suitable order, if materials be on record for assessing the merit of claim or claims of the officer or officers concerned. If, however, any officer feels aggrieved by such an order, it is open to him to put in a representation for reconsideration of the decision and it can well be taken as established Page: 581that if the authority taking the decision is satisfied that there is substance in the grievance made by the officer adversely affected by that order, the decision must be altered and justice done between the parties.

As an abstract question of administrative policy, however, it is difficult to uphold the contention that if a decision has been arrived at by the Government on the administrative side, it cannot be altered if the Government is satisfied that the decision was wrong.

32. Reliance has been placed before us by the learned counsel for the petitioner on R.T Rangachari v. Secretary of State, AIR 1937 Privy Council 27, and it is strenuously contended that unless it is positively held that the earlier decision of the Government was not honest, the same could not be reviewed. The facts of that case are distinguishable and the distinction was pointed out in Sunder Lal's case. A Sub-Inspector of Police was granted an invalid pension by a competent authority and he retired from service. The officer succeeding the authority granting the pension took up the matter over again and ordered removal of the officer who had already ceased to be in service. It was in these circumstances that the Privy Council observed that—

“In a case in which after Government Officials, duly competent and duly authorised in that behalf, have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, cannot purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision.”

33. To reopen a matter and dismiss a Government servant from service after he has actually retired and is enjoying a pension is wholly different from reverting such a servant from an officiating post to a substantive rank.

34. Another contention raised on behalf of the petitioner that if any of the respondents was aggrieved by his appointment to selection posts as per orders appearing in Annexures I and II, he should have submitted a memorial to the President under rule 20 of the All India Services (Discipline and Appeal) Rules, 1955, instead of making representations to the State Government, is to be noticed only to be rejected. No action was taken against the respondents under the disciplinary rules for which any penalty was imposed necessitating a memorial to the President, The State Government invited representations because it had launched an inquiry into some alleged cases of misuse of authority by some departments in the regime of late S. Partap Singh Kairon and it was then that the respondents who felt aggrieved by the appointment of the petitioner to the posts of Selection Grade Superintendent of Police and Deputy Inspector-General of Police, lodged a protest with the State Government. The argument is wholly ill-founded and must be repelled. There is yet another contention no. 5 which carries no weight Respondent 4 filed an affidavit in reply in Civil Writ No. 2837 of 1985 filed by Shri Piare Lal, an officer of the Indian Police Service, who moved this Court for the exercise of its powers under Articles 226 and 227 of the Constitution and for issue of directions to the competent authorities to promote him as Selection Grade Superintendent of Police with effect from 15th June, 1956, and to the post of Deputy Inspector-General of Police with effect from 7th July, 1958, as these posts, according to the writ petitioner, were being withheld from him at various stages. He claimed to Page: 582be senior to the present petitioner and several respondents all of whom were impleaded as respondents in that case. Shri Piare Lal maintained that his record of service was throughout good and while making some vague allegations of favouritism against late S. Partap Singh Kairon, the then Chief Minister he challenged the appointment of Ranjit Singh petitioner as well. The allegations of mala fides were not pressed by the counsel. The main grievance of Shri Piare Lal was that the officers junior to him were promoted to the Selection Grade in spite of his having officiated in those higher posts. The promotion of the junior officers, according to the petitioner, amounted to reduction in rank for him and entailed a measure of punishment. Shri Piare Lal had submitted representations to the Government and also a memorial under rule 20 of the disciplinary rules to the President but having got no reply, he preferred the writ petition. He was superseded for the first time in December, 1956. The Union of India was a party and in its return and also in that of the State, it was stated that selection of the petitioner had been made on the basis of Central Government instructions appended as Annexures VI and VII to the present writ petition thongh it was asserted at that time that these instructions were primarily applicable to Central Services. A Division Bench of this Court constituted by S.B Capoor and R.S Narula, JJ. dismissed the writ petition rejecting the contention of Shri Piare Lal that simply because he was holding a senior scale post, he was entitled to be promoted as of right to the Selection Grade Superintendent of Police or to the post of Deputy Inspector-General of Police or that of Inspector-General of Police. It was held that in such appointments, element of selection was involved and promotion could not be based on seniority alone. The posts of Superintendent of Police (Selection Grade) and Deputy Inspector-General of Police are selection posts outside the time scale pay. Selection has to be made on the criteria merit-cum-seniority and not seniority alone. No question was raised as to which administrative instructions applied in the State of Punjab in regard to promotion to such posts, and it was consequently not gone into by the Bench Respondent 4 stated in his affidavit filed by way of reply in that case that at no occassion Shri Piare Lal was found fit to hold a Selection Grade post of Superintendent of Police or that of Deputy Inspector-General. The claim of Shri Piare Lal that he was entitled to promotion on the ground of seniority alone was denied and it was in this context that reference was made to the Central Government instructions it being urged that the petitioner in the present case was appointed to higher post by selection. As to what criteria should have been adopted for selection was not in issue. In the absence of any statutory rules, the authority of the State Government to issue administrative instructions in the matter of principles to be followed for promotion cannot be disputed when there are no rules specifically pertaining thereto and it is a common ground before us that no such rules exist on the fall of the ministry of Late S. Partap Singh Kairon, when the Board was set up, the question cropped up as to which principles, namely, whether those laid down in the Punjab Government circular letter Annexure R. 4.B. or those in the Central Government memoranda Annexures VI and VII, applied to the State of Punjab. It has already been observed by us that instructions. Annexure R4.B, alone were applicable at the time of appointment of the petitioner to higher posts and that his promotions were contrary to these instructions. The same respondent 4, in his affidavit in this case is undoubtedly repudiating the claim of the present petitioner though in Piare Lal's case it was being supported but the crux of the matter now involved is entirely different. It cannot, therefore, be reasonably said that respondent 4 is making any inconsistent averment or that he is estopped from pleading that the appointment of the petitioner Page: 583was not validly made. No representation made by this respondent can be said to have led to any consequences or influenced the conduct of the petitioner so as to attract the applicability of the equitable rule of estoppel, nor does the question of this respondent approbating and repro-bating arise. The argument of the learned counsel in this regard is thus without substance. We have already observed that the counsel for the petitioner gave up the plea of mala fides and beyond just mentioning that Mr. J.C Vachher who was promoted along with the petitioner was not reverted by the State Government, he did not invite our attention to any material on the record which could show that the action of the State Government in reverting the petitioner was discriminatory. For ought we know if the instructions as embodied in Annexure R. 4.B were applied, Mr. V.C Vachher might have been entitled to promotion. As a matter of fact, Mr. J.N Kaushal, learned counsel for the petitioner, made a statement at the bar that he did not want to press his ciaim against those of the respondents, including Mr. Vachher, who on the reorganisation of the State of Punjab, under the Punjab Reorganisation Act, 1966, had been allocated to the State of Haryana and Mr. Vachher is one of them. Mr. Vachher and others had not originally been impleaded by the petitioner and it was only on an objection raised is tome of the returns that they were made a party.

35. Before concluding, reference has to be made to the averments of the petitioner against respondent 7 and to consider how far it is necessary to decide, for the purpose of the present writ petition, the controversy raised on account of such averments. Respondent 7 was involved in a murder case in 1957 and placed under suspension. On acquittal, he was reinstated in the year 1964. When the petitioner was promoted as Selection Grade Superintendent of Police and then as Deputy Inspector General of Police, respondent 7 being under suspension could not be considered for promotion and it is so stated by the Inspector-General, respondent 4, in his affidavit. The Board had examined all cases of the so called undeserved promotions but respondents 7 was in a different category altogether as he was under suspension at that time. One Shri Naurang Singh, an I.P.S officer, junior to respondent 7, was promoted, to the Selection Grade with effect from 6th June, 1958, and as Deputy Inspector-General with effect from 14th April, 1959. Respondent 7 was not considered at that time as well. Personal file of the respondent was not traceable and the same was reconstructed in the year 1957. The State Government decided in the year 1965, after the reinstatement of the respondent, that he be promoted to Selection Grade and also to the rank of Deputy Inspector-General. The actual promotion order as Deputy Inspector General, was passed in the year 1966. The said respondent again made further representations which were accepted by the State Government on 27th November, 1969, as per order Annexure R. 7/1. He was given officiating promotion as Superintendent of police, Selection Grade, from 6th June, 1958 to 13th April, 1959, and as Deputy Inspector General from 14th April, 1959 to 26th September, 1965, again the sanctioned posts. This order presumably had the effect of restoring the seniority of respondent 7 as it originally stood and gave him what was considered to be his due which had been withheld because of suspension from service from 1957 to 1964. The validity of the order Annexure R. 7/1 has not been challenged by the petitioner though, according to him, the promotions given to respondent 7 were unjustified in view of the record of the latter which showed that he had been awarded a punishment of censure some time back. The manner in which the file of respondent 7 was reconstructed is also attacked by the petitioner it Page: 584being obliquely suggested that some undue favour was being shown to him inasmuch as extracts from the memorials submitted by him were placed on the record and testimonials were collected from the Inspector-General of Police in order to give him promotions. It is further suggested that no efforts were made to collect reports recorded by the officers under whom respondent 7 had served. The promotions of the said respondent to the rank of Superintendent of Police, Selection Grade, with effect from 1958 and as Deputy Inspector-General with effect from 1959 have been characterised by the petitioner as unjustifiable. The Governor of punjab is stated by the petitioner to have passed an order on 14th August, 1966, declaring respondent 7 as unfit to hold the rank of Superintendent of Police, Selection Grade, upto the year 1962, but in spite of that the respondent was given promotion. It is not made clear by the petitioner to whom he attributes mala fides, if any, in the matter of promotion orders of this respondent. The Inspector-General in his affidavit states that the promotion was given to respondent 7 after recommendations had been made by the Board, and that the Board was never told to recommend this respondent. It is asserted by respondent 4 that it is the inherent right of the competent authority to reconstruct a lost file and that reconstruction of the personal file had nothing to do with the promotion of respondent 7 as the same was reconstructed in the year 1957 whereas promotions were ordered many years thereafter. It is denied that the Governor had issued any formal order dated the 14th August, 1966, holding respondent 7 to be unfit for promotion. Mr. Kuldip Singh urged that the said respondent had been Unnecessarily impleaded as a party inasmuch as inter se relative merit between him and the petitioner was never considered nor could it be so done because of former's suspension from 1957 to 1964. It is further submitted by the learned counsel that respondent 7 was acquitted by a Court of law and was entitled to reinstatement and restoration of his original seniority. Normally, when a cloud cast over a public servant is removed by the judgment of a competent Court in his favour, he is entitled to be restored his seniority as it originally stood and his career cannot be allowed to be adversely affected by a charge which has not been proved in a Court of law. Be that as it may, we are not called upon to adjudicate on that matter as there is no challenge in the writ petition to the legality of the orders dated 27th November, 1969, Annexure R. 7/1, passed during the pendency of the writ petition.

36. For the foregoing reasons, we find no merit in the writ petition which stands dismissed. In the peculiar circumstances of this case, the parties are left to bear their own costs.

37. Petition dismissed.