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Chopra, J.—This is a petition under. Art. 226 of the Constitution of India, and it arises out of the following facts:
S. Mohindar Singh, the petitioner, was appointed Sub-Inspector of Police in the erstwhile Patiala State on 2-7-1985 Bk. He was promoted to the rank of an Inspector on 7-1-1945 Ad., as he was then the seniormost Sub-Inspector in the State. On 18-1-1949, by an order issued by the Home Department (Notification No. 109), the petitioner was appointed as an officiating Assistant Superintendent of Police. The notification was duly published in the Pepsu Government Gazette dated 23-1-1949. The petitioner continued to hold that office till the order in question reducing him to the rank of an Inspector was made by the Adviser to the Pepsu Government. The circumstances that gave rise to the petitioner''s reversion are these Shri P.S. Rau, the Adviser, was on his tour to Kandaghat, where the petitioner was posted, in the month of May 1953. The Deputy Commissioner, Kandaghat, then preferred certain complaints against the petitioner to the Adviser.
The complaints related to two cases which were sent by the Deputy Commissioner to the petitioner for registration. In each of these cases, a public servant was accused of having received illegal gratification. The petitioner did not register the cases, nor did he arrest the persons accused when they appeared before him. The Adviser sent for the petitioner, informed him of the Deputy Commissioner''s complaint and asked for his explanation. Not satisfied with the explanation, the Adviser there and then ordered the reversion of the petitioner to the rank of an Inspector. The order, after a reference in detail to the complaint of the Deputy Commissioner and the explanation offered by the petitioner, concludes as follows:
In my opinion, this conduct of the A.S.P. shows that he is utterly irresponsible and even when facts are stated to him he does not realise that he has done anything wrong or improper. On the contrary, he maintains that he had done nothing wrong. It is very doubtful whether an officer of this mentality should continue to officiate as an A.S.P. It is, therefore, ordered that he should be reverted to his substantive post as Inspector at once.
The order, copy of which has been placed on record by the learned A.A.G., does not bear any date. It reached the Inspector General of Police on 12-5-1953, and he thereupon directed necessary orders to be issued immediately. The order was communicated to the petitioner on the following day and was published in the Pepsu Government Gazette on 23-5-1953. The petitioner approached the Inspector General of Police to supply him a copy of the said order so as to enable him to submit a representation, but the request was turned down. The petitioner then submitted a representation to the Government through proper channel that is the Inspector General of Police. This, he did on 10-6-1953.
The Inspector General of Police did not consider it fit to forward the representation to the Government with his remarks, but himself rejected it on 27-1-1954. The petitioner was informed of the Inspector General of Police''s order on 30-1-1954. On 8-4-1954, the petitioner by means of an application requested the Inspector General of Police to allow him an interview with the Hon''ble Chief Minister for the purpose of representing his case and submitting his grievances. This request of his was also denied by the Inspector General of Police, vide his order dated 26-4-1954. The order was communicated to the petitioner on 28-4-1954. The present petition was then presented on 6-5-1954.
The order reverting the petitioner to his substantive post is challenged on the following grounds:
(1) The order having been made by way of penalty is hit by the provisions of Art. 311 (2), even though the petitioner was holding an officiating post;
(2) Before the order could be made, Pepsu Public Service Commission should have been consulted as required by Art. 320(3) (c) of the Constitution;
(3) Before the order in question reducing the petitioner to a lower rank could be made an inquiry under the Pepsu Civil Services (Classification, Control and Appeal) Rules, 1952, should have been instituted; and
(4) The Adviser was not competent to make the order in question.
Before dealing with these points, it is necessary to dispose of the various preliminary objections raised by Mr. R.N. Verma, Learned Counsel for the respondents. The objections are�
(a) that in his petition, the petitioner misrepresented some of the material facts and intentionally concealed some such other facts;
(b) that the petition was inordinately delayed and no explanation for the same was offered;
(c) that the petitioner made no attempt to approach the Government for the relief sought for in the petition; and
(d) that the petitioner should have brought a regular suit for the relief claimed.
It is consequently urged that the petition deserves to be rejected on all or any of these grounds.
After hearing the Learned Counsel at some length I do not find force in any of these, objections. As regards the first, counsel has not been able to point out a single fact which may be regarded as material to the decision of this petition and which has been misrepresented or concealed. The sole point for decision is whether the petitioner was holding the post in a substantive or officiating capacity, and as to whether the order of reduction was made on administrative* grounds or by way of penalty. The petitioner did not claim himself to be holding the post substantively, but admitted that he was posted as an officiating hand.
The contention that the petitioner did not produce a copy of the order in question is simply frivolous. As already observed, the petitioner had applied for a copy of the Adviser''s order but the same was refused. He cannot be penalised for an omission for which the respondents themselves are responsible. The order that was communicated to him was that of the Inspector General of Police and that he produced with the petition. Reliance in support of the objection is placed on the following observations that I made in - ''Baldev Singh v. Govt., of Patiala'', AIR 1954 Pepsu 98 (A):
Proceedings on a petition under Art. 226 of the Constitution by their very nature are of a summary character. A person who applies for a writ of high prerogative and seeks to avail himself of the exceptional remedy, is under an obligation to come to Court with clean hands and to make fully possible disclosure of all relevant and material facts within his knowledge. The Constitution provides a special and speedy remedy for the enforcement of fundamental rights and ''for any other purpose''. The very nature of the remedy enjoins that those who seek it must approach the Court in perfectly good faith, and place before it all the facts which have a direct bearing on the point in dispute and which the Court ought to know to arrive at a correct decision. Otherwise the Court may be misled to pass orders the consequences of which may be far-reaching and irreparable. What facts are material in a particular case would necessarily depend upon the nature of the order, direction or writ sought.
The facts in this case were, however, altogether different. There, the petitioner wrongly stated in the petition that lie was holding the post, from which he was reduced, substantively. Perusal of the various orders that were in the knowledge of the petitioner and some of which were duly published in the State Gazette, revealed and left no doubt that the petitioner was posted in an officiating capacity and that he never held the post substantively.
The facts already stated make it clear that the petitioner before coming to Court made all possible attempts to approach the Government and seek, the relief from those quarters. The Inspector General of Police, to whom a representation was presented within a few days of the order of reversion, kept sitting over it for more than seven months. He did not even consider it proper to forward the representation to the Government with the remarks that the case, in his view, deserved. The representation was finally rejected by him on 27-1-1954. This, according to the learned A.A.G., he could not do and at least should not have done. The petitioner thereafter tried to obtain permission for an interview with the Hon''ble Chief Minister. In that too he failed. Refusal of the Inspector General of Police to allow the interview was conveyed to the petitioner of 28-4-1954. The present petition was presented a week or so thereafter.
Under the circumstances, I do not see any force in either of the preliminary objections Nos. 2 and 3. No limitation is provided for an application under Art. 226 of the Constitution, yet ordinarily it must be presented as soon as practicable after the event that furnishes a cause for the relief claimed in the petition. The delay in the present case has been satisfactorily explained. The petitioner would have been met with the plea, as he even now is, that he provided no chance for the Government to redress his grievances, in case he had presented the petition without first approaching the Government for the purpose. The delay, if any, was due to the representation made by the petitioner to the Government, and the time taken by them to arrive at a decision thereon.
I do not also see any force in the last objection that the petitioner should have proceeded by a regular suit. Even if a suit does lie, which I doubt, that would not stand as a legal bar to the entertainment of this petition or in the way of granting some adequate relief therein. In view of all the circumstances of the case I do not think any other equally efficacious and effective remedy is open to the petitioner.
Now coming to the merits, it cannot be denied that the provision made by Art. 311(2) of the Constitution is mandatory. It enjoins that a person who is a member of a civil service of the Union or an All-India Service or a civil service of a State or holds a civil post under the Union or a State, shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It is admitted that no opportunity to show cause against the proposed order, before it was actually passed, was given to the petitioner. The position of the respondents, however, is that the petitioner was holding the post, from which he was reverted, only in an officiating capacity and that no notice of the order, therefore need have been given. I have already had an occasion to deal with this question in ''Baldev Singh''s case (A)'', referred to above. On a consideration of the authorities cited at the bar and the language of the article, I observed as follows:
If a person officiating in a higher post Is reverted to his original and substantive post by way of penalty it amounts to reduction in rank, because such reversion is apt to stand in his way in securing promotion in the normal course. The principles of natural justice, if riot the provisions of any statute law, require that a man shall not be removed from office or otherwise dealt with to his material disadvantage without fair, adequate and sufficient notice being given to him of what is alleged to his detriment, and without granting him an opportunity to meet the accusations levelled against him. The Courts are always extremely zealous in the enforcement of the maxim ''Audi Alteram Partem'' (No man shall be condemned unheard). But there will be no condemnation if the reversion from the officiating to the original and substantive post is effected purely on administrative grounds or when it comes in its normal course. In that case, the reversion may not be due to any supposed fault of the officer and it may not be by way of penalty or manifestation of disfavour.
A similar view was taken in - Jatindra Nath Biswas Vs. R. Gupta, Superintendent of Police and Others, where it was held that in the case of a person officiating in a higher post, if he is reverted to his original post in the normal course, there is no question of punishment or penalty being imposed, but it is quite a different thing if he is degraded or reverted to his original rank as a punishment for having committed some offence, or for indiscipline, insubordination or misconduct. If an order of reversion is likely to stand as a bar to the future promotion of the officer in the normal course, since it casts serious reflections on his efficiency, and is made by way of penalty, there appears to be no reason why he should not be given a reasonable opportunity to show cause against the proposed action. But in a case where the order is made in the ordinary course of events or for some such other administrative reason, there is no occasion or necessity for an explanation of the officer to be reverted to his substantive post.
Mr. Verma contends that the person allowed to take benefit of the provisions of Art. 311 must hold the post substantively and that the article will have no application if the public officer is placed on the post on temporary or officiating basis. The phrase ''person who......holds a civil post'', according to him, should be interpreted to mean the person who holds the post substantively. I can and nothing in the article to confine its application only to the case of an officer who holds the post substantively. To place that interpretation would be to introduce an adjective or adverb to the words used without any limitation in the article. It is never permissible to add to or subtract Anything from the actual words and clear language of a statute.
The question then arises whether the reversion in context was only an administrative measure, or was ordered by way of penalty. The order of Shri P.S. Rau, the operative portion of which has been reproduced above, leaves no doubt that it was made because of the complaints against the petitioner. The Adviser formed the opinion and at once arrived at the conclusion that the petitioner was an ''utterly irresponsible'' officer and that he was, therefore, unfit to continue to officiate as an A.S.P. The order concluded by saying that ''it is therefore ordered that he should be reverted to his substantive post of Inspector at once''.
In face of all this, I do not think it can be urged, with the slightest force, that the order of reversion was made in the ordinary course or purely on administrative grounds, casting no reflection against the efficiency or official conduct of the petitioner. The order itself is so very clear in this respect. It may surely stand in the way of the petitioner''s future promotion. Reference in this connection may advantageously be made to the order of the Inspector General of Police rejecting the petitioner''s representation. After reproducing a portion of the Adviser''s order and rejecting the petitioner''s contention that the order was hit by the provisions of Art. 311(2) of the Constitution, it says�
In view of these facts, Inspector Mohindar Singh may please be informed that his case cannot be considered for promotion to the rank of D.S.P. just yet. In addition to the particular case ''on which action was taken to revert him'', he should be informed that his record of service during the last two years has been anything but satisfactory and that he will have to show a considerable improvement on it to earn promotion to gazetted rank again.
Some such remarks were also made by the Inspector General of Police while refusing the petitioner''s prayer for an interview with the Hon''ble Chief Minister.
Mr. Verma next takes up a queer position by contending that the Adviser simply made an advice and that the order of reversion was in fact passed by the Inspector General of Police. That order, according to him, is the one that was published in the Gazette dated 7-6-1953. The notification published in the Gazette says�
The President of India is pleased to revert Sardar Mohindar Singh officiating Assistant Superintendent of Police to his substantive rank of Inspector with effect from 16-5-1953. He will remain posted in Patiala District against an existing vacancy.
The Gazette notification is silent as to the reasons which led to the petitioner''s reversion. It does not say that it was made on administrative grounds. To find out the reasons behind it, therefore, one has to revert to the actual order. The Inspector General of Police in fact did nothing more than comply with the order passed by the Adviser, and he got it published in the Gazette. I fail to understand how the order of reversion can be regarded as one made by the Inspector General of Police who simply carried out the order of the Adviser, conveyed to him for the purpose. Moreover, the position is totally against the one taken in the written statement of the respondents and the affidavit submitted in support of the same. Paragraph 18 of the reply which is signed by Mr. Verma himself, inter alia, says:
The order of reversion had been passed by the Adviser who was the competent authority not as a measure of penalty but as a measure of administrative policy.
Paragraph 11 of the affidavit sworn by S. Bharpur Singh, Assistant Inspector General of Police, is to the effect�
I solemnly affirm that according to the record the Adviser had heard the petitioner before passing the order of reversion.
I have, therefore, no hesitation to hold that the order of reversion was the one made by the Adviser, copy of which has been placed on the record by the respondents, and also that it was made as a measure of penalty and not OH administrative grounds. Consequently, the mandatory provisions of the Constitution should have been necessarily complied with before the petitioner could be reverted to his substantive post. It is not denied that no opportunity was given to the petitioner to show cause against the action proposed to be taken against him.
The question of application, & their utter disregard in this case of the provisions laid down by Art. 320(3)(c) of the Constitution is equally clear. The article enjoins that the Public Service Commission ''shall be consulted on all disciplinary matters affecting a person'' serving under the Government of a State in a civil capacity. Rules framed by the Pepsu Government in exercise of the powers conferred by the proviso to cl. (3) of Art. 320 specify the cases in which the Pepsu Public Service Commission need not be necessarily consulted. Rule 4(c) (ii) provides that it shall not be necessary to consult the Commission on a case that relates to the ''discharge or reversion of an officer otherwise than as a penalty''. I have already held that the impugned order of reversion was made by way of penalty and, therefore, the case does not fall under the exemption provided by the rule. It necessarily follows that the mandatory constitutional safeguard must have been strictly complied with before passing the order in question.
The other two points of attack stated in the petition have not been pressed; they need not, therefore, be gone into.
Lastly, counsel for the respondents contends that since the order of the Inspector General of Police refusing to forward the petitioner''s representation and rejecting it of his own accord militates against the rules of procedure and was, therefore, unjustified and illegal and, the same ought to be Quashed so as to enable the Government to consider the representation and the merits thereof. In that case, it is contended, the petitioner''s prayer for quashing the order of reversion need not be taken into consideration and should be rejected. The contention is simply ridiculous. More than eleven months have now elapsed after the Inspector General of Police''s order. If the order, as contended, suffered from the defect of competency or contravened the provisions of some of the rules and was therefore illegal, nothing, did stand in the way of the Government to cancel the same and do justice to the petitioner. Despite the Inspector General of Police''s order the Government had the authority and the means to set right the wrong done to the petitioner, and for that they have had ample time as well.
In view of my finding that mandatory provisions of the Constitution have not been complied with, the order of the Adviser reverting the petitioner to the post of an Inspector is declared to be illegal, ineffective and inoperative, and hence quashed. The petition stands accepted with costs. Counsel fee shall be Rs. 100/-.