- (1.) This appeal, by special leave, raises a somewhat important question of law which is whether the reversion of a Government servant from an officiating post to his substantive post, while his junior is officiating in the higher post, does not, by itself, constitute a reduction in rank within the meaning of Art. 311 (2) of the Constitution.
(2.) For the purpose of deciding the point raised in the appeal, it would be necessary to state the material facts. The Southern Railway has two grades of Train Examiners, one in the scale of Rs. 100-5-125-6-185 and the other in the scale of Rs. 150 -225. The respondent was employed in the lower scale as a Train Examiner. By an order dated April 7, 1959, the respondent was promoted to officiate in the higher scale with a starting salary of Rs. 150 per month. That order read as follows : "2. Shri S. Raghavendrachar, TXRYPR in soale Rs. 100-185 is promoted to officiate as TXR in scale Rs. 150-225 on Rs. 150 per month and retained YPR as TXR-IC. 3. Shri James Blazey TXR-MYS in scale Rs. 100-185 is promoted to officiate as TXR in scale Rs. 150-225 on Rs. 150 per month and transferred to SBC-BG vide item 1 above. Sanction endorsed by D. S. for promotion of items 2 and 3." There is a note appended to the order which is important: "Note: 1. The promotion of items 2 and 3 are purely provisional subject to revision when Divisional Seniority lists are drawn up." By an order dated November 27, 1959, the respondent was reverted. That order was as follows: "Shri S. Raghavendrachar, TXR/YPR (officiating) in scale Rs. 150-225 is reverted to scale Rs. 100 - 185 on Rs. 130 per month and transferred to SBC/MG." On receipt of this order, the respondent made representations to the appellant. The appellant sent to the respondent communication dated May 25, 1960: "As per the existing instruction an officiating employee with less than 18 months of service in the higher grade may be reverted to lower scale without assigning any reason for such reversion by a competent authority. Since the period of your officiating in scale Rs. 150-225 was less than 18 months and since your reverion from scale Rs. 150-225 to Rs. 100 - 185 has been ordered by a competent authority, no reasons need by assigned as requested in your representation dated 8th/9th December, 1959. As regards the confirmation of TXRs in scale Rs. 150-225, who were your juniors while you were officiating in scale Rs. 150 - 225, I have to advise you that consequent on your reversion to scale Rs. 100-185, all you juniors, in scale Rs. 150 -225, have become your seniors and their confirmations in preference to you are in order. Regarding your re-promotion to scale Rs. 150-225, it will be considered in the normal course according to your seniority and suitability to hold the post in scale Rs. 150-225." The respondent made a further appeal to the Divisional Superintendent, Mysore on July 2, 1960 and sent him two reminders. Not having got any response, he filed an appeal on January 31, 1961, to the General Manager, Southern Railway. The respondent sent a reminder to the letter on March 31, 1961. In reply, the Divisional Personnel Officer wrote to the respondent as follows, by letter dated April 30, 1961: "Your reversion from an officiating post on scale Rs. 150 - 225 (PS) was not a penalty as presumed by you, in your above representations. The vacancy thus released by you in scale Rs. 150-225 (PS) and the vacancies which existed on the date of your reversion were filled up on 14th February, 1960. You are therefore eligible to be considered for promotion against a vacancy which occurred after the date of your reversion and not against the vacancies which existed on the date of your reversion and also the vacancy caused by your reversion. No regular vacancy (other than short term leave vacancy) in scale Rs. 150-225 has occurred from the date of your reversion till date. You will therefore be considered for promotion against the next vacancy, subject to the condition of seniority cum suitability, on the basis of which only promotions to non-selection posts are to be ordered. 2. As regards seniority, all those hitherto promoted to scale Rs. 150 -225 (PS) will automatically rank seniors to you and your seniority if promoted will be reckoned only from the date of your promotion in future vacancy. 3. Your contention that, when you were promoted to officiate for 2 months against the leave vacancy of Shri Venkataraman, as per office order No. M542/PI of 14th November 1960, you should have been continued even after the expiry of the leave vacancy, and that Shri Varghese should have been reverted, is not correct, for the reasons stated in paragraph 2 above. 4. Your representation of 30th January, 1961 to GM (P) Madras is therefore withheld."
(3.) Aggrieved by the order dated November 27, 1959, the respondent moved the Mysore High Court (on the failure of his representations to the hierarchy of Departmental Heads) for a writ of certiorari to quash the impugned order made by the appellant. By judgment dated December 12, 1962, a Division Bench of the High Court quashed the order of reversion. The High Court observed that it was not necessary to express any opinion on the question whether the reversion of the respondent on the ground that his work was unsatisfactory amounted to a reduction in rank within the meaning of that expression occurring in Art. 311 (2) of the Constitution. But the High Court held that the reversion of the respondent amounted to a reduction in rank because he was reverted from the higher post to the lower post notwithstanding the fact that his juniors were still retained in the higher posts. In reading this conclusion, the High Court purported to follow the decision of this Court in Madhav Laxman Vaikunthe v. State of Mysore, (1962) 1 SCR 886: (AIR 1962 SC 8).;