Appeal No 766 of 1964
Appeal by special leave from the judgment and order dated September 19 1963 of the Allahabad High Court in Special Appeal No 268 of 1963
section P Sinha and Shaukat Husain for the appellant
Niren De Additional Solicitor General K C Chawla and R H Dhebar for the respondent
The Judgment of the Court was delivered by Satyanarayana Raju J
This appeal by special leave is against the judgment of a Division Bench of the Allahabad High Court which affirmed the judgment of a Single Judge of that Court
The facts giving rise to this appeal may be shortly stated as follows
The appellant had been in the service of North Eastern Rail way holding the substantive post of Travelling Ticket Examiner
The post of Travelling Ticket Inspector which is the next higher post is a selection post
Selection is made by a Selection Board in accordance with the Promotion and Selection Rules Non Gazetted framed under para 158 of the Indian Railway Establishment Code Volume I hereinafter referred to as the rules
Every year an assessment of the number of vacancies that are likely to occur during that year is made
The Chief Commercial Superintendent is the appointing authority for the posts of Ticket Inspectors
In accordance with r 87 eligible staff up to four times the number of anticipated vacancies shall be called up for written and viva voce tests
After the examination and the interview the Board prepares a panel and promotions are made from the said panel
In the year 1959 a Selection Board for preparing a panel for the ex Muzaffarpur region was constituted
There were during that year eight existing vacancies which were to be fined up immediately
In addition a panel of six was required to be drawn up
It was also expected that there would be nine more vacancies on account of upgrading of posts but this did not actually materialise
But due to an incorrect assessment of the anticipated number of vacancies 92 persons were called up for examination whereas 56 persons should have been called up for written and viva voce tests
There was a written examination on February 22 1959 and March 31 1959 and thereafter the Selection Board interviewed 63 the candidates
As a result of the examination and the viva voce test the Selection Board prepared a panel of fourteen persons and the appellant was given the twelfth rank in the panel
He was posted as officiating Travelling Ticket Inspector on or about July 28 1960
The final list of persons brought on the panel was published in the Railway Gazette on January 1 1961 and the appellant was shown at serial No 13 in that panel
But a note was appended to the notification stating that the selection of the appellant and five others was provisional
By a letter dated September 29 1961 the Chief Commercial Superintendent North Eastern Railway Gorakhpur under the orders of the General Manager the prescribed authority deleted the name of the appellant and five others who were shown at serial numbers 9 to 14 in the panel
On November 28 1961 the appellant filed a petition under article 226 of the Constitution for the issue of a writ of certiorari impugning the validity of the order dated September 29 1961 in and by which his name had been removed from the panel
Her contended that the deletion of his name from the panel indefinitely postponed his right of promotion and therefore amounted to a reduction in rank
The respondents contested the petition
They averred that the name of the appellant was deleted from the panel in accordance with rules that he had no subsisting right to the post merely by reason of the fact that his name was included in the panel that the appellant and five other persons were called up for examination on an incorrect assessment of the number of vacancies
It was also contended for the respondents that the provisions of article 311 were not attracted
By judgment dated March 14 1963 the learned Single Judge dismissed the writ petition filed by the appellant
He held that the deletion of the appellant s name from the panel did not amount to reduction in rank under article 311 and that therefore he was not entitled to the notice prescribed by that article
The learned Judge also held that the appellant had not established that the decision of the respondent amounted to a violation of any constitutional provision or statutory rule
The appellant preferred an appeal which was summarily dismissed by a Division Bench
An application for leave to appeal to this Court was also rejected
Thereupon the appellant obtained special leave from this Court
64 In support of the appeal it is contended for the appellant by Mr section P Sinha that the deletion of the appellants name from the panel amounted to a reduction in rank and that the order was bad in law for the reason that the appellant was not given an opportunity to explain or defend himself before his name was deleted from the panel
Now as has been explained by this Court in Parshotam Lal Dhingra vs The Union of India1 the expressions dismissal  removal  or reduction in rank  are technical words taken from the service rules where they are used to denote the three major categories of punishments
The question for determination is whether the deletion of the appellant s name from the panel amounts to a reduction in rank within the meaning of article 311
Mention has already been made of the fact that the panel was prepared under the rules
Rule 8 lays down the procedure to be followed by the Selection Board
Sub rule 7 of that rule reads  Eligible staff up to 4 times the number of anticipated vacancies as defined below shall be called up for written andor viva voce test Under the above rule eligible staff up to four times the number of anticipated vacancies should be called for written and viva voce test
The vacancies to be filled up were 8 and in addition a panel of 6 was required to be drawn up thus for the 14 persons to be included in the panel 56 eligible staff were to be called
On account of an incorrect assessment of the anticipated vacancies 92 persons were called to take the promotion examination
The appellant s number in the eligible staff was after 56 and but for the mistake he would not have been called for the examination
Rule 11 Provides that panels for selection posts framed by a duly constituted Selection Board and approved by the competent authority shall not be cancelled or amended without reference to an authority next above the one that approved the panel
Now the panel was prepared by he Chief Commercial Superintendent Gorakhpur who was subordinate to the General Manager North Eastern Railway
The panel as originally drawn was subsequently amended by the Chief Commercial Superintendent under instructions from the General Manager
This was in accordance with rule II
In the final list of the personnel included in the panel the names of Sahai and Ramanand were included
The name of the first of them was included by reason of the fact that his marks 1 958 SCR 828
65 were not correctly totaled up and the second was included by reason of the fact that he belonged to the Scheduled Caste
The complaint made by the appellant is that by reason of the inclusion of the said two persons in the final panel of Travelling Ticket Inspectors there was no post in which he could be kept and he was therefore reverted till another vacancy occurred that by reason of the deletion of his name from the panel it would be necessary for him to appear before another Selection Board and until his name was again brought into the panel he would have no chance of being promoted to the post of Travelling Ticket Inspector
It is to be noted that in the panel prepared by the Selection Board the word provisional  was specifically noted against the name of the appellant which clearly shows that he did not acquire a right to the post
The deletion of his name from the panel therefore does not attract the provisions of article 311
If a civil servant has a right to a particular rank then the very reduction from that rank will operate as a penalty for he will then lose the emoluments and privileges of that rank
If however he has no right to the particular rank his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment  vide Dhingra s Case1
It is no doubt true that in the said case it has been held that when reversion entails penal consequences it would be reduction in rank but the instant case is not one in which penal consequences have been visited on the appellant
Learned counsel for the appellant has relied upon the decision of a Single Judge of the High Court of Calcutta as supporting his contention that the deletion of the appellant s name from the panel would amount to a reduction in rank
That decision is reported as Dineshwar vs Chief Commercial Superintendent Eastern Railway 2
At p 21 1 the learned Judge observed The question is whether the striking of the petitioner s name from the panel has affected his future right of promotion
In my opinion the escapable conclusion is that it has so affected the petitioner
As I have mentioned above promotion from Class III post to a Class II post is to be done according to the recommendations made by Selection Boards
Where there is such a list or a panel then a person not in the list cannot hope to be promoted 
It is implied that in order 1  2 AIR 1960 Cal
209 66 to have a chance of promotion the petitioner would have to be in the selection list that is to say in the panel But with regard to the second contention viz that the striking out of his name from the panel affected his chances of future promotion it is a point of substance and must be upheld
What the authorities should have done before striking out the name of the petitioner from the panel was to give him an opportunity of showing cause as to why his name should not be struck off from the panel and the order could only be made after giving the petitioner an opportunity of being heard
 We are of opinion that this is not a correct statement of the law in view of the decision of this Court in High Court Calcutta vs Amal Kumar Roy1
There the facts were these
The respondent was a Munsif in the West Bengal Civil Service Judicial
When the cases of several Munsifs came up for consideration before the High Court for inclusion of names in the panel of officers to officiate as Subordinate Judges the respondent s name was excluded
He was told by the Registrar of the Court on a representation made by him that the Court had decided to consider his case after a year
As the result of such exclusion the respon dent who was then the senior most in the list of Munsifs lost eight places in the cadre of Subordinate Judges before he was actually appointed to act as an Additional Subordinate Judge
He filed a suit praying that a declaration might be made that he occupied the same position in respect of seniority in the cadre of Subordinate Judges as he would have done if no supersession had taken place
His case in substance was that as a result of the High Court s order he was reduced by eight places in the list of Subordinate Judges and that in law amounted to reduction in rank within the meaning of article 3112 of the Constitution
This Court held at p 453 as follows  In our opinion there is no substance in this contention because losing places in the same cadre namely of Subordinate Judges does not amount to reduction in rank within the meaning of article 3112
The plaintiff sought to argue that rank  in accordance with dic tionary meaning signifies relative position or status or place 
According to Oxford English Dictionary the word rank  can be and has been used in different senses in different contexts
The expression rank  in article 1  67 3112 has reference to a person s classification and not his particular place in the same cadre in the hierarchy of the service to which he belongs
Hence in the context of the Judicial Service of West Bengal reduc tion in rank  would imply that a person who is already holding the post of a Subordinate Judge has been reduced to the position of a Munsif the rank of a Subordinate Judge being higher than that of a Munsif
But Subordinate Judges in the same cadre hold the same rank though they have to be listed in order of seniority in the Civil List
Therefore losing some places in the seniority list is not tantamount to reduction in rank
Hence it must be held that the provisions of article 3112 of the Constitution are not attracted to this case
 This decision has established the following principle viz the expression rank  in article 3112 has reference to a person s classification and not his particular place in the same cadre in the hierarchy of the service to which he belongs and therefore losing some places in the seniority list is not tantamount to reduction in rank within the meaning of article 3112 of the Constitution
It is perhaps true that the hopes of the appellant were raised  by reason of the inclusion of his name in the panel
It is also true that the respondent made an incorrect assessment of the anticipated number of vacancies but the fact remains that his inclusion in the panel was expressly stated to be provisional
The appellant cannot therefore complain of any infraction of the guarantee given by the Constitution to Government servants
The appeal fails and is dismissed
In all the circumstances of  the case there will be no order as to costs


Summary:
Selection to the post of Travelling Ticket Inspector from that of Travelling Ticket Examiner is made by a Selection Board in accordance with the Promotion and Selection Rules Non Gazetted framed under the Indian Railway Establishment Code Every year the number of vacancies that are likely to occur during the year is assessed and in accordance with r 87 eligible staff upto 4 times the number of anticipated vacancies are called up for written and viva voce tests
Thereafter the Board prepares a panel and promotions are made from the panel
In 1959 there were 8 vacancies in the ex Muzaffarpur region of the North Eastern Railway which were to be filled up immediately and in addition a panel of 6 was required to be drawn up
But due to an incorrect assessment 92 persons of whom the appellant was one were called up for examination instead of 56
As a result of the tests a panel of 14 persons was prepared and the appellant was given the 12th rank
The final list was then prepared and the appellant was given the 13th rank but a note was appended that the selection of candidates 9 to 14 was provisional
Later under orders of the General Manager who was the prescribed authority the names of candidates 9 to 14 were deleted from the panel
The appellant filed a petition under article 226 but the High court dismissed it
In appeal to this Court it was contended by the appellant that the deletion amounted to a reduction in rank and that the order was bad in law because the appellant was not given an opportunity before his name was deleted
HELD  If a civil servant has a right to a particular rank then the very reduction from that rank will operate as a penalty for he win then lose the emoluments and privileges of that rank
If however he has no right to the particular rank his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment
Since in the panel prepared the word provisional was specifically noted against the name of the appellant it shows that he did not acquire a right to the post
The appellant could not complain of any infraction of the guarantee given by the Constitution to government servants and no penal consequences have been visited on him
Therefore the deletion of his name from the panel did not attract the provisions of article 311
65 C E 67 E Parshotam Lal Dhingra vs The Union of India 1958 SCR 828 followed
Dineshwar vs Chief Commercial Superintendent Eastern Railway AIR 1960 Cal
209 overruled