The revocation of a promotion may not amount to a reduction in rank if it is made under a mistake and in compliance with administrative instructions.

A. R. SOMNATH IYER, J.

( 1 ) ON August 2, 1962, the Petitioner who was holding the post of an Assistant in the Secretariat of the Government of Mysore was promoted to officiate as Superintendent in the Home department of that Secretariat on 'a purely temporary basis. ' Two days later, on August 4, 1962 that promotion was revoked by an order which reads:

"government OF MYSORE. No. GAD 187 ASP 1962. Mysore Government, secretariat, Vidhana Soudha, bangalore, dated 4th Aug. 1962. Shravan Saka Era 1884. OFFICIAL MEMORANDUM. Reference: O. M. No. GAD 187/52 dated 2-8-1962. In the O. M. referred to above Shri (SIC ). S. Gurusiddiah, Assistant, Mysore Government secretariat, was promoted to officiate as a Superintendent, purely on a temporary basis. It has since been brought to notice that a departmental enquiry is at present pending against the official. This fact was lost sight of at the time when his promotion orders were issued. According to Om. No. GAD (S-1) 56 SSR 59, dated 9-10-1959 he should not have been considered for promotion until the enquiry against him was completed. The orders promoting him as a Superintendent are accordingly cancelled and he is reverted as an assistant with effect from the afternoon of 4th August 1962. Sd. N. P. Joshi, under Secretary to Government, gad (Administration-1)"

This order by which the promotion of the petitioner was cancelled is challenged before us on the ground that since it amounts to a reduction in rank and was made without compliance with the provisions of Article 311 of the Constitution it was unsustainable. The submission made before us was that what was done was a demotion from the post of an officiating Superintendent to the post of an Assistant productive of a stigma besides resulting in evil consequences to the petitioner.

( 2 ) IT is stated on behalf, of the petitioner that on the 28th January 1960 when the petitioner was holding the post of an Assistant in the Secretariat in the office of the Stores Purchase Committee, he was placed under suspension pending enquiry into a charge that he accepted an illegal gratification from one Inder Raj. That charge was enquired into by the Head-quarters Assistant to the Deputy Commissioner, Bangalore District, Bangalore, who was appointed for that purpose under the Civil Services (Classification, Control and Appeal) Rules 1957 by the concerned divisional Commissioner. On December 5, 1961 this inquiring authority submitted a report in which he stated that the charge of corruption which had been made against the petitioner was not proved against him. What has been said before us by Mr. Government Pleader is that that report which was sent by the inquiring authority was under consideration before the disciplinary authority viz. , the Chief Secretary to the Government of Mysore, and that by a second show cause notice issued to the petitioner under Rule 11 (10) of the Mysore Civil Services (Classification, Control and Appeal) Rules that disciplinary authority who proposed to dissent from the finding of the inquiring authority called upon the petitioner to submit his representation why he should not be dismissed from his post. Mr. Government Pleader has urged before us that all that was done when the petitioner's promotion was cancelled on August 4, 1962 was to recall the order which had been made on August 2, 1962 under a mistake. In support of this submission our attention was drawn to the Official Memorandum of the Govt. of October 9, 1959 which reads:

"promotion of Government Servants whose conduct is under enquiry. O. M. No. GAD (S-1) 56 SSR 59 dated, bangalore, the 9th October 1959. Government has under consideration the question whether a Government servant whose conduct is under enquiry should be considered for promotion if his seniority and previous record of service apart from the case under enquiry justify it. It is now directed that a Government servant on whom charge sheet has been served after a prima facie case has been established

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