ORDER The petitioner who is a Lower Division Clerk in the Home Department of the Secretariat of Manipur Administration at Imphal has filed this petition under Art. 226 of the Constitution of India for a writ in the nature of certiorari quashing the order of censure passed on him by the Chief Commissioner (respondent No. 2) on 27-8-55 and (2) the order dated 29-12-55 by which respondent No. 3, who was junior to the petitioner was promoted to the Upper Division of Clerks, thereby superseding the petitioner; and an appropriate writ, order or direction to respondent No. 2 to promote the petitioner to the Upper Division with effect from 12-11-55, the date from which respondent No. 3 and some other clerks were promoted until further orders to the grade of clerks Upper Division. 2 The facts leading to the order of censure, briefly stated are, that while the petitioner was working as a dealing clerk in charge of the Medical and Public Health matters, he was also placed in charge of the work of dealing clerk in the Co-Operative Department under the Assistant Secretary (Home) for about 6 months. During this period certain amendments to the Co-Operative Rules submitted by the Assistant Registrar, Co-Operative Societies Department were approved by the Chief Commissioner (respondent No. 2) and on receipt of this approval the Assistant Secretary (Home) asked the petitioner to submit a draft of the order conveying the said approval to the Assistant Registrar. The petitioner delayed compliance of this, though the matter was simple and could not have taken much time, and on the delay coming to the notice of respondent No. 2, he called for the explanation of the petitioner, which was to the effect that delay was due to pressure of work and lapse of memory. The petitioner has also referred in his petition to some discussion about the manner of publishing the rules, which was going on between the Assistant Secretary (Home) and the Assistant Registrar, and which is said to have remained unconcluded due to the latter falling ill, but it is difficult to understand how and why it should have come in the way of putting up of the draft of a few lines for communicating the approval to the Assistant Registrar, and this was also not referred to or explained during the course of arguments addressed by the learned Counsel. Respondent No. 2 did not accept the explanation of the petitioner and directed the petitioner to show cause in writing, why he should not be censured. The petitioner repeated his previous explanation, which was not accepted by respondent No. 2, and by his order dated 27-8-55 he passed the impugned order censuring the petitioner. Three months later, as has already been noticed the petitioner was superseded and petitioners contention is that he was entitled to the said promotion. 3 In the course of arguments, the learned counsel for the petitioner however pressed and confined himself to the following broad points - details to be mentioned as the points are considered: (i) Under Art. 320(3) of the Constitution it was necessary to consult the Union Public Service Commission in both matters, and that admittedly having not been done both the orders of censure and promotion of respondent No. 3 in supersession of the petitioner were bad in law. (ii) The promotion of respondent No. 3 in supersession of the petitioner amounted to a reduction in rank of the petitioner within the meaning of Art. 311 (2) of the Constitution and there having been no enquiry as contemplated by that Article and the Rules that order was vitiated. (iii) A similar enquiry was necessary in the case of censure also and that having been not done that order was also liable to be quashed. (iv) Under the Rules framed by respondent 2 in exercise of the powers conferred upon him under Rr. 44 and 54 of the Civil Services (Classification, Control and Appeal) Rules, the authority empowered to impose the penalty of censure and other penalties is the Secretary, while the appellate authority is the Chief Commissioner, and therefore respondent No. 2 had no power to draw up the proceedings himself and award the penalty. The petitioner was also thereby deprived of the right of appeal. For these reasons also the order of censure was liable to be set aside. 4. As regards the first point, it was contended on behalf of the respondents that as per Regulations made by the Governor-General under S. 266(3) of the Government of India Act, 1935 and which Regulations were still in force, consultation with the Public Service Commission in such matters was not necessary. 4. As regards the first point, it was contended on behalf of the respondents that as per Regulations made by the Governor-General under S. 266(3) of the Government of India Act, 1935 and which Regulations were still in force, consultation with the Public Service Commission in such matters was not necessary. Learned counsel for the petitioner challenged the validity of those Regulations on the ground that they could not be of any force after the coming of the Constitution unless they had been laid before each House of Parliament as required by Cl. (5) of Art. 320 of the Constitution, and even if those Regulations had been kept in force by Cl. (19), Adaptation of Laws Order 1950, there being no proof of compliance of Cl. (5) of Art. 320, nothing could turn on them. Counsel for the petitioner in support of his argument, relied strongly upon the case reported in Munna Lal v. Harold R. Scott, AIR 1955 Cal 451 (A), in which the question was elaborately examined by their Lordships of the Calcutta High Court. 5 In my opinion that case does not support the contentions of the petitioner, rather goes against him. In that case, as in the instant case, the question of the Regulations having been laid or not laid before the Parliament, at the time they were adapted by the Adaptation of Laws Order, 1950 was not pleaded and was raised for the first time in the arguments, nor was there anything on the record to show whether or not the old Regulations framed under S. 266 (3) of the Government of India Act, 1935 were laid before the Parliament after their adaptation, and their Lordships took the same view as was taken in an English case referred to in the judgment: Starey v. Graham (1899) 1 QB 406 (B), namely that in these circumstances it must be deemed that the provisions of Cl. (5) of Art. 320 were complied with. 6 In another case, Vishweshwar Bijayapuri v. State Transport Authority, AIR 1955 Nag 163 (C), it was held that by virtue of Art. 372 (1) Regulations made by the Governor-General or a Governor under S. 266(3) of the Government of India Act, 1935, shall continue to be in force until replaced by new Regulations made under the proviso to Art. 320 (3). 7. 7. In any case, I am clear in my mind that the fact that there is no provision in the Constitution which makes the acceptance of the advice tendered by the Commission when consulted necessary renders the provision of Art. 320 (3) only directory and not mandatory. That was also the view expressed in the Calcutta case upon which reliance was placed by the petitioner himself. It, therefore, follows that failure to consult the Commission will not render the order imposing the penalty etc. invalid. That view also finds support from Durga Singh v. State of Punjab, AIR 1957 Punj 97 (D). 8. It has been a well-acknowledged principle that promotion from one grade to a higher grade is not to be made only on the basis of seniority but is to be made primarily on the basis of merit and efficiency, although seniority is also Appellant factor to be taken into consideration. It is also plain that the determination of the merits and efficiency is a matter of subjective determination by the competent authority. That is, promotion is in the discretion of the Competent Authority, arid no Government servant can say that he has Appellant legal right to be promoted. Hence no legal action would lie to enforce an alleged right that he is entitled to be promoted. The remedy of the Government servant aggrieved in such a case lies only by way of appeal to the superior authorities : see Balbirsingh v. State of M. P. (S) AIR 1955 Nag 289 (E), Des Raj Kirpa Ram v. Punjab State AIR 1954 Punj 134 (F), Shanker Nath v. State of J and K, (S) AIR 1957 J and K 29 (FB) (G). 9. The learned Counsel for the petitioner also appeared to be alive to this position and that appears to have been the reason, why he put forward the unacceptable contention that passing over the petitioner at the time of making the appointments in the Upper Division amounted to reduction in rank within the meaning of Art. 311 (2). Reduction means demotion, that is, putting an employee in a Lower Grade or post or on a lower scale of pay. Reduction means demotion, that is, putting an employee in a Lower Grade or post or on a lower scale of pay. It may even include a case where an employee is reduced to a lower stage of pay in the same scale, but by no stretch of imagination it is possible to conceive that when a man has not been allowed to go up by way of promotion as he was not found fit for the higher post as in the instant case, there was a reduction in his rank. The very fact that he remains where he was means that there has been no change in his position or rank. He has neither gone up nor moved down. This being the clear position, provisions of Art. 811(2) are not attracted to the case, and it is not necessary to refer to cases cited on behalf of the petitioner, in which enquiry in two stages in cases falling under Art. 311(2), was held to be absolutely necessary. 10. There is also absolutely no force in the contention that an enquiry as contemplated in cases falling under Art. 311(2) would be necessary for punishments other than dismissal, removal or reduction in rank, that is, in cases of lesser punishments including censure. Such an argument would be in the very teeth of the language of Art. 311(2) and cannot therefore be allowed to prevail. The very Rules framed by the Chief Commissioner and on which reliance was placed on behalf of the petitioner go to show that in case of censure and some other penalties not covered by Rule 55 of the Civil Service (Classification, Control and Appeal) Rules, the requirement necessary is that the official concerned shall be given an adequate opportunity of making any representation that he may wish to make and such representation, if any, is taken into consideration before the order imposing the penalty is passed. That this was done in the present case is amply clear from the pleadings of the petitioner himself. That there has been delay is not disputed and I have already said that it had no connection with the discussions about the mode of publication between the Assistant Secretary and the Assistant Registrar. The matter with which the petitioner was concerned was one of which compliance could have been done in a matter of minutes. That there has been delay is not disputed and I have already said that it had no connection with the discussions about the mode of publication between the Assistant Secretary and the Assistant Registrar. The matter with which the petitioner was concerned was one of which compliance could have been done in a matter of minutes. If in these circumstances his explanation was not accepted and a light penalty was awarded, it is difficult to see how the petitioner can make a grievance of it. 11 It was also contended on behalf of the respondents relying upon Kedar Nath v. State of Ajmer, AIR 1954 Ajmer 22 (H), that Art. 226 of the Constitution could not be invoked in the case of punishment of censure because that punishment is not mentioned in Art. 311 of the Constitution. The point involves many ticklish questions which did not appear in the arguments advanced, and there have been some cases after the Constitution in which a contrary view was taken. In view of my finding that the petitioner was given a reasonable opportunity to defend himself as required by the relevant rules, it is also not necessary to enter into that question. Therefore, as at present advised, I will leave the point here, with of course the remark that much can be said on both the sides, but without deciding anything. 12. In my opinion, the last point is also devoid of all force. It would be incongruous to hold that the authority which has the power to authorise a subordinate authority to impose a penalty should not itself have the power to impose that penalty. As a matter of fact, the petitioner is a clerk in the Office of the Chief Commissioner and the latter as the Head cannot be deemed to have divested himself of that power simply because an Officer subordinate to him and working in his Office under him has also been empowered to impose that penalty. In fact the learned counsel for the petitioner did not dwell much on this point and his real complaint was that his right to appeal was thereby taken away. In fact the learned counsel for the petitioner did not dwell much on this point and his real complaint was that his right to appeal was thereby taken away. But there also the petitioner stands on weak ground, because it was conceded that the petitioner could appeal to the President, and in fact he had preferred such an appeal, but it was withheld in the Office of the Chief Commissioner, because it contained besides the appeal against the censure a representation against his supersession also, though there is no right of appeal against such supersession; and the petitioner was informed that he should, if he so desired, prefer a separate appeal against the penalty of censure and a separate petition as regards his supersession. It cannot therefore be said that he was deprived of any right or opportunity to appeal against the order imposing the penalty. 13 Thus there is no substance in any of the contentions of the petitioner and this petition must fail. I accordingly dismiss the petition with costs. Counsel fee is fixed at Rs. 75/-. Petition dismissed.