the State of Rajasthan v. Ram Saran

Judgment

affecting his continuance in such post or office" have been specifically preserved by s. 116 (2) of the Act. Tliere is no legal right in an officer to hold an officiating post and he cannot claim that he cannot be reverted except for proper reasons. Parshotam Lal Dhingra v. Union of India, (1958) S. C. R. 823, referred to. C1v1L APPELLATE JumsmcTION : Civil Appeal No. 453 of 1962. Appeal from the judgment and order dated November 18, 1U60, of the Rajasthan High Court in D. B. Civil Writ No. 264 of 1959. S. K. Kapur, K. ][. Jain and P. D. Menon, for the appellant. B. D. Sharma, for the respondent. 1963. April 10. The Judgment of the Court was delivered by AY\'ANGARJ.-The State of Rajasthan is the appellant in this appeal which has been filed pursuant to a certificate of fitness granted by the High Court of Rajasthan under Art. 133 (1) (c) of the constitution and it challenges the correctness of a judgment of the High Court allowing a petition under Art. 226 of the Constitution filed by the respondent.

The respondent, Ram Saran, was appointed a Constable in 1947 in the Ajmer district police force. Two years th'ereafter he was promoted to the rank of · Head Constable and was confirmed in that post. On June 29, Hl5G he was appointed to officiate as a Sub- Inspector. At that stage. the states Reorganisation t Act (XXXVII of 1956), hereinafter referred to as the Act, was enacted which became operative from November l, 1956,-referred to in the Act as the appointed date, and by virtue of its provisions the Stat1 of Raj411i14n Ram Saran Apanzar J. St•!t ~· "" 1f1utlt.a11 Ratn-Sartlll :I ~;·on:ar J. former State of Ajmrr was merged in the State df Rajasthan and under its terms again the respondent was absorbed in the Police Service of the Rajasthan State. To give ·effect to this provision a formal order appointing the respondent as an officiating Sub-Inspector in the Rajasthan State police force was also passed dated the same day.

Subsequent thereto, on April 6, Hlf>7 the Deputy Inspector General of Police, Ajmer Range ordered the reversion of the respondent to his substantive post of Head Constable in the District Police Force. The respondent was dissatisfied with this order and his complaint was that it was not one passed in the normal course of posting since there were, nn that date, officiating Sub.Inspectors in the State police force who were junior to him but who continued to hole! their officiating posts and that such a reversion to his substantive post was in effect an order of supersession. He made representations to the authorities to set the matter right. \Vhen he did not >uccced iu his efforts, he filed, on July 22, 1959, a petition under Art. 226 of the constitution for quashing the order of reversion dated April 6, 1957, and for a direction to restore him to the rank of officiating Sub·lnspector according to his seniority.

The State as well as the Inspector.General of Police and the Deputy Inspector-General of Police were implcaded as parties to the petition and the learned Judges of the High Court allowed it princip~lly on the ground that this order of reversion wa> in violation of the provisions of s. l l 5 of the ,\r,t. It is the correctness of this order that is challenged in this appeal before us. In order to appreciate the contentions raised . it is necessary briefly to advert to the statutory provisions on which the judgment of the High Court in the main rests. Those material in this r 2 s:c.R. context . ar~ ss. 115 to 117 of the. Actoccurring in Part X headed 'Provisions as to Services': "115. (1).

Every person who immediately before the appointed day is serving in connection with the affairs of the Union under the administrative_ control of the Lieutenant Governor or Chief Commiss· ioner in any of the existing States of Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh, or is serving in connection with the affairs of any of the existing States GJf Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra shall, as from that day, be deemed to have been allotted to serve in connectiou with · the affairs of the successor State to that existing State. (2) ....................... : ........................... . ( 3) ................................................... . (4) ....................................... : ........... . (5)

The Central Government may by order establish one or more Advisory Committees for the purpose of assisting it in regard to- (a) the division and integration of the services among the new States and the States of Andhra Pradesh and Madras; and (b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this section and the proper consideration of any representations made by such persons. 196~. Statt of .Raj«$t/z~· Ram Saran Ayyang'I,. J. Slat1-oj R1j1.Sll1tm ltna S.r•n 986 SUPREME COUR1 REPORTS [1964] VOL. (6) The foregoing provisions of this section shall not apply in relation to any person to whom the provisions of section apply. r (7) Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State :

Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section ( 1) or sub-section (2) shall not be varied to· his disadvantage except with the previous approval of the Central Government. 116. (1). Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs ........ of an existing State in any area ......... shall be deemed as from that day to have b~en duly appointed to such post or office by the Government of, or other appropriate authority in, such State, or by the Central Government or other appropriate authority in such Part C ~tate, as the case may be. 2). Nothing in this section shall be deemed to prevent a competent authority, after the appointed day, from passing in relation to any such person any order affecting his continuance in such post or office. 117.

The Central Government may at any time before or after the appointed day give such directions to any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provision~ of this part and the State Government shall comply with such directions." Before proceeding to consider these provisions it would be convenient to put aside one matter and that is that it was not suggested that the order of reversion was one by way of punishment constituting a reduction in rank so a1 to attract Art. 311 of the Constitution. The grievances of the respondent as formulated before us were threefold :

( l) that for the purpose of promotions and for determining reversions the seniority in the police force was not computed on the basis of a list of seniority prepared for the entire State of Rajasthan but that the same was done on a regional basis i. e .. there was a separate seriiority list for Ajmer and another for other areas in the State and that this had resulted in police officer> like himself being superseded by others junior to them merely because they happened to be serving in a particular region. In the petition there was a vague reference to the maintenance of such regional lists as violative of the equality guaranteed by Art. 14, (2)

It was further contended by .the respondent that the reversion from the officiating post of Sub-Inspector to the substantive one of Head Constable was "an alteration in the conditions of his service" which the State Government was not competent to effect without the sanction of the Central Government under s. l 15 (7) of the Act, and that, in any event, there had been a direction by the · Central Government under s. 117 of the Act which rendered the right to retain an ·officiating post without reversion as such a condition, (3) Even ifs. 115 were insufficient by itself to constitute the right to retain an . officiating post without /f6J NtiJ_t1 of Rajuthan Rom SMa11 A.yJanzar J. Stal1 of Roja.shfan Ram S1rorz Ayy41lgnr J. being reverted to a substantive post as "a condition of serviCe," still there was a guaranteed right not to be reverted except in the strict order of juniority under the provisions of the Standing Orders of the Police Force which were part of his conditbns of service a11d that by reason of these.

Standing Orders the reversion was in violation of s. ll 5 ( i) of the Act. We consider it would be convenient to deal with these in the reverse order, and takt up first the interpretation and effect of the Standing Order on which reliance has been placed both by the learned judges of' the High Court <is well as by learned Counsel for the respondent before us. In regard to them there arc two di;tinct questions: (I) their proper interpretation, .(2) whether they would in law constitute a condition of service and these have to be considered separately. The Standirig Order relied on is one numbered 46 issued by the Inspector General of Police, Ajmer and is dated October 20, 1!149. The relevant portion of it relied on is the paragraph numbered 4 (b) whi~h reads : "An officer who has secured officiating promotion on the basis of his place on the approved list should normally be considered for promotion earlier provided that he maintains an appropriate standard.

If he fails to do so he may be reverted or his confirmation postponed. He should not, however, be denied his claim to confirmation merely because although he has maintained his standard someone c lse promoted later is· considered to have done even better." It is clear from this provision that it de~ls not with the order in which holders of officiating posts may be reverted but with that in which they could be considered for confirmation, so that in strictness on its language the clause would not constitute the 1 2 s:c.R. impugned reversion as one in breach of its terms. But ass•.iming that what might be called the spirit of the rule or the reason behind it be taken into consideration and it be held that it laid down also the order in which reversions should take place, still we have next to consider whether it has any· legal efficacy as a service condition.

This would depend upon the Standing Orders having been issued by a competent authority under the provisions of a statute which empowered that authority to prescribe "conditions of service." For undoubtedly if it were not so it would be merely an administrative instru· ction issued by the Iuspector General of Police for the guidance of his officers but could not determine service conditions fixed by statute or statutory rules by competent auth9rities or confer any legal fights which in the event of non-observance could be the subject of complaint in a Court. Learned Counsel for the respondent was, therefore, at pains to make out that these Standing Orders had a statutory basis. For this purpose reliance was placed upon ss. 12 and 2 of the Police Act (V of 1861) as empowering the Inspector-General of Police to issue these Standing Orders. Section 12 of the Police Act reads, to quote only the material words : "12.

The Inspector-General of Police may, from time to time, subject to the approval of the State Government, frame such orders and rules as he shall deem expedieqt relative to the organisation, classification and distribution of the police-force, the place at "1Yhich the members of the force shall reside, and the particular services to be performed by them ... ". It is clear that the orders and rules referred to in this section have nothing to do with the determination of the service conditions of the officers recruited to the police force. The expression "organisation" cannot, in our opinion, in dude within its fold· the ,)'t,tlJ aj Rajaj//ln. Ram StJra1 Stilt ~f Roj1tthan RtJm Sflfan conditions of service of those in the police force. Turning next to s. 2 to which our attention was drawn, the material portion 1s its second paragraph which reads :

"Subject to the prov1S1ons of this Act the pay and all other conditions of service of members of the subordinate ranks of an>' police force shall be such as may be determined by the State Government." Under this section, however, it is not the Inspector General of Police but the State Government that is empowered to frame rules regulating the conditions of service of members of the police force. It was not suggested that• the Standing Orders on which reliance was placed were those made by the State Government as they purport to · be only under the authority of the Inspector General of Police. feeble argument was attempted to suggest that the State Government might have delegated their power m the Inspector General, but nothing j5 better settled than that ·a power to make rules could not be delegated without express statutory provision therefor. Some point was sought to be made of the fact that these Standing Orders were issued in October, 1949, when not the Constitution but s.

243 of the Government of India Act, l!l35 was in force. But the respondent gets no advantage out of this circumstance, because s. 243 referred to, enacts that the conditions of service of the subordinate ranks of various police forces in India "would be such as may be determined by or under the Acts relating to those forces" and we arc again thrown back on the provisions of s. 2 of the Police Act by which it is the State Government, not the Inspector General of Police, that is VL-sted with authority to frame conditions of service. We therefore consider, with great 2 s.c.R. respect to the learned.Judges of the High Court, that they were ii) error in treating Standing Order 46 as a condition of service which was violated by the , · order of reversion impugned by the respondent in his Writ Petition. Standing Order 46 being put aside, we next turn to ss. 115 to 117 of the Act.

The respondent was in the service of the Ajmer State as an officiating Sub-Inspector of Police on the appointed day i. e., November 1, 1956 and by virtueofs.115(l)ofthe Act he would be deemed to have been allotted to serve in connection with the affairs of the Rajasthan State, and, in fact, as noticed earlier, there was a formal order of appointment dated November 1, 1956, by which he was appointed as an officiating Sub- Inspector of Police. We do not consider it necessary to deal with sub·s. ( 5) of s. 115 as, in our opinion, nothing turns on it, though it was referred to by learned Counsel for the respondent. What is really crucial for the determination of this appeal is the proviso to sub-s. (7) by which there was a guarantee that the conditions of service applicable before the appointed day would not be varied to the disadvantage of persons in the position of the respondent except with the previous approval of the Central Government.

The question arising under this proviso would be whether it is any condition of service applicable to the holder of an officiating post that he shall not be reverted to his substantive post. But before dealing with it, the effect of two other provisions viz., s. 117 ands. 116 (2) may be noticed. We first refer to s. 117 because if there is a direction of the Central Government in relation to a class of officers and such direction ·is necessary for giving effect to the provisions of this part, it is the duty of the State Government to give effect to it and in such a case the question whether such a direction is strictly a condition of service or not might not . fall for determination. The learned Judges of the High Court ·J.9fjJ St•u •f ~fastk•• R1Jm S.«n ~)011 &j R•jasClran R.,,. Sar 111 AJ.)'"l"' J. considered that there was such a direction by the Central Government and that was part of the reasoning on which they granted relief 10 the respondent.

Learned Counsel for the re,pondent strenuously sought to support this argument before us. The direction was claimed to be contained in a letter from the Deputy !'ltcretary to the Government of India Ministry of Home Affairs to the Chief Secretary to the Government of Rajasthan, Jaipur dated March ~i. 1957 and headed 'protection of service conditions to be afforded to state service personnel.' In this letter, after referring to the proviso to mb·s. (i I of s. 11 ;i of the Act which laid down that conditions of service applicable to persons referred to in sub-s. (I) shall not bt: varied to their disadvantaizc except with the previous approval of the Central Government, thrre was a paragraph reading as under: (ii) 011.'ciatinq Pay:

When an officer had o!iiciated continuously on a particular scale of pay or would have offciated on that scale but for his officiating appointment to a post on a higher scale or proceeding on leave or deputation for a minimum peried of three years. immediately before November I, 1956, the pay on which he had so officiated should be protected as if it were pay and scale drawn in a substantive capacity." The letter divides the subject· matter dealt with in it into several parts and the ·above paragraph occurs under the part headed 'Pay'. It was not suggested on behalf of the respondent that the clause had as such any relevance to the questio~ of reversion, to a substantive post of an. officer in an 9!13 officiat;n~ post, or that even otherwise the respondent had qu,,ldied for the benefit of the provision contained iu it-as regar.:ls pay since he had not officiated as a Sub Inspector for a· period of three years prior to the appointed date i.e., November l, 1936.

The argu nent, however, was that since officers holding merelv officiatillg posts had been mentioned in this directive, the rigut to continue in that post brcame a service condition and that no reversion could be ordered without the sanction of the Central Government. We do not find it pos>ible to read the direction contained in the clause extr.1cted earlier as having any such effect. No doubt, to the extent to which it protects the pay of certain officers it might have effect under s. 117 of the Act but beyond It, subject to the proviso to subs. (7) of s. 115, the powers of the State Qovernment are not intended to be curtailed an-!, in fact, they are expressly saved by sub-s.

(2) of s. ll6 which permits a competent authority to pass in relation to such persons "any order affecting his continuance iQ such post or office." 'T'he contention that survives is merely whether. the right to hold an officiating post is a legal right and whether it could be stated to be a condition of service' that such an officer shall not be reverted except for proper reasons. In our opinion, the matter is concluded by the decision of this Court in Parshotam Lal Dhingra. v. Union of India ('). There, as here, an officer who was appointed to officiate in Class Il Service as an Assistant Superintendent, Railway Telegraphs was reverted to his substantive Class III appointment. No doubt, the question there comidered was whether on the facts of that case, this order of reversion was passed a~ a punishment so as to attract the constitutional protection guaranteed by Art. 311 (2) but this Court had also to consider whether an officer appointed to an officiating post had any legal right to continue (IJ [1958~ S. C.R. 828.

S1a11 of Raj"''""'° Ram Soran Ayy .. gar J. jtg St.U of RajastA.. in that post. As to that Das, C. J. speaking· for the majority observed : "The petitioner hefore m was appointed to a higher post on an officiating basis .............. . He had no right to continue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by Govern· mrnt and therefore his reduction did not operate as a furfeiture of any right and cannot be described as reduction io rank by way of punishment." (Vide also the judgrr.ent of this Court in State of Brm1bay v.1'. A. ALra/,am (1), If he had no legal right to continue in that post it would rather appear that it was one of the cond11ions of his service that he could, for administrative rea~ons, be rr.vertfd to his substantive appoir1tment. It therefore appears to u~ that there is no basis for argumeut that mere reversion to a substantive post is a bri-ach of the conduions of service.

That is why. we said that the proviso to sub·s. (7) of s. 115 on which stress is laid by the High Coun really affords no assistance to the respondent. The above was, in general, the reasoning upon which the learned Judges of the High Court allowed the petition. We consirler that "icy were in error in 50 doing and the appeal has accordingly to be allowed. It is necessary, now, to mention the first of the points we have set out earlier which learned Counsel for the respondent strcnuomly prcs~cd upon us. He submitted that the respondent had all< ged in his petition a violation of Art. 14 of the Constitution, in that the selection of officers for promotion was determined not on the basis of the seniority of the (2) Ci'il Appeal 59 or t96J (Not ytt repor«d) d<cidcd on Ikf;cmbc:r 12, 1961. ! S.C.R. officers considering the State as a whole but region· wise and this was the gravamen of the <.;har5c in this respect made in the petition.

In this conn~ction he drew our attention to the term; of s. 2 of the Police Act 5 of 1!161 which reads .: "2. The entire police·establishmerit under a State Government shall, for the purposes of this Act, be deemed to be one police-force, and shall be formally enrolled; .and shall consist of suca number of officers and men, and shall be constituted in such manner as shall from time to time be ordered by th~. State Government. He also pointed out that in the. counter-affidavit' filed by the State this splitting up of the State into regions and the determination of seniority and. promotiln on a regionwise, as distinguished from a.· Statewise basis, was defended as dictated by adminis-. frative considerations. The learned Judges, in their.' judgment have made a passing reference. to thili feature of the case and seem to express the opinion that the system of regionwiie promotion wa' produc· tive of inequality and hardship.

The difficulty in the way of the respondent, however, .is that the plea raised i 1 regard to . this matter .is of the vaguest character and appears to be designed as affording some support for the main allegat,ions and contentions we have dealt with, and not ·as an independent and distinct ground for i'mpugriing the · constitutional validity of the scheme of promotion. In consequence of this siate ofthe pleadings the facts and detaib . necessary for sustaining or repelling this contentio11 were not brought into the record, so that admittedly the point could not be decided on the record as it stands. Realising this learned Counsel for the respondent urged that the matter should be remitted to the High Court for a consideration of this issue 1g61 . St~t~ ~--R~~itlt-,. kamia..,. Stdlc oj Raj<1Jtlwi R.m Sara• about the breach of Art. 14 of the Constitution and the cons1itutional validity of the regionwise :rniority lists prepared for promotion, reversion ere. allowing liberty to the parties to lead further e\icfrnce on the matter.

Having considered the suggestion carefully we have arrived at the conclus10n that on the pleadings, as they stand, this question could not be detcrmi11ed s1tisfactorilv. If the issue as to di,crimina1ion and a violation of Art. 14 has to be satisfactorily investigated and decided both the parties would have to file am,.nded pleaoings in ordt r to focus attention on several details, with 1he result that this would virtually amount to the fi liug of a new peti1ion. We consider therefore that if the respondent is so advised he should be at liberty to challenge the c•rdcr now impugned on these other grounds and that for that purpose it would really be. in his interest that he should be permitted to file a fresh petition making necessary allegations and setting forth the requi;ite facts when the State also would have an opportunity to make its answers to such a plea.

It is in the light of this consideration that we have refrained from remanding the case to the High Court for the consideration of this point. The result is that the appeal is allowed and the order of the High Court set aside and the Writ Petition of the respondent dismi>sed. We have to add that this would be without prejudice to his right to fi:e a fresh petition in regard to the matter we · have indicated earlier. In the circumstances of this case there would be no order as to costs. Appeal allowed. t