http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: THE STATE OF RAJASTHAN

       Vs.

RESPONDENT: RAM SARAN

DATE OF JUDGMENT: 10/04/1963

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C.

CITATION:  1964 AIR 1361            1964 SCR  (2) 982

ACT: Public Servant-Officiating Sub-Inspector of Police in Ajmer- Reorganisation   of   States-Appointed  to  same   post   in Rajasthan-Reversion-Legality  of-Police  Act,  1861  (V   of 1861),  ss.  2 , 12-States Reorganisation Act, 1956  (37  of 1956), ss. 115, 116, 117,

HEADNOTE: The respondent was an officiating Sub-inspector of Police in Ajmer.  After the merger of Ajmer in the State of  Rajasthan under  the States Reorganisation Act, 1956,  the  respondent was   appointed  officiating  Sub-Inspector  of  Police   in Rajasthan.   On  April  6,  1957, he  was  reverted  to  his substantive  post  of  Head Constable.   He  challenged  his reversion  on the ground that under the standing  Orders  of the  Police  Force  in  Ajmer  which  formed  part  of   his conditions  of service he had a guaranteed right not  to  be reverted  except  in  strict order of  juniority,  that  the reversion 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. 1 15 (7) of the Act and that there was a direction by the Central Government  under s. 117 of the Act which made the right  to retain an officiating post without reversion a condition  of service. Held  that  the  Standing Orders  were  mere  administrative instructions issued by the Inspector-General of Police under s.  12 of the Police Act and were not conditions of  service which  could  only be framed by the  State  Government.   As such,  even if the order of reversion violated the  Standing Order  there was no violation of the conditions of  service. It  is  not  a condition of service that the  holder  of  an officiating  post shall not be reverted to  his  substantive post  and  there  was no alteration  of  the  conditions  of service by the order of reversion as contemplated by s.  115 (7) of the Reorganisation Act, 1956.  Nor was any  direction given by the Central Government under s.     117 of the  Act curtailing  the  powers  of the  State  Government  in  this respect.   On  the  other  hand  the  powers  of  the  State Government to pass in relation to such a person "any order  983

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

affecting his continuance in such post or office" have  been specifically preserved by s. II 6 (2) of the Act.  There  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. 828, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 453 of 1962. Appeal from the judgment and order dated November 18,  1960, of the Rajasthan High Court in D.  B. Civil Writ No. 264  of 1959. S. K. Kapur, K. 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 AYYANGAR.J.-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 thereafter he was promoted to the rank of Head Constable and was confirmed in  that  post.   On  June 29,  1956  he  was  appointed  to officiate  as  a  SubInspector.  At that  stage  the  states Reorganisation Act (XXXVII of 1956), hereinafter referred to as  the  Act,  was  enacted  -which  became  operative  from November  1, 1956, referred to in the Act as  the  appointed date,, and by virtue of its provisions the 984 former State, of Ajmer was merged in the State of  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, 1957 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,  on  that date,  officiating Sub-Inspectors in the State police  force who  were  junior  to him but who continued  to  hold  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.  When he did not succeed in 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-Inspector according to his seniority.  The State as well as the Inspector-General of Police and the Deputy Inspector- General of Police were impleaded as parties to the  petition and  the  learned  judges  of  the  High  Court  allowed  it principally  on the ground that this order of reversion  was in violation of the provisions of s. 115 of the Act.  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

which  the  judgment of the High Court in  the  main  rests. Those material in this; 985 context  are ss. 115 to 117 of the Act occurring 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 Commissioner 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 of Mysore, Punjab, Patiala and               East Punjab States Union and Saurashtra shall,               as  from  that -day, be deemed  to  have  been               allotted  to  serve  in  connection  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.               986               (6)   The for going provisions of this section               shall  not apply in relation to any person  to               whom the provisions of section 114 apply-               (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 Govern.               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 been  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               State, 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

             continuance in such post or office.                117.   The Central Government may at  anytime               before or after the appointed day give such                987               directions  to  any State  Government  as  may               appear  to it to be necessary for the  purpose               of  giving effect to the foregoing  provisions               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 as to attract Art. 311 of the Constitution. The  grievances  of the respondent as formulated  before  us were threefold : (1) 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 seniority list for Ajmer and another for other areas in  the State  and  that this had resulted in police  officers  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.  II 5 (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 if  s. 115  were insufficient by itself to constitute the right  to retain an officiating post without 988 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 conditions of service and that by reason of these  Standing Orders the reversion was in violation of  s. 115 (7) of the Act. We consider it would be convenient to deal with these in the reverse  order,  and take 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 as  well as  by  learned Counsel for the respondent  before  us.   In regard  to them there are two distinct questions: (1)  their proper  interpretation,  (2)  whether  they  ’would  in  law constitute  a  condition  of service and these  have  to  be considered separately.  The Standing Order relied on is  one numbered 46 issued by the Inspector General of Police, Ajmer and  is dated October 20, 1949.  The relevant portion of  it relied on is the paragraph numbered 4 (b) which reads :               "An  officer who has secured officiating  pro-               motion  on  the  basis of  his  place  on  the               approved  list should normally  be  considered               for  promotion earlier provided that he  main-               tains an appropriate standard.  If he fails to               do  so he may be reverted or his  confirmation               postponed.  He should not, however, be  denied

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

             his  claim  to  confirmation  merely   because               although  lie  has  maintained  his   standard               someone  else promoted later is considered  to               have done even better." It  is clear from this provision that it deals 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  989 impugned  reversion  as  one in breach of  its  terms.   But assuming 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 instruction issued by the Inspector General of Police for the guidance of his officers but could not  determine  service  conditions  fixed  by  statute   or statutory rules by competent authorities or confer any legal rights  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 expedient  relative               to   the  Organisation,   classification   and               distribution of the police-force, the place at               which  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, include within its fold the 990 conditions of service of those in the police force.  Turning next to s. 2 to which our attention was drawn, the  material portion is its second paragraph which reads :               "Subject to the provisions of this Act-the pay               and all other conditions of service of members               of  the subordinate ranks of any 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.   A  feeble argument was attempted to suggest that the State  Government might  have delegated their power to the Inspector  General, but  nothing  is better settled than that a  power  to  make

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

rules  could  not  be delegated  without  express  statutory provision therefore. 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, 1935 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 are 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 vested with  authority to frame conditions of service.  We therefore consider, with great  991 respect  to the learned judges of the High Court, that  they were  in error in treating Standing Order 46 as a  condition of  service  which was violatcd 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 virtue  of  s. 115 (1) of the 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  visions viz.,  s. 117 and s. 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 992 considered  that there was such a direction by  the  Central Government and that was part of the reasoning on which  they granted  relief to the respondent.  Learned Counsel for  the respondent  strenuously  sought to  sup-port  this  argument before us.  The direction was claimed to be contained in a letter  from the Deputy secretary to the Government of India Ministry  of Home  Affairs  to the Chief Secretary to the  Government  of Rajasthan,   Jaipur   dated  March  27,  1957   and   headed ’protection  of service     conditions  to  be  afforded  to state service personnel.’ In this letter, after referring to the  proviso to sub-s. (7) of s. 115 of the Act  which  laid down  that  conditions  of  service  applicable  to  persons

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

referred  to  in  sub-s. (1) shall not be  varied  to  their disadvantage  except  with  the  previous  approval  of  the Central Government, there was a paragraph reading as under:               "2. (ii) officiating Pay               When an officer had officiated continuously on               a  particular  scale  of  pay  or  would  have               officiated   on   that  scale  but   for   his               officiating appointment to a post on a  higher               scale or proceeding on leave or deputation               for   a   minimum  period   of   three   years               immediately  before November 1, 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 question of reversion to a substantive post of an officer in an  993 officiating post, or that even otherwise the respondent  had qualified  for the benefit of the provision contained in  it as  regards  pay  since  he had  not  officiated  as  a  Sub Inspector for a period of three years prior to the appointed date  i. e., November 1, 1956.  The argument,  however,  was that  since  officers holding merely officiating  posts  had been  mentioned in this directive, the right to continue  in that  post became a service condition and that no  reversion could be ordered without the sanction of the Central Govern- ment.   We  do not find it possible to  read  the  direction contained  in  the clause extracted 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.  1 17 of the Act but beyond it, subject to the proviso to subS. (7)  of s. 115 the powers of the, State Government  are  not intended  to be curtailed and, in fact, they  are  expressly saved  by  sub-s. (2) of s. 116 which  permits  a  competent authority  to pass in relation to such persons  "’any  order affecting his continuance in such post or office." The 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  (1). There, as here, an officer who was appointed to officiate in Class  It  Service as an Assistant  Superintendent,  Railway Telegraphs  was  reverted  to  his  substantive  Class   III appointment.   No doubt, the question there  considered  was whether  on the facts of that case, this order of  reversion was   passed   as  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 (1)  [1958] S. C. R. 828 994 in  that  post.   As to that Das, C.  J.  speaking  for  the majority observed :                 "The petitioner before us 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

             that   it  was  terminable  at  any  time   on               reasonable notice by Government and  therefore               his reduction did not operate as a  forfeiture               of  any  right  and  cannot  be  described  as               reduction in rank by way of punishment."               (Vide also the judgment of this Court in State               of Bombay V. P. A. Abraham  If he had no legal right to continue in that post it  would rather  appear  that it was one of the  Conditions  lot  his ’service  that  he  could, for  administrative  reasons,  be reverted  to  his  substantive  appointment.  ,It  therefore appears to us that there is no basis for argument that  mere reversion  to  a  substantive  post  is  a  breach  of   the conditions 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 Court  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  consider that  they  were  in error in so 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  strenuously pressed upon us.  He submitted  that the  respondent had alleged 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)  Civil Appeal 59 of 1961 (Not yet reported) decided on December 12, 1961.  995 officers considering the State as a whole but regionwise and this was the gravamen of the charge in this respect made  in the  petition.  In this connection he drew our attention  to the terms of s. 2 of the Police Act 5 of 1861 which reads :               "2.  The entire police-establishment  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 such number of officers  and  men,               and  shall  be constituted in such  manner  as               shall  from  time to time be  ordered  by  the               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  promotion   on   a regionwise,  as  distinguished from a Statewise  basis,  was defended as dictated by administrative considerations.   The learned  judges,  in  their judgment  have  made  a  passing reference  to this feature of the case and seem to  express, the  opinion  that (he system of  regionwise  promotion  was productive  of inequality and hardship.  The  difficulty  in the way of the respondent, however, is that the plea  raised i  i regard to this matter is of the vaguest, character  and appears  to  be designed as affording some support  for  the main allegations and contentions we have dealt with, and not as  an,  independent and distinct ground for  impugning  the constitutional  validity  of the scheme  of  promotion.   In consequence  of  this state of the pleadings the  facts  and details   necessary   for  sustaining  or   repelling   this contention  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 consideration of this issue 996

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

about  the  breach of Art. 14 of the  Constitution  and  the constitutional  validity of the regionwise  seniority  lists prepared  for promotion, reversion etc. allowing liberty  to the parties to lead further evidence on the matter.  Having- considered  the suggestion carefully we have arrived at  the conclusion  that  on  the pleadings,  as  they  stand,  this question  could  not be determined satisfactorily.   If  the issue as to discrimination and a violation of Art. 14 has to be satisfactorily investigated and decided both the  parties would  have  to  file amended pleadings in  order  to  focus attention  on  several details, with the  result  that  this would virtually amount to the filing of a new petition.   We consider  therefore that if the respondent is so advised  he should be at liberty to challenge the order 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 requisite 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 Writs  Petition  of  the respondent  dismissed.   We have to add that this  would  be without  prejudice to his right to file 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.