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PETITIONER: K.   S. SRINIVASAN

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 18/02/1958

BENCH: DAS, S.K. BENCH: DAS, S.K. BOSE, VIVIAN DAS, SUDHI RANJAN (CJ) AIYYAR, T.L. VENKATARAMA SARKAR, A.K.

CITATION:  1958 AIR  419            1958 SCR 1295

ACT: Union  Service,  Termination of-Servant  in  quasi-permanent status-Post  kept  in abeyance-Ordered to carry  the  status while officiating in new appointment under  misapprehension- Validity-Test-Consultation   with  Federal  Public   Service Commission,    if   mandatory-Servant,   if   entitled    to Constitutional   Protection-Constitution  of   India,   Art. 311(2)-Central  Civil  Services (Temporary  Service)  Rules, 1947, rr. 3, 4 and 6(1).

HEADNOTE: The  appellant held the post of a Public Relations  Officer, All  India Radio, and was declared to be in  quasi-permanent Service  under r. 3 Of the Central Civil Service  (Temporary Service)  Rules,  1949.   As a measure of  war  economy  the Government  decided to hold the post "in abeyance"  and  the appellant  was appointed to officiate as  Assistant  Station Director  in a temporary capacity and was ordered  to  carry with  him his quasi-permanent status while holding  his  new post.   On  the  objection  of  the  Union  Public   Service Commission,  however,  the  service  of  the  appellant  was terminated  and  lie was appointed to a  temporary  post  of Assistant  Information  Officer which belonged  to  a  lower grade.   The  appellant moved the High Court for a  writ  of certiorari.  His contention was that as, admittedly, he  had not  been  called  upon to show cause, Art.  311(2)  Of  the Constitution  was violated.  It was contended on  behalf  of the  respondent that the order permitting the  appellant  to carry his quasi-permanent status to his new post having been made  under  a misapprehension that the  post  of  Assistant Station  Director belonged to the same grade as that of  the Public  Relations Officer, his service was terminable  under the relevant Service Rules : Held (per Das, C. J., Venkatarama Aiyar, S. K. Das and A. K. Sarkar,  JJ.   Bose,  J.  dissenting),  that  the  post   of Assistant Station Director was not a post in the same  grade as  that  of  the Public Relations  Officer  and  under  the relevant  Service  Rules  he  could  not  carry  his  quasi- permanent  status to the new post; as the  order  permitting

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the appellant to carry his quasi-permanent status was passed under  a misapprehension and was not intended to  confer  on him  that status independently in the new post, his  service was terminable under r. 6(1) of the Rules. It  is  well settled that if a servant has no right  to  the post  and  his service can be terminated under  the  Service Rules,  Art.  311(2) is not  attracted.   Consequently,  the appellant who was appointed on a purely temporary  capacity, could not seek the protection of Art. 311(2). 1296 Parshotam Lal Dhingra v. Union of India, [1958] S.C.R.  828, relied on. Admission  is not conclusive proof of the  matter  admitted, although  it  may  in certain circumstances  operate  as  an estoppel.   In the present case, as the appellant was in  no way misled as to his quasi-permanent status by the erroneous order  of  the  Government, no question  of  estoppel  could arise. Held,  further, that the word ’reduction’ in cl (ii)  of  r. 6(1)  of the Rules is not necessarily confined to  abolition but also includes keeping in abeyance of posts and the  word ’certify’ occurring therein does not necessarily imply  that a formal order is essential. The  same scale of pay is not the only test for finding  out if  a particular post belongs to the same grade  as  another within the meaning of the proviso to cl. (ii) of r. 6(1)  of the Service Rules, nor does the fact that the two belong  to the same class determine the question. Quasi-permanent  status  is a creature of the  Rules  and  a servant  who  seeks the benefit of r. 3 must be held  to  be bound by the proviso to r. 4(b) of the Rules. State  of U. P. v. Manbodhan Lal Srivastava,  [1958]  S.C.R. 533, held inapplicable. Per  Bose,  J.-The order of the  Government  permitting  the appellant  to carry with him the quasi-permanent  status  he had in his former post was clearly intended to confer on the appellant  quasi-permanent  status in his new post  and  the Government could not be allowed to go back upon it  although it may have acted under a mistake, subsequently discovered. The  Commissioner  of Police, Bombay v.  Gordhandas  Bhanji, [1952] S.C.R. 135, applied. Moreover, under r. 4(a) of the Rules the Government had  the power   to  confer  such  a  status  without  any   previous consultation  with the Federal Public Service Commission  as required by r. 4(b) of the Rules, the words ’is required  to be made’ occurring in that rule being only directory and not mandatory. State  of U. P. v. Manbodhan Lal Srivastava,  [1958]  S.C.R. 533, Biswanath Khemka v. The King Emperor, [1945] F.C.R.  99 and  Montreal  Street Railway Company v.  Normandin,  [1917] A.C. 170, relied on.

JUDGMENT: CIVIL  APPELLATE JURISDICTION :Civil Appeal No. 78  of  1957 and Petition No. 81 of 1956. Appeal  by special leave from the judgment and  order  dated November  25, 1955, of the Punjab High Court in  Civil  Writ No. 209-D of 1955. 1297 K.S.  Krishnaswamy  Aiyanger and C. V. L. Narayan,  for  the appellant. P.A.  Mehta,  R. Ganapathy Iyer and R. H.  Dhebar,  for  the respondent.

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1958.  February 18.  The Judgment of Das C. J.,  Venkatarama Aiyar, S. K. Das and Sarkar, JJ., was delivered by S. K. Das J. Bose J. delivered a separate judgment. S.K. DAS J.-On May 1, 1946, Shri K. S. Srinivasan, appellant before  us, was appointed to a post of Liaison Officer,  All India  Radio, on a pay of Rs. 350 per month in the scale  of Rs.  350-20-450-25/2-550.  The appointment was made  on  the recommendation   of   the  then   Federal   Public   Service Commission,   and   the  advertisement  or   memorandum   of information  for candidates, as it is more properly  called, issued  by  the Public Service Commission when  calling  for applications  for the said post, related to the  recruitment for  nine  posts of Listeners’ Research  Officers  and  nine posts  of Liaison Officers, All India Radio.  It was  stated in  the  said memorandum that the posts were  permanent  and pensionable,  but would be filled on a temporary basis;  the memorandum further stated that if the persons concerned were retained  in service and confirmed in the posts, they  would be allowed pensionary benefits and would also be eligible to contribute  to  the General Provident Fund.   In  the  first instance  the  appointments were made on probation  for  six months   subject  to  termination  on   certain   conditions mentioned  in para. 4 of the memorandum, which need  not  be set out at this stage.  The duties of a Liaison Officer were stated in para. 5 of the memorandum, the main duty being  to organise and conduct publicity for the programmes and  other activities  of  a Radio Station.   The  designation  Liaison Officer  was later changed to Public Relations Officer,  and along  with  other posts of Listener  Research  Officer  and Assistant  Station Director, the posts of  Public  Relations Officers were upgraded to Rs. 450-25-500-30-800 with  effect from  January  1,  1947.   On May  23,  1952,  the  Director General, All India Radio, passed an order bearing 1298 No.  2(1)A/50  in  which  it was  stated  that  whereas  the appellant had been in continuous Government service for more than three years and a declaration had been issued to him in pursuance  of  rr.  3 and 4 of the  Central  Civil  Services (Temporary Service) Rules, 1949, and whereas an  appointment to  the post of Public Relations Officer was required to  be made   in  consultation  with  the  Union   Public   Service Commission and their concurrence to the appointment had been obtained,   the  appellant  was  appointed  to  the   Public Relations Officer’s grade in a quasi-permanent capacity with effect from May 1, 1949.  On September 3, 1952, however, the appellant  received an order from the said  Director-General in  which  it  was stated that his  services  would  not  be required after October 6, 1952.  The appellant was naturally taken  by  surprise  on receipt of this  order  and  made  a representation on September 8, 1952, in which he stated that as a quasi-permanent Public Relations Officer he had a claim to  an  alternative post in the same grade, so long  as  any post in the same grade was held by a Government servant  not in  permanent or quasi-permanent service.  On September  13, 1952,  the appellant was informed by means of an order  that he was appointed to officiate as Assistant Station Director, Madras  (the appellant was then working as Public  Relations Officer,  All  India Radio, Madras) in  a  purely  temporary capacity  until further orders.  On September 19, 1952,  the appellant   was  informed  that  his  representation   dated September 8, 1952, was under consideration and a  suggestion was made that in the meantime he should apply for one of the posts   of  Assistant  Station  Directors  which  had   been advertised by the Union Public Service Commission.  Then, on October   4,  1952,  the  appellant  submitted   a   further

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representation  in  which he said that under  the  rules  in question,  namely  the  Central  Civil  Service   (Temporary Service)  Rules,  1949, he was entitled to  be  retained  in service  in  a  post of the same grade and  under  the  same appointing authority ; and it was, therefore, not  necessary that  he  should  be reselected for the  post  of  Assistant Station Director by the Union Public Service Commission, In 1299 the concluding paragraph of his representation the appellant stated  that  in  deference to the suggestion  made  in  the letter of the Director-General dated September 19, 1952,  he was  enclosing  an application to the Union  Public  Service Commission  for the post of Assistant Station  Director  and if,  after due consideration, the  Director-General  decided that  the appellant should apply for the post  of  Assistant Station Director, his application should be forwarded to the Union  Public  Service  Commission.   While  Government  was considering  the representation of the appellant, the  Union Public  Service  Commission  interviewed  in  March,   1953, candidates  for  the posts of Assistant  Station  Directors. The  appellant appeared before the Commission on  March  26, 1953.   On April 18, 1953, the appellant was  informed  that the Union Public Service Commission had not selected him and the  appellant was again informed that "it was not  possible to  continue  him  in service."  The  appellant  made  fresh representations  to the effect that the order purporting  to terminate  his service on the ground that the  Union  Public Service  Commission  had not selected him for  the  post  of Assistant Station Director, was an illegal order inasmuch as the appellant held a quasipermanent status and was  entitled to hold a post in the grade of Assistant Station  Directors, as  long  as  anyone not  in  permanent  or  quasi-permanent service continued to hold such a post.  To these representa- tions  the  appellant received a reply to  the  effect  that Government  had  decided  to keep in abeyance  the  post  of Public  Relations Officer held by him and therefore  it  was not  possible to retain him in that post and  the  appellant was  given  an  opportunity to show cause  why  his  service should  not  be terminated on the expiry of  the  period  of notice  with effect from Jul ’18, 1953.  A reply  was  asked for  within 15 days.  In reply, the appellant again  pointed out  that having been given a quasi-permanent status he  was entitled to be retained in service under the rules governing Government servants holding such status, and the termination of his service would be in violation of 165 1300 Article  311  of  the Constitution.  On July  3,  1953,  the appellant  received a memorandum dated June 9,  1953.   This memorandum said: " Shri Srinivasan’s representation has  now been  considered  by  Government.  As the  posts  of  Public Relations  Officers  form a cadre by themselves and  do  not belong  to  the  cadre of Assistant  Station  Directors,  he cannot claim any protection in the post of Assistant Station Director  on account of his being quasi-permanent as  Public Relations  Officer.  Shri Srinivasan may please be  informed accordingly." On July 10, 1953, the appellant made a fresh representation, this  time  to the Secretary, Ministry of Home  Affairs,  in which  he repeated his former objections and contended  that the  proposed  termination  of his  service  was  irregular, unjust and illegal.  He submitted that the order terminating his  service  was  in  contravention  of  Art.  311  of  the Constitution  and he further said that "though the posts  of Public Relations Officer and Assistant Station Director were

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not  declared  to  be in the same cadre,  there  can  be  no dispute  that the posts are in the same grade.  " On  August 17, 1953, the appellant received a memorandum to the  effect that  the  notice  of  the termination  of  his  service  as Assistant   Station  Director  dated  April  18,  1953,   as subsequently  amended by corrigenda dated May  12,1953,  and July  3,  1953, was withdrawn, and it also stated  that  the notice  dated  May 26, 1953, asking the  appellant  to  show cause   why  his  service  should  not  be  terminated   was cancelled.   This  was followed by an order  dated  December 14,1953.  This order has in important bearing on the  points urged before us and must be quoted in full: " S. No. 41(R)                     Government of India,              Director General, All India Radio. No. 1 (113)-SI/52.            New Delhi, the 14th December, 1953.                            ORDER. In this Directorate Order No. 2(1)-A/50, dated the 23rd May, 1952, Shri K. S. Srinivasan, then officiating                             1301 Public Relations Officer, All India Radio, was appointed  to that post in a quasi-permanent capacity with effect from the 1st  May, 1949.  Subsequently, in August 1952, all posts  of Public  Relations Officers, except the one in  the  External Services  Division, were held in abeyance.  As the  post  of Public  Relations  Officer  belongs to  the  same  grade  as Assistant Station Director carrying identical scales of  pay Shri Srinivasan was appointed Assistant Station Director  in the  External  Services Division with effect from  the  22nd September,  1952.   Under  the provision  contained  in  the Ministry  of Home Affairs Office Memorandum No. 54/136  /51- NGS, dated the 24th April, 1952, Shri Srinivasan will  carry with  him the quasi-permanent status of his former  post  of Public Relations Officer while holding the post of Assistant Station Director. (Sd.) M. Lal, Director-Geiieral." A  copy of the order was also sent to the  Secretary,  Union Public  Service  Commission.  Unfortunately,  the  appellant soon  found  that his troubles did not end  with  the  order dated  December 14, 1953. On August 31, 1955, the  appellant was   informed   by  the  then,  Secretary,   Miniistry   of Information and Broadcasting, that the Union Public  Service Commission  had  objected to his  appointment  as  Assistant Station Director, holding that such appointment was contrary to  the  regulations; the appellant was then asked  that  he should  relinquish the post of Assistant  Station,  Director and accept a temporary post of Assistant Information Officer in  the Press Information Bureau or, in the alternative,  he should  " clear out In may be stated here that the  post  of Assistant  Information  Officer  offered  to  the  appellant carried  a  scale  of pay lower than that  of  an  Assistant Station Director, namely Rs. 350-25-500-30-620.  As this new offer  deprived the appellant of his quasi-permanent  status and also amounted to a reduction in his rank, the  appellant immediately sent fresh representations to the Home Ministry, Director-General,  and  the  Minister  for  Information  and Broadcasting.  On September 7, 1955, the appellant  received the final order 1302 of  Government,  which  is the order complained  of  in  the present appeal.  That order was in these terms: " Shri Srinivasan was declared quasi-permanent in the  grade of   Public   Relations  Officer,  All  India   Radio   (Rs.

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450-25-500-EB-30-800)  with effect from the 1st  May,  1949. In 1952, all the posts of Public Relations Officer excepting one in the External Services Division were held in  abeyance as  a  measure of economy. The only post that  survived  the economy  drive  was  assigned to  the  permanent  incumbent. ShriSrinivasan would have had to be retrenched in 1952;  for quasi-permanency  does not preclude retrenchment  and  there was  no  other  officer in the  grade  of  Public  Relations Officer who was non-quasi-permanent and who could have  been discharged  in  preference  to  him.   He  was   irregularly transferred  as  Asst. Station Director, in  an  officiating capacity.   He  applied for one of the  posts  of  Assistant Station  Director  when they were advertised  by  the  Union Public  Service  Commission  in  1953,  but  was   rejected. Subsequently, lie was allowed to carry also irregularly, the quasi-permanent  status  in the grade  of  Public  Relations Officer   while  holding  the  post  of  Assistant   Station Director, vide Directorate General, All India Radio’s  order No. I (I 13) 81/52 dated the 14th December, 1953.  The Union Public Service Commission have not accepted this transfer as it   is  in  contravention  of  the  Union  Public   Service Commission  (Consultation) Regulations.  Since he  has  been rejected  for the post of Assistant Station Director  in  an open  selection  and  also since the  Union  Public  Service Commission have not accepted his transfer, the Government of India  regret that they are unable to allow him to  continue in   the  post  of  Assistant  Station  Director.   He   is, therefore,  required  to relinquish charge of  the  post  of Assistant Station Director immediately. " To save him the hardship of retrenchment, the question  of offering  Shri  Srinivasan alternative employment  has  been considered.  There is no intention of reviving the posts  of Public Relations Officer that were held in abeyance in 1952. For publicity and 1303 public  relations  work of All India Radio, a few  poste  of Assistant   Information   Officer  in  the  scale   of   Rs. 350-25-500-EB-30-620 have been sanctioned on the strength of the  Press Information Bureau and it is proposed  to  absorb him  on  temporary basis, against one of these  posts.   The absorption in this post also, is subject to the approval  by the Union Public Service Commission to whom a reference  has been made.  Meanwhile, after relinquishing the charge of the post of Assistant Station Director, he should report himself for  duty  to  the  Principal  Information  Officer,   Press Information Bureau, New Delhi.  The question of fixation  of his pav in the grade of Assistant Information Officer., With a  view  to protecting his present salary will be  taken  up after he has joined duty" The  appellant continued to make some  more  representations which  were, however, rejected, and on October 11, 1955,  an order  was  passed transferring the appellant to  the  Press Information  Bureau  as  officiating  Assistant  Information Officer with immediate effect and the appellant was directed to  hand  over  charge  of the  post  of  Assistant  Station Director immediately and to take over his post in the  Press Information  Bureau forthwith.  The validity of this  order, which is also challenged in the present appeal,  necessarily depends on the validity of the earlier order dated September 7, 1955. The appellant refused to accept the lower post of  Assistant Press  Information Officer and on October 19, 1955, he  made over  charge  under  protest.  On  November  25,  1955,  the appellant filed a petition, numbered Writ Petition 209-D  of 1955  in  the Punjab High Court in which he prayed  for  the

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issue of a writ of certiorari or any other appropriate  writ for quashing the orders dated September 7, 1955, and October 11, 1955, and asked for an order directing his reinstatement as  Assistant Station  Director in the External Services Division  of  the All  India  Radio, the post which he was  holding  when  the orders  complained  of  were  passed.   This  petition   was summarily  dismissed  by the Punjab High Court on  the  same date.  The appellant then 13O4 moved  the  said High Court for a certificate for  leave  to appeal  to this Court.  That application was also  dismissed on  March  16, 1956.  Thereupon, the  appellant  moved  this Court for Special Leave and obtained such leave on April 23, 1956.   While  moving  the application  for  special  leave, learned  counsel  for  the  appellant  stated  that  without prejudice to the contentions of either party, the  appellant would take up the  posts of Assistant Information Officer in the Press Information Bureau pending disposal of the appeal. On April 22, 1956, the appellant also filed a petition under Art.  32  of  the  Constitution and  in  this  petition  the appellant  has challenged the order date September 7,  1955, on  the  ground that the order violates  the  provisions  of Arts. 14 and 16 of the Constitution. The present judgment will govern the appeal by special leave as also the petition under Art. 32 of the Constitution.   It will  be convenient to take up the appeal first.   The  main question for decision in the appeal is whether the  impugned orders  violate the constitutional guarantee given  by  Art. 311 (2) to the appellant, who is admittedly the holder of  a civil  post under the Union.  The true scope and  effect  of Art.  311  of  the Constitution was fully  considered  in  a recent  judgment of this Court in Parshotam Lal  Dhingra  v. Union  Of India (1), pronounced on November 1, 1957, and  it was  there held by the majority as follows ( we are  quoting such observations only as have a bearing on the present case): "  Shortly put, the principle is that when a servant  has  a right  to a post or to a rank either under the terms of  the contract  of  employment, express or implied, or  under  the rules   governing  the  conditions  of  his   service,   the termination  of  the  service  of  such  a  servant  or  his reduction  to  a lower post is by itself and prima  facie  a punishment, for it operates as a forfeiture of his right  to hold  that post or that rank and to get the  emoluments  and other  benefits attached thereto, But if the servant has  no right  to  the  post, as where he is appointed  to  a  post, permanent (1)  [1958] S. C. R. 828. 1305 or temporary, either on probation or on an officiating basis and  whose temporary service has not ripened into  a  quasi- permanent  set-vice  as  defined in  the  Temporary  Service Rules,  the termination of his employment does  not  deprive him  of  any right and cannot, therefore, by  itself,  be  a punishment.    One   test  for  determining,   whether   the termination of the service of a government servant is by way of  punishment is to ascertain whether the servant, but  for such termination, had the right to hold the post.  If he had a  right  to  the post as in the  three  cases  hereinbefore mentioned, the termination of his service will by itself  be a  punishment and fie will be entitled to the protection  of Art. 31 1. In other words and broadly speaking, Art. 311 (2) will apply to those cases where the government servant,  had he been employed by a private employer, would be entitled to

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maintain  an  action  for  wrongful  dismissal,  removal  or reduction  in  rank.   To  put it in  another  way,  if  the government  has, by contract, express or implied, or,  under the  rules,  the right to terminate the  employment  at  any time,  then such termination in the manner provided  by  the contract  or  the rules is, prima facie and per  se,  not  a punishment and does not attract the provisions of Art. 311." Therefore, the critical question is-did the appellant have a right  to the post of Assistant Station Director,  which  he was  holding, when the impugned orders were passed ?  If  he had  such a right, the impugned orders will  undoubtedly  be bad  because  they  deprive  the  appellant  of  that  right inasmuch  as they terminate his service in the post  he  was holding  and reduce him to a lower  post.   Admittedly,there was  no  proceeding against the appellant  for  disciplinary action  and he had no opportunity of showing  cause  against any such action.  If, on the contrary, the appellant had  no right  to  the  post  he was holding  and  under  the  rules governing  the  conditions of his service  his  service  was liable to be terminated, then the appellant is not  entitled to  the protection of Art. 31 1. On behalf of the  appellant the  contention is that under the Civil Services  (Temporary Service) Rules, 1949 he held a 1306 quasi-permanent  status  in  the post  of  Public  Relations Officer to which he was first appointed and he carried  that status to the post of Assistant Station Director to which he was  later appointed; therefore, he had a right of which  he could not be deprived except in accordance with those rules, and  the impugned orders were passed in derogation of  those rules.   Furthermore,  it  is contended  on  behalf  of  the appellant that the Union Public Service Commission failed to appreciate  the, correct legal position and  their  opinion, officious or otherwise, was neither decisive nor binding  on Government or the appellant. On  behalf of the Union of India, respondent before  us,  it has been conceded that the Central Civil Services (Temporary Service)  Rules, 1949 are the relevant rules  governing  the conditions of the appellant’s service.  But the argument  is that the impugned orders are in consonance with those  rules and the service of the appellant who was in  quasi-permanent service  in the post of Public Relations Officer was  liable to termination under r. 6 (1) (ii), because (1) a  reduction had  occurred  in the number of posts  of  Public  Relations Officers available for Government servants not in  permanent service,  and (2) the post of Assistant Station Director  to which  the  appellant was appointed in  a  purely  temporary capacity  was not a post of the same grade as the  specified post  held  by  the appellant so as to entitle  him  to  the benefit  of the proviso to r. 6 (1) (ii).  On behalf of  the respondent  it  has been further submitted  that  the  order dated  December 14, 1953 was issued under a  misapprehension and when the correct position was rightly pointed out by the Union  Public  Service  Commission,  Government  passed  the impugned order of September 7, 1955 and by way of mitigating the  hardship  of  the  appellant who  was  faced  with  the prospect  of immediate unemployment offered him the post  of Assistant  Information  Officers Post created for  the  per- formance  of  duties similar to those of the  whilom  Public Relations Officer. These are the rival contentions which fall for consideration by us, We must at this stage read the                             1307 relevant rules called the Central Civil Services  (Temporary Service)  Rules, 1949, hereinafter to be referred to as  the

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Temporary Service Rules.  Rule 2 defines certain terms  used in  the Temporary Service Rules.  We are concerned with  two of  such  terms-" quasipermanent service " and  "  specified post ". " Quasipermanent service " means " temporary service commencing from the date on which a declaration issued under rule  3 takes effect and consisting of periods of  duty  and leave (other than extraordinary leave) after that date " ; " specified  post  "  means  " the  particular  post,  or  the particular  grade  of posts within a cadre,  in  respect  of which a Government servant is declared to be quasi-permanent under  rule 3 ". Rule 3, which we must read in full,  is  in these terms: "  A  Government  servant shall be deemed to  be  in  quasi- permanent service: (i)  if  he  has been in continuous Government  service  for more than three years, and (ii) if the appointing authority, being satisfied as to  his suitability  in  respect of age,  qualifications,  work  and character for employment in a quasi-permatient capacity, has issued a declaration to that effect, in accordance with such instructions as the Governor-General may issue from time  to time." Rules  4  and 6 (1) are also important for our  purpose  and must be reproduced in full. "  Rule  4.  (a) A declaration issued  under  rule  3  shall specify the particular post or the particular grade of posts within  a cadre, in respect of which it is issued,  and  the date from which it takes effect. (b)  Where recruitment to a specified post is required to be made  in  consultation  with  the  Federal  Public   Service Commission no such declaration shall be issued except  after consultation with the Commission." " Rule 6. (1) The service of a Government servant in  quasi- permanent service shall be liable to termination- (i) in the same circumstances and in the same 166 1308 manner as a Government servant in permanent service, or (ii) when the appointing authority concerned has  ,certified that  a  reduction  has  occurred in  the  number  of  posts available for Government servants not in permanent service: Provided that the service of a Government servant in  quasi- permanent  service shall not be liable to termination  under cl. (ii) so long as any post of the same grade and under the same appointing authority as the specified post held by him, continues  to  be  held  by  a  Government  servant  not  in permanent or quasipermanent service: Provided further that as among Government servants in quasi- permanent  service  whose specified posts are  of  the  same grade  and under the same appointing authority,  termination of service consequent on reduction of posts shall ordinarily take place in order of juniority in the list referred to in r. 7." As rule 6(1) refers to r. 7, we may as well quote that rule. "  Rule  7.  (1) Subject to the provision of  this  rule,  a Government servant in respect of whom a declaration has been made  under  rule  3,  shall be  eligible  for  a  permanent appointment on the occurrence of a vacancy in the  specified posts  which  may be reserved for being  filled  from  among persons in quasi-permanent service, in accordance with  such instructions  as  may be issued by the  Governor-General  in this behalf from time to time. Explanation:-No  such  declaration  shall  confer  upon  any person a right to claim a permanent appointment to any post.

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(2)  Every  appointing authority shall, from time  to  time, after   consultation  with  the   appropriate   Departmental Promotions   Committee,   prepare  a  list,  in   order   of precedence,  of persons in quasi-permanent service  who  are eligible  for a permanent appointment. In preparing  such  a list,  the  appointing  authority shall  consider  both  the seniority and the merit of the 1309 Government  servants concerned.  All permanent  appointments which are reserved undersub-rule(1) under the control of any such appointing authority shall. be made in accordance  with such  list:  Provided  that the Government  may  order  that permanent  appointment  to  any grade or post  may  be  made purely in order of seniority." Now,  it  is beyond dispute and in fact, admitted  that  the appellant  held  a quasi-permanent status in  the  grade  of posts  known as Public Relations Officers.  The order  dated May  23, 1952, stated in clear terms that (i) a  declaration had been issued in respect of the appellant in pursuance  of rr. 3 and 4 of the Temporary Service Rules, (ii) concurrence of the Union Public Service Commission had been obtained and (iii)  the grade of posts in respect of which the  appellant held   quasi-permanent  status  was  the  Public   Relations Offlcers grade.  Under r. 4 a declaration issued under r.  3 shall  specify the particular post or the particular  grades of posts within a cadre in respect of which it is issued and the  date from which it takes effect.  A ’cadre’,  according to Fundamental Rule 9(4), means the strength of a service or a  part  of a service sanctioned as a separate  unit.   Some indication of what is meant by a grade can be obtained  from art.  29  of  the Civil Service  Regulations:  that  article states- "  29.  Grade and Class-Appointments are said to be  in  the same  "  Class " when they are in the same  Department,  and bear  the  same designation, or have; been declared  by  the Government  of India to be in the same class.   Appointments in  the  same  class are  sometimes  divided  into  "Grades" according  to pay.  Note:-Appointments do not belong to  the same Class or Grade unless they have been so constituted  or recognised  by  proper authority.  There are no  Classes  or Grades of Ministerial Officers." It  is, therefore, clear that so far as the posts  known  as Public  Relations Officers, All India Radio, are  concerned, they formed a grade and the appellant held a quasi-permanent status  in  that grade. Rule 6(1) of the  Temporary  Service Rules lays 1310 down  how  the  service of a Government  servant  in  quasi- permanent  service can be terminated.  We are  concerned  in this case with cl. (ii) of the said rule.  That clause  says that the service of a Government servant in  quasi-permanent service  can be terminated " when the  appointing  authority concerned has certified that a reduction has occurred in the number  of  posts available for Government servants  not  in permanent  service ". Learned counsel for the appellant  has very  strongly submitted that there was no reduction  within the meaning of the clause in the present case, far less  any certification  of such reduction.  Learned counsel  for  the respondent  has urged with equal vehemence that there was  a reduction   within  the  meaning  of  the  clause  and   the appointing authority had certified such reduction. Before considering the true scope and effect of the relevant clause,  it  is  necessary  to say a  few  words  about  the Temporary  Service Rules.  At the same time the  Rules  were published,  Government also issued a memorandum  explanatory

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of  the Rules.  It was therein stated that the term  ’quasi- permanent’  service  had  been evolved with  the  object  of attaching  certain benefits to such service and with  regard to  r.  4(a)  the memorandum stated-,,  Under  Rule  4(a)  a Government servant has to be declared as quasi-permanent  in respect of a particular post; such a post may be an isolated one  or  it may be a post in a cadre consisting  of  several posts.   In  case  where a cadre is split  up  into  several grades it may belong to one such grade within the cadre.   A Government  servant  who is declared as  quasi-permanent  in respect of a particular post may be shifted from one post to another within the cadre or grade concerned due to reduction in post or other causes.  Such shifting does not affect  his rights."  As  to r. 6(1) the memorandum gave  the  following explanation: This rule relates to the security of tenure  of a  quasi-permanent Government servant.  It should  be  noted that except in the event of reduction in the number of posts in the cadre or grade concerned, the termination of  service of a quasi-permanent Government servant will have to be made in the same manner 1311 as the case of permanent Government servants For example, if the services are to be terminated on grounds of indiscipline or  inefficiency, it will be necessary to  institute  formal proceedings  against him.  He has also got a superior  right of  retention  in  service over  that  of  purely  temporary employees, in the grade in which he is quasi-permanent. The  question  before us is whether the  impugned  order  of September  7,  1955, was in consonance with r.  6(1).   This question has two aspects-first, the true scope and effect of el. (ii) and second, the effect of the proviso thereto.   We take  up  first  cl. (ii).  Was there  a  reduction  in  the present case within the meaning of cl. (ii) ? We think  that the  answer must be in the affirmative.  In the order  dated December  14,  1953,  which was an order in  favour  of  the appellant,  it was clearly stated that in August  1952,  all the  posts of Public Relations Officers, except the  one  in the  External services Division, were held in abeyance.   In the impugned order of September 7, 1955, it was stated  that in 1952 all the posts of Public Relations Officers excepting one in the External Services Division were held in  abeyance as a measure of economy and the only post that survived  the economy drive was assigned to a permanent incumbent.  In his representation  dated July 10, 1953, the  appellant  himself admitted  that  as per Director General, All  India  Radio’s memorandum dated May 21, 1953, he was informed that " it was decided to keep the post in abeyance ". Learned counsel  for the  appellant  has  sought to draw  a  distinction  between ’keeping  a post in abeyance’ and ’reducing a post’ and  has suggested that the latter expression means abolishing a post permanently  or  temporarily whereas the  former  expression merely  suggests  not filling the post for the  time  being. Words  and phrases necessarily take their meaning  from  the context in which they are used.  In cl. (ii) the  expression used  is " reduction...... in the number of posts  available for  Government servants not in  permanent  service."Learned counsel for the respondent has rightly pointed out that  the entire clause should be read to understand what is meant  by reduction, and 1312 in  that context, reduction is not necessarily  confined  to abolition,   permanent  or  otherwise.   He  has  given   an illustration  to  clarify  the  meaning.   Assume  that  the permanent holder of a post goes on deputation; the post then becomes available for temporary or quasi-permanent officers.

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When,  however, the permanent man returns  from  deputation, there  is a reduction in the number of posts  available  for Government servants not in permanent service.  We agree with learned  counsel for the respondent that the word  reduction in  the context of cl. (ii) is not necessarily  confined  to abolition,  and  keeping  certain posts  in  abeyance  comes within  the expression.  It may be further pointed out  that in  the  order of September 7, 1955, it was  clearly  stated that  Government had no intention of reviving the  posts  of Public  Relations  Officers  kept in  abeyance  since  1952; therefore,  for all practical purposes the posts  have  been abolished. We  do  not  think  that there is  any  charm  in  the  word ’certifies’ which occurs in cl. (ii).  It is clear that  the appellant  was  informed,  as far back as May,  1953,  by  a memorandum from the appointing authority that it was decided to  keep  the post (which the appellant held)  in  abeyance. There is nothing in the clause which prevents the appointing authority  from certifying by means of a memorandum  instead of by a mere formal order. Now,  we  come  to the far more important  question  of  the effect  of  the proviso to cl. (ii).  The crucial  point  in that  connection  is whether the post of  Assistant  Station Director,  to which the appellant was appointed in a  purely temporary capacity on September 13, 1952, was a post  within the  same  grade or cadre as the posts of  Public  Relations Officer.   If  it is in the same grade or  within  the  same cadre, the appellant will retain his quasi-permanent  status and  the  shifting,  to use the  words  of  the  explanatory memorandum quoted earlier, will not affect his rights.  This point  has  caused ,us considerable anxiety, and on  a  very careful  consideration we have reluctantly  but  ineluctably come to the conclusion that the post of Assistant Station                             1313 Director  is not in the same grade or cadre as the posts  of Public Relations Officers. On  this  point  it is necessary to refer  to  some  earlier history regarding the reorganisation of the All India  Radio in 1944.  The reorganisation, as enunciated in letter No. K- 404/2397  dated December 15/28, 1944 from the Government  of India,  Ministry  pf Information and  Broadcasting,  was  in three  parts: (1) revision of the scales of pay  of  certain existing posts ; (2) creation of some additional posts;  and (3) creation of certain new categories of posts.  The  posts of  Liaison  Officer and Listeners’  Research  Officer  came within the third category and nine posts were created  under each  head.  The posts of Assistant Station  Directors  came within  the first two categories.  In 1950  Government  made necessary  declaration  in  respect of  the  cadres  on  the programme  side of the All India Radio in their  letter  No. 17(83)/49-BI   dated   March  20,  1950.   The   cadres   so constituted  included that of Assistant Station Directors  : that  cadre consisted of the following posts: (a)  Assistant Station   Directors;   (b)  Instructor   (Programmes);   (c) Assistant  Director  of Programmes;  (d)  Listener  Research Officer;  (e)  Officer on Special Duty  (Kashmir);  and  (f) Officer  Special Duty (Hyderabad)-the last two being  tempo- rary.   The  Public Relations Officers were not put  in  the cadre  of  Assistant Station Directors.   Exactly  the  same position  is  envisaged  in paragraph  129  of  Chapter  IV, Section 1, of the A. 1. R. Manual, Vol. 1. Under Fundamental Rule 9(31)(c) a " post is said to be on the same  time-scale as  another post on a time-scale if the two time-scales  are identical  and the posts fall within a cadre, or class in  a cadre,  such cadre or class having been created in order  to

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fill  all posts involving duties of approximately  the  same character  or  degree  of responsibility, in  a  service  or establishment, or group of establishments".  It is worthy of note   that  two  conditions  must  be  fulfilled  for   the application  of Fundamental Rule 9(31)(c): one is  that  the two time scales must be identical and the other is that  the two  posts must fall in the same cadre or class in a  cadre. Paragraph 129 referred to above states in terms that 1314 only four categories of posts mentioned therein fall  within the   cadre  of  Assistant  Station  Directors,  and   those categories   do  not  include  Public  Relations   Officers. Learned  Counsel  for  the  appellant  has  referred  us  to Appendix I of the A. I. R. Manual, Vol. 11, which gives  the scales  of pay and classification of posts in the All  India Radio.   He has pointed out that in that appendix the  posts of  Assistant Station Directors (no. 77), Listener  Research Officer  (no. 78) and Public Relations Officer (no. 79)  all come  within Central Services, Class II, and bear  the  same scale of pay and they also belong to the Programme side.  We have  already pointed out that the same scale of pay is  not the  only  test;  nor  does the  fact  that  all  the  above mentioned  posts belong to Class 11 determine  the  question whether  they  belong to the same grade or cadre.   We  have referred  to  the  constitution of the  cadre  of  Assistant Station  Directors in 1950, which shows clearly enough  that Public Relations Officers do not belong to that cadre.  Many anomalous  results  will  follow  if the  scale  of  pay  or classification  of  the service, were taken to be  the  sole test  for determining whether the posts belong to  the  same grade or cadre.  The appendix referred to by learned counsel for the appellant shows that the post of Assistant  Director of Monitoring Services bears the same scale of pay and  also belongs to Class 11 ; yet it is not suggested that that post has any cadre or grade affinity with the posts of  Assistant Station  Directors.   A chemist (no. 106) and  an  Assistant Engineer  (no.  105) have the same scales of  pay  and  both belong to Class 11; but they do not belong to the same grade or  cadre; otherwise a strange result will follow in that  a chemist holding a quasi-permanent status will be entitled to be  appointed  as  an  Engineer, on  the  reduction  of  the chemist’s post. On behalf of the appellant it has been next argued that  the order dated December 14, 1953, contains a clear admission to the effect that the post of Public Relations Officer belongs to  the  same grade as Assistant Station Director,  and  the order  shows that it was made after unofficial  consultation with the Ministry                             1315 of  Information an Broadcasting.  It is contended that  this admission  should  be accepted as an admission of  fact  and held  binding  on  the  respondent,  particulary  when   the respondent has not produced the particular order by which  a separate  cadre, if any, of Public Relations Officers  might have  been created, in order to disprove the correctness  of the  admission.  We are unable to accept this argument.   An admission  is not conclusive proof of the  matter  admitted, though  it  may  in  certain  circumstances  operate  as  an estoppel.   It is not suggested that a question of  estoppel arises  in  this case (a point which we shall  again  advert to); at best, it may be said that the respondent having once admitted that the post of Public Relations Officer  belonged to  the same grade, the admission casts upon the  respondent the burden of proving that what was deliberately asserted on December  14, 1953, is not a fact.  It is  unfortunate  that

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this case was summarily dismissed in the High Court and  the respondent was not called upon to make an affidavit and file the  necessary documents at that stage.  We have now a  copy of  the letter dated December 15/28, 1944 by which the  nine new  posts  of Liaison Officer (later designated  as  Public Relations  Officer) were created and the letter dated  March 20, 1950, by which the cadre of Assistant Station  Directors was  declared.  These letters we have already  referred  to, and  they  leave little room for doubt in the  matter:  they show  clearly  enough  that the posts  of  Public  Relations ’Officers  do not belong to the same grade or cadre  as  the posts of Assistant Station Directors.  As a matter of fact.- the  respondent said so in the memorandum of June  9,  1953, though  later, on December 14, 1953, a  different  statement was made.  It has been submitted before us that even in  the impugned order of September 7, 1955, the respondent does not say  that a mistake was made; the respondent  merely  states that the appellant was’ irregularly transferred as Assistant Station  Director  and was irregularly allowed to  carry  a, quasi-permanent  status to the new post.  We think that  the impugned order of September 7, 1955, must 167 1316 be  read as a whole, and so read, it shows  that  Government had  earlier  made a mistake in thinking that the  posts  of Public  Relations  Officers belonged to the  same  grade  or cadre  as the posts of Assistant Station Directors, and  the mistake   was  rectified  when  the  Union  Public   Service Commission pointed it out. We  shall  now consider the further question  if  the  order dated  December  14,  1953, can be read  as  a  separate  or independent  declaration  in  favour  of  the  appellant  in respect of the post of an Assistant Station Director,  under rr.  3  and 4(a) of the Temporay Service  Rules.   We  shall consider this question from four points of view: (1) whether on  the  terms  of the order itself, it can be  read  as  an independent  declaration  under  the  relevant  rules;   (2) whether  the  relevant authority intended the  order  as  an independent  declaration  under rr. 3 and 4(a)  and  if  the parties  thereto understood the order in that sense; (3)  if the  order is so read, whether consultation with the  Public Service  Commission  was necessary under r.  4(b);  and  (4) whether any estoppel arises out of the order. it seems to us that the order itself is very clear and if it is contrasted with the earlier order dated May 23, 1952  (by which  a  declaration  was  indeed made  in  favour  of  the appellant  under rr. 3 and 4 of the Temporary Service  Rules in  respect of the post of Public Relations Officer), it  is at once clear that the order dated December 14,1953, is  not a  declaration  under rr. 3 and 4 of the said  rules.   What does the order state in terms ? Firstly, it states that  the appellant was appointed in a quasi-permanent capacity to the post  of Public Relations Officer; secondly, it states  that all the posts of Public Relations Officer are held in  abey- ance  except  one; thirdly, it states that as  the  post  of Public  Relations  Officer  belonged to the  same  grade  as Assistant Station Director carrying identical scales of pay, the appellant was appointed as Assistant Station Director in September  1952;  and  fourthly, it states  that  under  the instructions  contained  in a particular  office  memorandum issued  from the Ministry of Home Affairs the appellant  was entitled   to  carry  the  quasipermanent  status   of   his formerpost of Public Relations                             1317 Officer  while holding the post of Assistant Station  Direc-

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tor.   The  order  means what it in terms  states  and  must operate according to its tenor; and if the order is read  as a  whole, without straining or perverting the  language,  it seems  clear that it is not a declaration under rr. 3 and  4 of  the Temporary Service Rules.  It merely gives effect  to the  instructions  contained in the Home  Office  memorandum referred to therein and states that the appellant will carry with him his quasipermanent status of the former post  while holding  the  post  of Assistant Station  Director.   It  is obvious  that  there  cannot  be  a  declaration  of  quasi- permanent  status  in  two  posts  of  different  grades  or different  cadres simultaneously and at the same time.   The order  dated  December 14, 1953, makes it  abundantly  clear that  the appellant retained his quasi-permanent  status  in the  former  post  of Public Relations Officer  and  on  the mistaken  view  that the post of  Public  Relations  Officer belonged to the same grade as Assistant Station Director, he was  allowed to carry the same status while holding the  new post.  This is sufficiently borne out by a reference to  the Home Office memorandum No. 54/136/51 N.G.S. dated April  24, 1952,  a  copy  of which has been placed  before  us.   That memorandum said, " The undersigned is directed to say that a question   has   been  raised  whether   a   quasi-permanent Government  servant on transfer from one office to  another, should  be allowed to retain a lien on the post to which  he has  been  appointed  in  a  quasi-permanent  capacity.    A reference in this connection is invited to subparagraph  (c) of the Explanatory Memorandum of Rule 2 of the Central Civil Services  (Temporary  Service) Rules, 1949,  under  which  a government  servant  who is declared as  quasi-permanent  in respect of a particular post can be shifted from one post to another within the cadre or grade concerned due to reduction or other causes without his rights being affected.  In other words, if a quasi-permanent employee is transferred from one office to another within the same grade, he will carry  with him  his quasipermanent status.  " The order dated  December 14, 1953, purported to give effect to the decision embodied                             1318 in  the  aforesaid  memorandum,  and  was  in  no  sense  an independent  declaration under rr. 3 and 4 of the  Temporary Service  Rules.   If it were an independent  declaration  in respect  of  a different and new post, a  reference  to  the office  memorandum  was wholly unnecessary; it  was  equally unnecessary  to  recite  that the appellant  held  a  quasi- permanent status in his former post and that the former post belonged  to the same grade as the new post and,  therefore, he  carried  his former status to the latter post.   In  the order itself there is no reference to rr. 3 and 4 and it  is in sharp contrast to the order dated May 23, 1952, which was indeed a declaration under the said rules.  To hold that the order dated December 14, 1953, is an independent declaration under  rr. 3 and 4 is to tun counter to the entire tenor  of the document. It  is  worthy  of note that under r.  4(a),  a  declaration issued  under  r.  3 shall specify the  particular  post  or particular grade of posts within a cadre in respect of which it, is issued and the date from which it is to take  effect. The order dated December 14, 1953, does not ,state that  the appellant  is declared to hold a quasipermanent status  with regard  to  the post of Assistant Station  Director  on  the contrary,  it,  states that he carries with him  the  quasi- permanent  status  of his former post.  If the  order  dated December  14,  1953,  were  an  independent  declaration  in respect of the post of Assist-ant Station Director, it would have specified that post and also the date with effect  from

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which  the order was to take effect in regard to that  post. We are therefore satisfied that the order dated December 14, 1953 cannot, on its terms, be treated as a declaration under rr. 3 and 4 of the Temporary Service Rules. It may be stated here that learned counsel for the appellant did not urge that the order dated, December 14, 1953, was an independent declaration under rr. 3 and 4 or that his client understood the order in that sense.  It is also evident from the various documents in the record that the order was never intended  to  be  a declaration under rr. 3  and  4  of  the Temporary -Service Rules; and the appellant himself took the                             1319 order as merely giving effect to the office memorandum cited therein,  the main plank of the appellant’s case being  that the post of Assistant Station Director is in the same  grade as the post of Public Relations Officer.  The appellant  was appointed  to officiate as Assistant Station Director  in  a purely temporary capacity until further orders on  September 13, 1952,.  Even before that date the appellant was asked to apply for the post of an Assistant Station Director  through the Public Service Commission.  On June 9, 1953, long  after the  appellant had been appointed to officiate as  Assistant Station  Director, he was told that he could not claim  ,any protection  in  the post of Assistant  Station  Director  on account  of his quasi-permanent status as  Public  Relations Officer.    Even  in  the  letter  which  the  Ministry   of Information  and  Broadcasting wrote to the  Public  Service Commission  on  June  22,  -1954,  it  was  stated:  "   The Commission  were  not consulted at the time of  shifting  of quasi-permanent status of Shri Srinivasan from the grade  of Public  Relations  Officer  to  that  of  Assistant  Station Director  in view of the Provision of sub-para. (c)  of  the Explanatory  Memorandum  of  Rule 2  of  the  Central  Civil Service  (Temporary  Service)  Rules  which  states  that  a Government  servant  who is declared as  quasi-permanent  in respect of a particular post may be shifted from one post to another within the cadre or grade concerned due to reduction in the number of posts or other causes.  Such shifting  does not  affect his rights.  As the posts of  Assistant  Station Director  and Public Relations Officer carry the same  grade of  pay, consultation with the Commission in this  case  was not considered necessary ". This letter makes it  abundantly clear  that  the appropriate authority  never  intended  the order dated December 14, 1953 to be a declaration under  rr. 3 and 4 of the Temporary Service Rules. Even the appellant did not take the order in that sense.  In all  his representations, the appellant’s plea was that  the post of Public Relations Officer in which ,he, held a quasi- permanent status was in the same grade as that of  Assistant Station Director and there,fore he carried his status in the former post to his new 1320 post.   He  never  pleaded anywhere  that  the  order  dated December 14,1953, was an independent declaration in  respect of  the post of Assistant Station Director.  We refer  first to  para. 17 of the appellant’s writ petition to the  Punjab High  Court.  In that paragraph the appellant said:  "  That after  four  months’ careful ,consideration  and  discussion between  the Ministry of Information and Broadcasting,  Home Ministry and the Union Public Service Commission, Government issued an order dated 14-12-53 declaring that the petitioner will  carry  quasi-permanent  status  in  his  new  post  of Assistant  Station  Director as per rules  relating  to  the transfer of quasi-permanent officers.  " In paragraph 30 the appellant  again stated that the post of  Assistant  Station

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Director  and Public Relations Officer were constituted  and recognised to be in the same grade and under r. 2(c) of  the Temporary  Service  Rules  the shifting  from  one  post  to another  in  the same grade did not affect  his  status;  in other  words, the appellant also understood the order  dated December 14, 1953, not as an independent order declaring his quasi-permanent  status  in the post  of  Assistant  Station Director,  but  merely as giving effect to r.  2(c)  of  the Temporary  Service  Rules by reason of the fact,  which  now appears  to be incorrect, that the post of Public  Relations Officer  was in the same grade as that of Assistant  Station Director.  Even in his statement of the case, the  appellant stated-"  It may be emphasised that the Government in  their order  dated  14-12-53  reiterated  the  appellant’s  quasi- permanent status in the post of Assistant Station  Director, not  on the basis of the appellant’s representation  but  on the  authority of the Home Ministry’s order  No.  54/136/51. NGS,  dated 24-4-52 relating to the lien  of  quasipermanent employees  ".  The reference to the Home  Ministry’s  office memorandum  shows  how the appellant  understood  the  order dated December 14, 1953. Rule  4 (b) of the Temporary Service Rules states that  when recruitment  to a specified post is required to be  made  in consultation   with  the  Public  Service   Commission,   no declaration  under  rr. 3 and 4 (a) shall be  issued  except after consultation with the 1321 Commission.   In the view which we have taken of  the  order dated  December  14,  1953, it is not  really  necessary  to decide  in the present case whether the provisions of  r.  4 (b) are merely directory or mandatory.  It is sufficient  to state  that the Public Service Commission was not  consulted before  the order dated December 14, 1953, was  issued,  and the  appointing  authority  did not intend the  order  as  a declaration  under  rr. 3 and 4 (a).  In State of U.  P.  v. Manbodhan  Lal  Srivastava  (1) it has been  held  that  the provisions  of  Art.  320(3)(c)  of  the  Constitution,   as respects  consultation of the Public Service  Commission  on all  disciplinary  matters affecting a  person  serving  the Government of India or a State Government, are not mandatory in  spite  of the use of the word I  shall’  therein.   That decision  is  founded  on the following  garounds:  (1)  the proviso  to Art. 320 itself indicates that in certain  cases or  classes of cases the Commission need not  be  consulted; (2)  the requirement of consulting the Commission  does  not extend  to  making the advice of the Commission  binding  on Government  as respects disciplinary matters; and (3)  on  a proper  construction of the Article, it does not confer  any right or privilege on an individual public servant.  We  may point out that none of these grounds have any application so far as r. 4 (b) of the Temporary Service Rules is concerned. Article  320 may not be mandatory as against the  President; but  a  subordinate appointing authority who has to  make  a declaration  under the rules cannot ignore or  abrogate  the very  rules  under  which he has to  make  the  declaration. Quasi-permanent  status is a creature of the rules, and r  4 (b)  requires that no declaration under r. 3 shall  be  made except after consultation with the Public Service Commission (when recruitment to a specified post is required to be made in  consultation  with the Public Service  Commission).   An officer  cannot claim the benefit of r. 3 and ignore at  the same  time  the condition laid down in r. 4  (b);  in  other words,  he cannot claim the benefit of a part of  the  rules and refuse to be bound by the conditions of the other part. (i)  [1958] S.C.R. 533.

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1322 ’Now,  as to estoppel: in our view, the appellant  was’  not misled in any way as to his quasi-permanent status a  status which  he undoubtedly held in the post of  Public  Relations Officer; the mistake that was made was in thinking that  the post of Assistant Station Director was in the same grade  as that  of Public Relations Officer and then giving effect  to the  Home office memorandum, referred to previously, on  the basis of that mistake.  We do not think that any question of estoppel  really arises, and in fairness to learned  counsel for the appellant it must be stated that he has not  founded the case on estoppel. Learned   counsel  for  the  appellant  has  contested   the correctness  of  the  opinion of the  Union  Public  Service Commission  and  has  suggested  that  the  Commission   had indulged  in an officious opinion, because under  the  Union Public Service Commission (Consultation) Regulations, it was not necessary to consult the Commission.  Our attention  has been drawn to Regulation 3, which reads as follows so far as it is relevant for our purpose- "3. It shall not be necessary to consult the Commission  in regard to the selection for appointment- (a)  to  a Central Service, Class 1, of any Officer  in  the Armed Forces of the Union or any officer who is already a member  of an All India Service, Central Service,Class 1,  a Railway Service, Class 1. (b)  to a Central Service, Class 11, of any officer from  another  Central Service, Class I or  from  a  Central Service,  Class 11 or of any officer in the Armed Forces  of the Union or of a Railway Service, Class II; ............. Note  :-  In this regulation, the term I officer’  does  not include a person in’ temporary employment’. The correspondence with the Union Public Service  Commission has  now been placed before us.  That  correspondence  shows that the Union Public Service ’Commission took the view that Regulation  3  did  not  apply to  an  officer  who  was  in ’temporary   employment  ’  in  the  sense  in  which   that expression was used 1323 when  the  Regulations  were  made,  and  "  quasi-permanent servant  "  as defined in the Temporary Service  Rules  also meant temporary service, but subject to certain benefits  in the  matter  of leave etc., and certain  safeguards  in  the matter of termination of service.  Whether the Union  Public Service  Commission is right in this view or not we are  not called  upon to decide, particularly when the  Union  Public Service Commission is not before us.  It is enough for us to hold  that the post of Assistant Station Director is  not  a post in the same grade or cadre as that of the Public  Rela- tions-Officer.   That being the position, the appellant  had no  qutsi-permanent status in the post of Assistant  Station Director  and his service was liable to be  terminated  when there  was  a  reduction in the number of  posts  of  Public Relations  Officers within the meaning of cl. (ii); nor  was he entitled to the benefit of the proviso to el. (ii) so far as the post of Assistant Station Director was concerned. For the reasons given above, we hold that there has been  no violation of the constitutional guarantee under Art. 311 (2) in  the case of the appellant.  The appeal must,  therefore, be dismissed. As to the petition tinder Art. 32 of the Constitution, we do not  think  that  there has  been  any  such  discrimination against the appellant as is contemplated by Arts. 14 and  16 of  the  Constitution.  It is true that others who  did  not hold a qasi-permanent status were subsequently appointed  as

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Assistant  Station Director through selection by  the  Union Public  Service  Commission.   We can only say  that  it  is unfortunate  that  the appellant was not so selected  ;  but that does not involve the breach of any fundamental right. In   conclusion  we  wish  to  say  that  a  art  from   any consideration of mere legal right, this is a hard case.  The appellant  was in service for about nine years  without  any blemish  and his service was terminated on the reduction  of certain  posts; he was told--wrongly it now appears-that  he had  a  quasi-permanent  status in  the  post  of  Assistant Station Director.  The 168 1324 appellant  states that the Union Public  Service  Commission did  not consider his suitability for the post of  Assistant Station  Director, because he claimed quasipermanent  status in  that  post.  The correspondence with  the  Union  Public Service  Commission shows that the appellant’s case was  not considered from the promotion quota of 20 % because he  held a  post  which  was  not  (to  use  an  expression  of   the Commission) ’in the field for promotion’.  If the  appellant is  right  in his statement that he was not  considered  for direct   recruitment  because  he  claimed   quasi-permanent status,  then obviously there is an apparent injustice;  the appellant  is  then deprived of consideration of  his  claim both  from the promotion and direct quotas.  We  invite  the attention of the authorities concerned to this aspect of the case  and hope that they will consider the appollant’s  case sympathetically and give him, proper relief. With  these  observations,  we dismiss the  appeal  and  the petition,  but in the circumstances there will be  no  order for costs. BOSE J.-With great respect I disagree. The  appellant’s services as Public Relations  Officer,  All India  Radio,  were terminated because of the  reduction  in that post.  There was no other post of equal status in  that grade  or  cadre,  so I agree that he bad no  right  to  any continuance of employment. But  he  was  appointed to officiate  as  Assistant  Station Director  in  a purely temporary capacity  "  until  further orders ", on September 13, 1952. (Order No. 1 (101)51/52). Later,  on December 14, 1953, further orders were passed  by the  same authority (Order No. (113)-51/52).   These  orders confirmed  the  order  appointing  the  appellant  Assistant Station Director and concluded- "Under  the  provision  contained in the  Ministry  of  Home affairs Office Memorandum No. 54 /136/51NGS, dated the  24th April, 1952, Shri Srinivasan will carry with him the  quasi- permanent  status  of his former post  of  Public  Relations Officer   while  holding  the  post  of  Assistant   Station Director.                             1325 This  order  is a "further order " and, in my  judgment,  it clearly  and unequivocally makes him " quasipermanent  "  in the new post. It  is  true that this was done under a  mistake  which  was discovered  at  a  later date but the  mistake  is  that  of Government  and others cannot be made to suffer  because  of the  unilateral  mistake of Government.  I had  occasion  to observer  while delivering the judgment of the Court in  The Commissioner  of Police, Bombay v., Gordhandas Bhan  i  (1), that- "Public  orders, publicly made, in exercise of  a  statutory authority  cannot be construed in the light of  explanations subsequently  given by the officer making the order of  what he meant, or of what was in his mind, or what he intended to

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do  "  (and  I  add in this case,  "  what  he  subsequently discovered  ").  " Public orders made by public  authorities are  meant to have public effect and are intended to  affect the actings and conduct of those to whom they are  addressed and  must  be construed objectively with  reference  to  the language used in the order itself." The  principle  underlying those observations  applies  with equal force here.  Here  is a man who was in no way at fault.  He  had  served faithfully  in  various capacities from May  1,  1946.   His services  were terminated on September 3, 1952, with  effect from October 6, 1952.  That was not his fault nor was it the fault of Government.  It was just the fortunes of war.   The post was " reduced " and there was no more room for him.  No one can quarrel with that. But  before the termination took effect he was continued  in service  in another post on September 13, 1952, in a  purely temporary  capacity  "  until further orders  ".  There  was consequently  no  break  and  he was  still  in  service  on December  14,  1953, when he was, told that  he  was  quasi- permanent in the post of Assistant Station Director. He accepted this position and acted on it and continued  to. serve in it for nearly two years.  That, (1)  [1952] S.C.R. 135, 140. 1326 naturally enough, has lessened his chances of seeking  other employment  because  after a man reaches a  certain  age  it becomes increasingly difficult to find new employment.  I do not  say  this  was Government’s fault, for no  one  can  be blamed for not knowing where they are in this wilderness  of rules  and  regulations and coined words  and  phrases  with highly  technical  and  artificial  meanings;  and  I  think Government did all they could to assuage the hardships of an unfortunate   situation.   But  equally,  it  was  not   the appellant’s  fault and in a case like this, a  broad  equity requires  that the one least at fault should not be made  to suffer. The old technically rigid conceptions Of Contract and equity have given place in modern times to a juster appreciation of justice,   and  the  fusion  of  law  and  equity   in   one jurisdiction  has resulted in the emergence of a new  equity in  England more suited to modern ideas of human  needs  and human  values.   Lord  Denning  has  cited  instance   after instance in his book "The Changing Law" to show how this has come about and how it is still in the process of  formation, flexible and fluid with the drive behind to do real  justice between  man and man, and man and the State, rather than  to continue to apply a set of ancient hide-bound technicalities forged  and  fashioned in a wholly different  world  with  a different conscience and very different evaluations of human dignity  and  human rights.  At pp. 54 and 55  Lord  Denning sums up this new orientation in legal thinking thus: " In coming to those decisions, the Courts expressly applied a  doctrine of equity whith says a court of equity will  not allow  a person to enforce his strict legal rights  when  it would be inequitable to allow him to do so. This doctrine warrants the proposition that the courts  will not  allow  a  person  to go back on  a  promise  which  was intended to be binding, intended to be acted on, and has  in fact been acted on." I am not advocating sudden and wild departure from doctrines and precedents that have been finally 1327 settled  but I do contend that we, the highest Court in  the land  giving  final  form  and shape to  the  laws  of  this

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country,  should  administer them with the same  breadth  of vision and understanding of the needs of the times as do the Courts  in  England.  The underlying principles  of  justice have  not  changed but the complex pattern of life  that  is never  static  requires a fresher outlook and a  timely  and vigorous  moulding of old principles to suit new  conditions and  ideas  and ideals.  It is true that the Courts  do  not legislate but it is not true that they do not mould and make the law in their processes of interpretation. Now,  what was the position here when looked at broadly  and fairly  as an upright and just juryman of plain  commonsense and  understanding would do ?  Here was a man  with  several years  of  service and with no blemish on  his  conduct  and reputation.  He was about to lose his job.  Government  felt that  that  was bard and sought ways and means  to  right  a wrong-not wrong in the legal sense, for no one was at fault, but  wrong in the deeper understanding of men who look  with sympathy at the lot of those who have to suffer for no fault of  theirs.  Government found, or thought they  found,  that they could put him in another post and they actually did so. They  found that in his old post he had certain  protections and they wanted and intended that he should continue to have them.  Under r. 3 of the Temporary Service Rules they  found that they could give him those protections in a very  simple way,  namely,  by issuing a declaration that he  was  quasi- permanent  in his new post.  He was fully eligible  for  it. He  had been in continuous Government service for more  than three years.  The appointing authority was satisfied of  his qualifications,  work  and  character for  employment  in  a quasi-permanent capacity.  The letters of Government to  the Union  Public Service Commission bear that out, quite  apart from the orders of September 13, 1952, and December 14,1953, which  would  not  have  been made  if  Government  had  not considered  him  a  fit and proper person.  How  can  it  be contended that 1328 Government  did.  not intend him to  have  a  quasipermanent position in his new post simply because they said that  they wanted him to have the same protections as he had before ’I, It  is not the mere form of the words that matters  but  the meaning that they were intended to convey and do convey. I am not concerned at this stage with whether Government was mistaken in thinking that it could confer this status on him but  with what they intended to do as a fact and  what  they actually did do. They said that, he "will. carry with him the  quasipermanent status of his former post of Public Relations Officer  while holding  the post of Assistant Station Director." What  else can  this mean especially when coupled with  their  previous conduct  showing,  their anxiety to do the  just  and  right thing  by this unfortunate man, except that because  he  was protected  before  he will continue to be protected  in  the same  way.   With the deepest respect I  consider  it  ultra technical  and  wrong  to construe this  as  conditional  on Government having the power.  The point at this stage is not whether Government had the right and the power but what they intended;  and  about that I have no doubt  whatever.   They wanted, and intended, and were straining every nerve, to  do the  right  and just thing by him and to give him  the  same status as he had before, in the matter of pay, in the matter of  service and in the protections that he had in his  other post. The interpretations that Government put upon their order  at a  later  date are not relevant to construe it but it  is  t matter  of  satisfaction that Government  themselves  viewed

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their action in the same light as I am doing now.  In  their reply to the Public Service Commission dated June 22,  1954, Government  said The Commission were not consulted at the time of shifting of quasi-permanent status of Shri Srinivasan from the, grade of Public  Relations  Officer  to  that  of  Assistant  Station Director........ It is clear to-- me that Government intended, not merely  to move him from one post to the other, but 1329 also to shift the status and that can mean nothing less than that they intended him to have this status in the new post. I  turn next to the powers of Government.  I agree  that  if they had no power their action would be of no avail  however well they may have meant.  But r. 4(a) of the Central  Civil Services  (Temporary Service) Rules, 1949, gives  them  that power.  It says that: A  declaration  issued  under  rule  3  shall  specify   the particular post...... in respect of which it is issued."  It does  not  require  the declaration to  be  couched  in  any particular  form  of  words  or in  the  shape  of  a  magic incantation.   All that it requires is a simple  declaration and that declaration is to be found in the order of December 14, 1953. The  only  question  then is whether  r.  4(b)  renders  the declaration  null  and  void  because  the  Public   Service Commission was not consulted.  The rule runs- "  Where recruitment to a specified post is required  to  be made  in  consultation  with  the  Federal  Public   Service Commission, no such declaration shall be issued except after consultation  with  the  Commission."  The  essence  of  the prohibition lies in the words underlined:" Is required to be made." Just what do these words mean ? Now  I  have no doubt that in the ordinary way  these  words should  be construed to mean what they say, But so, I  would have thought at first blush, do the words in Art. 320(3)  of the  Constitution.   They are equally  emphatic.   They  are equally imperative.  But this Court held in the State of  U. P.  v.  Manbodhan  Lal  Srivastava  (1),  after  a   careful examination  of  the whole position, that they do  not  mean what  they seem to say and that they are directive only  and not mandatory. Nor  is this Court alone in so thinking.  The Federal  Court construed a similar provision.in s. 256 of the Government of India  Act, 1935, in the same way: (Biswanath Khemka v.  The King  Emperor)  (2);  and  so did the  Privy  Council  in  a Canadian case in Montreal (i) [1958] S.C.R. 533. (2) [1945] F.C.R. 99. 1330 Street  Railway Company v. Normandin (1).   Their  Lordships said at page, 175 that when a statute prescribes a formality for the performance of a public duty, the formality is to be regarded as directory only if to hold it as mandatory  would cause  serious general inconvenience or injustice.  Will  it not  cause  injustice here?  Why should we take  a  narrower view of a mere set of rules than this Court and the  Federal Court  and the Privy Council have taken of the  Constitution and  the  Act  of  a  Legislature  and  even  of  a  supreme Parliament?   Why should we give greater sanctity  and  more binding  force  to  rules and regulations than  to  our  own Constitution ? Why should we hesitate to do justice with firmness and vigour? If  we  apply  the  same principles  here,  then  the  words required  to be made " in r. 4(b) lose their sting  and  the

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way is free and open for us to do that justice for which the Courts exist. Here  is Government straining to temper justice  with  mercy and we, the Courts, are out Shylocking Shylock in  demanding a pound of flesh, and why? because this writ in the bond." I will  have none of it.  All I can see is a man who has  been wronged and I can see a plain way out.  I would take it. I  am  not  quarrelling with the  interpretation  which  the Public  Service Commission has placed upon these  rules.   I have no doubt that they should be observed, and are meant to be  observed;  and I have equally no doubt  that  there  are constitutional  sanctions which can be applied if  they  are flouted.  But the sanction is political and not judicial and an act done in contravention of them cannot be challenged in a  Court of Law.  It is legally valid.  Also, the fact  that Government  would  not have acted in this way  if  they  had realised  that  they  were under a  directive  duty  of  the Constitution to consult the Union Public Service  Commission first cannot alter the character of their act or affect  its legal  consequences.  They had the power and they  exercised it,  consequently,  their act became binding  despite  their mistake.   That  is  how  I  would  interpret  the  law  and administer justice. (1)  [1917] A.C. 170. 1331 1 would allow the appeal and the petition with costs. BY COURT : The appeal and the petition are dismissed.  There will be no order as to costs. Appeal and Petition dismissed.