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PETITIONER: N.   RAGHAVENDRA RAO

       Vs.

RESPONDENT: DEPUTY COMMISSIONER, SOUTH KANARA,MANGALORE

DATE OF JUDGMENT: 31/03/1964

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. AYYANGAR, N. RAJAGOPALA

CITATION:  1965 AIR  136            1964 SCR  (7) 549  CITATOR INFO :  RF         1971 SC 117  (9)  RF         1972 SC1640  (9)  R          1973 SC  69  (38)  F          1974 SC1631  (16)  R          1975 SC  73  (12,13)  R          1977 SC 747  (6)  D          1977 SC1233  (13)

ACT: Fundamental  Rights-Conditions  of service  changed  by  the State  Government  without  the  previous  approval  of  the Central  Government-Loss  of benefit of service  and  incre- ments-"Previous approval"-Meaning of-Mysore General Services Recruitment  Rules, 1959-States Reorganisation Act 1956  (37 of  1956),  s. 115(7)-Constitution of India,  Arts.  16  and 311(2).

HEADNOTE: The petitioner was selected as a Lower Division Clerk  under the Madras Ministerial Service Rules in 1949, and was posted in South Kanara District.  He was promoted as upper division clerk on April 2, 1956 and according to him, he should  have teen  promoted  much earlier.  According to the  State,  the Petitioner  was considered for inclusion in the  eligibility list  from 1955 onwards, but was not selected as he was  not considered fit.  The State admitted that he was promoted  as Upper  Division  clerk with effect from April 2,  1956,  but alleged  that this was on a temporary basis.  He  was  later reverted  and then again posted as temporary Upper  Division clerk.   In August, 1957, the petitioner was considered  and included  in  the eligibility list at serial No.  14.   This list  was  regularised on December 12, 1957,  in  accordance with Madras State and Subordinate Service Rules, with effect from  October  19, 1957.  According to the  petitioner  this resulted  in the loss of benefit of service and  increments. In the meantime, reorganisati;on of States took place  under the  States  Reorganisation  Act,  1956  and  South   Kanara District  went  to  the new Mysore and  the  petitioner  was allotted  to it.  On May 11, 1957, the Government  of  India

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addressed  a  memorandum  to all State  Governments  and  in respect of departmental promotion it said that "the question whether  any protection should be given in respect of  rules and conditions applicable to Government Servants affected by reorganisation immediately before the date of reorganisation in the matter of travelling allowance, discipline,  control, classification, appeal, conduct, probation and  departmental promotion  was  also considered.  The  Government  of  India agree  with the view expressed on behalf of the  State  res- presentatives  that it would not be appropriate  to  provide for  any protection in the matter of these  conditions.   It was  urged on behalf of the petitioner (i) that  the  Mysore General Services Recruitment Rules, 1959, were not made with the  previous  approval of the Central Government  under  s. 115(7) of the States Re-organisation Act, and, therefore, do not  govern  the petitioner in so far as the  conditions  of service  have teen varied to his disadvantage and (ii)  that the  Madras  Government had, prior to November 1,  1956,  by varoius orders, reduced the petitioner in rank in  violation of Art. 311(2) of the Constitution and Art. 16. 550 Held:  (i) In the setting in which the proviso to s.  115(7) of  the  Act is placed, the expression  "previous  approval" would  in clude a general approval to the variation  in  the conditions  of  service within certain limits, indicated  by the  Union Government.  Art. 309 of the Constitution  gives, subject  to the provisions of the Constitution, full  powers to  a  State Government to make rules.  The  proviso  to  s. 115(7) of the Act limits that power, but that limitation  is removable  by the Central Government by giving its  previous approval.   The broad purpose underlying the Proviso  to  S. 115(7)  of  the  Act was to ensure that  the  conditions  of service should not be changed except with the prior approval of  the Central Government.  In the memorandum, the  Central Government,  after  examining various aspects, came  to  the conclusion  that it would not be appropriate to provide  for any  protection  in  the  matter  of  travelling  allowance, discipline,   control,  classification,   appeal,   conduct, probation  and  departmental promotion.   This  amounted  to previous approval within the proviso to s. 115(7).  By  this memorandum  the  State  Governments were  required  to  send copies  of all new rules to the Central Government  for  its information.  Therefore, it must be held that the rules were validly made. In  re Bosworth and Corporation of Gravesend, [1905] 2  K.B. 426  and  C. K. Appamna v. State of Mysore, W.P. No.  88  of 1962, held inapplicable. (ii) The  petitioner  failed to show, how Art.  16  was  in- fringed before he was allotted to the new Mysore State.  The State  in  its  reply  had  asserted  that  all  the  orders complained  against  were passed by  competent  authorities, after  considering  the  merits of the  petitioner  on  each occasion.  It was for the competent authorities to judge the merits  of the petitioner.  Therefore, it must be held  that infringement of Art. 16 was not established.

JUDGMENT: ORIGINAL  JURISDICTION:  Writ  Petition  No.  211  of  1963. Petition under Art. 32 of the Constitution of India for  the enforcement of the Fundamental Rights. R.   K. Garg, for the petitioner. C.   K.  Daphtary,  Attorney-General, B. R. L.  Iyengar  and B.R. G. K. Achar, for the respondents.

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March 31, 1964.  The Judgment of the Court was delivered by SIKRI,  J.-This is a petition under Art. 32 of  the  Consti- tution   for  enforcing  the  fundamental  rights   of   the petitioner  under Arts. 14, 16 and 19 of  the  Constitution. Although the petition raises various points, before us  only two  points have been argued by Mr. Garg, on behalf  of  the petitioner.  We are grateful to Mr. Garg, who has argued  as amicus  curiae,  for the assistance he has given.   The  two points may be formulated as follows:               (1)   That   the   Mysore   General   Services               (Revenue   Subordinate   Branch)   Recruitment               Rules,  1959, were not made with the  previous               approval  of the Central Government  under  s.               115(7) of the State               551               Re-organisation  Act, and, therefore,  do  not               govern   the   petitioner   insofar   as   the               conditions of service have been varied to  his               disadvantage;               (2)   That  the Madras-Government  had,  prior               to,  November  1,  1956,  by  various  orders,               reduced the petitioner in rank in violation of               Art. 311(2) of the Constitution and Art. 16. In order to appreciate the arguments addressed to us, it  is necessary to give a few facts.  The petitioner was  selected by the Madras Public Service Commission as a Lower  Division Clerk  under the Madras Ministerial Service Rules  in  1949, and  was  allotted to the Revenue Department and  posted  in South  Kanara District.  He was promoted as  Upper  Division Clerk  on  April 2, 1956.  According to the  petitioner,  he should  have been promoted much earlier as he  had  rendered outstanding  and  meritorious  service.   According  to  the State,  the petitioner was considered for inclusion  in  the eligibility list from 1955 onwards, but was not selected  as he  was  not considered fit.  The State admits that  he  was promoted  as Upper Division Clerk with effect from April  2, 1956,  but alleges that this was on a temporary  basis.   He was  later  reverted and then again posted  as  a  temporary Upper  Division Clerk.  In August 1957, the  petitioner  was considered  and included in the eligibility list  at  Serial No. 14.  This list was regularised on December 12, 1957,  in accordance  with Rules 39(e) and 35 of the Madras State  and Subordinate  Service  Rules, with effect  from  October  19, 1957.  According to the petitioner this resulted in the loss of benefit of service and increments. In  the meantime, reorganisation of States took place  under the  State Reorganisation Act (XXXVII of 1956) South  Kanara District,  except  Kasaragod Taluk, went to the  new  Mysore State  and  the petitioner was allotted to it.  On  May  11, 1957,  the Government of India addressed a  memorandum  (No. S.O.  SRDI-1.   APM-57) to all State  Governments.   Broadly speaking,  the Central Government said that some  conditions of  service  should be protected, e.g., substantive  pay  of permanent employees, certain type of special pay, lave rules unless the Government servant opts for new leave rules, etc. But  in respect of departmental promotion it said that  "the question  whether any protection should be given in  respect of  rules and conditions applicable to  Government  servants affected  by reorganisation immediately before the  date  of reorganisation  in  the  matter  of  travelling   allowance, discipline,  control, classification, appeal, conduct,  pro- bation and departmental promotion was also considered.   The Government of India agree with the view expressed on  behalf of   the  State  representatives  that  it  would   not   be appropriate

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552 to provide for any protection in the matter of these  condi- tions."  Therefore, it is evident from this memorandum  that the  Central Government had told the State  Government  that they might, if they so desire, change service rules as indi- cated  in the memorandum.  But Mr. Garg argues that even  so this  does not amount to previous approval within s.  115(7) of the States Reorganisation Act to the making of the Mysore General  Services (Revenue Subordinate  Branch)  Recruitment Rules,  1959.   What  then  is  the  true  meaning  of   the expression "previous approval" in the proviso to s. 115(7). Sub-section (7) of s. II 5 provides that:               Nothing  in  this section shall be  deemed  to               affect  after the appointed day the  operation               of the provisions of Chapter 1 of Part XIV  of               the Constitution in relation to  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) of subsection (2) shall not be               varied  to  his disadvantage except  with  the               previous approval of the Central Government." The  effect of this sub-section is, inter alia, to  preserve the  power of the State to make rules under Art. 309 of  the Constitution,  but the proviso imposes a limitation  on  the exercise of this power, and the limitation is that the State cannot vary the conditions of service applicable immediately before  November  1, 1956, to the  disadvantage  of  persons mentioned  in  sub-ss  (1) and (2) of s.  115.   It  is  not disputed that the petitioner is one of those persons. Mr.  Garg has submitted that the very fact that  the  Mysore General  Services (Revenue Subordinate  Branch)  Recruitment Rules,  1959,  as  framed,  were not  sent  to  the  Central Government for approval before being promulgated shows  that previous approval has not been obtained.  The memorandum, he says, is not approval but an abdication of the powers of the Central  Government.   In this connection he relies  on  the decision  of  the  Court  of Appeal in the  case  of  In  re Bosworth and Corporation of Gravesend(1), but this, decision has  no bearing on the point under discussion.  An Order  in Council  had  been made under the provisions of  the  Burial Act, 1853, whereby it was ordered that no new burial  ground shall be opened in (amongst other places) Gravesend, without the  previous  approval of one of  Her  Majesty’s  Principal Secretaries  of State.  Permission was sought of the  Secre- tary of State to add additional land to an existing cemetery (1)  [19051 2 K.B. 426. 553 The Secretary of State replied that his sanction to the pro- posed addition was not required.  It is this reply which was characterised   by   Collins,  M.  R.,  as   renouncing   of jurisdiction.   We cannot appreciate how this assists us  in interpreting the proviso to s. 115(7).  He further relied on the unreported-’ judgment of the High Court of Mysore in  C. K.  Appanna  v. State of Mysore(1), but this proceeds  on  a concession  made  by  the Government Pleader  and  does  not advance  petitioner’s case.  In our opinion, in the  setting in which the proviso to s. 115(7) is placed, the  expression "previous approval" would include a general approval to  the variation  in  the  conditions  of  service  within  certain limits,  indicated  by the Union Government.  It has  to  be remembered that Art. 309 of the Constitution gives,  subject

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to  the  provisions of the Constitution, full  powers  to  a State  Government to make rules.  The proviso to  s.  115(7) limits  that power, but that limitation is removable by  the Central Government by giving its previous approval.  In this context, we think that it could not have been the  intention of  Parliament  that Service Rules made by States  would  be scrutinised   in   the  minutest  detail  by   the   Central Government.   Conditions  vary from State to State  and  the details  must be filled by each State according to  its  re- quirements.  The broad purpose underlying the proviso to  s. 115(7) of the Act was to ensure that the conditions of  ser- vice should not be changed except with the prior approval of the Central Government.  In other words, before embarking on varying  the  conditions of service, the  State  Governments should obtain the concurrence of the Central Government.  In the  memorandum  mentioned above,  the  Central  Government, after examining various aspects, came to the conclusion that it would not be appropriate to provide for any protection in the  matter  of travelling allowance,  discipline,  control, classification, appeal, conduct, probation and  departmental promotion.   In  our  opinion,  this  amounted  to  previous approval  within  the  proviso  to s.  115(7).   It  may  be mentioned that by this memorandum the State Governments were required  to  send copies of all new rules  to  the  Central Government for its information.  Therefore’ in our  opinion, there  is  no force in the first contention of  the  learned counsel for the petitioner, and we hold that the ruler, were validly made. There  are  two  preliminary  hurdles  in  the  way  of  the petitioner  regarding the second point taken on his  behalf. Firstly,  the State of Madras has not been made a  party  to this petition.  Secondly, he never raised these points while he  was serving under the State of Madras.  It is  difficult at  this stage to challenge orders, which if quashed,  would affect the rights of other civil servants who are not (1)  W.P. No 88 of 1962 ; judgement dated January 13,1964. 554 parties  to this petition.  At any rate, the petitioner  has not  been able to show how Art. 16 was infringed  before  he was   allotted  to the new Mysore State.  The State  in  its reply  has asserted that all the orders  complained  against were passed  by competent authorities, after considering the merits  of the petitioner on each occasion.  It was for  the competent authorities to judge the merits of the petitioner. We  find  no  force  in this contention  and  hold  that  no infringement of Art. 16 has been established. Accordingly,  in  the result, the petition  fails.   In  the circumstances  of  the case we order that the  parties  will bear their own costs in this Court.                                      Petition dismissed. 555