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PETITIONER: NOHIRIA RAM

       Vs.

RESPONDENT: THE UNION OF INDIA AND OTHERS(with connected appeal)

DATE OF JUDGMENT: 08/11/1957

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

CITATION:  1958 AIR  113            1958 SCR  923

ACT:        Civil Servant-Cadre-Additional post to regular establishment        Whether  an integral part of regular Cadre-Creation of  post        outside Cadre-Competence-Transfer of incumbent of such  post        on foreign scrvice-Effect-Fundamental Rules, Rr. 9(4),  111,        113, 127-Civil Services (Classification, Control and Appeal)        Rules, rr. 24, 44.

HEADNOTE:        The appellant was originally employed as a civilian clerk in        the Royal Air Force, Quetta, but subsequently on application        made  by  him  to the Director  General  of  Indian  Medical        Service,  he  was appointed as an additional  clerk  in  the        office of the Director General to deal with the work of  the        Indian  Research Fund Association on the understanding  that        the average cost of the appointment together with leave  and        pensionary  contributions thereon was to be  recovered  from        the Association.  The Public Service Commission approved  of        the appointment subject to the condition that this would not        give him any claim to appointment in the Central Secretariat        or its attached offices.  On June 12, 1930 the appellant was        confirmed  in the additional post with effect from April  i,        1930), and on April IO, 1931, he was transferred on "foreign        service"  under the Indian Research Fund Association,  where        he continued to serve till September 17, 1944.  As a  result        of certain representations made by him in which he submitted        that  the  post which he held was a permanent  post  in  the        regular  establishment  of  the  Director  General,   Indian        Medical Service, Government decided that while continuing to        hold  the extra-cadre post which was  originally  sanctioned        for  the  work of the Indian Research Fund  Association,  he        would  in future be employed on ordinary work in the  office        of the-Director General, but would continue to be subject to        the  existing  disqualifications, namely that  he  would  no        claim to appointment in the regular cadre of the ministerial        establishment of the office.        923        Ultimately  on March 30, 1948, he instituted a suit  against        the  Union  of India for a declaration that he  was  in  the

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      service  of the Union of India as a member of the  permanent        regular  ministerial  establishment  of the  office  of  the        Director  General,  Indian Medical Service.   He  contended,        inter alia (1) that as the post in which he was  permanently        appointed in 1930 was not constituted into a separate cadre,        that  post  must be held to be an addition  to  the  regular        establishment  of  the  Director  General,  Indian   Medical        Service and, therefore, an integral part of the same  cadre,        and  (2) that, in any case, as under the rules  relating  to        "foreign  service" in the Fundamental Rules, members of  the        regular  establishment  only  could  be  sent  on   "foreign        service"  and  as admittedly Government had  sanctioned  the        transfer  of the appellant on "foreign service," he must  be        held  to  be a member of the regular  establishment  of  the        Director General.        Held,  (i) that it was within the competence of  the  appro-        priate  authority to create an additional post  outside  the        regular  cadre of a particular office to which the post  may        be  attached  for purposes of  administrative  control,  and        Fundamental  Rule  I27  only lays  down  the  principles  in        accordance with which the cost of the additional post  shall        be recovered;        (2)That Fundamental Rule 113 was not applicable to the  case        as  "he  appellant  did not belong to  a  cadre  immediately        before his transfer on "foreign service."        The  question  whether  it was open to  the  Public  Service        Commission  to  impose a condition on  or  give  conditional        concurrence  to, the appointment of the appellant, was  left        open.

JUDGMENT:        CIVIL APPELLATE JURISDICTION :Civil Appeals Nos. 116 and 117        of 1957.        Appeals  by special leave from the judgment and order  dated        October  30, 1953, of the Circuit Bench of the  Punjab  High        Court at Delhi in Civil Regular First Appeal No. 190 of 1951        and Civil Writ No. 82-D of 1952.        D.R.  Prem, T. S. Venkataraman and K. R. Choudhry,  for  the        appellant.        R.Ganapathy  Iyer, Porus A. Mehta and R. H. Dhebar, for  the        respondents.        1957.   November 8. The Judgment of the Court was  delivered        by        S.   K. DAS J.-These are two appeals by special        leave.   Pt. Nohiria Ram is the appellant in  both  appeals.        He  had  also filed a petition (petition No.  397  of  1955)        under Art. 32 of the Constitution in which he had prayed for        the  issue  of an appropriate writ to the  Union  of  India,        respondent 1, and the        924        Director  General of Health Services, New Delhi,  respondent        2, directing them to forbear from giving effect to an  order        of  dismissal passed by respondent 2 against the  petitioner        on October 3, 1955.  That petition was, however,  dismissed,        as  withdrawn.  Therefore, the present judgment is  confined        to the two appeals, and the relevant facts relating  thereto        are stated below.        Formerly,  the appellant held a permanent appointment  as  a        civilian  clerk in the office of the Royal Air Force, No.  3        (Indian)  Wing, Quetta.  On March 17, 1928, he  applied  for        the  post of a clerk in the office of the Director  General,        Indian Medical Service, New Delhi (now known as the Director        General,   Health  Services,  New  Delhi).   The   appellant

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      succeeded  in his application and on March 28, 1928, he  was        told that there was a vacancy in the office of the  Director        General in the grade of Rs. 75-4-155, it was further  stated        that  the  appointment would be for one year  in  the  first        instance,  though  there was likelihood of  its  being  made        permanent;  and if the appellant agreed to accept the  post,        he  was  directed  to join in the  office  of  the  Director        General at Simla on April 16, 1928.  A request was also made        to  the  authorities  of the Royal Air Force  to  grant  the        appellant  a  lien on his permanent post in  the  Royal  Air        Force till February 28, 1929, by which date the question  of        the permanency of the appointment in the Director  General’s        office was to be decided.  The appellant joined his Dew post        on April 16, 1928.  On February 26, 1930, the Government  of        India  in  the Department of Education,  Health  and  Lands,        which was the controlling Department so far as the office of        the Director General, Indian Medical Service, was concerned,        conveyed sanction to the appointment, with effect from April        1,  1930,  of  an  additional clerk in  the  office  of  the        Director  General in the grade of Rs. 75-4-155 to deal  with        the  work  of the Indian Research Fund  Association  on  the        understanding  that  the  average cost  of  the  appointment        together with leave and pensionary contributions thereon was        to  be recovered from the Association.  On April  30,  1930,        the Director General, Indian Medical        925        Service, wrote to the Secretary, Public Service  Commission,        intimating  that the appointment of an additional clerk  had        been  sanctioned by the Government of India for work of  the        Indian Research Fund Association; the Director General  then        stated  that  the incumbent of the additional post  was  the        appellant,  who formerly held a permanent post in the  Royal        Air  Force,  Quetta, and as he was not a candidate  who  had        passed through the Public Service Commission the  Commission        was  asked to give approval to his permanent appointment  in        the  said  post.   To this  the  Secretary,  Public  Service        Commission, gave the following reply:        "  With reference to your letter No. 219/516 dated the  30th        April,  1930, 1 am directed to say that the  Public  Service        Commission  have  no objection to the  confirmation  of  the        temporary  clerk who is at present employed on the  work  of        the   Indian  Research  Fund  Association  subject  to   the        condition  that  this  will  not  give  him  any  claim   to        appointment  as a Routine Division clerk in the  Secretariat        and its attached offices."        This reply of the Public Service Commission was shown to the        appellant  and  he  was  specifically  asked  to  note   the        condition that he would have no claim to an appointment as a        routine  division  clerk  in  the  Secretariat  or  attached        offices, the office of the Director General, Indian  Medical        Service,  being an office attached to the  Secretariat.   On        May  26,  1930, the appellant saw the letter of  the  Public        Service Comniission and noted-"Seen.  Thanks".  On June  12,        1930,  the  appellant was confirmed in the  additional  post        with  effect  from April 1, 1930.  On April 10, 193  1,  the        appellant  was  transferred  on foreign  service  under  the        Indian Research Fund Association as a second grade assistant        in  the grade of Rs. 120-8-160-10-350 on condition that  the        Association  would continue to pay the average cost  of  the        post  together with leave and pensionary contributions  etc.        The  appellant continued to serve under the Indian  Research        Fund  Association till September 17,1944, with  some  breaks        for small periods during which he reverted to the office  of        the Director General to officiate as        926

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      assistant, first grade or special grade, on Rs.  200-12-440.        On June 10, 1932, the Governor General-in-Council sanctioned        the  transfer of the appellant to foreign service under  the        Indian Research Fund Association with effect from April  10,        1931.    On   August  15,  1944,  the   appellant   made   a        representation  to  the  Secretary,  Indian  Research   Fund        Association,  in which he made a request that he  should  be        reverted  to his parent office.  The reason given  was  that        the  appellant was " being treated indifferently  and  there        had  been some misapprehensions in the past and there  might        be similar misapprehensions in the future." On September 11,        1944, the Secretary, Indian Research Fund Association, wrote        to  the appellant to say that his application for  reversion        to  the office of the Director General was granted and  that        the  appellant should revert to the office of  the  Director        General  with  effect  from  September  18,  1944.   As  the        previous  consent  of  the Director  General  had  not  been        obtained to the reversion, there was naturally some  trouble        and  the  Director  General asked the  appellant  to  report        himself  for duty to the Indian Research  Fund  Association.        The appellant then made certain representations in  November        1944  and January 1945 in which he submitted that  the  post        which   he  held  was  a  permanent  post  in  the   regular        establishment  of  the  Director  General,  Indian   Medical        Service, and that he should be treated, on reversion to  the        parent office, as a senior assistant who was entitled to all        increments and promotions available to a permanent member of        the  regular establishment of the Director  General,  Indian        Medical  Service.  To these representations,  the  appellant        received the following reply :        " In reply to a recent communication from the Secretary,  I.        R.  F.  A., the Government of India, E.H. &  L.  Department,        affirmed  that  Mr. Nohiria Ram was governed by  the  orders        contained  in their letters No. F. 9-22/39-H dated  the  8th        August,  1939,  and  No.  F.  37-13/41-H,  dated  the   27th        November, 1941.  These orders clearly state-        (1)that  the  substantive  post  of  Mr.  Nohiria  Ram  is        attached to this office for the work of the I.R.F.A;        927        (2) that it is outside the regular cadre of this office;        (3)that  Mr.  Nohiria  Ram should not  be  absorbed  in  the        regular cadre of this office on the occurrence of a  vacancy        in that cadre; and        (4)that the post should continue to be retained outside this        cadre until Mr. Nohiria Ram retires.        Mr.  Nohiria Ram was confirmed in the above post only  after        he had accepted in writing the condition that he would  have        no  claim  to a post on the regular  establishment  of  this        office.    This  condition  was  imposed  as  he  is  an   "        unqualified clerk."        The appellant was, however, dissatisfied with this order and        continued to make further representations, and ultimately on        December 17, 1945, he expressed his inability to work in the        office  of  the Indian Research Fund Association,  which  he        characterised  as  a "private body".  It  appears  that  the        appellant  was then suspended with effect from December  14,        1945,  the date on which he was to have joined his  duty  in        the  post of a clerk attached to the office of the  Director        General,  Indian  Medical Service, for work  of  the  Indian        Research Fund Association.  A charge sheet was served on the        appellant  on  January 10, 1946, to the effect that  on  the        expiry  of his leave for ten days, he had refused to  return        to  duty  to his substantive post of clerk attached  to  the        office of the Director General, Indian Medical Service,  for        work of the Indian Research Fund Association.  The appellant

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      submitted  a  written  statement and  made  certain  further        representations.   On  September  5,  1946,  the  orders  of        suspension etc. were modified, and the following order was        passed :        "  Mr. Nohiria Ram is informed that in modification  of  the        existing orders on the subject the Government of India  have        decided  that while continuing to hold the extra cadre  post        which was originally sanctioned for the work of the I.R.F.A.        he  will in future be employed on the ordinary work of  this        office.   He  will continue to be subject  to  the  existing        disqualifications,  namely,  that he will have no  claim  to        appointment  as a routine division clerk in the  Secretariat        or        928        its attached Offices or to inclusion in the regular cadre of        the ministerial establishment of this office.        In  accordance with the above decision, Mr. Nohiria  Ram  is        directed  to  report  himself  for duty  to  Captain  J.  M.        Richardson,   D.A.D.G.   (P),  in  this  office   at   Simla        immediately.  He will be posted in the Indian Medical Review        Section."        In pursuance of the aforesaid order, the appellant joined at        Simla  and on March 30, 1948, he instituted a  suit  against        the  Union of India asking for a declaration that he was  in        the  service  of  the  Union of India as  a  member  of  the        permanent regular ministerial establishment of the office of        the  Director  General,  Indian Medical  Service.   He  also        claimed certain other reliefs which were, however, given up.        The  suit  was decreed by the learned Subordinate  Judge  of        Delhi  on  March  10, 1951.  The Union  of  India  filed  an        appeal, being First Appeal No. 190 of 1951.  This appeal was        allowed  by  the  Punjab High Court by  its  judgment  dated        October 30, 1953.  The result was that the appellant’s  suit        was  dismissed.  The appellant asked the Punjab  High  Court        for  a certificate for leave to appeal to this Court.   That        application  was  refused.  The appellant  then  moved  this        Court  and obtained special leave, and Civil Appeal No.  116        of  1957  has been filed in pursuance of the  special  leave        granted  by this Court and is directed against the  judgment        and decree of the Punjab High Court dated October 30,  1953,        in First Appeal No. 190 of 1951.        Civil  Appeal  No. 117 of 1957 continues the  story  of  the        appellant’s  alleged  grievances after he had  obtained  his        decree from the learned Subordinate Judge of Delhi. We  have        stated before that against that decree  the  Union of  India        filed  an appeal on July 24, 1951.  During the  pendency  of        that  appeal, the appellant moved the punjab High  Court  by        means  of a petition under Art. 226 of the Constitution  for        the  issue of a writ directing the Director General,  Health        Services,  New  Delhi, to disburse immediately the  pay  and        allowances  to which the appellant said be was entitled  for        the  month of November, 1952.  What happened was  this.   In        October, 1952, the appellant                                    929        was  working in the Public Health Section 1, and on  October        3,  1952, he proceeded on leave on average pay till  October        11, 1952.  On his return from leave on October 13, 1952,  he        submitted a joining report and asked for posting orders.  He        was asked to work in the Public Health Section I from  where        he had gone on leave.  He refused to do so, and asked for an        interview with the Director General.  This was refused,  and        the  appellant was told that unless he resumed duty  in  the        Public  Health  Section I, he would be deemed to  have  been        absent from office without permission.  The appellant  still        continued in the recalcitrant attitude which he had adopted,

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      presumably in the belief that after the decree in his favour        he  was entitled to all promotions and increments  available        to a permanent member of the regular establishment.  He came        to office, but instead of going to the Public Health Section        1,  he occupied the seat meant for the record sorter in  the        General  Section.  In other words, since October  13,  1952,        the appellant did no work.  He was paid his salary till  the        end of October, 1952, but payment was withheld for November,        1952.   On  December  20,  1952,  the  appellant  filed  his        petition  under  Art. 226.  On the same date  on  which  the        appeal  of the Union of India was allowed,  the  application        under  Art. 226 was also dismissed by the Punjab High  Court        on the ground that the appellant was guilty of  disobedience        and  insubordinate  conduct  and was  not  entitled  to  any        relief.   Against this order the appellant has  filed  Civil        Appeal 117 of 1957, after having obtained special leave from        this Court.        The crucial question for decision in these two appeals is if        the  appellant  held  a post in the  permanent  and  regular        ministerial  establishment  of the office  of  the  Director        General, Indian Medical Service, New Delhi.  The High  Court        has  held  that  the post in which the  appellant  was  made        permanent was no doubt a post attached to the office of  the        Director  General for the purpose of the work of the  Indian        Research  Fund  Association, but it was a post  outside  the        regular  cadre  of the office of the Director  General,  and        this was made clear to the appellant from the very        930        beginning.  The High Court found that the appellant knew and        bad  accepted the condition on which he was  appointed;  and        the  grievance he made after a lapse of about 14  years  was        unsubstantial and fanciful.        Learned   counsel  for  the  appellant  has  contested   the        correctness  of the aforesaid findings.  It is not  disputed        that  the appellant did know the condition which the  Public        Service   Commission  had  imposed  in  approving   of   the        appointment of the appellant on May 16, 1930.  The  argument        before us is (1) that on a true construction of the relevant        rules and Government orders governing the conditions of  the        appellant’s service, the appellant on his confirmation  with        effect from April 1, 1930, became a permanent member of  the        regular establishment of the office of the Director General,        Indian  Medical  Service, and (2) that  the  Public  Service        Commission  had  no  authority to impose  any  condition  in        derogation of those rules and orders.        Let  us  now  examine  the rules and  orders  on  which  the        appellant  relies.  Fundamental Rule 9 (4) explains what  is        meant  by  a cadre; it means in effect the  strength  of  an        establishment or service (later amended to include a part of        a service) sanctioned as a separate unit.  The establishment        we   are  concerned  with  in  the  present  case   is   the        establishment of the office of the Director General,  Indian        Medical  Service.   The total ,sanctioned strength  of  that        establishment was 30.  In their letter of February 26, 1930,        the Government of India conveyed sanction to the appointment        of  an additional clerk to deal with the work of the  Indian        Research  Fund  Association on the  understanding  that  the        average   cost  of  the  post  plus  leave  and   pensionary        contributions would be recovered from the Association.   The        question is if this additional post was a permanent increase        of  the regular cadre or was a post outside the  cadre.   In        1934  the Accountant General, Central Revenues,  raised  the        question  and  enquired  of  the  Director  General,  Indian        Medical Service, how the pay of 31 persons was shown in  his        establishment as against the sanctioned strength of 30 only.

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      The  Director General, Indian Medical Service, replied  that        the number 31 included the post of the additional        931        clerk,  though the post was not included in  the  sanctioned        strength  of  his  office.  In 1935  the  Director  General,        Indian Medical Service, wrote to Government and said : "  In        practice  the  post has since been  considered  outside  the        regular  cadre of my office." The Director  General,  Indian        Medical Service, then added:        "  I  consider that F. R. 127 is the only rule  under  which        additions  to  a regular establishment can be made  for  the        performance  of  the work of private bodies.  As  this  rule        does  not  seem  to contemplate  the,  constitution  of  two        separate  establishments in one and the same office I am  of        opinion that the two posts in question should be regarded as        additions to the strength of my office and as such they must        remain under my administrative control."        To this letter the Government of India replied to the effect        that though the post was under the administrative control of        the Director General, Indian Medical Service, it was a  post        outside the regular establishment and the incumbents of this        post  as also of another similar post should be absorbed  in        the regular establishment when vacancies occurred in future.        This order was partially modified in 1939 when it was  said:        "The Government of India have decided that the post of clerk        attached to your office for the work of the Indian  Research        Fund Association, which is outside the regular cadre of your        office,  should  not  be  absorbed  in  that  cadre  on  the        occurrence of a vacancy.  It should continue to be  retained        outside  the  cadre  as at present  until  Mr.  Nohiria  Ram        remains  on deputation to a post under the  Indian  Research        Fund Association and the Association should continue to  pay        the leave and pension contributions to Government on account        of  the  latter  post.  In the event of  Mr.  Nohiria  Ram’s        reversion  to his substantive post the Association will,  as        originally  stipulated in this Department letter No.  467-H.        dated  26th February, 1930, be required to pay  the  average        cost of the post plus leave and pension contributions.   The        post will be abolished on retirement of Mr. Nohiria Ram from        service."        it is quite clear from the aforesaid orders that the        932        post  to  which the appellant was appointed  permanently  in        1930,   was  a  post  outside  the  cadre  of  the   regular        establishment  of  the  Director  General,  Indian   Medical        Service.  Indeed, on April 2, 1935, the Home Department  (as        it  was  then called) ruled on a reference made to  it  that        "the  strength  of  the ministerial staff  of  the  Director        General,  Indian Medical Service, was exclusive of  the  two        posts  the  cost  of which was  recovered  from  the  Indian        Research Fund Association."        The  sheet anchor of the case of the appellant as  presented        by  his learned counsel is Fundamental Rule 127  in  Section        111,  Chapter  XII, read with rules 24 and 44 of  the  Civil        Services  (Classification, Control and Appeal) Rules,  1930.        The  case so presented is this: it is argued that under  the        Classification,  Control  and  Appeal  Rules  the   Governor        General in Council was alone competent to constitute a cadre        by declaring the sanctioned strength of the establishment of        the Director General, Indian Medical Service and Fundamental        Rule  127  lays down how the recovery of the cost is  to  be        made when an addition is made to a regular establishment for        the  benefit of private persons or bodies, and the  argument        proceeds  to state that as the post in which  the  appellant        was permanently appointed in 1930 was not constituted into a

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      separate cadre, that post must be held to be an addition  to        the  regular establishment of the Director  General,  Indian        Medical  Service  and., therefore, an integral part  of  the        same  cadre.   We  are unable to  accept  this  argument  as        correct.   It is true that the additional post in which  the        appellant  was  made permanent was not  constituted  into  a        separate  cadre;  the  obvious reason was  that  it  was  an        additional  post  outside the regular cadre.   None  of  the        rules  to  which  learned counsel has  drawn  our  attention        prevents   the  appropriate  authority  from   creating   an        additional  post outside the regular cadre of  a  particular        office,  to which the post may be attached for  purposes  of        administrative control.  F. R. 127 on which learned  counsel        has placed so much reliance is in these terms:        F.R. 127.  "When an addition is made to a regular        933        establishment on the condition that its cost, or a  definite        portion of its cost, shall be recovered from the persons for        whose  benefit  the  additional  establishment  is   created        recoveries shall be made under the following rules :        (a)  The   amount  to  be  recovered  shall  be  the   gross        sanctioned  cost  of the service, or of the portion  of  the        service,  as  the case may be and shall not  vary  with  the        actual expenditure of any month.        (b)  The cost of the service shall include contributions  at        such  rates  as  may be laid down under  Rule  116  and  the        contributions shall be calculated on the sanctioned rates of        pay of the members of the establishment.        (c)  A local Government may reduce the amount of  recoveries        or may entirely forego them."        The Rule corresponds to Art. 783 in Chapter XLI of the Civil        Service  Regulations,  and  lays  down  the  principles   in        accordance with which the cost, or a definite portion of the        cost,  of the additional post shall be recovered.   It  does        not decide the question if the post is part of the cadre  or        not;  that  depends  on  the  decision  of  the  appropriate        authority,  and  we  know  that  in  the  present  case  the        appropriate  authority bad decided from the  very  beginning        that  the  additional  post which  the  appellant  held  was        outside  the regular establishment of the Director  General,        Indian Medical Service.        It  has  been  next argued that  under  the  relevant  Rules        members of the regular establishment alone could be sent  on        foreign service and as admittedly Government sanctioned  the        transfer  of  the appellant to foreign service  with  effect        from  April  10, 1931, the appellant must be held  to  be  a        member of the regular establishment of the Director General,        Indian  Medical Service.  In our opinion, this  argument  is        also  equally fallacious.  The Rules relating to  I  Foreign        Service’ are to be found in Section III, Chapter XII and the        particular  Rules to which our attention has been drawn  are        Fundamental  Rules 111 and 113.  Insofar as it  is  relevant        for our purpose, Fundamental Rule I 1 1 says that a transfer        to foreign service is not admissible        934        unless the Government servant transferred holds a lien on  a        permanent post; Fundamental Rule 113 says that a  Government        servant transferred to foreign ,service shall remain in  the        cadre or cadres in which he was included in a substantive or        officiating capacity immediately before his transfer and may        be given such substantive or officiating promotion in  those        cadres  as  the authority competent to order  promotion  may        decide.   In the present case, the appellant held a lien  on        the  additional post in which he was  confirmed;  therefore,        his  transfer  on  foreign  service  was  admissible   under

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      Fundamental  Rule  111.  He did not, however,  belong  to  a        cadre immediately before his transfer, and Fundamental  Rule        113 had no application in his case.        Lastly,   it  has  been  argued  that  the  Public   Service        Commission  had no authority to impose a condition that  the        appellant  would  not  have any claim to  appointment  as  a        Routine  Division Clerk in the Secretariat or  its  attached        Offices.   In one of his representations the appellant  said        that  he  signed the note which drew his  attention  to  the        condition  on  "  the understanding that  it  had  no  value        whatsoever,  being  contrary  to the  rules  and  Government        orders".  The contention of the appellant is that the Public        Service  Commission  which  was  constituted  in  1926   and        functioned under the rules published in the Home  Department        notification No. F. 178/14/24 Ests. dated October 14,  1928,        dealt with the recruitment of class I and class 11  officers        of the Civil Services in India, and the rules then in  force        did  not  provide for the discharge of any function  by  the        Public  Service Commission in respect of the recruitment  to        and  control  of  the  subordinate  service  to  which   the        appellant  belonged.   This contention was accepted  by  the        learned Subordinate Judge.  The High Court, on appeal,  held        that  the appointment of the appellant was governed  by  the        instructions  laid  down  in an  office  memorandum  of  the        Government of India in the Home Department dated December 8,        1928, paragraph VIII whereof stated-        Special cases.-To meet cases where a candidate,        935        though    not   possessing   the   prescribed    educational        qualification,  has  acquitted  himself  satisfactorily   in        examinations  of  a higher or equivalent  standard,  or  has        acquired great experience of Government service outside  the        ministerial staff or possesses special qualifications for  a        particular class of work, the Public Service Commission  are        empowered (a) to admit to the examination persons possessing        educational qualifications other than those prescribed,  and        (b)  to  exempt  from  the examination  or  to  admit  to  a        particular Division persons who by reason of their  previous        record can in their opinion properly be exempted or admitted        as  the  case  may be.  In the case of  persons  already  in        Government  service  such action will be taken only  on  the        recommendation of the Department concerned.  In view of  the        discretion  vested in the Commission by this  provision,  it        will   no   longer  be  open  to  Departments   to   recruit        independently  for their offices or subordinate offices  men        with special or technical qualifications.  Before making any        such appointment they will be required to secure the  Public        Service Commission’s concurrence."        The case of the appellant, who had not passed the qualifying        examination  held  previously by the Staff  Selection  Board        whose place the Public Service Commission took in 1926,  was        presumably  referred to the Public Service Commission  under        the aforesaid paragraph.  Learned counsel for the  appellant        has  contended that even the instructions contained  therein        do  not justify the imposition of a condition by the  Public        Service  Commission, and the only powers the Public  Service        Commission  could exercise were those mentioned in  (a)  and        (b) thereof.        We  think that it is unnecessary to examine the validity  of        these  contentions  on the present occasion.   Assuming  but        without deciding that it was not necessary to refer the case        of  the appellant to the Public Service Commission  or  that        the Public Service Commission could not impose any condition        on the appointment of the appellant, the fact still  remains        that   the  appropriate  authority  which   sanctioned   the

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      additional  post  made  it quite clear  that  the  post  was        outside the        119        936        regular  cadre  and  the Director  General,  Indian  Medical        Service, said that the post had been treated in practice  as        being outside the regular establishment, though attached  to        his  office  for purposes of administrative  control.   That        being the position, it matters little what powers the Public        Service  Commission  had  with regard to  the  case  of  the        appellant  referred to it.  We must make it clear,  however,        that we do not express dissent -it being unnecessary for  us        to  do so-from the view expressed by the High Court that  in        giving  concurrence to the appointment of the appellant,  it        was  open  to  the  Public  Service  Commission  to  give  a        conditional concurrence.        This  brings us to a close of the case of the  appellant  in        Civil Appeal 116.  Only a few words are necessary to dispose        of  Civil  Appeal  117.  That  appeal  requires  no  serious        exegesis   of   any  recondite  service  rule   or   obscure        departmental  order.   In  view  of  the  finding  that  the        appellant was not a member of the’ regular establishment  of        the  Director General, Indian Medical Service, lie  was  not        entitled to claim seniority in that office.  It is true that        the appellant obtained a decree from the learned Subordinate        Judge;  it was, however, a declaratory decree only,  as  the        appellant  did  not  press  for  the  other  reliefs  as  to        increment,  promotion etc.  Even the declaratory decree  was        put in jeopardy when respondent No. 1 appealed from it.   In        these circumstances, how :,could the appellant refuse to  do        the   work  given  to  him  ?  We  have  referred   to   the        circumstances  in which the appellant refused to do work  in        the  Public Health Section to which he was allotted; he  did        not work from October 13, 1952 and got no pay from November,        1952.    The  appellant  has  to  thank  himself   for   the        predicament  in which he is placed.  All that we can say  is        that if he had shown patience, good sense and moderation, he        could have avoided a great part of the trouble he brought on        himself.        In  the  result, both appeals fail and  are  dismissed  with        costs; as the appeals were heard together there will be  one        hearing  fee  to  be shared by the respondents  in  the  two        appeals.                             Appeals dismissed,        937