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PETITIONER: P. B. ROY

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT11/02/1972

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH SIKRI, S.M. (CJ) GROVER, A.N. RAY, A.N. PALEKAR, D.G.

CITATION:  1972 AIR  908            1972 SCR  (3) 449  1972 SCC  (3) 432

ACT: Civil  Servant--Holding temporary post--Constitution of  New service -’Departmental candidate’ holding  temporary  post appointed  to  permanent  post  but  of  a  lower  grade--If violative of Art. 311.

HEADNOTE: The appellant was holding a temporary post of Editor in  the Publications  Division of the Department of Information  and Broadcasting.  The temporary post was sanctioned upto  28-2- 1957.  On 16-2-1959, the President of India, in exercise  of the  powers  conferred  by the proviso to Art.  309  of  the Constitution,  promulgated the Central  Information  Service Rules,  1959.  These Rules were meant for the creation of  a Central  Information  Service  with  prescribed  grades  and strengths,   and  entry  into  the  service  was   open   to departmental  candidates according to r. 5 for  the  initial constitution  of the service.  The appellant was  chosen  by the  Selection  Committee  and was posted  as  an  Assistant Editor.  He challenged the order. A  single Judge of the High Court allowed the petition.   On appeal,  in  the  course of arguments,  the  question  arose whether  the post of Editor was abolished or had  ceased  to exist  and the respondent was allowed to file  an  affidavit stating  that the post of Editor had ceased to  exist.   The Division  Bench  then  held that there was  no  question  of demotion  or reduction in rank and hence that Art. 31 1  was not applicable. In appeal to this Court, it was held (1)  The  additional affidavit filed by the  respondent  did not introduce anything new but only clarified the  position. [455 E] (a)  There  was nothing to show that the temporary  post  of Editor  in which the appellant was initially  appointed  had been continued beyond 28-2-1957 for any period. [455 C] (b)  The  question whether the constitution of  the  Central Information Service involved fresh appointments to new posts or  its effect was merely to transfer existing employees  to corresponding posts with new designations was already before

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the court. [455 D-E] (c)  The appellant himself never asked for any  opportunity to meet any allegation in the additional affidavit. [454  F- G] (2)  There  is nothing to indicate that on the face  of  the impugned  order,  that the appellant had been demoted  as  a measure of punishment. [455 F-G] (3)  it  could  not be held that the order,  which  had  the effect  of terminating an officiating appointment  in  which the appellant had no right to continue-and which gave him  a fresh   appointment  with  a  different  designation,   ’out permanent tenure and prospects, constituted a 450 violation  of  either  Art. 14 or  16,  simply  because  the process  which  resulted  in such an order did  not  have  a similar  effect  upon the position or rights  of  any  other person in the Department; especially when, after taking into account the appellant’s individual case, the Selection  Com- mittee recommended the maximum pay in the class and grade of the post given to him. [456 A-C] (4)  (a) The new rules had the effect of constituting a  new service with a fair and reasonable procedure for entry  into it., Such a procedure could not be characterized as a device to  defeat  the provisions of Art. 311 or a fraud  upon  the Constitution simply because the result of subjection to  the process of appraisement of the merits of each candidate  may not meet the expectations of some candidates. [457 F-G] (b)  Article 311 afford-, a reasonable opportunity to defend against threatened punishment to those already in Government service.   Rule 5 of the Central Information  Service  Rules provides a method of recruitment or entry into a new service of  persons who, even though they may have been serving  the Government  had  no  right to enter  the  newly  constituted service before going through the procedure prescribed by the rule.   The  fields of operation of Art. 311 and  r.  5  are quite different and distinct. [457 G-H; 458 A-B] (c)  The definition of ’departmental candidates’ in r.  2(b) was  meant only as an aid in interpreting r. 5 and  was  not intended to operate as a fetter on the functions and  powers of  the Selection Committee.  It does not require  that  all persons  falling  within  the  definition  of  ’departmental candidate’  should be placed in a single class, Under  r.  5 the Selection Committee could assign different grades to the departmental  candidates.   The post actually  held  by  the appellant before his selection for appointment to the  newly constituted   service  did  not  automatically   or   wholly determine  the  position  of a  departmental  candidate  who offered himself to the process of appraisement of his merits by  the  Selection Committee to be made on the  totality  of relevant  facts.   That Committee was presided over  by  the Chairman or a Member of the Union Public Service Cornmission and  had  officials of the Department on it who  were  in  a position  to correctly evaluate the appellant’s merit’s  and the weight to be attached to his confidential records.  [459 B-H] (5)  The  appellant’s allegations of mala fides and that  he was  the  victim  of the prejudice and  machinations  of  an (unnamed)  officer  in  the Transport  Ministry,  could  not properly be tried in writ proceedings and without impleading that official. [460 F-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2172 of 1968.

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Appeal from the judgment and order dated August 10, 1967  of the  Delhi High Court in Letters Patent Appeal No.  97-D  of 1965. Frank Anthony, K. B. Rohatgi and P. Parameswara Rao, for the appellant. Jagadish Swarup, Solicitor-General of India and S. P. Nayar. for the respondent. 451 The Judgment of the Court was delivered by Beg,  J. This is an appeal by grant of a Certificate of  the Delhi  High  Court  under  Article  132  read  with  Article 133(1)(b) and (c) of the Constitution. The Appellant had filed a petition under Article 226 of  the Constitution  for quashing an order dated 10-3-1960 and  had prayed  for  a consequential order also in the nature  of  a mandamus.   Information of the impugned order (Annexure  ’C’ to the petition), given to the petitioner, reads as follows               "The  Union Public Service Commission have  in               pursuance of Rule 5 of the Central Information               Service  Rules, 1959, recommended Shri  P.  B.               Roy,  at present officiating as Editor in  the               Publications  Division, for appointment, in  a               substantive  capacity,  to Grade  III  of  the               service at its initial constitution.  Shri Roy               is  informed  that  the  President  has   been               pleased to post him as an Assistant Editor  in               the   Publications  Division  with   immediate               effect". Those  relevant facts, preceding and following the  impugned order,  which  are  admitted  by  both  sides  may  now   be mentioned. In  1955, the post of Editor, Publications Division, in  the Department of Information and Broadcasting of the Government of India (hereinafter referred to as ’,the Department’), was advertised.   The appellant, who had applied for  the  post, was selected by the Union Public Service Commission, and, on its  recommendation, was offered a temporary post of  Editor in the Publications Division of the Department on an initial salary of Rs. 720 per month in the scale of Rs.  720-40-1000 together with the usual allowances.  The material terms  and conditions of this employment were:               (i)   The post is to be gazetted Class I;               (ii)  The  temporary post was sanctioned  upto               28-2-1957 but was likely to continue;               (iii) Shri   Roy  (the  Appellant)   will   be               governed   by  the  Central   Civil   Services               (Temporary  Service  Rules)  and  other  Rules               applicable to temporary Govt. servants of  his               category;               (iv)  He  was to be on probation for 6  months               which may be extended at the discretion of the               appointing authority. The Appellant had reported for duty on 1st August, 1956,  as directed.   ’On  27-3-1957, the  Appellant,s  probation  was extended 452 by  three months.  Immediately thereafter, on  28-3-57,  the Appellant’s  services  were terminated under Rule 5  of  the Central  Civil  Services  (Temporary  Service)  Rules  1949, (Annexure  ’D’ to the Rejoinder Affidavit of 20th  February, 1964).   On  5-3-1957, the Appellant made  a  representation against this termination of his service (Annexure ’B’ to the Rejoinder  Affidavit).   On 27-4-1957 in  response  to  this representation,  the  above-mentioned  termination  to   the Appellants  service  was rescinded(Annexure ’F’ to  the  Re-

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joinder Affidavit).  On 28-4-1958, the President was pleased to terminate the probationary period of the.  Appellant  and permitted  him  to  continue in his,  post  in  a  temporary capacity  (Annexure  ’B’  to the  Affidavit  supporting  the Petition), On 16-2-1959, the President of India, in exercise of  powers conferred by the Proviso to Article 309 of the  Constitution of India, promulgated the Central Information Service Rules, 1959 (hereinafter referred to as the Rules), which came into force on 21-2-1959.  These rules were meant for the creation of a Central Information Service with prescribed grades  and their  strengths.   Entry  into this  service  was  open  to "departmental candidates" by a procedure laid down in  Rule5 for the initial constitution of the service.  In  accordance with  this procedure, the Appellant was required  to  appear before  a  Selection Committee on a given date,  and,  after selection, he was posted by the impugned order as  indicated above.   On  11-31960, the Appellant assumed charge  of  the post thus assigned to him on the recommendation of the Union Public  Service  Commission.   The  Appellant  then  made  a representation,   dated  11-3-1960  (Annexure  ’E’  to   the Rejoinder  Affidavit), against his appointment in  Class  II grade III post.  He made other similar representations after that.   His last representation was made on  25-8-1962.  the Appellant received a communication dated 10-12-1962 forward- ing extract of an order dated 26-11-1962 which said :               "The  representation from Shri P. B.  Roy  has               been  carefully  considered in  the  Ministry.               All  relevant  facts  were  fully  taken  into               account,   by   the   Departmental   Promotion               Committee, before drawing up the recent  panel               of Grade III officers considered suitable  for               promotion  to  Grade  II.   Shri  Roy  may  be               informed accordingly". The  Appellant, treating this as the rejection of  his  last representation,  filed his petition on 11-1-1963  which  was allowed by a learned Judge of the Punjab High Court, sitting on  the  Circuit Bench at Delhi.  A Letters’  Patent  Appeal against  this decision had been allowed by a Division  Bench of the Delhi High Court which then granted a certificate  on 12-8-1968 for leave to Appeal primarily because it held that the  required  test  relating to valuation  of  the  subject matter had been satisfied. 453 The  learned Judge who had initially heard the petition  had pointed  out  that the representation of the  Appellant  was first rejected on 29-7-1960 and that it did not matter  that the    petitioner    had   continued    making    subsequent representations.    The  learned  Judge  had   noticed   the explanation that the petitioner could not approach the Court as he was admitted to a Tuberculosis Clinic in June,.  1961. The learned Judge, having found that this was not sufficient to  explain  the delay between 29-7-1960 and June  1961  was disposed  to  reject the petition on the ground  of  laches. But,  in  view of the decision of the majority of  the  Full Bench  of  the  Punjab  High Court in  S.  Gurmej  Singh  v. Election  Tribunal,  Gurdaspur(1), the delay in  filing  the petition  was  overlooked  on the  ground  that,  after  the admission  of a Writ Petition and hearing of arguments,  the rule that delay may defeat the rights of a party is  relaxed and need not be applied if his case is "positively good". The learned Single Judge had come to the conclusion, on  the facts  stated  above, that the petitioner’s  case  would  be governed  by the decision of this Court in Moti Ram  Deka  & Ors. v. General Manager, North East Frontier Railway (2 )  ,

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as the petitioner’s prospects and emoluments were  adversely affected  by the impugned order.- The learned Judge  thought that  the mere fact that the Department was reorganized  and that  the  petitioner was to be fitted into  an  appropriate category  by the procedure laid down in Rule 5 did not  take away the effect, that is to say, the loss of his emoluments, of the procedure to which the petitioner had been subjected. This  view  implied that Art. 311 of  the  Constitution  was attracted by the case despite the above mentioned  creation of the Central Information Service by the rules. The  Division Bench which heard the Appeal of the  Union  of India  was not inclined to interfere with the discretion  of the  learned Single Judge in rejecting the objection to  the petition on the ground of delay.  We too will not enter into this question which was not argued before us. The  Division Bench, after reviewing facts’ leading  to  the absorption of the Appellant into a newly constituted Central Information  Service, in accordance with the procedure  laid down  in  Rule 5 mentioned above, held that  the  "News  and Information Cadre" of the Department, in which the Appellant was  initially appointed, had been superseded by the  cadres and grades constituted by the rules of the new service.   It overruled  the contention of the Petitioner that the  effect of  the rules was merely to transfer employees  in  existing posts to corresponding posts with new designations.  It held that  the  Rules did create an altogether  new  service.  It pointed  out that the process of entry into the new  service was of (1) [1964] P.L.R. p. 589. (2) A.T.R. 1964 S.C. P. 600. 454 selection of each individual candidate after an  examination of  his individual record and qualifications by a  Selection Committee be, fore which he appeared so that there could  be no  automatic  fitting into some  corresponding  appropriate post of  a predetermined class and grade.  The  rules  and process  for  the constitution of the new  service  did  not guarantee  the class or grade or emoluments enjoyed  by  any candidate in a cadre in which he served prior to the setting up of the new service.  It, therefore, held that no question of  demotion  or reduction in rank,  without  observing  the procedure laid down in Art. 3 1 1 of the Constitution, arose at all in the instant case. Mr  Anthony,  appearing  on behalf  of  the  Appellant,  has assailed  the  correctness of the decision of  the  Division Bench of the Delhi High Court on five grounds.  We will take up and consider each of these seriatim. Firstly,  it is contended that the Division Bench had  erred in allowing an affidavit to be filed on 26-6-1967 before it, without  affording an opportunity to the Appellant to  repel its  contents by filing a counter-affidavit.  It  was  urged that  the  result was that an altogether new  case,  neither argued before nor referred to by the learned Single  Judge, had  been  allowed to be raised.  This ground  is  no  doubt mentioned  among the grounds on which a certificate  of  the fitness  for  an  appeal  to this  Court  was  sought.   The Judgment of the Division Bench mentions that, in the  course of arguments, the question arose whether the post of  Editor in the Publications Division was abolished or had ceased  to exist. It appears that an affidavit was then allowed to  be filed before the Division.  Bench on behalf of the Union. of India  in which it was stated that two posts of  Editors  in the  scale of Rs. 720-40-1000 in the  Publications  Division had ceased to exist as a consequence of the inclusion of two posts in the revised grade of Rs. 700-40-1100-50/2-1250 with

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effect  from  1-7-1959 in the  Central  Information  Service constituted from 1-3-1960.  There is nothing in the Judgment or  anywhere else to show that the petitioner had asked  for any  opportunity  to controvert any statement  made  in  the affidavit dated 26-7-1967 and had been denied that. The case and the contention on behalf of the Appellant  have been that the new posts in the services are really old posts in a new garb.  This raised what was primarily a question of law,  depending for decision upon an interpretation  of  the relevant  rules  of which the Court takes  judicial  notice. The  rules certainly did not provide for the continuance  of any  ex.-cadre posts outside the new service  introduced  by the  rules.   Facts stated in the Affidavit  of  26-  7-1967 could  have some bearing on the question whether there  were two posts in the revised scale which could be considered  as corresponding posts.  They could, if they had 455 any  effect  on  the respective  stands,  perhaps  help  the Appellant’s  case  that there was nothing more  than  a  re- designation  of  posts with same  duties  and  corresponding scales.  And, this seems to explain why there is nothing  to show that the Petitioner-Appellant asked for an  opportunity to  meet any allegation made in the affidavit  of  26-7-1967 filed on behalf of the Union. Moreover, what the fresh affidavit contained about the  dis- appearance of the temporary post given to the Petitioner  in 1956 before the Rules came into force flowed logically  from the order of Petitioner’s initial appointment in a temporary post  which was to continue only upto 28-2-1957, unless  its life  was shown to have been extended for some  definite  or indefinite period.  The Petitioner had not averred  anywhere that the post was continued beyond 28-2-1957 for any  period by any order or rule.  Indeed, the very argument advanced on behalf  of  the Appellant, that his initial post  merged  in another  corresponding post, implied that the post to  which he  was  initially appointed at least lost its  identity  or could  not  be deemed to continue without  a  transmutation. The  question  whether  the  constitution  of  the   Central Information   Service   did  or  did   not   involve   fresh appointments  to  new  posts but  was  simply  an  automatic process  of  transmutation  by  the  pooling together   of existing incumbents of certain posts to form a new  service, as the appellants alleged, was already the subject matter of assertion made in the Rejoinder Affidavit of the  Petitioner and counter-assertions in a reply filed to the Rejoinder  on 2-4-1964.   The  affidavit of 24-6-1967  did  not  introduce anything new but only clarified the position still more.  We find no force in the first objection. Secondly   ,  it  is  contended  that  the  impugned   order constitutes.  on the face of it, a reduction in rank of  the petitioner Looking at the communication dated 10-3-1960, set out  above,  we  find nothing ,there to  indicate  that  the petitioner had been demoted as a measure of punishment.   To hold, as it was suggested that we should, that the procedure laid  down by Rule 5 was adopted as a cloak to cover  up  an intended reduction in rank and emoluments of an  officiating Editor,  by  appointing  him  in  a  permanent   substantive capacity  of a grade, carrying lesser emoluments in the  new service, would necessitate going behind the order ’of  10-3- 1960.   At any rate, on the face of it, the order  discloses no such devious action against the Appellant. Thirdly,  it was contended that the impugned order  violates Art. 14 and 16 of the Constitution inasmuch as it places  an employee  who  was serving as an Editor in a post  of  lower grade  with  less  emoluments whereas  no  such  result  had

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followed   in  the  case  of  any  other  employee  in   the Information and Broadcasting 456 Department.  We are unable to see how an order which has the effect  of terminating an officiating appointment, in  which the petitioner had no right to continue, and which gives him a  fresh  appointment,  with  a  different  designation  but permanent  tenure and prospects, constitutes a violation  of either Art. 14 or 16 of the Constitution simply because  the process  which  resulted  in such an order did  not  have  a similar  effect  upon the position or rights  of  any  other servant in the Department.  Indeed, the Selection  Committee had,  apparently  after  taking  into  account  the  special features of the petitioners individual case, recommended the maximum  pay,  in the class and grade of the post  given  to him, and the petitioner got this exceptional pay.  Even  his prospects  improved to the extent that from  the  precarious position  of  a  temporary  servant  he  had  moved  into  a permanent  service.  It could not be definitely stated  that his position had worsened on the whole.  He was at least  no longer subject to the hazards of temporary employment  which could  be terminated by a month’s notice at any  time.   The results of applying Rule 5 to the facts of individual  cases could  not  be  expected to be identically  similar  in  all cases. All  candidates were subjected to the same process  or  pro- cedure  contemplated  by Rule 5. It is not  the  Appellant’s case that the Selection Committee did not function  honestly or that its proceedings. were vitiated by any defect in  its constitution  or of any bias on its part or any  unifairness or  inequality of the test applied in judging the merits  of the  Appellant  as against other  candidates.   The  alleged defect  with  the  material said to have been  used  by  the Committee is another matter which we will consider last. Fourthly, it was urged that Rule 5 mentioned above is itself void for conflict with the provisions of Article 311 and  14 and 16 of the Constitution. It  was urged that Rule 5 permits violation of Art.  311  of the  Constitution  inasmuch as it enables that  to  be  done indirectly  which  could not be, done  directly.   The  Rule reads as follows :-               5.    INITIAL CONSTITUTION OF THE SERVICE:-               (1)   The   Commission  shall   constitute   a               Selection  Committee  with the Chairman  or  a               Member of the Commission as President and  not               more   than  three  representatives   of   the               Ministry  of Information and  Broadcasting  as               members,  to  determine  the  suitability   of               departmental candidates for appointment to the               different  grades and to prepare an  order  of               preference for the initial constitution of the               service:               457               (2)   On receipt of the Committee’s report the               Commission  shall forward its  recommendations               to the Government and such recommendations may               include   a  recommendation  that   a   person               considered suitable for appointment to a grade               may,  if a sufficient number of vacancies  are               not available in that grade, be appointed to a               lower grade;               (3)   Vacancies  in  any  grade  which  remain               unfilled after the appointment of departmental               candidates  selected under sub-rules  (1)  and               (2)   above   shall  be   filled   by   direct

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             recruitment through the Commission. Rule  3  indicates that appointments to the  newly  created’ service could take place either by selection under Rule 5 or by direct recruitment with which we are not concerned  here. The  grades  and the fixation of an authorized  strength  of each  grade  are provided for by Rule 4. Only posts  in  the first  3 grades are classified as Class I (Gazetted)  posts. Rule  5(2)  enables the Selection  Committee,  to  recommend