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PETITIONER: R.P. KAPUR

       Vs.

RESPONDENT: UNION OF INDIA AND ANR.

DATE OF JUDGMENT: 19/11/1963

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. SUBBARAO, K. SHAH, J.C. DAYAL, RAGHUBAR

CITATION:  1964 AIR  787            1964 SCR  (5) 431  CITATOR INFO :  F          1968 SC 800  (3,5)  R          1968 SC1372  (4)  D          1970 SC 140  (5)  R          1970 SC1494  (8)  R          1971 SC 823  (10)  MV         1972 SC 544  (64)

ACT: Civil Service-Member of former Secretary of State’s  Service suspended  by Governor pending criminal  proceeding-Validity of order-Rule, if ultra vires-All India Services (Discipline and  Appeal) Rules, 1955, r.7--Constitution of  India,  Art. 314-Government   of  India  Act,  1935,  ss.241,   247-Civil Services (Classification, Control and Appeal) Rules, rr. 49, 56  Fundamental  Rules, r.53-Indian  Administrative  Service (Recruitment)    Rules.   1954,   r.3-India,    (Provisional Constitution)  Order,  1947,  Art.7(1).-Indian  Independence Act, 1947, s. 10

HEADNOTE: The  appellant joined the Indian Civil Service in  1939  and was posted in the province of Madras.  After the transfer of power  under the Indian independence Act on August  15,1947, he was 432 transferred  to  the  Punjab  and  later  when  the   Indian Administrative Service was constituted he became its member. On  July 18, 1959, he was suspended by the Governor  of  the State  of  Punjab  under  r. 7(3)  of  the  Indian  Services (Discipline  and Appeal) Rules, 1955, on the ground  that  a criminal  case was pending against him.  He  challenged  the order  of suspension by a writ petition in the  Punjab  High Court as being violative of the guarantee contained in  Art. 314  of the Constitution and contrary to r. 49 of the  Civil Services  (Classification, Control and Appeal)  Rules  which provided  only  for suspension as a penalty.  His  case  was that  there was no provision immediately before January  26, 1950,  that  provided  for  suspension  otherwise  than   as penalty.  The High Court dismissed the petition.

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Held:-(per Gajendragadkar, Subba Rao, Wanchoo and Shah, JJ). The  general  law of master and servant and s.  247  of  the Government of India Act, r. 53 of the Fundamental Rules  and rr.  49, 56 of the Civil Services  (Classification,  Control and  Appeal) Rules, read together clearly show that  members of  the former Secretary of State’s Services were on  August 14, 1947, liable to suspension either as an interim  measure or  as  a punishment.  Interim suspension could  be  imposed either by the Secretary of State as the appointing authority or  the Governor-General or the Governor, as the case  might be, as the statutory authority. Management  of  Hotel Imperial, New Delhi v  Hotel  Workers’ Union, [19601 1 S.C.R. 476 and T. Cajee v. U. Jormanik Siem, [1961] 1 S.C.R. 750, referred to. It  was not therefore correct to say that there could be  no suspension  except  by way of punishment under r.49  of  the Appeal  Rules before 1947.  In a case of interim  suspension before 1947 there was however no right of appeal. Article 314 of the Constitution, properly construed, affords such  protection to the members of the Secretary of  State’s Services  as  they were entitled to immediately  before  the commencement  of  the Constitution.  There can be  no  doubt that suspension pending a departmental enquiry or a criminal proceeding falls within the word ’disciplinary matters’ used in that Article. It was not correct to say that as independence was conferred on  India and the Services automatically  terminated,  there was  in  law reappointment of all the  former  Secretary  of State’s  Services, and those serving in a province  must  be deemed  to have been reappointed by the Governor  and  that, consequently,  the Governor as the appointing authority  had the power to order suspension. Article  7(1)  of India  (Provisional  Constitution)  Order, 1947,  G.G.O. 14, read with s. 10 of the  Independence  Act, 1947,  in  the light of other relevant  circumstances  shows that the final decision whether or not the former members of the Secretary of State’s Services should continue was of the Government of India and that Government, therefore, must  be deemed to have appointed 433 them  to  posts  either under itself or  in  the  Provinces. Section  241(b) of the Government of India Act, as  it  then stood,  and s.240(2) of the said Act, as amended  by  G.G.O. 14, could not alter this position. State  of Madras v. K.M. Rajagopalan, [1955] 2  S.C.R.  541, referred to. On  the  eve of the commencement of  the  Constitution  i.e. January  25,  1950,  a former member  of  the  Secretary  of State’s Services could be suspended under the general law by the Government of India alone as the appointing authority as an interim measure pending departmental enquiry or  criminal proceeding  and  by no other authority.  He  was  liable  to suspension  as punishment under s. 49 of the Civil  Services (Classification, Control and Appeal) Rules.  Rule 53 of  the Fundamental Rules governed pay during interim suspension  or suspension  as penalty.  While there was no appeal  from  an order  of  interim  suspension, r. 56 of  the  Appeal  Rules provided  for  an  appeal from an  order  of  suspension  as penalty.   It  was  this  position which  Art.  314  of  the Constitution sought to protect. Rule  7  of the All India Services (Discipline  and  Appeal) Rules, 1955, violated the guarantee contained in Art. 314 in respect  to interim suspension and was to that extent  ultra vires  in so far as it applied to the members of the  Indian Administrative Services who fell within cls. (a) and (b)  of

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r.3  of  the Indian  Administrative  Services  (Recruitment) Rules,  1954.  The Governor’s Order under  r.7(3)  directing interim suspension of the appellant must, therefore, be  set aside.  The proper procedure would be to approach Government of India for such interim suspension. The Accountant General, Bihar v. N. Bakshi, [1962] Supp.   1 S.C.R. 505, referred to. Per  Dayal,  J.-In view of the provisions of s. 241  of  the Government   of   India  Act  as  modified  by   the   India (Provisional  Constitution) Order, 1947, G.G.O. 14 of  1947, members  of  the  Secretary of  State’s  Services  who  were holding  posts  under a  provincial  Government  immediately before  the  appointed  day,  i.e.,  August  15,  1947,  and continued  in service thereafter must be deemed in  view  of art.  7(1) of the said Order to have been appointed  to  the corresponding  posts  by  the  appropriate  authority,   the Governor of the Province.  That article generally applied to all  appointments  on  and after  the  appointed  day.   The appellant  cannot  be deemed to have been appointed  by  the Governor-General  or  the Government of India.  It  was  not intended  that  merely because that Order was  made  by  the Governor-General,  the deemed appointments must be taken  to have been made by him. It would be anomalous to hold that the Governor, who was  in administrative  control of the services, could not  pass  an interim  order of suspension against a person  appointed  by the Secretary of State, though he could impose a penalty  of suspension under 1/SCI/64-28 434 rr. 49 and 52 of the Civil Services (Classification, Control and  Appeal)  Rules, which continued in force till  the  All India Services (Discipline and Appeal) Rules came into force in 1955. The  Indian  Civil  Services ceased  to  exist  from  August 15,1947,  and  the  services of  its  members  automatically terminated  on  August 14, 1947.  The  appellant’s  service, therefore,  came to an end on August 14, 1947, but since  he was  serving under the Madras Government immediately  before August  15, 1947, and continued to do so thereafter he  must be  deemed to have been appointed by the Governor of  Madras to the post he was holding on the appointed day. Rule  7  of the All India Services (Discipline  and  Appeal) Rules,  1955, does not violate the provision of Art. 314  of the  Constitution, nor can the absence of a right of  appeal against  interim  suspension do so since the  appellant  had none  before  the  Constitution.   His  suspension  by   the Governor of Punjab under r.7(3) was, therefore valid. State  of Madras v. K.M. Rajagopalan, [1955] 2  S.C.R.  541, considered.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 647 of 1963. Appeal from the judgment and order dated September 21, 1962, of the Punjab High Court in Civil Writ No. 280 of 1962. the appellant appeared in person. S.V.  Gupte, Additional Solicitor-General, N.S.  Bindra  and R.H. Dhebar, for the respondent (Union of India). S.M.  Sikri, Advocate-General, Punjab, N.S. Bindra and  R.H. Dhebar, for the respondent (State of Punjab). November 19, 1963.  The Judgment of P.B. Gajendragadkar,  K. Subba Rao, K.N. Wanchoo and J.C. Shah, JJ. was delivered  by Wanchoo,  J.  Raghubar  Dyal,  J.  delivered  a   dissenting

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Opinion. WANCHOO J.-This is an appeal on a certificate granted by the Punjab  High Court.  The appellant joined the  Indian  Civil Service  in  1939 and was governed in  matters  relating  to discipline  by the Civil Services  (Classification,  Control and  Appeal) Rules, (hereinafter referred to as  the  Appeal Rules) made by 435 the  Secretary of State for India in Council.  He  continued in  service  till  the transfer of power  under  the  Indian Independence Act, 1947.  Under s.10 of that Act he continued to  serve under the Government of India and was entitled  to receive  from  the Government of India or  of  the  Province which  he  might  from  time to time  be  serving  the  same conditions  of service as respects remuneration,  leave  and pension,  and  the  same  rights  as  respects  disciplinary matters  or, as the case may be, as respects the  tenure  of his  office,  or rights as similar thereto as  changed  cir- cumstances  may  permit as he was  entitled  to  immediately before the transfer of power, which took place on August 15, 1947.  The same guarantee was extended to the appellant  and all  members of what were the Secretary of State’s  Services before August 15, 1947 by Art. 314 of the Constitution.   As the appellant’s case is based on ’that Article we may set it out:               "Except  as  otherwise expressly  provided  by               this  Constitution,  every person  who  having               been  appointed by the Secretary. of State  or               Secretary  of  State in Council  to  a  civil.               service of the Crown in India continues on and               after the commencement of this Constitution to               serve  under the Government of India or  of  a               State  shall be entitled to receive  from  the               Government of India and the Government of  the               State, which he is from time to time  serving,               the  same  conditions of service  as  respects               remuneration, leave and pension, and the  same               rights  as  respects disciplinary  matters  or               rights   as   similar   thereto   as   changed               circumstances  may permit as that  person  was               entitled    to   immediately    before    such               commencement." We shall hereafter refer to such a person as a member of the (former) Secretary of State’s Services.  It appears that the appellant was in the Indian Civil Service cadre in the State of Madras at the time of transfer of power, though later  he was transferred to the Punjab.  After the transfer of  power the Indian 436 Civil  Service as a Secretary of State’s Service came to  an end  and thereafter a new Service was constituted  known  as the  Indian Administrative Service.  Formal legal shape  was given  to  the new Service after the enactment  of  the  All India  Services  Act,  No.  LXI  of  1951,  and  the  Indian Administrative    Service   (Recruitment)    Rules,    1954, (hereinafter  referred  to as the  Recruitment  Rules)  were framed  under Act LXI of 1951.  By r. 3 of these Rules,  the Indian Administrative Service was to consist of--               (a)   members of the Indian Civil Service, not               permanently allotted to the judiciary;               (b)   members of the Indian Civil Service per-               manently  allotted to the judiciary  who  have               been holding executive posts from the date  of               the  commencement of the Constitution and  who               may  be declared by the Central Government  to

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             be members of the Service in consultation with               the State Government;               (c)   persons  who,  at  the  commencement  of               these rules, are holding substantively  listed               posts, other than posts in the judiciary,               (d)   persons recruited to the Service  before               the commencement of these rules: and               (e)   persons  recruited  to  the  Service  in               accordance with the provisions of these rules. The  appellant  thus  became  a member  of  the  new  Indian Administrative   Service  by  virtue  of  these  rules   and continued  to  serve in the Punjab.  In  1955,  the  Central Government  framed  the All India Services  (Discipline  and Appeal)   Rules,  1955  (hereinafter  referred  to  as   the Discipline  Rules) which were applicable to all  members  of the  Indian  Administrative Service and  the  Indian  Police Service. On July 18, 1959, the appellant was suspended with immediate effect  by the Governor of the Punjab on the ground  that  a criminal  case  was  pending against him.   The  order  also provided  that  for the period of suspension  the  appellant shall be paid subsistence 437 allowance  which  shall be equal to leave  salary  which  he would have drawn under the leave rules applicable to him  if he  bad  been on leave on half average pay  with  a  further provision  that in case the suspension lasted for more  than twelve months a further order fixing the rate of subsistence allowance shall be passed.  This order appears to have  been passed  under  r.  7(3)  of  the  Discipline  Rules  and  in consequence thereof the appellant remained under suspension. The  appellant  filed a writ petition -in  the  Punjab  High Court  on  February  16, 1962,  challenging  this  order  of suspension.  His contention was that he was entitled to. the guarantee contained in Art. 314 of the Constitution and  the order  of  suspension  passed  against  him  violated   that guarantee  and  was therefore ineffective and  invalid.   He relied for this purpose on r. 49 of the Appeal Rules,  which provided for suspension as a penalty.  He contended that the Appeal  Rules which governed him and which must be  held  to have  continued  to  govern him in  view  of  the  guarantee contained  in Art. 314 provided for suspension as a  penalty only and that there was no provision anywhere in any rule or statute  immediately before January 26, 1950 on  which  date the  Constitution came into force, providing for  suspension otherwise  than as a penalty.  Therefore it was not open  to the Governor to suspend him in the manner in which he did so in the present case, though it was not denied that he  could be  suspended  pending  criminal  proceedings  provided  the suspension was as a penalty under r. 49 of the Appeal Rules; on  the other hand mere suspension pending a  criminal  case not  inflicted as a penalty was not provided at all  by  the Rules  or  the statute governing the  appellant  immediately before  January  26,  1950.   Therefore  when  the  Governor proceeded  to  suspend him under r. 7(3) of  the  Discipline Rules, he violated the guarantee contained in Art. 314.  The appellant  also  contends  that as it was not  open  to  any authority to suspend him except as a punishment  immediately before January 26, 1950, r.7 of the Discipline Rules 438 which   provides   for   suspension   during    disciplinary proceedings  or  during the pendency of  a  criminal  charge insofar as it applies to him was ultra vires Art. 314 of the Constitution.    He  also  attacked  rr.3  and  10  of   the Discipline   Rules   as  violative  of  Art.  314   of   the

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Constitution,  r.3  being  concerned with  penalties  to  be imposed on members of the Indian Administrative Service  and r.10  with  the  right of appeal.  The  contention  in  this connection  was that r.3 omitted the penalty  of  suspension which  was to be found in r.49 of the Appeal Rules with  the result  that  suspension under r.7 was not  open  to  appeal under  r.10  which provided for  appeals  against  penalties mentioned in r.3. Therefore the guarantee under Art.314  was violated  inasmuch  as previously whenever  the  penalty  of suspension  was  inflicted on a member of the  Secretary  of State’s  Services it was open to him to appeal under r. 5  6 of the Appeal Rules.  Therefore the scheme of the Discipline Rules was such as to take away the protection to a member of the Secretary of State’s Service which was available to  him immediately  before the Constitution came into force and  in consequence   rr.3  and  10  also  violated  the   guarantee contained  in Art. 314 and were ultra vires.  The  appellant therefore prayed for an appropriate writ, order or direction in the nature of mandamus striking down rr.3,7 and 10 of the Discipline  Rules  being violative of Art. 314 of  the  Con- stitution  and also for an order striking down the order  of the Governor dated July 18, 1959, by which he suspended  the appellant and such other appropriate relief as was just  and proper. The petition was opposed by the State of Punjab and its main contention  was that rr. 3,7 and 10 of the Discipline  Rules were  perfectly  valid  and did not  violate  the  guarantee contained  in Art.314. It was urged that Art. 314 only  gave restricted  protection to the members of what were  formerly the Secretary of State’s Services in respect of disciplinary matters  and  stress  was laid on the words  "or  rights  as similar thereto as changed circumstances may permit" appear- 439 ing  therein.   It was also urged  that  suspension  pending departmental enquiry or pending a criminal case was not  the same  thing  as  suspension by way of  punishment  and  that previous  to  January 26, 1950, there  could  be  suspension pending departmental enquiry or pending a criminal case  and that  no appeal lay from such suspension even then.  It  was also urged that suspension pending a departmental enquiry or pending a criminal case was not a disciplinary matter at all and was therefore not included within the sweep of Art.  314 and  in any case the rule relating to suspension even if  it is  connected  with  disciplinary  matters  was  liable   to variation as changed circumstances might demand and r.7  was framed  in view of the changeed circumstances.  It was  also urged  that  removal of suspension as a penalty under  r.  3 could  not affect the guarantee contained in Art.  314,  for the effect of such removal was that there could be in future no  penalty  of suspension. against a member of  the  Indian Administrative  Service.  Therefore as the penalty had  gone r.  10  did not naturally provide for an  appeal  against  a penalty  which  did not exist.  Rule 7  which  provides  for suspension  does not provide for any penalty  and  therefore there  was no necessity of providing for any appeal  against it.   It  was urged that a difference must be  made  between suspension as a penalty and suspension as an interim measure only  pending a departmental enquiry or pending  a  criminal case  and if that difference was borne in mind there was  no reason  for holding that rr.3 and 10 were ultra  vires  Art. 314.  The respondent State finally contended that the  order of the Governor passed under r. 7(3) was perfectly valid and did not violate the guarantee contained in Art. 314. The  High Court dismissed the petition.  It was of the  view that   it  was  inconceivable  that  under  the  old   rules

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prevailing  ’before January 26, 1950, a civil servant  could never  be  suspended while an enquiry into his  conduct  was pending.  It was further of the view that suspension  during the  pendency  of  an enquiry was a  power  inherent  in  an employer like the 440 Government  and the power to suspend was always  implied  in the  authority  making  the  appointment.   The  High  Court therefore  rejected  the contention of  the  appellant  that under  the old rules no member of the Secretary  of  State’s Services  could  have  been  suspended  except  by  way   of punishment.   The High Court further held that even  if  the contention of the appellant be accepted that a member of the Secretary  of  State’s Services had a right of  appeal  even where  he was suspended during a departmental enquiry  there was  a provision in the Discipline Rules for a  memorial  to the President (see r.20) and that in the opinion of the High Court  gave a right as similar to the right existing  before January  26, 1950, as the changed  circumstances  permitted. The  High  Court  therefore  dismissed  the  petition.   The appellant then applied for a certificate which was  granted; and that is how the matter has come up before us. The  only question that has been debated before us  is  with respect  to suspension whether as a punishment or  otherwise of a member of one of the Secretary of State’s Services,  in this  case the Indian Civil Service, members of  which  have become  members of the Indian Administrative  Service  under the  Recruitment  Rules; and it is only this  question  that falls  to  be  determined in the present  appeal.   But  the appellant has also challenged rr.3 and 10 of the  Discipline Rules  which do not deal with suspension at all.   In  these circumstances we do not propose to consider the vires of rr. 3  and IO, for that does not fall for decision as the  order which is challenged has not been made under r. 3 and relates only  to suspension.  It is therefore unnecessary to  decide whether rr. 3 and 10 can in the changed circumstances  apply to  those members of the Indian Administrative  Service  who were  at one time members of the Indian Civil  Service.   We shall therefore express no view one way or the other on  the vires  of r. 3 and r. 10 and consider only r. 7 which  deals with suspension.  We should also like to make it clear  that what we say during the course of’ this judgment 441 with  respect to suspenion refers only to those  members  of the Indian Administrative Service who became members thereof under  r. 3 (a) and (b) of the Recruitment Rules and not  to other members of the Indian Administrative Service who  were not members before 1947 of the Indian Civil Service, for  it is  only  the  former  kind of members  of  the  Indian  Ad- ministrative  Service who are entitled to the protection  of Art.  314  and the whole case of the appellant is  based  on that protection. Let us therefore turn to Art. 314 which we have already  set out above.  This Article came to be considered by this Court in  the Accountant General Bihar v. N. Bakshi(1).   In  that case, however, that part of it was considered which  related to  "conditions of service as respects  remuneration,  leave and  pension",  and it was held that r. 3 of the  All  India Services  (Overseas  Pay, passage and leave  salary)  Rules, 1957,  was  ultra  vires  having  regard  to  the  guarantee contained in Art. 314 of the Constitution.  That case is  an authority for the proposition that where any rule is framed, which  is inconsistent with the guarantee contained in  Art. 314  with respect to remuneration, leave and  pension,  that rule  would  be bad.  In the present case we  are  concerned

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with  another part of Art. 314, namely, "the same rights  as respects  disciplinary matters or rights as similar  thereto as  changed  circumstances may permit as  that  -person  was entitled to immediately before such commencement".  The same principle  will apply to this part of Art. 314 also  and  if any  rule  is  framed  which  goes  against  the   guarantee contained in this part of Art. 31.4 with respect to  members of  what were former Secretary of State’s Services, it  will be bad.  What Art. 314 provides with respect to disciplinary matters is that the members of the former Secretary of State s  Services  who continue to serve under the  Government  of India or of a State would be entitled to the same rights  as respects  disciplinary matters or rights as similar  thereto as changed circumstances (1) [1962] Supp. 1. S.C.R. 505. 442 may  permit.   Stress  has  been  laid  on  behalf  of   the respondent  on  the  words "rights  as  similar  thereto  as changed  circumstances may permit", and it is urged that  in view   of  these  words  it  was  open  in  the  "   changed circumstances" to frame rules in particular with respect  to suspension pending departmental enquiry or pending  criminal proceedings.   These words in our opinion cannot  bear  this interpretation.  What the words "changed circumstances" mean is  the change in circumstances due to transfer of power  in August, 1947, and the coming into force of the  Constitution in  January,  1950, and no more.  Therefore  when  Art.  314 speaks   of   "rights   as  similar   thereto   as   changed circumstances  may permit", it only means that a  member  of the  former Secretary of State’s Services would have  rights similar   to   his  pre-existing  rights  as   the   changed circumstances  resulting  from  constitutional  changes  may allow.   As an illustration take a case where a member of  a Secretary  of State’s Service could before August, 1947,  be dismissed  only  by the Secretary of State;  but  after  the transfer  of  power  and  the  coming  into  force  of   the Constitution,  circumstances  have changed and there  is  no Secretary of State, therefore we have to look to the changed circumstances  and find out which would be the authority  to dismiss  such a member in the changed circumstances.  If  we do so, we find that the Government of India can be the  only authority  which now in the changed circumstances will  have the  power  to  dismiss such a member in the  absence  of  a specific provision of law in force before January 26 , 1950. These  words do not mean that as time  passes  circumstances change and therefore new rules may be framed to meet the new circumstances  due to passage of time.  The  words  "changed circumstances" in Art. 314 only refer to the  constitutional changes  which  occurred  after the  transfer  of  power  in August, 1947, and the coming into force of the  Constitution in  January  1950.   Further, Art.  314  provides  that  the protection   is   limited  only  to  those  rights   as   to disciplinary matters which a member of the former  Secretary of State’s 443 Services was entitled to immediately before the commencement of  the Constitution i.e. on January 25, 1950.  It  is  only those rights which are protected and no more. Another  argument that is urged on behalf of the  respondent is that suspension pending a departmental enquiry or pending a  criminal proceeding cannot be said to be  a  disciplinary matter at all and therefore the protection of Art. 314  does not extend to such suspension.  We cannot accept this  argu- ment.   The words "disciplinary matters" with which  we  are concerned  appear in a constitutional provision and must  be

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given their widest meaning consistent with what disciplinary matters may reasonably include.  Suspension is of two kinds, namely, as a punishment, or as an interim measure pending  a departmental  enquiry or pending a criminal proceeding.   We shall  deal  with  these aspect’s of  suspension  in  detail later.   So far as suspension as a punishment is  concerned, it  is  conceded  that it is  a  disciplinary  matter.   The dispute  is  only as to suspension  pending  a  departmental enquiry or pending a criminal proceeding.  There can in  our opinion  be no doubt that suspension of this kind also  must be comprised within the words "disciplinary matters" as used in  Art.  314.   Take  the  case  of  suspension  pending  a departmental  enquiry.   The purpose of such  suspension  is generally to facilitate a departmental enquiry and to ensure that while such enquiry is going on-it may relate to serious lapses  on  the part of a public servant-, he is  not  in  a position to misuse his authority in the same way in which he might have been charged to have done so in the enquiry.   In such a case suspension pending a departmental enquiry cannot be but a matter intimately related to disciplinary  matters. Take  again  the case where suspension is  pending  criminal proceedings.   The  usual ground for  suspension  pending  a criminal proceeding is that the charge is connected with his position  as a government servant or is likely  to  embarass him  in  the  discharge  of his  duties  or  involves  moral turpitude. 444 In  such  a case a public servant may be  suspended  pending investigation,  enquiry  or  trial relating  to  a  criminal charge.   Such  suspension also in our  opinion  is  clearly related  to  disciplinary  matters.  If  the  trial  of  the criminal   charge   results  in   conviction,   disciplinary proceedings  are bound to follow against the public  servant so  convicted.   Even in case of acquittal  proceedings  may follow  where the acquittal is other than  honourable.   The usual practice is that where a public servant is being tried on  a  criminal charge, the Government postpones  holding  a departmental  enquiry and awaits the result of the  criminal trial  and departmental proceedings follow on the result  of the   criminal   trial.    Therefore,   suspension    during investigation,  enquiry  or  trial relating  to  a  criminal charge  is  also  in  our  opinion  intimately  related   to disciplinary  matters.   We  cannot  therefore  accept   the argument on behalf of the respondent that suspension pending a departmental enquiry or pending investigation, enquiry  or trial  relating to a criminal charge is not  a  disciplinary matter within the meaning of those words in Art. 314. Before  we  investigate what rights a member of  the  former Secretary   of   State’s  Services  had  with   respect   to suspension,   whether   as  a  punishment   or   pending   a departmental  enquiry  or pending criminal  proceedings,  we must  consider what rights the Government has in the  matter of suspension of one kind or the other.  The general law  on the  subject of suspension has been laid down by this  Court in  two cases, namely, The Management of Hotel Imperial  New Delhi v. Hotel Workers’ Union(", and T. Cajee v. U. Jormanik Siem(2).   These two cases lay down that it is well  settled that under the ordinary law of master and servant the  power to suspend the servant without pay could not be implied as a term  in an ordinary contract of service between the  master and  the servant but must arise either from an express  term in  the contract itself or a statutory  provision  governing such contract.  It was further held that an order (1) [1960] 1. S.C.R. 476 (2)  [1961] 1. S.C.R. 750.

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445 of  interim suspension could be passed against  an  employee while inquiry was pending into his conduct even though there was  no  specific provision to that effect in his  terms  of appointment or in the rules.  But in such a case he would be entitled  to his remuneration for the period of his  interim suspension  if  there is no statute or rule  existing  under which it could be withheld. The  general  principle therefore is that  an  employer  can suspend an employee pending an enquiry into his conduct  and the  only  question that can arise on such  suspension  will relate to the payment during the period of such  suspension. If  there  is no express term in the  contract  relating  to suspension and payment during such suspension or if there is no  statutory provision in any law or rule, the employee  is entitled  to  his full remuneration for the  period  of  his interim suspension; on the other hand if there is a term  in this respect in the contract or there is a provision in  the statute  or  the rules framed thereunder providing  for  the scale of payment during suspension, the payment would be  in accordance  therewith.   These  general  principles  in  our opinion  apply  with  equal  force  in  a  case  where   the government  is  the  employer and a public  servant  is  the employee with this modification that in view of the peculiar structural hierarchy of government, the employer in the case of  government, must be held to be the authority  which  has the   power  to  appoint  a  public  servant.   On   general principles  therefore  the authority entitled to  appoint  a public  servant would be entitled to suspend him  pending  a departmental enquiry into his conduct or pending a  criminal proceeding,  which may eventually result in  a  departmental enquiry against him.  This general principle is  illustrated by the provision in s. 16 of the General Clauses Act, No.  X of  1897,  which  lays down that where any  Central  Act  or Regulation  gives  power of appointment  that  includes  the power  to  suspend or dismiss unless a  different  intention appears.   Though this provision does not directly apply  in the present case, 446 it  is  in  consonance with the general law  of  master  and servant.   But  what  amount should be paid  to  the  public servant   during  such  suspension  will  depend  upon   the provisions  of the statute or rule in that  connection.   If there is such a provision the payment during suspension will be  in  accordance  therewith.   But if  there  is  no  such provision,  the public servant will be entitled to his  full emoluments during the period of suspension.  This suspension must be distinguished from suspension as a punishment  which is a different matter altogether depending upon the rules in that  behalf.  On general principles therefore  the  govern- ment, like any other employer, would have a right to suspend a  public  servant in one of two ways.  It may  suspend  any public  servant  pending  departmental  enquiry  or  pending criminal proceedings; this may be called interim suspension. Or the Government may proceed to hold a departmental enquiry and  after  his  being found guilty order  suspension  as  a punishment if the rules so permit.  This will be  suspension as  a penalty.  These general principles will apply  to  all public  servants but they will naturally be subject  to  the provisions  of  Art.  314  and this  brings  us  to  an  in- vestigation of what was the right of a member of the  former Secretary  of State’s Services in the matter of  suspension, whether as a penalty or otherwise. As Art. 314 only guarantees protection to those rights which were  in existence immediately before the Constitution  came

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into  force,  all  that  is necessary is  to  find  out  the position before August 14, 1947, when the transfer of  power took  place  and  on  January  25,  1950,  just  before  the Constitution  came into force.  Members of the Secretary  of State’s  Services  who  are protected under  Art.  314  were appointed  either  by  the  Secretary of  State  or  by  the Secretary  of  State  in  Council.   Therefore  on   general principles it would have been open to the Secretary of State or the Secretary of State in Council, as the case may be, to suspend  a  member  of  such  Services  as  the   appointing authority  as  an  interim measure  pending  a  departmental enquiry  or pending a criminal proceeding if it thought  fit to do so.  What 447 remuneration  such  a public servant would get  during  such interim  suspension would depend upon the rules if any,  and if  there  were no rules he would be entitled  to  his  full emoluments  during such interim suspension.  But it  appears that as the Secretary of State or the Secretary of State  in Council was in London it was thought proper for the sake  of administrative  convenience  to provide  for  suspension  by authorities other than the appointing authority.   Reference in  this  connection  may  be made to  s.  247  (2)  of  the Government  of India Act. 1935, as in force upto August  13, 1947.   That subsection provided that "any order  suspending any  such  person (meaning thereby a member  of  the  former Secretary  of State’s Services) from office shall, if he  is serving in connection with the affairs of the Federation, be made by the Governor-General exercising his individual judg- ment and, if he is serving in connection with the affairs of a   Province,  be  made  by  the  Governor  exercising   his individual  judgment".   This sub-section therefore  made  a specific provision for suspension by authorities other  than the  appointing  authority;  this was  in  addition  to  the general  right  of the employer (namely,  the  Secretary  of State  who  was  the appointing  authority)  to  suspend  an employee (namely, a member of one of the former Secretary of State’s  Services).  Suspension in s. 247 (2) cannot in  our opinion  be confined only to suspension as a  penalty.   The words  are general and must be given their full meaning  and would  include any kind of suspension, whether as a  penalty or otherwise; and this power vested firstly in the Secretary of  State or the Secretary of State in Council, as the  case may be, under the general law of master and servant and also in  the Governor-General and the Governor, as the  case  may be, by virtue of this provision of the statute. Further  s.  247  (3) also provided for  remuneration  of  a suspended  member of one of the former Secretary of  State’s Services and laid down that "if any such person as aforesaid is suspended from office, his remuneration shall not  during the  period  of  his suspension be reduced  except  to  such extent,  if any, as may be directed by the  Governor-General exercising his in- 448 dividual  judgment or, as the case may be, by  the  Governor exercising his individual judgment".  Besides this statutory provision relating to former Secretary of State’s  Services, there was a general provision as to payment to a  government servant  under  suspension  in Fundamental  Rule  53.   That general  provision is that a suspended governmentservant  is at  least  entitled to one-fourth of his pay.  This  general provision  was  subject  ,to s. 247 (3) andin  the  case  of members  of  the former Secretary of State’s  Services,  the Governor-General or the Governor as the case may be, had  to specify  the amount which could be even more than  what  was

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provided  by  F.R. 53.  Here again when F.R.  53  speaks  of suspension, it speaks of it in general terms.  It applies to all kinds of suspension whether as a penalty or otherwise. Further  r. 49 of the Appeal Rules deals with penalties  and provides  suspension  as a penalty.  It  also  provides  for appeals  in  r. 56 etc. where suspension is inflicted  as  a penalty for good and sufficient reasons.  Rule 49 applied to the former Secretary of State’s Services also and thus these members were subject to the penalty of suspension. A review therefore of the general law of master and servant, the provisions of the Government of India Act, 1935, of  the Appeal  Rules and the Fundamental Rules discloses that  -the position  on August 13, 1947 with respect to members of  the former  Secretary  of  State’s  Services  with  respect   to suspension  whether  as  a punishment or  otherwise  was  as follows.   Members  of  the  former  Secretary  of   State’s Services  were  liable to suspension either  as  an  interim measure  or  as a punishment.  Where suspension  was  as  an interim measure and not as a punishment, it could be imposed either  by the Secretary of State or the Secretary of  State in  Council as the appointing authority or by the  Governor- General or the Governor as the case may be as the  statutory authority.   Suspension could also be imposed by the  proper authority  as a punishment under the Appeal Rules  and  such orders of suspension were subject to appeals as provided  by the Appeal Rules.  There 449 was  also  provision for payment during  suspension  in  the shape of subsistence allowance which was governed  generally by  F.R.  53  and  in the case  of  members  of  the  former Secretary of State’s Services, F.R. 53 was subject to s. 247 (3)  of the Government of India Act, 1935.   Therefore,  the contention   of  the  appellant  that  there  could  be   no suspension  except by way of punishment under r. 49  of  the Appeal  Rules  before 1947 is not correct.   It  is  equally clear  that  where  suspension before 1947  was  an  interim measure and not as a punishment under r.     49,  there  was no question of any appeal from such an  interim   suspension pending a departmental enquiry or  pending    a     criminal proceeding.  If the position on    January  25, 1950,  stood as  it  was  on  August 13,1947,  the  appellant  could  not susbstantially challenge the order of the Governor passed on July  18, 1959, for it would have been covered by s.  247(3) of the Govemment of India Act, 1935, and the appellant could not claim anything more under Art. 314 of the Constitution. But Art. 314 does not speak of the protection which  members of the All India Services had on August 13, 1947; it  speaks of   protection  which  they  had  immediately  before   the commencement  of the Constitution i.e. on January 25,  1950, and  that brings us to a consideration of the  changes  that took place between 1947 and 1950 after the transfer of power on August 15, 1947. The  effect  of the transfer of power on  the  Secretary  of State’s Services in particular came up for consideration be- fore this Court in State of Madras -v.  K.M.  Rajagopalan(1) and it was held that "the conferral of Independence on India brought about an automatic and legal termination of  service on  the  date of Independence.  But all  persons  previously holding  civil  posts  in  India are  deemed  to  have  been appointed  and  hence to continue in service,  except  those governed  by  ’general or special  orders  or  arrangements’ affecting their respective cases, The guarantee about  prior conditions of service and the previous statutory  safeguards relating to disciplinary (1) [1955] 2 S.C.R. 541.

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1 SCI/64-29 450 action  continue  to apply to those who are thus  deemed  to continue  in service but not to others".  Section 10 of  the Indian  Independence  Act  provides  -or  the  Secretary  of State’s Services and lays down that every person who  having been  appointed by the Secretary of State, or  Secretary  of State  in Council, to a civil service of the Crown in  India continues on and after the appointed day to serve under  the Government of either of the new Dominions or of any Province or  part  thereof,  shall be entitled to  receive  the  same conditions  of service as respects remuneration,  leave  and pension and the same rights as respects disciplinary matters or,  as  the  case may be, as respects  the  tenure  of  his office,   or   rights   as  similar   thereto   as   changed circumstances  may  permit as that person  was  entitled  to immediately  before the appointed day, i.e. August 15,  1947 By  virtue of this provision those members of the  Secretary of State’s Services who continued to serve the Government of India  or  the Government of any Province  from  August  15, 1947,  were  entitled  to the protection  of  s.  10.   What Rajagopalan’s  case("  decided was that  the  Government  of India  was not bound to continue in service every member  of the  Secretary of State’s Services because of s. 10  of  the Indian  independence  Act; but that the protection  of  that section  only  applied  to such members  of  the  afore-said services  whose services the Government of India  agreed  to continue after August 14, 1947. In Rajagopalan’s case("  the Government of India did not agree to continue  Rajagopalan’s services and therefore, he could not claim the protection of s.  10 of the Indian Independence Act.  In  the  appellant’s case  his service continued after the transfer of power  and therefore he was entitled to the protection of s. 10 of  the Indian  Independence Act, which was almost in similar  terms as  Art.  314  of the Constitution so  far  as  disciplinary matters were concerned. On   August  14,  1947,  however,  the   India   Provisional Constitution) Order, 1947, was promulgated as G.G.O. 14.  By that   Order,  s.  247  of  the  Government  of  India   was substituted by a new section and sub-ss. (2) and (3) (1)  [1955] 2 S.CR. 541. 451 thereof to which we have already referred were repealed. The substituted s. 247 read as under:-               "Conditions  of service of  persons  orginally               recruited by Secretary of State-The conditions               of service of all persons who,  having  been               appointed  by  the Secretary of State  or  the               Secretary  of  State  in Council  to  a  civil               service of the Crown in India, continue on and               after  the  date of the establishment  of  the               Dominion to serve under the Government of  the               Dominion or of any Province, shall-               (a)   as    respects   persons   serving    in               connection  with the affairs of the  Dominion,               be such as may be prescribed by rules made  by               the Governor-General;               (b)   as    respects   persons   serving    in               connection with the affairs of a Province-               (i)   in regard to their pay, leave, pensions,               general  rights as medical attendance and  any               other  matter  which  immediately  before  the               establishment of the Dominion was regulated by               rules made by the Secretary of State, be  such               as  may  be prescribed by rules  made  by  the

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             Governor-General; and               (ii)  in  regard to any other matter, be  such               as  may  be prescribed by rules  made  by  the               Governor of Province." It  will be clear from this that sub-ss. (2) and (3)  of  s. 247 disappeared on August 14, 1947.  No rules framed by  the Governor-General under the new section with respect to  what we  have called interim suspension have been brought to  our notice.  Therefore no power was left in the Governor-General or the Governor, as the case may be, to suspend a member  of the  former  Secretary  of State’s Services  as  an  interim measure and only the appointing authority could suspend such a  public servant, which in the changed circumstances  would be the Government of India.  The explanation for this may be that as the Secretary of State disappeared and his place was taken by the Government of India, 452 it  might  not have been thought necessary to  continue  the further  powers conferred by s. 247 (2) in addition  to  the general  power of the appointing authority to  suspend.   Be that as it may, the fact remains that on August 14, 1947, s. 247  (2) disappeared and therefore the Governor-General  and the Governor lost the power to suspend as an interim measure a  member  of the former Secretary of State’s  Services  and such  power  could  only  be  exercised  by  the  appointing authority which in the changed circumstances must be  deemed to  be  the  Government of India.  As for  suspension  as  a punishment that continued to be provided in the Appeal Rules and no change was made therein. It  has  however  been  urged  that  as  the  conferral   of Independence  on India brought about an automatic and  legal termination  of service on the date of  Independence,  there must  in law have been reappointment of all members  of  the former Secretary of State’s Services.  This reappointment in case  of those serving in connection with the  affairs of  a Province  must be deemed to have ’been made by the  Governor of the Province concerned and consequently the Governor will have  the power to suspend as the appointing authority.   We are of opinion that there is no force in this argument.  The antecedent circumstances with respect to such Services  have been  fully dealt with in Rajagopalan’s case (1)  and  those circumstances  show  that the question of the  retention  of officers  serving in these Services was dealt  with  between the Government of India and His Majesty’s Government and  it was  the  Government of India which decided ,that  all  such officers should continue except those whom the Government of India,  was  not prepared to invite to continue and  in  the case of this limited class the Government of India agreed to compensation.   It  was  in consequence  of  this  agreement between the Government of India and His Majesty’s Government that  s.  10  of the Independence Act  provided  that  those officers  -who continued would have the same  conditions  of service  etc.  as they were entitled to  immediately  before August 14, 1947.  The Governors of Provinces were nowhere in the picture in this matter and we can see  (1) [1955] 2 S.C.R. 541. 453 no  warrant for holding that the appointment must be  deemed to be by the Governors of Provinces where such officers were serving in connection with the affairs of a Province. It is true that the Indian Administrative Service as an all- India Service was legally and formally constituted in  1951. It is also true that under s. 10 of the Indian  Independence Act  members  of the former Secretary  of  State’s  Services continued  on and after August 14, 1947, to serve under  the

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Government of either of the new Dominions or of any Province or part thereof It is also true that there are some passages in  the correspondence between His Majesty’s Government  and the  Government  of India which suggest that  His  Majesty’s Government  was  thinking on the lines that members  of  the former Secretary of State’s Services will become members  of the Provincial - Services.  These however are not conclusive of  the  matter and we have to find out what  actually  took place  after  this exchange of  correspondence  between  the Government   of  India  and  His  Majesty’s  Government   in connection  with the former Secretary of  State’s  Services. We have already indicated that s. 10 was incorporated in the Indian    Independence   Act   in   consequence   of    this correspondence  between  the  Government of  India  and  His Majesty’s  Government.   Thereafter we find that  the  India (Provisional Constitution) Order, 1947 (i.e. G.G.O. 14)  was passed  on  August 14,1947, under powers  conferred  on  the GovernorGeneral  by  virtue of s. 9 (1) (a)  of  the  Indian Independence  Act.  Article 7 (1) of that Order is in  these terms:               "(1) Subject to any general or special  orders               or arrangements affecting his case, any person               who  immediately before the appointed  day  is               holding  any  civil post under  the  Crown  in               connection  with the affairs of the  Governor-               General or Governor-General in Council or of a               Province  other  than  Bengal  or  the  Punjab               shall,  as  from that day, be deemed  to  have               been duly appointed to the corresponding  post               under the,Crownin connec-               454               tion with the affairs of the Dominion of India               or, as the case may be, of the Province." Reading this provision along with the provision in s. 10  of the  Indian  Independence Act, it would in  our  opinion  be right  to  say  that so far as the. members  of  the  former Secretary  of  State’s Services are concerned they  must  be deemed  to  have been appointed to the posts on  which  they were  serving at the time of conferral of  Independence,  by the Govemmentof India.  The deemed appointment under Art.  7 (1)  of  G.G.O. 14 was "subject to any  general  or  special orders  or  arrangements  affecting  his  case",  and  these arrangements are clear from the correspondence which  ensued between   the   Government  of  India  and   His   Majesty’s Government.   That correspondence and the special orders  or arrangements  contemplated by Art. 7 (1) of G.G.O.  14  show that  so  far  as the members of  the  former  Secretary  of State’s  Services were concerned, it was the  Government  of India which took the final decision whether to continue such officers  or not.  It is true that in so doing it  consulted the various Provincial Governments and was to a large extent guided   by  the  views  of  the   Provincial   Governments, particularly  in  connection  with such  officers  who  were serving  in  connection with the affairs of  the  Provinces; even  so,  as the facts in Rajagopalan’s case(1)  show,  the final  decision whether to continue or not a member  of  the former  Secretary  of  State’s Services  was  taken  by  the Government of India.  In these circumstances it would in our opinion  be  reasonable  to hold that in  the  case  of  the members  of the former Secretary of State’s Services it  was the  Government  of  India  which must  be  deemed  to  have appointed them after the conferral of Independence on  India to  the  respective posts which they  were  holding  whether under  the Government of India or under the  Governments  of Provinces.   This conclusion is reinfored by the  fact  that

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the system in force before 1947 was that all members of  the Secretary of State’s Services were assigned to one  Province or  other and from them such members as were necessary  used to  be on deputation to the Government of India for  serving it directly.  It would be very anomalous  (1) [1955].2 S.C.R. 541. indeed  that the accident whether an officer was serving  on August 13, 1947, on deputation under the Government of India directly or in the Province to which he was assigned  should determine who the appointing authority must be deemed to  be on the date of the transfer of power.  Such an anomaly could in our opinion never have been intended and we have no doubt therefore in view of the history dealt with in Rajagopalan’s case(1) that on the conferral of Independence, even if there was  legal  termination of the services of  members  of  the former Secretary of State’s Services, the reappointment must be  deemed to be by the Government of India and not  by  the Governors of Provinces even in the case of officers who were serving in connection with the affairs of Provinces. In  this connection our attention has been drawn to  s.  241 (1)  of the Government of India Act 1935 as it  then  stood, which is in these terms:-               "(1)-Except as expressly provided by this Act,               appointments  to  the civil services  of,  and               civil  posts under, the Crown in India,  shall               be made--               (a)   in the case of services of the Dominion,               and  posts in connection with the  affairs  of               the Dominion, by the Governor-General or  such               person as he may direct;               (b)   in  the case of services of a  Province,               and posts in connection with the affairs of  a               Province, by the Governor or such person as he               may direct." This provision in our opinion does not apply in the peculiar circumstances arising out of the transfer of power in August 1947.  It is a general provision relating to appointments to civil  services and civil posts under the Dominion or  under the Provinces.  It has in our opinion nothing to do with the case  of members of the civil services and holders of  civil posts who were deemed to have continued by virtue of Art.  7 of  G.G.O. 14 of August 14, 1947.  Clause (b) of s. 241  (1) therefore  cannot in our opinion lead to the inference  that in  the  case of those members of the  former  Secretary  of State’s  (1) [1955] S.C.R 541. 456 Services   who  were  deemed  to  have  been  appointed   in connection  with the affairs of a Province under Art. 7  (1) of  G.G.O. 14, the appointments must be deemed to have  been made  by  the  Governor.  Such deemed  appointments  in  our opinion  must depend for their validity on Art. 7  G.G.O  14 and  not on s. 241 of the Government of India Act  which  is not  a  deeming provision and therefore we have to  look  to Art.  7  (1) to find out by whom the  appointments  must  be deemed  to  have been  made in these of the members  of  the former Secretary of State’s Services.  As Art. 7 opens  with the  words  "subject  to any general or  special  orders  or arrangements  affecting  his case "  (i.e.  each  individual officer’s  case),  it must be held in view  of  the  history which  is elaborately set out in Rajagopalan’s case(-)  that so  far  as  members  of the  former  Secretary  of  State’s Services were concerned, it was the Government of India  who must be deemed to have made the appointments in view of  the special  orders  and  arrangements  with  respect  to   such

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officers. Reliance in this connection was also placed on the amendment of  s.  240 (2) of the Government of India Act by  the  same G.G.O. Section 240 (2) as it originally stood provided  that " no such person as aforesaid (meaning thereby a member of a civil service of the Crown in India or a person holding  any civil post under the Crown in India) shall be dismissed from the  service of His Majesty by any authority subordinate  to that  by  which he was appointed".  Amendment of  this  sub- section became necessary as the Secretary of State for India was disappearing and some authority had to be provided which could  dismiss  members of the former Secretary  of  State’s Services.  G.G.O. 14 therefore provided that no member of  a Secretary of State’s Services who continued in service after August  14,  1947,  shall  be  dismissed  by  any  authority subordinate   to  the  Governor-General  or   the   Governor according as that person was serving in connection with  the affairs  of the Dominion or of a Province.   This  amendment gave  power to the Governor to dismiss even members  of  the former  Secretary  of State’s Services and stress  has  been laid on behalf of (1)  [1955] 2 C.R. 541. 457 the  respondent on this amendment and it is urged that  this shows that appointments of such members who were serving  in connection with the affairs of the Provinces must be  deemed to  have  been made by the Governor concerned.   It  appears however  that  the  amendment by which  the  Governor  could dismiss a member of the former Secretary of State’s Services may have crept in by inadvertence, for it would prima  facie be against the provisions of the guarantee contained in s.10 of  the  Indian  Independence Act.  In any  case  this  sub- section  was further amended by G.G.O. 34 and the  power  of dismissal  was only vested in the Governor-General  and  was taken  away from the Governor.  We are therefore of  opinion that  no  inference can be drawn from the fact  that  for  a short time s. 240 (2) provided that the Governor may dismiss a  member of the former Secretary of State’s Services,  that the  appointments  of  such  members  who  were  serving  in connection  with  the  affairs of the Province  was  by  the Governor,  and  not  by the Government of  India.   Such  an inference is in our opinion against the conclusion which can be   plainly  drawn  from  the  history  relating   to   the continuance  and  appointment of the members of  the  former Secretary  of State’s Services at the time of  conferral  of Independence  and the provisions of Art. 7 (1) of G.G.O.  14 of August 14, 1947. The  final  position  therefore on January  25,  1950,  with respect to suspension of a member of the former Secretary of State’s  Services whether as a punishment or as  an  interim measure  pending departmental enquiry or pending a  criminal proceeding  was this.  Such member could be suspended  under the  general law by the appointing authority, which  in  the changed  circumstances was, the Government of India,  as  an interim measure pending a departmental enquiry or pending  a criminal  proceeding,  but there was no power in  any  other authority  to pass such an order of interim suspension,  for as we have already indicated the power under s. 247 (2)  was repealed by G.G.O.14 of August 14. 1947.  Besides this power of  interim suspension otherwise than as a  punishment,  the power to suspend                             458 as punishment continued under r. 49 of the Appeal Rules  and an  order of suspension made in exercise of that  power  was subject  to  appeal  under r. 56 etc.,  thereof  So  far  as

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payment  during the period of interim suspension  or  during the  period of suspension as a penalty is concerned, s.  247 (3)  had  disappeared and therefore  the  general  provision contained  in F.R. 53 applied.  That general  provision  has made  some  distinction between the members  of  the  Indian Civil Service and others; but that is a matter of detail, in which it is unnecessary to go.  So the position  immediately before the commencement of the Constitution was that members of  the  former  Secretary  of  State’s  Services  could  be suspended either as an interim measure pending  departmental enquiry  or pending criminal proceeding or as a  punishment. Where  suspension  was as an interim measure and  not  as  a punishment  such suspension could only be by the  appointing authority,  which  in the changed  circumstances  should  be deemed  to  be  the  Government  of  India.   Such   interim suspension  was  not  subject  to any  appeal.   So  far  as suspension  as  a  punishment was concerned, r.  49  of  the Appeal Rules applied and the authorities specified in  these Rules could pass an order of suspension as a punishment  and that order would be subject to appeal provided in r. 56  and other rules therein.  As to the payment during the period of suspension  that  was  governed  by F.R.  53.   It  is  this position   which   was  protected  by  Art.  314   of   the. Constitution  so far as suspension of members of the  former Secretary  of State’s Services was concerned whether  as  an interim measure or as a punishment. Then we come to the Discipline Rules 1955.  Rule 3 of  these Rules  provides  for  penalties and omits  suspension  as  a penalty.  Now if suspension had remained a penalty under  r. 3  of  the Discipline Rules, the appellant would  have  been entitled  to  the same rights as respects  suspension  as  a punishment   or  rights  as  similar  thereto   as   changed circumstances would permit in view of Art. 314.  But r. 3 of the  Discipline  Rules  has altogether done  away  with  the penalty of suspension for members of                             459 the  Indian  Administrative  Service,  which  includes   the members  of the lndian Civil Service under r. 3 (a) and  (b) of  the Recruitment Rules.  Further rules  corresponding  to the Discipline Rules was repealed by r. 23 of the Discipline Rules-,  so  after the Discipline Rules came into  force  in 1955 suspension could no longer be inflicted as a penalty on a  member  of the Indian Administrative  Service  (including members  of the Indian Civil Service who became  members  of the   Indian  Administrative  Service).   It  is   therefore unnecessary for us to consider whether the order of July 18, 1959, can be justified as a punishment and if so whether the memorial  provided  by r. 20 of the Rules  is  a  sufficient protection  for  the  purpose of Art. 314  which  speaks  of "rights  as  similar thereto as  changed  circumstances  may permit".   Nor  is it the case of the  respondent  that  the appellant was suspended by way of punishment by the order of July  18,  1959.  The respondent justifies  the  said  order under r. 7 ( 3) of the Discipline Rules and thus the case of the respondent is that the appellant was suspended not as  a -punishment  but that the order of suspension was passed  by the Governor as an interim measure which he could do  either pending a departmental enquiry or pending a criminal charge. The  appellant has thus been suspended by the order of  July 18,  1959,  not as a punishment but as  an  interim  measure pending  a  criminal charge against him; and  this  is  what practically  in  terms  the order says, for  it  places  the appellant  immediately under suspension because  a  criminal case  was  pending  against him.  But  as  we  have  already pointed out the power to pass an order of interim suspension

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in  the case of a member of the former Secretary of  State’s Services  on  January 25, 1950, was only in  the  appointing authority, (namely, the Government of India).  The power  to suspend a member of the Indian Administrative Service  which the  appellant became by virtue of r. 3 of  the  Recruitment Rules  as  punishment  has  disappeared from  r.  3  of  the Discipline Rules 1955.  The appellant therefore could not be suspended  by  the Governor as an interim measure  and  such suspension  could only be by the Government of  India.   The proper procedure therefore in a case 460 where  the  State Government wants a member  of  the  former Secretary  of  State’s  Services  to  be  suspended  pending departmental  enquiry or pending investigation,  inquiry  or trial  of a criminal charge against him is to  approach  the Government  of India and ask it as the appointing  authority to  suspend such officer as an interim measure.  It  is  not open to the Government of India by framing a rule like r.  7 of  the  Discipline Rules to take away the guarantee  as  to Disciplinary matters contained in Art. 314.  We have already said  that  the  guarantee in the case of a  member  of  the former Secretary of State’s Services is that in disciplinary matters  his rights would be the same or as similar  thereto as   changed  circumstances  would  permit  as   they   were immediately  before  the commencement of  the  constitution. The  right in the matter of interim suspension  As  distinct from  suspension  as a punishment was that a member  of  the former Secretary of State’s Services could not be  suspended by  any authority other than the Government of India.   That was  guaranteed by art. 314 and could not be taken  away  by framing a, rule like r. 7 of the Discipline Rules.  We  have already  referred  to Bakshi’s case(" in which it  has  been held that the rights guaranteed by Art. 314 of the Constitu- tion  could  not be destroyed or taken away by  the  Central Government  in  exercise of its rule-making  power’  In  the present case the right guaranteed to a member of the  former Secretary  of  State’s  Services  with  respect  to  interim suspension  (as distinct from suspension as a punishment  is that  such  a member cannot be so suspended  except  by  the appointing  authority which in the changed circumstances  is the Government of India.  That right has in our opinion been violated  by  r.  7 of the Discipline Rules  insofar  as  it permits any authority other than the Government of India  to suspend pending a departmental enquiry or pending a criminal charge  a  public servant who was a member  of  the,  former Secretary of State’s Services.  Rule 7 therefore insofar  as it permits this violation of the guarantee contained in Art. 314   with  respect  to  interim  suspension   (other   than suspension (1)  [1962] Supp.  I S.C.R. 505. 461 as a punishment) is to that extent ultra vires Art. 314 i.e. insofar  as  it  applies  to  the  members  of  the   Indian Adminstrative Service   who fall within cls. (a) and (b)  of r. 3 of the Recruitment Rules. it follows therefore that the order of the Governor dated July 18, 1959, purporting to  be passed  under  r. 7 (3) of the Discipline Rules  is  without authority and must be set aside. This  brings us to the question of relief to be  granted  to the  appellant. it appears that on September 11,  1963,  the Governor  passed  an  order  by  which  he  reinstated   the appellant  for  the period from July 18, 1959, to  April  4, 1963,  and granted him his full emoluments for that  period. The writ petition in the present case was filed in  February 1962.   So the appellant is apparently not entitled  to  any

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further relief in the matter of his emoluments besides  what has  been  granted  to him by the Governor.   The  order  of reinstatement  contained therein is unnecessary in  view  of our  decision and the order granting full emoluments may  be taken to be in pursuance of our judgment. We  therefore  allow  the appeal and declare  r.  7  of  the Discipline  Rules  insofar as it applies to members  of  the Indian  Administrative  Service who are members  thereof  by virtue  of r. 3 (a) and (b) of the Recruitment Rules  to  be bad  to  the extent to which it permits an  authority  other than  the  Government  of India to  suspend  as  an  interim measure  (and  not  as a punishment)  such  members  of  the Services.   In  consequence we set aside the  order  of  the Governor  dated  July  18, 1959.  As however  the  order  of September,  1963, has granted all such monetary  reliefs  to the  appellant  as we could grant him on setting  aside  the order of July 18, 1959, no further relief can be granted  to the appellant.  We order the respondent the State of  Punjab to  pay the costs of the appellant in this Court as well  as in the High Court. RAGHUBAR DAYAL J.-I am of opinion that this appeal should be dismissed. The  appellant  a member of the Indian  Civil  Service,  was serving  under the Government of Madras  immediately  before the appointed day’, i.e. August 15 462 1947,  as  laid  down in sub-s. (2) of s. I  of  the  Indian Independence Act, 1947 (10 & 11 Geo. 6, Ch. 30)  hereinafter referred to as the Independence Act.  He continued to  serve under  the Government of Madras on and after  the  appointed day.   Subsequently,  he  was transferred to  the  State  of Punjab where he was serving on ,,July 18, 1959, when he  was suspended  by the Governor of Punjab as a criminal case  was pending  against him.  ’the appellant was a member  of  the- Indian  Administrative  Service  in 1959 and  the  order  of suspension  appears  to have been made by  the  Governor  in exercise  of  the power conferred by r. 7 of the  All  India Services  (Discipline and Appeal) Rules,  1955,  hereinafter referred   to  as  the  Discipline  Rules.   The   appellant challenges  the  validity of this order on the  ground  that this  rule  violates  the  provisions of  art.  314  of  the Constitution.   His contention is that prior to  August  15, 1947,  a  member  of  the  Indian  Civil  Service  could  be suspended by way of punishment in view of r. 49 of the Civil Services   (Classification,  Control  and   Appeal)   Rules, hereinafter referred to as the Classification Rules and that there was no provision for his suspension otherwise than  as a  penalty  and  that  his  suspension,  as  a  disciplinary measure, though permissible, would have been then treated as suspension by way of penalty and therefore as subject to  an apeal under r. 56 of the Classification Rules.  No appeal is provided  under  the Discipline Rules against  an  order  of suspension  under r. 7 which therefore violates art. 314  of the  Constitution  as,  according to that  article,  he  was entitled  to receive from the Government the same rights  as respects  disciplinary matters or rights as similar  thereto as  changed circumstances, permitted as he was  entitled  to immediately  before ’the commencement of  the  Constitution. He  further  contends  that  sub-s. (2)  of  s.  10  of  the Independence  Act  guaranteed  to him  the  same  rights  as respects  disciplinary matters or rights as similar  thereto as  changed circumstances permitted, as he was  entitled  to immediately before the appointed day. It   was  further  contended,  during  the  course  of   the submissions in Court, that though prior to the appoin-

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463 ted  day  an order of suspension during the  pendency  of  a departmental enquiry or of a criminal charge could have been made  only by the Governor-General or the Governor, such  an order  thereafter  and till January 26, 1950 could  be  made only  by  the Governor-General, and that  therefore  such  a suspension  order  subsequent  to the  commencement  of  the Constitution  could be made by the Union Government and  not by the Government of Punjab and that for this reason too, r. 7 of the Discipline Rules empowering the State Government to make an order of such suspension violates art. 314. I need not discuss the various points on which I agree  with my  learned brother Wanchoo, J. I agree that the  expression ’changed  circumstances’  in  art. 314  only  refer  to  the constitutional changes which occurred after the transfer  of power  in  August, 1947, and the coming into  force  of  the Constitution  in January, 1950, that suspension  during  the pendency of disciplinary proceedings or of a criminal charge is  related  to disciplinary matters within the  meaning  of those  words in art. 314, that from the appointed day  there was  no express provision in the Government of India Act  or in  the  rules framed thereunder  empowering  the  Governor- General  or the Governor to suspend, otherwise  as  penalty, officers  appointed by the Secretary of State for India  and that  any  order  of suspension pending  enquiry  against  a person  appointed  by  the  Secretary  of  State  on  a  day immediately before the coming into force of the Constitution had  to  be made by the Government in the  exercise  of  the general  power  of  suspension which an  employer  has  with respect to his employee, that this general power an employer has  to  suspend  an employee pending an  enquiry  into  his conduct  vests  in  the  appropriate  authority  where   the Government  is  the  employer and a public  servant  is  the employee  and  that  such  an  authority  in  the  case   of Government,  in  view  of the  -peculiar  structure  of  the hierarchy of Government, be taken to be the, authority which has the power to appoint the public servant concerned.  I am however.  further of opinion that the appropriate  authority in this connection can also include officers superior to 464 the appointing authority and that in the case of members  of All  India  Services serving under any  state  includes  the Governor   who,  as  the  executive  head  of   State,   has administrative control cover all officers serving under  the State  Government.  It would be anomalous to hold  that  the Governor  could  not  suspend a  person,  appointed  by  the Secretary  of  State, during the  pendency  of  departmental proceedings  or  a criminal charge against  him,  though  he could have imposed a penalty of suspension on such a  person in  view of rr. 49 and 62 of the Classification Rules  which were  in  force between the appointed day  and  January  25, 1950, and continued in force subsequently, up to the  coming into force of the Discipline rules. 1, however, do not  rest my decision on this view as, in my view, the appellant is to lie deemed to have been appointed by the Governor of Madras, on the appointed day, to the post corresponding to ,the post he  was holding immediately before the appointed  day  under the Madras Government. I  now deal with the question of the authority which  should be taken to be the appointing authority for persons who  had been  appointed  by  the Secretary of  State  to  the  Civil Services or to any post under the Crown and who continued to serve the Government after the appointed day.  To  determine this  question  it is necessary to  consider  the  following matters:  (1)  Did  the Service known as  the  Indian  Civil

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Service, whose members were to be recruited by the Secretary of  State for India in view of s. 244 (1) of the  Government of  India Act, cease to exist on and from the appointed  day and,  if  so, whether any other AR India  Service  took  its place  immediately after it had ceased to exist? (2)  If  it ceased  to  exist, were the services of the members  of  the Indian  Civil  Service terminated  immediately  before  -the appointed day? (3) Which members of the Service continued in service of the Government on or after the appointed day.  (4 ) Whether those who so continued did so on account of  their becoming servants of the new Government under the provisions of  any Act, or their continuance in service was on  account of their fresh appointment. (5) If it was due to fresh 465 appointment,  which  authority appointed them and  to  which post or service Before  I deal with the above questions, I may set  out  the relevant provisions which have a bearing in this connection. The  Independence Act was enacted by the British  Parliament on  July 18, 1947, for setting up in India  two  independent Dominions   and  to  provide  for  necessary   consequential matters.   By sub-s. (1) of s. 1, two independent  Dominions known  as India and Pakistan were to be set up  from  August 15,  1947.   Subsection ( 2) of that  section  provided  for their being referred to as the new Dominions and August  15, 1947,  being referred to as the appointed day.  One  of  the consequences  of  the setting up of the  new  Dominions  was stated  in  sub-s.  (1) of s. 7 to  be  that  His  Majesty’s Government   in   the  United  Kingdom  was   to   have   no responsibility  as  respects the government of  any  of  the territories  which,  immediately before the  appointed  day, were  included  in British India.  Section 9  empowered  the Governor-General  to  make  such  provisions  by  order   as appeared  to  him to be necessary or expedient  for  certain purposes  mentioned therein.  Subsections (1) and (2) of  s. 10 of the Act read:               "(1)  The  provisions of this Act  keeping  in               force  provisions of the Government  of  India               Act,  1935,  shall not continue in  force  the               provisions    of   that   Act   relating    to               appointments  to  the civil services  of,  and               civil  posts under, the Crown in India by  the               Secretary of State, or the provisions of  that               Act relating to the reservation of posts.               (2)   Every person who-               (a)   having  been appointed by the  Secretary               of State, or Secretary of State in Council, to               a   civil  service  of  the  Crown  in   India               continues  on and after the appointed  day  to               serve  under the Government of either  of  the               new  Dominions  or  of any  Province  or  part               thereof; or               (b)   having  been  appointed by  His  Majesty               before the appointed day to be a judge of  the               Federal               SCI/64-30               466               Court  or of any court which is a  High  Court               within the meaning of the Government of  India               Act,   1935,  continues  on  and   after   the               appointed day to serve as a judge in either of               the  new  Dominions,  shall  be  entitled   to               receive from the Governments of the  Dominions               and  Provinces or parts which he is from  time               to time serving or, as the case may be,  which

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             are  served by the courts in which he is  from               time  to time a judge, the same conditions  of               service  as respects remuneration,  leave  and               pension,  and  the  same  rights  as  respects               disciplinary  matters or, as the case may  be,               as  respects  the  tenure of  his  office,  or               rights   as   similar   thereto   as   changed               circumstances  may permit, as that person  was               entitled  to immediately before the  appointed               day The   Governor-General,  in  the  exercise  of  the   powers conferred  on  him  by  s. 9  made  the  India  (Provisional Constitution)  Order, 1947 (G.G.O. 14 of 1947),  hereinafter called the Provisional Constitution Order.  Article 7(1)  of this Order is:               "Subject  to any general or special orders  or               arrangements  affecting his case,  any  person               who  immediately before the appointed  day  is               holding  any  civil post under  the  Crown  in               connection  with the affairs of the  Governor-               General or GovernorGeneral in Council or of  a               province  other  than  Bengal  or  the  Punjab               shall,  as  from that day, be deemed  to  have               been duly appointed to the corresponding  post               under the Crown in connection with the affairs               of  the Dominion of India or, as the case  may               be, of the Province."               Sub-section (1) of s. 241 of the Government of               India Act, as modified by this Order, reads:               "Except  as  expressly provided by  this  Act,               appointments  to  the civil services  of,  and               civil  posts under, the Crown in India,  shall               be made-               (a)   in the case of services of the Dominion,               and  posts in connection with the  affairs  of               the               467               Dominion,  by  the  Governor-General  or  such               person as he may direct;               (b)   in  the case of services of a  Province,               and posts in connection with the affairs of  a               Province, by the Governor or such person as he               may direct."               Section 247 of the Government of India Act  as               modified               reads:               "The conditions of service of all persons who,               having  been  appointed by  the  Secretary  of               State or the Secretary of State in Council  to               a  civil  service  of  the  Crown  in   India,               continue   on  and  after  the  date  of   the               establishment  of the Dominion to serve  under               the  Government  of  the Dominion  or  of  any               Province shall,-               (a)   as    respects   persons   serving    in               connection with the affairs of the Dominion be               such as may be prescribed by rules made by the               GovernorGeneral;               (b)   as    respects   persons   serving    in               connection               with the affairs of a Province-               (i)   in regard to their pay, leave, pensions,               general  rights as to medical  attendance  and               any other matter which immediately before  the               establishment of the Dominion was regulated by

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             rules made by the Secretary of State, be  such               as  may  be prescribed by rules  made  by  the               GovernorGeneral; and               (ii)  in regard to any other matter be such as               may be     prescribed  by  rules made  by  the               Governor               of the     Province."  Sections  244 to 246 of the Government of India Act,  1935, which  dealt  with Services recruited by  the  Secretary  of State was omitted from the Act by this Order.  Reference  may  also be made to the announcement    by  His Excellency  the Viceroy on April 30, 1947.  It purported  to relate to grant of compensation for premature termination of their  service  in India to members of  the  Civil  Services appointed by the Secre- 468 tary  of State and to regular officers and  British  Warrant Officers of the Indian Naval and Military Forces.  Its first 7  paragraphs  are  set out at pp. 548 to 550  in  State  of Madras  v.  K.M. Rajagopalan(1).  Its para  8  stated  inter alia:               "In  pursuance  of  their  wish  to  give  all               possible  help to the Government of  India  in               building  up the new services,  His  Majesty’s               Government agree ’that their obligation covers               the  claim to ultimate compensation  of  those               British members               of  the Services who are asked to serve on  in               India and decide to do so." It  may also be mentioned that subsequent to June  3,  1947, the   Government  of  India  made  enquiries   through   the Provincial Governments from the members of the Secretary  of State’s Services, including the Indian Civil Service.  about their desire to continue in service of the Government  after the  transfer  of  power and also made  enquiries  from  the Provincial  Governments themselves about their readiness  to retain those officers in service who expressed their  desire to continue in service. This  Court had occasion to discuss the effect of the  steps taken by the Government of India prior to the appointed  day and  of  the  provisions of the  Independence  Act  and  the Provisional  Constitution  Order  in  Rajagopalan’s  case(1) Rajagopalan was a member of the Indian Civil Service and was serving in the Province of Madras till August 14, 1947, when his  services were terminated, though he had  expressed  his willingness  to continue in the service of the,  Govern.ment of  Madras on and after the appointed day.  What this  Court directly  held  and observed in connection with  the  points urged  before  it  in  that  case  would  be  mentioned   at appropriate  places  in discussing the five  points  I  have formulated earlier. This  first two points were directly decided in  that  case. This Court held that the Secretary of State and his Services disappeared as from the appoin-  (1) [1955] 2 S.C.R. 541. 469 ted day and that, s. 10(2) of the Independence Act and  art. 7(1)  of the Provisional Constitution Order proceeded  on  a clear  and  unequivocal recognition of the validity  of  the various special orders and the individual arrangements  made and  amounted  to an implicit statutory recognition  of  the principle  of automatic termination of the Services  brought about  by the political change.  It is clear therefore  that the  Indian Civil Service, one of the Secretary  of  State’s Services,  ceased to exist from the appointed day  and  that

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the  services  of its members  automatically  terminated  on August 14, 1947. This Court had not to consider whether any All India Service was set up to take the place of the Indian Civil Service  on and   from  the  appointed  day,  as  the   termination   of Rajagopalan’s  services  was  held to be  valid.   There  is nothing on the record to show that any such new Service took the  place  of the Indian Civil Service at  the  changeover, though, subsequently, the Indian Administrative Service  was set up as an All India Service.  When it was actually set up is not known.  Article 312 of the Constitution states in cl. (2)  that  the  Services known at the  commencement  of  the Constitution  as the Indian Administrative Service  and  the Indian Police Service shall be deemed to be services created by  Parliament under that article.  The All  India  Services Act, 1951 (Act LXI of 1951) defined an All India Service  to mean the service known as the Indian Administrative  Service or  the  service known as the Indian  Police  Service.   The Indian Administrative Service Recruitment Rules, 1954,  came into   force  in  1954  and  its  r.  3  dealing  with   the constitution  of  the service provides inter alia  that  the Service  shall  consist of (a) members of the  Indian  Civil Service,  not  permanently allotted to  the  judiciary;  (b) members of the Indian Civil Service permanently allotted  to the judiciary who have been holding executive posts from the date  of  commencement  of  the  Constitution;  (d)  persons recruited  to the Service before the commencement  of  those Rules.  It appears therefore that all the 470 members  of the Indian Civil Service who continued to  serve the Government on and after the appointed day were not  made members of the Indian Administrative Service and that  those who were made members of the Service became members of  such Service  in 1954.  If the Indian Administrative Service  had been set up to replace the Indian Civil Service  immediately on the appointed day and the erstwhile members of the Indian Civil Service had become its members, the provisions of r. 3 (a)  and (b) would have been different from what  they  are. This  indicates that the Indian Administrative  Service  did not take the place of the Indian Civil Service automatically after the changeover on the appointed day and that therefore the  members  of the Indian Civil Service who  continued  in service  did  not continue so as members of  any  All  India Service.   The Viceroy’s announcement dated April 30,  1947, makes  no  mention of any All India  Service  replacing  the Indian  Civil Service immediately on the transfer  of  power though it specifically mentioned in para 8 about the  giving of all possible help to the Government of India in  building up  the new Services and to the members of the Secretary  of State’s Services continuing to serve under the Government in India  after the transfer of power.  The provisions of  art. 7(1) of the Provisional Constitution Order also do not refer to  the  persons  in the Secretary of  State’s  Services  to continue  in  service as members of any  All  India  Service though  it specifically deals with the appointment  of  such other employees of Government to the posts they had held  on the day immediately preceding the appointed day. I am therefore of opinion that the service of the  appellant as  a member of the Indian Civil Service came to an  end  on August   14,   1947,  and  that  thereafter   he   did   not automatically-or  otherwise become member of any  All  India Service on August 15, 1947. In connection with point no. 3 formulated by me. this  Court said in Rajagopalan’s case(1) at P. 552  (1) [1955] 2 S.C.R. 541

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471 that  the  continuance of service was contemplated  only  in respect of such of the previous servants who intimated their desire for the continuance of their services and whose offer in that respect was accepted, and at p. 563 that sub-s.  (2) of  s. 10 of the Independence Act had nothing to say  as  to who  were  the  persons who would continue  in  service  and receive the benefit that being obviously left to be provided by  delegated  ’legislation in the shape of  Orders  of  the Governor-General  and  at  p.  565  that  in  view  of   the provisions  of  art. 7(1) of  the  Provisional  Constitution Order,  all persons who were previously holding civil  posts were deemed to have been appointed and hence to continue  in service  excepting those whose case was governed by  general or special orders or arrangements affecting their cases.  It is clear therefore that only those members of the  Secretary of  State’s  Services  continued in  service  who  had  been holding civil posts immediately before the appointed day and were deemed to have been appointed to the corresponding post in  view of the provisions of art. 7 (1) of the  Provisional Constitution Order. The  persons  who had been holding civil  posts  immediately before  the  appointed  day  did  not  automatically  become servants  of  the  new  Government  on  the  appointed  day. Article   7(1)   of  the  Provisional   Constitution   Order contemplates  ’deemed appointment’ of such persons to  their respective posts on that day.  The language of this  article is   not   consistent   with  any   suggestion   that   they automatically,  by the force of the Independence Act or  the Provisional  Constitution  Order,  became  holders  of   the respective posts on the appointed day.  The language is very much different from the language used in Arts. 374, 376, 377 and  378  of  the Constitution  which  provide  for  certain persons  holding office immediately before the  commencement of the Constitution becoming, on such commencement,  holders of  corresponding posts on such commencement.  The  language is also different from that of Art. 375 of the  Constitution which deals with the continuance of courts, authorities 472 and officers after the commencement of the Constitution  and reads:               "All  courts  of civil, criminal  and  revenue               jurisdiction,   all   authorities   and    all               officers, judicial, executive and ministerial,               throughout  the  territory  of  India,   shall               continue   to   exercise   their    respective               functions  subject to the provisions  of  this               Constitution." There  is  no such expression in this  article  which  would indicate  that  any  of these officers  had  to  be  freshly appointed or would be deemed to have been appointed to their respective posts on the commencement of the Constitution. The  language of art. 7(1) of the  Provisional  Constitution Order correspond to some extent to that of s. 58 of 21 &  22 Vic.   Cap.  CVI, 1858, an Act for the better Government  of India,  which was passed when the .,Government of India  was transferred  to  Her Majesty from the  East  India  Company. Section 58 reads:               "All persons who at the time of the  commence-               ment  of  this  Act shall  hold  any  offices,               employments, or commissions whatever under the               said  Company  in India shall  thenceforth  be               deemed to hold such offices, employments,  and               commissions  under Her Majesty as if they  had               been appointed under this Act.............. "

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The  language of art. 7(1) of the  Provisional  Constitution Order, for purposes of comparison, may be just noted, and is               "....any  person  who immediately  before  the               appointed day is holding any civil post  under               the  Crown  .... shall, as from that  day,  be               deemed  to  have been duly  appointed  to  the               corresponding post under the Crown...." The  language of s. 58 of the 1858 Act contemplated a  fresh appointment,  though  deemed appointment, as  is  abundantly clear  from  the  words ’shall.... be deemed  to  hold  such offices, employments, and corn-  473 missions.  .as  if  they  had  been  appointed  under   this Act......’ I am therefore of opinion that the Provisional  Constitution Order,   by  its  art.  7(1),  provided  for  deemed   fresh appointment  of  the  members of the  Secretary  of  State’s Services whose services had terminated automatically on  the day immediately preceding the appointed day. I  will now deal with the last point as to  which  authority would  be deemed to have appointed the persons who had  been in the Secretary of State’s Services, to their corresponding posts on the appointed day. The  Government of India Act, 1935, hereinafter  called  the Act, as modified by the Orders of the Governor-General,  was in  force on that day and the authorities competent to  make appointments  on that day would be deemed to have  made  the appointments  of the erstwhile servants in the Secretary  of State’s Services.  No other authority could have made  those appointments  and  therefore no other authorities  could  be deemed to have made those appointments which were deemed  to be  made  in  view of the provisions of  art.  7(1)  of  the Provisional Constitution Order. Section 241 of the Act provided that the GovernorGeneral, or such person as he may direct, would make appointments to the civil services of the Dominion and civil posts in connection with the affairs of the Dominion and that the Governor would make appointments to the services of a Province and posts in connection with the affairs of a Province.  Such persons  of the Secretary of State’s Services who were holding posts  in connection with the affairs of a Province would therefore be appointed to the corresponding posts, on the appointed  day, by the Governor of that Province, as only he could have made appointments to those posts.  It is to be noticed that  art. 7(1)  of  the  Provisional  Constitution  Order  refers   to appointments  to posts and not to appointments  to  Services and that even prior to the appointed day the appoint- 474 ments, to the various posts in the Provinces, of members  of All  India Services allotted to the cadre of  the  Provinces were  also  made by the Governor and not  by  the  Governor- General.   In this respect, with regard to all  appointments to  posts  in connection with the affairs of  the  Provinces there had been really no ,change. It   is  contended  for  the  appellant  that   his   deemed appointment  to  the post corresponding to the post  he  had held  on August 14, 1947, was by the GovernorGeneral or  the Government  of  India.   Article  7(1)  of  the  Provisional Constitution  Order does not expressly provide so.   Section 241  of  the Act did not authorize the  Governor-General  to make appointments to posts in connection with the affairs of the   Provinces.   The  provisions  of  art.  7(1)  of   the Provisional  Constitution  Order refer to  all  the  persons employed in the civil services and holding civil posts under the  Crown and are not restricted to those persons only  who

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held posts and had been appointed by the Secretary of State. The  mere fact that the Provisional Constitution  Order  was made  by the Governor-General would not lead to  the  result that  the  deemed appointments of all  the  persons  serving under the Crown, whether as members of civil services or  as holders  of  posts, had been made by  the  Governor-General. That could not have been intended.  All such employees would be  deemed to be appointed by the appropriate  authority  on the  appointed  day and the appropriate  authority  for  the appointment  of a particular employee is to be found  in  s. 241 of the Act. It is also true that the erstwhile members of the  Secretary of  State’s  Services were not actually reappointed  by  the appropriate  appointing authority and that they were  merely deemed to be so appointed in view of the provisions of  art. 7(1) of the Provisional Constitution Order whose purpose was to  validate the continuity of the service of  such  persons even though they had not been actually appointed. I  see no reason why the provisions of s. 241 of the Act  be not applicable to the deemed appoint- 475 ments  of  such  persons who had been in  the  Secretary  of State’s  Services.   Undoubtedly,  it  was  not  a   special provision  for  the deemed appointments  at  the  particular occasion, but was of general application to appointments  on and  after the appointed day.  Appointments, whether  actual or  deemed to be made by the new Governments immediately  on the  changeover of the Government, must be governed  by  its provisions. This  Court did not make any reference to s. 241 of the  Act in  Rajagopalan’s Case.(1) This is not because that  section did not govern all the erstwhile members of the Secretary of State’s Services, but because the Court was not concerned in that   case   with  the  question  of  such   fresh   deemed appointments  as Rajagopalan did not continue in service  as his  services were held to be validly terminated  on  August 14, 1947. It  has been urged in support of the appellant’s  case  that the  retention  of  persons  of  the  Secretary  of  State’s Services was dealt with between the Government of India  and His  Majesty’s Government as would appear from  the  various documents in connection with the steps taken for the setting up  of  the  two  Dominions and  that  only  those  officers continued in service whom the Government of India invited to continue  and that those who were not so invited were to  be paid compensation. It  is not clear from the antecedent circumstances  that  it was  the  Government  of  India  which  decided  about   the continuance in service of such officers of the Secretary  of State’s  Services  who  had been  prior  to  the  changeover serving under the Government of a Province.  Even if it  was the  Government of India which was to decide and invite  the officers to continue, such a decision and invitation  cannot amount to its appointing those officers to the various posts in connection with the affairs of a Province, in view of  s. 241 of the Act. of  course, negotiations with respect to the  services  took place between the Government of India (1)  [1955] 2 S.C.R. 541 476 and His Majesty’s Government.  A Provincial Government could not  have  continued such negotiations.  I do not  find  any specific  mention  in any of the documents  referred  to  in Rajagopalan’s  Case’’)  to  the  effect  that  it  was   the Government  of  India which decided which officers  were  to

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continue in service.  The Viceroy’s announcement dated April 30, 1947, practically sums up the result of the negotiations between   the   Government  of  India  and   His   Majesty’s Government.  It is clear from what was stated in  paragraphs 3  and  6  of this announcement that  the  undertakings  and assurances  ’with  respect  to  persons  appointed  by   the Secretary of State and who were to continue in service  were given  by the Government of India with respect to those  who were  to  continue under its service and by  the  Provincial Governments  with  respect  to  those  who  would  join  the Provincial Services.  It is said in para 3, which dealt with the  terms of pay etc., that the Government of  India  would then propose to Provincial Governments that they should give similar  assurances to members of the Secretary  of  State’s Services who agreed to join Provincial Services.               It was said in para 6 :               "His Majesty’s Government have been  reviewing               the  whole  position.   They  have  noted  the               undertaking which the Government of India have               given in regard, to officers whom they  desire               should continue to serve under the  Government               of  India  ....  Many Indian  members  of  the               Secretary  of  State’s services  will  however               become  members of provincial services and  in               their   cases   His   Majesty’s   Government’s               agreement that the need not be compensated  is               conditional  upon the  Provincial  Governments               guaranteeing  the existing terms  of  service.               If  they  are  not  prepared  to  do  so  His,               Majesty’s  Government  reserve  the  right  to               reconsider the matter. It  is therefore clear that the Provincial Governments  were also   concerned  in  the  negotiations  though  they   Were -actually made by the Government (1)  [1955] 2 S.C.R. 541. 477 of  India and had to agree to--guarantee the existing  terms of  service and safeguards in matters of discipline And  had also to agree to pay compensation. It may look anomalous that some persons who had been members of  the Secretary of State’s Services may be deemed to  have been  appointed to their respective posts, on the  appointed day, by the Governor of a Province if they had been  holding Posts  under the Provincial Government and others be  deemed to  have  been  appointed by the  Governor-General  if  they happened  to  be then serving posts in connection  with  the affairs of the Government of India or the Dominion.  Such an anomaly  was  bound  to come into  existence  and  had  been contemplated during the negotiations between the  Government of  India and His Majesty’s Government.  There was no  other choice  open  to  the members of the  Secretary  of  State’s Services  who  were  serving under  the  Government  -of  a: Province  when their services automatically came to  an  end and  when they desired to continue’ in  Government  service. Their  wishes  were ascertained in the context of  what  was taking place.  They knew of the; announcement by the Viceroy dated  April 30, 1947.  It was only with their consent  that their  services were continued after the  changeover.   They can  therefore  have  no grievance for  being  appointed  to provincial   services   or  posts   under   the   Provincial Governments and naturally, under its administrative control. In fact, even prior to the changeover, such persons had been under the administrative control of   the Provincial Government. This  Court, in Rajagopalan’s Case(1), refers  at p. 551  to

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the Government of India asking the Provincial Govemments, by its  letter dated June 18, 1947, to state,  when  forwarding the  replies  from  the  individual  officers,  about  their willingness or otherwise to continue in service, whether for any reason they Would prefer such officer not to continue in service notwithstanding his desire to remain in service, and pointing  out to the Provincial Government that in  case  it did not (1) [1955] 2 S. C. R. 541. 478 desire  to  retain the services of such  persons,  the  Pro- vincial  Government would be incurring the liability to  pay compensation.   Such an enquiry indicates, to my mind,  that the  decision to continue such persons in service after  the changeover rested with the Provincial Government and It  was on  this account that .it had to bear the liability  to  the compensation  payable to such persons.  Such a decision  had to  be  taken by the Provincial Government  because  it  was contemplated  that  officers serving  under  the  Provincial Government  would  be appointed to  their  respective  posts after the changeover by that Government itself and that  the Government  of  India  will have nothing to  do  with  their appointments.  In the circumstances, it follows that it  was the  Provincial  Government which invited such  officers  to continue in service and not the Government of India. It  is true that the Madras Government informed  Rajagopalan of  the Government’s decision not to retain him  in  service after   August   15,  1947,  and  stated   that   a   formal communication   in  that  respect  would  issue   from   the Government  of  India.   The Government of India  in  a  way approved  of  the decision of the Madras Government  not  to continue  Rajagopalan  in service.  But it does  not  follow that  the Government of India’s approval was  necessary  for the  Government  of  Madras to continue  under  its  service officers whom it was prepared to keep in service.  The  ter- mination of service of such officers was prior to the coming into  force  of  the  Act as  modified  by  the  Provisional Constitution  Order and therefore the termination order  had to  be formally made by the Government of India.  The  order had to be passed prior to the changeover and at that time it was  proper  that  any order about the  termination  of  the services  be with the approval of the Government  of  India. The  fresh deemed appointment was to be made on  August  15, 1947,  immediately after the changeover and, in view of  the practical  difficulties,  such a fresh appointment  was  not actually made but was deemed to have been made, as  provided by art. 7(1) of the Provisional 479 Constitution Order.  When the appointment was to be made  of persons serving under the Provincial Governments, there  was no  necessity of obtaining prior approval of the  Government of India to retain such officers in service. I am therefore of opinion that such members of the Secretary of State’s Services who were holdingposts under a Provincial Government   immediately  before  the  appointed   day   and continued  in service on and after the appointed day are  to be deemed to be appointed to the corresponding posts by  the Governor  of the Province, in view of the provisions  of  s. 241 of the Act. The  appellant  was  serving  under  the  Madras  Government immediately before the appointed day.  He will therefore  be deemed  to be appointed by the Governor of the  Province  of Madras to the post he was holding on the appointed day.  The Governor  of the Province was his appointing  authority  and therefore  he  could  be suspended on  the  day  immediately

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before  the commencement of the Dominion by the Governor  of the Province where he might have been then serving.  He  can at best claim protection of his right of not being suspended pending departmental enquiry or of a criminal charge by  any authority  of a lower rank.  Rule 7 of the Discipline  Rules does  not  provide for such suspension of a person  who  had been  a  member of the Secretary of State’s Services  by  an authority  lower  than  the  Governor..  The  appellant  was suspended  by the Governor of Punjab on July 18,  1959.   He had no right of appeal against such an order of  suspension. The  Discipline Rules did not provide for an appeal  against such an order of suspension and, in not so providing, cannot be  said  to  violate  the provisions of  art.  314  of  the Constitution as the appellant had no right of appeal against such  an order before the commencement of the  Constitution. It  follows  that  r. 7 of the  Discipline  Rules  does  not violate the provisions of that Article and that the impugned order of suspension was therefore valid. 480 1 would therefore dismiss the appeal.                            ORDER in accordance with the opinion of the majority the appeal is allowed with costs in this Court and in the’ High Court.