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PETITIONER: RAJVI AMAR SINGH

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN

DATE OF JUDGMENT: 28/11/1957

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

CITATION:  1958 AIR  228            1958 SCR 1015

ACT:     State Service-Formation of new State by intergration  of States -Effect-Employee under intergrating State  continuing in  service  of  new State-Status-If can  be  inferred  from description  in  orders of transfer and  increment  of  Pay- Substantive  appointment  to  a lower  grade  on  guaranteed emoluments-If  amounts to reduction in  rankConstitution  of India, Art. 3II.

HEADNOTE: The appellant was a District and Session judge in the  State of  Bikaner  and  after  its merger  in  the  new  State  of Rajasthan, on August 7, 1949, continued to serve in the  new State.   The covenant of intergration provided, inter  alia, that  the  conditions  of such service were to  be  no  less advantageous  than  those  under which  he  was  working  on November  1, 1948.  By a Gazette Notification the  appellant was  appointed  as an ad hoc Civil and  Additional  Sessions judge.   After  the reorganisation of the  Services  he  was substantively appointed as a Civil judge and placed in grade C  (Civil judges and Munsiffs) and placed at No. 18  in  the list of juniors, but his old pay and emoluments remained  as guaranteed.   Before  such  appointment  he  was,   however, described  in certain orders of transfer and  increments  of pay as District and Sessions judge.  The appellant moved the High Court under Art. 226 of the Constitution and  contended that  he had been reduced in rank without being afforded  an opportunity   to   show  cause  under  Art.   311   of   the Constitution.  The High Court held that the appointment must be treated as an ad hoc appointment till it was  regularised under  the  Constitution.  This was done by  the  Government after  the decision of the High Court and the appellant  was again appointed as a Civil Judge 1014 Held, that it is well settled that when a State is by merger integrated  to  form a new State, all contracts  of  service between the prior Government and its servants  automatically came  to  an  end and those who elect to serve  in  the  new State,  or  are  taken in by it, serve  on  such  terms  and

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conditions as the new State may choose to impose. The  State of Madras v. K. M. Rajagopalan, [1955]  2  S.C.R. 541, relied on. Virendra  Singh  &  Others v. The State  of  Uttar  Pradesh, [1955] 1 S.C.R. 415, referred to. As the appellant’s postings in the new State previous to his substantive appointment were all transitional and  temporary in  character  and the guarantee given by the  covenant  was fulfilled,  no question of reduction in rank arose so as  to attract Art- 311 Of the Constitution. No  inference of any determination by the new Government  to appoint the appellant in his old post could follow from  the descriptions  made in the orders of transfer and  increments of pay as appointments are not made in that casual way.

JUDGMENT: CIVIL APPFLLATE JURISDICTION: Civil Appeal No. 330 of 1956. Appeal  by special leave from the Judgment and decree  dated September  5,  1955,  of the Rajasthan High  Court  in  Writ Petition No. 76 of 1954. A.   V.  Viswanatha  Sastri and Ratnaparkhi A. G.,  for  the appellant. R.   Ganapathy Iyer, Ram Avtar Gupta and T. M. Sen, for  the respondent. 1957.  November 28.  The following Judgment of the Court was delivered by BOSE  J.-This  appeal  arises out of  a  writ  petition  for mandamus under Art. 226 of the Constitution. The  appellant  was  a District and Sessions  Judge  in  the former Bikaner State.  He was appointed on January 29, 1948, in the grade of Rs. 500-40-700 and worked as such till April 7, 1949. On  that  date a new State of Rajasthan was  formed  by  the integration  of  a number of States  (including  the  former State of Bikaner) by means of a Covenant signed by the  High Contracting Parties. Article XVI (1) of the Covenant ran thus: " The United State hereby guarantees either the  continuance in service of the permanent members of                             1015 the  public  services of the former Rajasthan State  and  of each of the new Covenanting States on conditions which  will not  be  less  advantageous than those on  which  they  were serving  on  the  1st  November  1948  or  the  payment   of reasonable  compensation  or  retirement  on   proportionate pension." The integration necessarily involved a reorganisation of the various services in the several integrating States.  On  the judicial side it was found that there were as many as twenty eight  Courts  of  District  and  Sessions  Judges  in   the aggregate.  In the integrated State it was proposed to  have only  fifteen.   The  reorganisation took time  and  in  the interval certain interim arrangements had to be made.  These arrangements are set out in a Rajasthan Gazette Notification dated May 25, 1950.  We append the relevant extracts: " 4. In Appendix F...... have been indicated the provisional postings  on  an  ad hoc basis of  the  posts  specified  in Appendices A to E.  ....................................................... ... 6.   All   the  appointments  mentioned  in  the   different Appendices,  attached to this Order, are  provisional.   The emoluments  of  none of these officers appointed  are  being affected  and  they  will continue to  draw  their  existing

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salaries  until  further orders.  All the  appointments  are without  prejudice to the creation of a Judicial Service  in Rajasthan  to be formed in accordance with the  rules  which may be made therefor." Appendix F is headed- "Ad hoc postings of Judicial Officers to Civil and  Sessions Courts." The appellant was appointed under this beading in Part 11 as a  Civil  and  Additional  Sessions  Judge  in  the   Jaipur Division. But  before this Notification was made, namely, on  December 9, 1949, the appellant received the following order from the new Rajasthan Government: "  Shri Amar Singh, District and Sessions Judge,  Churu,  is transferred  to Ganganagar as District and  Sessions  Judge, Ganganagar." 129 1016 Among other contentions, the appellant relies on this as  an election  by  the  new Government to continue  ’him  in  his original  post and contends that it could not  later  change its mind and make his service provisional as it purported to do in the notification just cited. Two months after the notification, namely on July 31,  1950, the   appellant’s  increment  became  due   and   Government sanctioned it in the following terms: "  Sanction  is  accorded  to  the  grant  of  a  stipulated increment  of Rs. 40 p.m. in the scale of Rs. 500-40-700  to Shri Rajvi Amarsingh, District and Sessions Judge in Bikaner Division,  with  effect from the 23rd March,  1950,  thereby raising his salary from Rs. 540 to Rs. 580 p.m." When  the final re-organisation was brought into  force  and the  twenty  eight Courts of District  and  Sessions  Judges reduced  to fifteen, the appellant was posted as  Civil  and Additional  Sessions  Judge on an ad hoc basis  on  May  25, 1950. On  September 11, 1950, the appellant made a  representation to  the Government of Rajasthan against his posting  of  May 25, 1950, as an ad, hoc Civil and Additional Sessions Judge. He says in his writ petition to the High Court that " he was given to understand that these ad hoc postings were without  prejudice to the claims of the Government  servants for  a  suitable  position  in  the  integrated  set  up  on permanent  basis."  This  allegation  was  admitted  by  the opposite party. Later,  he  was appointed substantively as  Civil  Judge  on April 23, 1951.  He was placed in Group C (Civil Judges  and Munsiffs) and placed at No. 18 in the list of junior  posts. His  pay and emoluments were as before and he  retained  the same grading, namely Rs. 500-40-700.  His earned  increments were  not affected and, except for the change in  name,  his conditions of service were not worse than when he was in the service  of the Bikaner State.  We were given the  last  two facts by his counsel.  They do not appear in the paper book. All that is to be found there are 1017 references  to these orders but the orders  themselves  have not been included. Being  aggrieved  by  this, the  appellant  filed  the  writ petition  out of which this appeal arises on April 3,  1954. His  contention was that under the guarantee given  by  ’the United  State  of  Rajasthan, and  also  otherwise,  he  was entitled  to be posted as a District and Sessions  Judge  in the  new  set  up and that the posting of  April  23,  1951, reduced him in rank.  As that was done without affording him

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an  opportunity to show cause, Art. 311 of the  Constitution was violated. The  High  Court held that the posting of  April  23,  1951, which  purports to appoint the appellant substantively as  a Civil  Judge, is wrong and that it must be treated as an  ad hoc  appointment  till proper appointments are made  to  the Judicial Service of Rajasthan according to the  Constitution of India. The  learned  Judges  held that as there had  been  a  clear declaration that a new Judicial Service was to be created in Rajasthan  and that the existing officers from  the  various covenanting States were not to be taken into it as a  matter of course, it followed that all appointments to it would  be by  way  of fresh recruitment, and, as the  Constitution  of India  was  in force at that date, these  recruitments  must conform  to  its  provisions.  It was  admitted  before  the learned   Judges  that  after  the  Constitution  only   the Rajpramukh   had   power  to  make  rules   regulating   the recruitment and conditions of service of those appointed  to public services and posts in connection with the affairs  of the State until provision in that behalf is made by  an  Act of the Legislature, and it was also admitted that the  State Public  Service Commission must be consulted.  As  this  was not done, the learned Judges directed as follows: " The petition is allowed, the postings made by notification dated the 23rd April, 1951, including that of the petitioner as Civil Judge, are declared to be on an ad hoc basis, and a direction  is made to the Government to provide a  machinery according to the 1018 provisions of the Constitution for the first recruitment  to the Rajasthan Judicial Service." The  judgment  was delivered on September 5, 1955,  and  the appellant thereupon came here and was granted special  leave to appeal on April 16, 1956. In  the  meanwhile, according to the facts set  out  in  the respondent’s statement of the case, the Rajasthan Government complied  with the orders of the High Court, reframed  their rules  and made fresh appointments in accordance with  them. These  were duly published in the Rajasthan Gazette and  the appellant  was  finally selected to the  Rajasthan  Judicial Service.  He was appointed a Civil Judge. The  Appellant’s contention is that the order of  April  23, 1951,  reduced  him in rank and as he was  not  afforded  an opportunity  of showing cause, Art. 311 of the  Constitution was  violated.  If this contention is sound, it will  follow that  the  fresh appointment as Civil Judge after  the  High Court’s order will also be bad for the same reasons. Now  it is well established that when one State is  absorbed in  another,  whether  by  accession,  conquest,  merger  or integration,  all  contracts of service  between  the  prior Government  and  its servants  automatically  terminate  and thereafter  those who elect to serve in the new  State,  and are  taken on by it, serve on such terms and  conditions  as the  new State may choose to impose.  This is nothing  more, (though on a more exalted scale), than an application of the principle that underlies the law of Master and Servant  when there  is  a  change of masters.  So far as  this  Court  is concerned, the law is settled by the decision in The,  State of  Madras  v.  K. M. Rajagopalan  (1),  which  follows  the decisions  of  the Privy Council and the House of  Lords  in Reilly  v. The King (2), and Nokes v. Doncaster  Amalgamated Collieries  Ltd.  (3).  The distinction  between  rights  to property  and contractual rights when there is a  change  of sovereignty  was pointed out in Virendra Singh &  others  v.

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The State of Uttar Pradesh (4). (1)  [1955] 2 S.C.R. 541, 562. (2)  (1934) A.C. 176. (3)  (1940) A.C. 1014. (4)  [1955] 1 S.C.R. 415, 427. 1019 The  appellant founds on Art.  XVI(1) of the  Covenant.   It was contended that he cannot rely on this because he was not a  party to it but we need not decide this because, even  if this be assumed to be the law of the new State settling  the conditions of service of those who continue in service,  all that  it says is that the conditions of their  service  will not  be  less  advantageous than those on  which  they  were serving on November 1, 1948.  We have shown above that  this condition is fulfilled. But  that  apart,  Article XVI(1)  indicates  that  the  old contracts terminate just as they did in The State Of  Madras v.  K. M. Rajagopalan (1).  In the first place,  there  were three options: (1)  continuance in service, (2)  payment of reasonable compensation, and (3)  retirement on proportionate pension. That shows that the old contracts terminated and that  those who  continued  in  service did so on  the  basis  of  fresh contracts, the conditions of which had yet to be determined. The  only guarantee (assuming that the appellant  can  avail himself  of it) was that the new conditions were not  to  be less  advantageous  than those on which  the  appellant  was serving  on November 1, 1948.  There was no  guarantee  that they would be the same or better. This  was emphasised in the Rajasthan Gazette  Extraordinary dated June 4, 1949.  It first referred to the broad outlines of  the  programme  of integration  that  had  already  been published and then outlined the procedure and principles  to be observed in carrying it out.  Paragraph 6 is as follows: "After  final orders have been passed by the  Government  on the  Departmental  re-organisation schemes  and  cadres  and strength  for  different  kinds of  establishments  in  each department are fixed, the heads of departments will  prepare gradation  lists  according to prescribed rules and  put  up proposals for fixation of each individual Government servant in the posts on permanent, officiating or deputation basis. (1)  [1955] 2 S.C.R. 541, 562. 1020 They will also determine the revised rates of pay admissible to  each,  Gazetted and non-Gazetted officer under  the  new scales etc." and then paragraph 15- "  It  is  not  the intention of  Government  to  throw  any Government servant out of employ as far as .practicable.  If necessary, services of efficient and deserving staff will be retained temporarily on supernumerary basis in the  prospect of finding work for them in connection with new  development schemes." The order of December 9,1949, on which the appellant relies, transferring  him  as  District and Sessions  Judge  to  the District  Court at Ganganagar, must be read subject  to  the above  and, if Article XVI(1) of the Covenant applies,  then subject  to  that as well.  An order of transfer  cannot  be equated to an order of appointment; and in any case, the new cadres had not been established and the new Courts under the proposed scheme of re-organisation had not been constituted, so,  anything done at that stage could only have  been  part and  parcel  of  the  temporary  transitional   arrangements

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pending the final settlement by the new State of the schemes and conditions of service. The  next set of orders published in the Gazette of May  25, 1950, brings this out clearly.  We have already set out  its terms. The orders of March 25, 1950, and July 31, 1950, sanctioning the  increment do not help the appellant.  He  is  described there as "  Shri  Rajvi  Amarsingh, District and  Sessions  Judge  in Bikaner Division." This is merely descriptive as the endorsement on the  letter indicates.  It runs- " Copy forwarded to- (1)  Shri  Amarsingh,  Civil  and  Addl.   Sessions   Judge, Jhunjhunu." No  determination  to post the appellant  permanently  in  a particular  cadre  and  post can be  spelled  out  of  these accidental  descriptions in orders dealing with a  different matter.  Postings to a cadre and engagements of service  are not made in this incidental way. 1021 The  substantive  appointment gazetted on  April  23,  1951, after  the new cadres and Courts had been fixed, was  struck down by the High Court, and the Government of Rajasthan  was directed to treat that as an ad hoc appointment.   According to  the respondent in its statement of the case, the  matter was  regularised  after the High Court’s  decision  and  the appellant was again appointed a Civil Judge.  If that is so, then  this  must  be  regarded  as  his  first   substantive appointment in the new State.  But whether this is his first substantive appointment after the integration, or the one of April  23, 1951, no question of reduction in rank can  arise and so Art. 311 is not attracted.  All his previous postings in the new State were purely transitional and temporary; and so  far  as Art.  XVI(1) of the Covenant is  concerned,  its guarantee has been fulfilled. The appeal is dismissed with costs.                      Appeal dismissed.