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PETITIONER: STATE OF ORISSA

       Vs.

RESPONDENT: DURGA CHARAN DAS

DATE OF JUDGMENT: 06/12/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. RAMASWAMI, V. SATYANARAYANARAJU, P.

CITATION:  1966 AIR 1547            1966 SCR  (2) 907  CITATOR INFO :  RF         1990 SC 334  (30)

ACT: Government of India (Construction of Orissa) Order, 1936, s. 23(2)-Protection Rules framed thereunder to protect  members of a Provincial or subordinate service required to serve  in Orissa-Rule  6--Whether protection of pension rights  covers any rights of promotion to selection posts.

HEADNOTE: The  respondent  joined service as an Assistant in  the  old Bihar  &  Orissa Secretariat and upon the formation  of  the Province   of   Orissa,  was  transferred  to   the   Orissa Secretariat.   In due course he secured  certain  promotions and  on the 24th April 1954, he was temporarily promoted  to officiate  as  Registrar for a short period.  He  was  again promoted  temporarily in February 1956 and was confirmed  as Registrar  on  the  4th October 1958.   When  he  eventually retired  from service on 17th October 1959, his pension  was calculated  by  reference  to his date  of  confirmation  as Registrar  and  was fixed by the State Government  at  190/- p.m. The  respondent claimed that for the purpose of  determining his  pension he should be deemed to have been  confirmed  on 24th  April  1954 and his pension fixed at  Rs.  290/-  p.m. Alternatively  he claimed that by virtue of  the  protection available to him under Rule 6 of the Protection Rules framed under  s. 23(2) of the Government of India (Construction  of Orissa)  Order,  1936,  whereby the  conditions  of  service including  pay,  allowances,  pension,  etc.  of   employees transferred to Orissa Could not be less favourable than they were  in  the  old Bihar & Orissa  Secretariat  Service,  he should be deemed to have been confirmed as Registrar at  the latest on the 23rd August 1956 and his pension fixed at  Rs. 290/-  p.m.;  this  latter date was the  date  on  which  an officer who was junior to him in the cadre of the old  Bihar JUDGMENT: Bihar Government. The  appellant State rejected these claims  and  ’respondent

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thereafter  took  the  matter to the High Court  by  a  writ petition  under  Art.  226.  The  High  Court  rejected  the respondent’s  first  claim but found in his  favour  on  the alternative  claim and directed the appellant to  refix  his pension by treating the respondent as having been  confirmed on 23rd August 1956. In  the appeal to this Court, it was also  contended,  inter alia,  that in view of another specific instance  where  the entitlement  to  salary  of a Registrar  was  determined  by reference  to the date when an officer junior to him in  the Bihar service was promoted as Registrar, the treatment meted out to the respondent was discriminatory. HELD:  The  High  Court’s order must be set  aside  and  the respondent’s writ petition dismissed. In coming to its conclusion, the High Court had  incorrectly assumed  that the protection afforded by R. 6 to the  public servants transferred to Orissa took within its sweep  claims for promotion to higher posts and 908 that  in  determining whether R. 6 had been  contravened  it would  be relevant and material to inquire when the  officer in question would have been promoted to a corresponding post if he had continued in service in Bihar. [910 H-911 B] What  R. 6 guarantees is that the public servants  who  were transferred  to  Orissa will not suffer in regard  to  their pay,,   allowance,  leave  and  pension;  these   respective conditions did not include a claim for promotion to a higher selection  post  because  for such  promotion  a  number  of factors  such as the existence of a vacancy, seniority,  the record  of the officer concerned, the eligibility  of  other persons, etc., had to be taken into consideration. [911 E-G] As promotion to a selection post was outside the terms of R. 6,  a claim for promotion could not be indirectly  permitted on  the ground that it had a bearing on the of’  pension  to which  a transferred public servant would be entitled.  [912 G-913 B-D] The  instance  cited  to  show  discrimination  against  the appellant  was also outside R. 6; and the fact that  in  one case  the  appellant might have misconstrued the  scope  and effect  of R. 6 would not justify a claim by the  respondent that  the  Rule should be similarly construed in  all  other cases thereafter. [916 C]

& CIVIL APPELLATE JURISDICTION : Civil Appeal No. 751 of 1964. Appeal from the judgment and order dated May 7, 1963 of  the Orissa High Court in O.J.C. No. 270 of 1962. N.   S.  Bindra, B. R. G. K. Achar and R. N.  Sachthey,  for the appellant. S.   N. Andley, Rameshvar Nath and P. L. Vohra, for the res- pondent. The Judgment of the Court was delivered by Gajendragadkar,  C.J. This appeal which has been brought  to this  Court  on  a certificate granted by  the  Orissa  High Court,  raises  a short question about the  construction  of Rule  6  of  the Rules issued  by  the  Governor-General  in Council  on the 15th September, 1936, for the protection  of members  of a Provincial or Subordinate service required  to serve  in,  or  in connection with, the  affairs  of  Orissa (hereinafter  called "the Protection Rules").   These  Rules were  framed by the Governor-General in Council in  exercise of  the  powers  conferred on him by section  23(2)  of  the Government of India (Construction of Orissa) Order, 1936, in

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view  of  the fact that a separate Province  of  Orissa  had already  been  formed  on the 1st  April,  1936.   The  said question arises in this way : The respondent, Durga Charan Das, joined as an Assistant  in the old Bihar & Orissa Secretariat prior to the formation of the                             909 Province  of Orissa.  When the said Province was formed,  he was transferred to the Orissa Secretariat, Home  Department. In  due  course, he was promoted to higher  posts,  such  as Junior  Head Assistant and Senior Head Assistant.   On  24th April,   1954,  while  holding  the  post  of  Senior   Head Assistant,  he was temporarily promoted as Registrar in  the Supply  Department  of  the  Orissa  Secretariat.   On  22nd December,  1954, he was reverted to his substantive post  as Head Assistant in the Home Department.  Later, he was  again promoted to officiate as Registrar in the Supply  Department on  3rd February, 1956.  In June, 1957, he was  promoted  to officiate as Assistant Secretary in the same Department, and ultimately  he  was  confirmed as Registrar  in  the  Orissa Secretariat  on  the  14th October,  1958.   Eventually,  he retired from service on the 17th October, 1959. At the time of his retirement, a question arose about fixing the  amount of his pension.  For the purpose of  determining this amount, the relevant date was the date on which he  was confirmed  as  Registrar, because he held the  post  of  the Assistant Secretary to which he was promoted for some  time, only  on an officiating basis.  The appellant, the State  of Orissa,  fixed the pension of the respondent at Rs. 190  per month by reference to 14th October, 1958, which was the date on which he was confirmed as Registrar.  The respondent then represented  to  the appellant that he should be  deemed  to have  been confirmed as Registrar on the 24th  April,  1954, and his pension calculated on that basis at Rs. 290 p.m.  In the  alternative, he urged that he should be deemed to  have been  confirmed  as  Registrar at the  latest  on  the  23rd August,  1956;  he pleaded this date, because his  case  was that on that date, Mr. J. N. Dutta, who was Junior to him in the  cadre of the old Bihar & Orissa Secretariat,  had  been confirmed  as  Registrar in the Bihar Government.   On  this latter  basis, the respondent would be entitled to  get  Rs. 240  p.m.  as  pension.  The  appellant  rejected  both  the prayers made by the respondent, and that took the respondent to the High Court under Article 226 of the Constitution.  By this  writ petition, the respondent claimed  an  appropriate writ calling upon the appellant to fix his pension either on the  footing that he had been confirmed as Registrar on  the 24th April, 1954, or, at any rate, on the 23rd August, 1956. This  plea was resisted by the appellant and it was  pleaded by  it  that  the  claim made  by  the  respondent  was  not justified by the provisions of R. 6 of the Protection Rules. The High Court hap, held that the respondent’s claim to have his pension calculated on 910 the basis that he should be deemed to have been confirmed as Registrar on the 24th April, 1954, was not well-founded.  It has, however, found in favour of the respondent in regard to the  alternative claim made by him, and accordingly  it  has directed the appellant to re-fix the pension payable to  the respondent  on  the footing that the  respondent  should  be treated as having been confirmed as Registrar in the  Orissa Secretariat with effect from 23rd August, 1956.  It is  this order  which is challenged by the appellant before  us,  and that raises the question about the construction of R.  6  of the Protection Rules.

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             Rule 6 of the Protection Rules reads thus                "The  conditions of service as respects  pay,               allowances leave and pension of any member  of               Provincial  or  Subordinate  service   serving               immediately before the 1st day of April,  1936               in  or in connection with the affairs  of  the               province of Bihar & Orissa, who is required to               serve in or in connection with the affairs  of               Orissa  shall  not  in the case  of  any  such               person while he is serving in or in connection               with the affairs of Orissa be less  favourable               than they were immediately before the 1st  day               of April, 1936.                Provided  that the Government of  Orissa  may               make  such  alterations in the  conditions  of               service  of  any  such person  as  would  have               applied  to  him  if he had  passed  from  the               service of the Government of Bihar & Orissa to               the service of the Government of Bihar.                Provided  further that nothing in  this  rule               shall  apply  to conditions of  service  which               prescribe rates of travelling allowance". The  High Court has, no doubt, recognised the fact that  the confirmation of an officer in a particular case would depend on  several  factors, such as the existence of  a  permanent vacancy,  the claim of officers senior to a  given  officer, the  record of the officer concerned, and the opinion  which the  Public Service Commission may form about his merits  in relation to confirmation.  Even so, the High Court has taken the  view  that  since  Mr. Dutta  who  was  junior  to  the respondent  had  in fact been promoted as Registrar  on  the 23rd  August, 1956, that can reasonably be taken to  be  the date on which the respondent was entitled to be confirmed by virtue  of  the  provisions  of R.  6.  In  coming  to  this conclusion,  the High Court has made two  assumptions.   The first  assumption  is that the protection  afforded  to  the public servants transferred 911 to  Orissa  took within its sweep claims  for  promotion  to higher   posts;  and  the  other  assumption  is   that   in determining  the question as to whether the provision as  to the  said  protection  has been  contravened,  it  would  be relevant  and  material  to  enquire  when  the  officer  in question would have been promoted to a corresponding post if he  had continued in service in Bihar.  Proceeding  to  deal with this problem on the basis of these two assumptions, the High  Court has thought it reasonable to draw the  inference that  the respondent would certainly have been  promoted  as Registrar and confirmed as such, at the latest, on the  23rd August,  1956, when Mr. Dutta who was junior to him  was  in fact  promoted and confirmed as Registrar.  Mr.  Bindra  for the appellant contends that the assumptions made by the High Court in reaching this conclusion are not well-founded.   In our opinion, Mr. Bindra is right. The  Rule in question protects the conditions of service  as respects  pay, allowances, leave and pension of the  members falling under its purview, and it guarantees that in no case shall  the  terms  in relation to  the  said  conditions  of service be less favourable than they were immediately before the  1st  of April, 1936.  The question is: do  any  of  the conditions  specified in R. 6 include a claim for  promotion to  a higher selection post and confirmation in it.   It  is well  known  that  promotion to a selection post  is  not  a matter  of right which can be claimed merely  by  seniority. Normally, in considering the question of a public  servant’s

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claim  for promotion to a selection post, his seniority  and his  merits  have to be considered; and so, it seems  to  us very  difficult to accept the view taken by the  High  Court that  in  R. 6 of the Protection Rules, a guarantee  can  be inferred  in regard to promotion to a selection post.   What the  Rule  guarantees is that the public servants  who  were transferred  to  Orissa will not suffer in regard  to  their pay,  allowances,  leave and pension; and  these  respective conditions do not seem to include a claim for promotion to a higher  selection post; and indeed, it seems  very  unlikely that any protection could ever have been reasonably intended to be given in regard to promotion to a selection post. It  is  true  that in 1939, a  question  arose  whether  the prospects   of  promotion  of  transferred   officers   were protected  by  the Protection Rules, and  the  Joint  Public Service  Commission  for  Bihar,  Orissa,  and  the  Central Provinces, which was functioning in 1939, took the view that the  said  Rules  must be interpreted  to  require  that  an officer  transferred from Bihar and Orissa to  Orissa  shall have prospects of promotion as good as he would have had  in Bihar and Orissa, and when promoted shall draw pay not  less than 912 that  which he would have drawn if so promoted in Bihar  and Orissa. Similarly,  the  Governor of Orissa,  after  consulting  the Governor-General in Council, issued some instructions on the 28th January, 1942, clarifying R. 6 of the Protection Rules. One   of  these  instructions  provided  that   the   object underlying  the  Governor-General  in  Council’s  Protection Rules,  1936, was to ensure the transferred officers a  fair deal under the new Government.  The instruction,  therefore, added  that the Provincial Rules should in all cases  be  so applied  as  to  secure this result.  In  other  words,  the essential  requirement is that the spirit of the  Protection Rules  should be fully observed and hard cases, should  they occur, should be given special treatment. This  instruction is general in terms, and does not  support the view taken by the High Court that a claim for  promotion to a selection post is included within the term of R. 6.  In our  opinion, there can be no doubt that the  interpretation placed  by  the  Joint  Public  Service  Commission  on  the Protection  Rules, or the opinion expressed by the  Governor of  Orissa, though perhaps relevant, cannot have a  material bearing on the construction of the Rule in question when the matter  reaches the Court.  It is for the Court to  consider the  Rule fairly, taking into account the spirit  underlying the Rule and the object intended to be achieved by it.  Even the  High Court has observed that "though,  ordinarily,  the right of promotion and confirmation in particular posts  may not  be  said  to  have  been  expressly  protected  by  the Protection  Rules, nenertheless, where these have  a  direct bearing  either on the pay or the pension of  a  transferred officer,  the  protection  must be  deemed  to  cover  these aspects also, having regard to the letter and spirit of  the Protection Rules".  In other words, the High Court seems  to have  taken the view that though promotion and  confirmation in particular posts cannot be claimed directly under R. 6, a claim in that behalf can be indirectly permitted if it has a bearing  on  the amount of pension to  which  a  transferred public  servant  would be entitled on  retirement.   It  is, therefore, necessary to consider this aspect of the matter. It  is common ground that the amount of pension  payable  to the respondent has to be calculated by reference to the date on  which he was confirmed as a Registrar; and the  argument

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which  found  favour  with  the  High  Court  was  that   in determining  this  amount, it would be relevant  to  enquire when the respondent would have been promoted to the post  of a Registrar if he had continued to serve in Bihar.  If it is shown that he would have been                             913 promoted  to the post of a Registrar, for instance,  on  the 23rd  August,  1956,  his pension should  be  calculated  by reference  to that date.  That is how the date of  promotion and  confirmation  are  alleged to have  a  bearing  on  the determination  of  the  amount of  pension  payable  to  the respondent.   In  our opinion, if promotion to  a  selection post is outside the terms of R. 6, it would be difficult  to entertain the claim made by the respondent on the basis that his  junior  Mr.  Dutta had been promoted  to  the  post  of Registrar  and confirmed as such on the 23rd  August,  1956. As we have already indicated, promotion to a selection  post depends  upon  several  relevant  factors;  the  number   of vacancies  in  the posts of Registrars is  one  factor;  the number  of  persons  eligible for  the  said  promotions  is another  factor; and the seniority of the  said  competitors along  with their past record and their merits as judged  by the Public Service Commission, is yet another factor.   Now, it  seems to us unreasonable and impracticable to  determine this  question  by reference to another enquiry as  to  when officers  junior to the respondent were promoted  in  Bihar. An attempt to correlate the question about the promotions of officers  transferred to Orissa with promotions  secured  by officers   in  Bihar,  seems  to  us  to  be   outside   the contemplation  of R. 6. The difficulties in making  such  an assessment  or estimate are too plain to need  any  detailed enumeration. Mr.  Andley for the respondent attempted to argue  that  the respondent  had received unfair treatment in as much as  the Rules of promotion which would have governed his case if  he had  continued  in Bihar, are radically different  from  the Rules of promotion which were introduced in Orissa after his services were transferred to Orissa, and that, he  contends, is  a  contravention of R. 6 of the Protection  Rules.   The relevant  rule in Bihar for promotion is R. 2(1);  it  reads thus               "Rule 2(1)-Registrar,-               The post of Registrar (Pay B & 0 Old  ScaleRs.               500-20-600)-(B  & 0 Revised Scale-Rs.  450-20-               550)  in  the Secretariat is  a  Gazetted  and               belongs  to  the General  Provincial  service.               The  appointment  is  made  by  Government  in               consultation  with the State,  Public  Service               Commission.  Selection is ordinarily made from               among  the  Section Heads  of  the  Department               concerned,   failing  which  from  among   the               Section  Heads  of other  Departments  of  the               Secretariat". 914 This  Rule  is contrasted by Mr. Andley  with  the  relevant Service Rules which were in force in Orissa; they are  Rules 6 to 9. R. 6 ,of these Rules reads thus :-’               "Ordinarily  by  the 1st April  each  Calendar               year,  the departments of the Secretariat  and               the  Secretary to Chief Minister shall  notify               to the Home Department the number of vacancies               in   the  rank  of  Registrar  and   Assistant               Secretary which have occurred or are likely to               occur during the twelve months commencing from               the following July.  They shall also report to

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             the  Home Department in order of seniority  in               the  form appended to the rules  (Appendix  1)               the names and other particulars of service  of               Head  Assistants  both Senior and  Junior  who               have not officiated as Registrar or  Assistant               ’Secretary   on  the  recommendation  of   the               Commission by the time the reference is  made,               and other Ministerial Officers, whose pay  and               status  are at least equivalent to those of  a               Junior   Head  Assistant  and  also  of   such               Accountants  and Record Keepers, who draw               pay  in  the  scales of  pay  of  Junior  Head               Assistant or in higher scale.               The  Service Book and Character Rolls  of  all               such  officers  with  latest  appreciation  of               their work by the Secretary of the  Department               concerned  with particular reference to  their               suitability  for  promotion  to  the  rank  of               Assistant Secretary or Registrar shall also be               forwarded to the Home Department". R.   7  provides that the Government in Home  Department  on receipt  of the requisite information from  all  departments shall report to the Commission within the time specified  by it and intimate to it the relevant details indicated in  it. R.  8 then requires the Commission to proceed to assess  the suitability  of candidate for promotion; and R.  9  provides that the Commission shall prepare two separate lists,  viz., (a) a list of those candidates who are fit for promotion  to the ranks of both Registrar and Assistant Secretary, and (b) a  list of those fit for promotion to the rank of  Registrar only,  but  not to that of Assistant  Secretary,  and  shall arrange the names in order of merit.  The lists so  prepared by the Commission have to be forwarded to the Government  in the Home Department within the time specified. Mr.  Andley’s argument is that whereas under R. 2(1) of  the Bihar  Rules,  selection is ordinarily made from  among  the Section  Heads  of the Department concerned,  the  selection under  the relevant Orissa Rule is made from a larger  class of public servants 915 indicated   therein.   We  are  not  satisfied   that   this contention  is  well-founded.  In the  present  proceedings, besides  quoting  the relevant Rules in  the  petition,  the respondent has led no further evidence to show what  exactly is  meant by the Section Heads of the  Department  concerned mentioned in R. 2(1) of the Bihar Rules; and in the  absence of any material, it would be difficult for its to accept Mr. Andley’s   argument  that  the  conditions   for   promotion prescribed  by R. 2(1) of the Bihar Rules are  substantially or radically different from the conditions prescribed by the relevant  Orissa Rules, and thereby caused prejudice to  the respondent  within  the meaning of R. 6  of  the  Protection Rules. Mr.  Andley  also suggested that under  the  relevant  Bihar Rule,  promotion  would go entirely  by  seniority,  whereas under the Orissa Rule, it is on considerations of  seniority coupled with merit.  We do not think Mr. Andley is right  in assuming  that  selection under R. 2(1) of the  Bihar  Rules could  have  been intended to be made only by  reference  to seniority.   The  very  concept of  selection  involves  the consideration  of  seniority coupled with  merit,  which  is generally   described  as  the   seniority-cum-merit   test. Besides,  this aspect of the matter does not appear to  have been argued before the High Court and in the absence of  any material on the point and in the absence of any decision  by

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the High Court on it, we cannot entertain this contention. We  may incidentally point out that though in his  petition, the  respondent has made some vague  allegations  suggesting that  the  appellant did not deliberately appoint him  in  a permanent  vacancy of the Registrar’s post, he has  produced no  satisfactory evidence to support the said plea,  On  the other  hand, it appears that in 1954. when the case  of  the respondent was examined by the Public Service Commission, it made  a  definite  recommendation  that he  was  fit  to  be Registrar  for  stop-gap arrangements only,  and  it  speci- fically  added that he should not be given  preference  over those  whose  positions are higher up in the list  even  for vacancies   exceeding  a  period  of  four   months.    This recommendation clearly indicates that the Character Roll  of the  respondent  was not as satisfactory as it  should  have been; and so, the argument that his appointment to the  post of  Registrar  and confirmation in it were  unduly  delayed, loses all significance. Mr. Andley also attempted to argue that the decision of  the High Court could be justified because, in law, the treatment meted out to the respondent can be properly characterised as discriminatory.   In  support  of  this  plea,  Mr.   Andley referred us to the case of Mr. Beuria.  It appears that  Mr. Beuria who was also trans- 916 ferred  from Bihar to Orissa as a Head Assistant,  was  held entitled  to  get the pay of Registrar  from  1st  December, 1948, and this ,order which was passed on the 12th  October, 1960,  was  given retrospective effect from  1-12-1948.   It does appear that this order was passed on the basis that Mr. Beuria  was entitled to the salary of a  Registrar,  because Mr.  Prasad who was junior to him in Bihar was  promoted  to the rank of Registrar on 1-12-1948.  We do not see how  this single  case  can be pressed into service by Mr.  Andley  in support  of  his  argument  that  there  has  been   illegal discrimination against the respondent.  On the view we  have taken  about the scope and effect of R. 6 of the  Protection Rules,  what the appellant has done in regard to Mr.  Beuria must,  prima facie, be held to be outside the Rule; but  the fact that in one case the appellant might have  misconstrued the scope and effect of R. 6 of the Protection Rules,  would not  justify a claim by the respondent that the Rule  should be similarly misconstrued in all cases thereafter.   Whether or  not the respondent is entitled to claim his  pension  on the  footing that he should be deemed to have been  promoted and confirmed as Registrar on the 23rd August, 1956, must be determined  in  the light of what we regard to be  the  true scope and effect of R. 6 of the Protection Rules.  What  the appellant did in Mr. Beuria’s case has no relevance in  that behalf. Besides, if the respondent was serious about his plea  about discrimination,  he  should have adduced  more  satisfactory evidence  in support of such a plea.  No evidence  has  been led  in the present proceedings and no other case  like  the case of Mr. Beuria has been cited.  If the respondent’s plea of discrimination was accepted on the strength of the single case  of  Mr.  Beuria,  it would  follow  that  because  the appellant placed a misconstruction on the relevant Rule,  it is bound to give effect to the said misconstruction for  all times; that, plainly, cannot be said to be sound. When  we  heard  this appeal, we enquired  from  Mr.  Bindra whether the appellant was justified in pressing the  present appeal against a single public servant like the  respondent, particularly  in  view of the fact that it had  treated  Mr. Beuria’s case on the basis of the interpretation of R. 6  of

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the  Protection  Rules on which the respondent  relies.   We were told that the appellant was anxious to have a  decision from  this  Court on this point, because  the  present  case would  serve  as  a test case and may be relied  upon  as  a precedent by several public servants in Orissa who belong to the  category of the respondent.  In fact, in  granting  the certificate, 917 the High Court has observed that the question raised is  un- doubtedly of public importance, because it will affect  many other  Government  servants of the old Province of  Bihar  & Orissa who were permanently transferred to Orissa when  that Province  was separated from Bihar on the 1st April,. 1 9  3 6. The  result is, the appeal is allowed, the order  passed  by the High Court is set aside, and the writ petition filed  by the  respondent is dismissed.  In the circumstances of  this case,  we  direct that parties should bear their  own  costs throughout. Appeal allowed. 918