Full Judgment Text
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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
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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
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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
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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