Full Judgment Text
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PETITIONER:
DEBESH CHANDRA DAS
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT:
08/04/1969
BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
MITTER, G.K.
CITATION:
1970 AIR 77 1970 SCR (1) 220
1969 SCC (2) 158
CITATOR INFO :
RF 1971 SC 766 (11)
F 1976 SC1899 (22)
ACT:
Constitution of India, Art. 311(2)-Secretary to Central
Government asked to accept lower post at centre or revert to
parent state or retire-Whether amounted to reduction in
rank-If procedure under Art. 311(2) required to be followed.
HEADNOTE:
The appellant joined the Indian Civil Service in 1933 and
was thereafter allotted to the State of Assam. On July 29,
1964 he was appointed as Secretary to the Government of
India "until ’further orders". On June, 20, 1966 he
received a letter from the Cabinet Secretary advising him
that in relation to the question of building up a higher
level of administrative efficiency it had been decided by
the Government that the appellant should revert to his
parent State, or proceed on leave preparatory to retirement,
or he should agree to accept some post lower than that of
Secretary to the Central Government. After the appellant
had made representations to the Cabinet Secretary and the
Prime Minister, he received another letter from the Cabinet
Secretary in September, 1966. affirming the Government’s
decision that the appellant’s services would be placed at
the disposal of his parent State of Assam or he could
proceed on leave preparatory to retirement.
The appellant challenged these orders by a writ petition
under Art. 226 of the Constitution on the ground that the
orders were violative of Art. 311(2). The High Court
dismissed the petition and a Letters Patent appeal was also
rejected.
It was contended on behalf of the appellant that the
reversion of the appellant to the Assam Service amounted to
a reduction in his rank on the ground that he held a higher
post in the Government of India and there was no post equal
to it under the Assam Government; the post of the Chief
Secretary in the Assam Government was equal to the Post of a
Joint Secretary in the Government of India and his reversion
would therefore indirectly mean a reduction in his rank and
also in his emoluments because the highest post in Assam did
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not carry a salary equal to that of a Secretary in the
Government of India. He also contended that the letters
from the Cabinet Secretary spoke of his unsatisfactory work
and cast a stigma on him; his reversion must, therefore, be
treated as a penalty and as the procedure laid down under
Art. 311(2) was not followed, the orders of the Government
of India could not be sustained. On the other hand it was
contended on behalf of the Government that the appellant was
on deputation and the deputation could be terminated at any
time; that his orders of appointment clearly showed that the
appointment was "until further orders" -and he had no right
to continue in the Government of India if his services were
not required; his reversion to his parent State did not
amount either to any reduction in rank or a penalty and the
orders were therefore quite legal.
HELD : allowing the appeal,
It was clear on the facts that the appellant was being
reduced in rank with a stigma upon his work without
following the procedure laid down in Art. 311(2) of the
Constitution. [229 G-H]
221
As a Secretary to the Central Government the appellant held
a tenure post, which was normally for a period of five years
and he could expect to continue in that post until 29th
July, 1969. Nothing turned upon the words of the
notification "until further orders" because all appointments
to tenure posts had the same kind of order. He was not
therefore on a deputation which could be terminated at -any
time. The fact that it was found necessary to break into
the appellants’s tenure period close, to its end must be
read in conjunction with the three alternatives offered to
him and these clearly demonstrated that the intention was to
reduce him in rank by sheer pressure of denying him a
Secretaryship. [229 B-D]
The letter addressed to the appellant in June, 1966,
containing the ,Offer of a lower post in Delhi was a clear
pointer to the fact of his (]emotion. It clearly told him
that his reversion was not due to any exigency of service
but because he was found wanting. This was not a case of
reverting the appellant to Assam at the end of a deputation
or tenure and the final alternative that he could retire
clearly showed that the Government was bent upon removing
him from his present post. As there was no post in the
Assam State Service carrying the same emoluments as those of
a Secretary to the Central Government, on the facts of the
present case the appellant’s reversion to Assam meant a
reduction in rank within the meaning of Art. 311(2). [228 A-
B; 229 F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2065 of 1968.
Appeal from the judgment and order dated September 18, 1968
of the Calcutta High Court in F.M.A. No. 381 of 1967.
B. Sen, B. P. Maheshwari, A. N. Parikh and S. M. Jain, for
the appellant.
D. Narsaraju, R. H. Dhebar and S. P. Nayar, for
respondents Nos. 1. and 2.
The Judgment of the Court was delivered by
Hidayatullah, C.J. This is an appeal against the judgment of
the High Court of Calcutta dismissing a writ petition filed
by the appellant Debesh Chandra Das. This appeal is by
certificate against the judgment dated September 18, 1968.
The appellant is a member of the Indian Civil Service. He
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qualified in 1933 and arrived in India in 1934 and was
allotted to Assam. In 1940 he came to the Government of
India and became in turn Under-Secretary and Deputy-
Secretary, Home Ministry. In 1947 he went back to Assam
where he held the post of Development Commissioner and Chief
Secretary. In 1951 he again came to the Government of India
as Secretary, Public Service Commission. In 1955 he became
Joint Secretary to the Government of India and continued to
hold that post till 1961. From 1961 to 1964 he was Managing
Director of Central Warehousing Corporation. On July 29,
1964, he was appointed Secretary, Department of Social
Security with effect from July 30, 1964 and until further,
orders, On March 6, 1965 the,
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Appointments Committee of the Cabinet approved the proposal
to continue him as Secretary, Department of Social Security.
He continued in that Department, which is now renamed as the
Department of Social Welfare. On June 20, 1966 he received
a -letter from the Cabinet Secretary which was to the
following effect:
"My dear Debesh:
For sometime, the Government has been examin-
ing the question of building up a higher level
of administrative efficiency. This is much
more important in the context of the recent
developments in the country. The future is
also likely to be full of problems. In this
connection, the Government examined the names
of those who are at present occupying top
level administrative posts with a view to
ascertaining whether they were fully capable
of meeting the new challenges-or whether they
should make room for younger people. As a
result of this examination, it has been
decided that you should be asked either to
revert to your parent State or to proceed on
leave preparatory to retirement or to accept
some post lower than that of Secretary of
Govt. I would be glad if you would please let
me know immediately as to what you propose to
do so that further action in the matter may be
taken.
Yours sincerely,
Sd/-
(DHARMA VIRA)".
He asked for interview with the Cabinet Secretary and the
Prime Minister and represented his case but nothing seems to
have come of it. On September 7, 1966 he received a second
letter from the Cabinet Secretary which said inter alia as
follows :
"........ I am now directed to inform you that
after considering your oral and written
representations in the matter Government has
decided that your services may be placed at
the disposal of your parent state, namely,
Assam. In case, however, you like to proceed
on leave preparatory to retirement, will you
please-let me know ?. . . "
The appellant treated these orders as reduction in his rank
,and filed a writ petition in the High Court of Calcutta on
September 19, 1966. According to him the order amounted to
a reduction in rank since the pay of a Secretary to the
Government of India (I.C.S.) is Rs. 4,000 and the highest
pay in Assam (I.C.S.)
22 3
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is Rs. 3,500. -There being no equal post in the Government
of Assam his reversion to the Assam Service meant a
reduction not only in his emoluments but also in his rank.
He also contended that he held a 5 years’ tenure post and
the tenure was to end on July 29, 1969 but was wrongly
terminated before the expiry of five years. He also alleged
that there was a stigma attached to his reversion as was
clear from the three alternatives which the letter of the
Cabinet Secretary gave him. The highest post in the
Government of Assam being equivalent to the Joint Secretary
of Government of India, his reversion to the highest post,
i.e. Chief Secretary to the Government of Assam, amounted to
a reduction in rank. He contended, if this was the case,
the procedure under Art. 311(2) of the Constitution ought to
have been followed and without following that procedure the
order was not sustainable.
When the appellant filed the writ petition he was appointed
as a Special Secretary on October 15, 1966 but under one of
his juniors. It may be mentioned here that the appellant is
next only to the Cabinet Secretary in the matter of
seniority. He also received a letter from the Government of
India dated October 20, 1966 in which it was said that
Government was considering giving him a post equal to that
of a Secretary. The writ petition was dismissed by Justice
A. N. Ray on May 19, 1967. The following day the appellant
was again riposted to Assam but he filed an appeal and
obtained a stay. On March 21, 1968 he was appointed
Secretary in the Department of Statistics in the Central
Government. The appeal was heard by Justice P. B. Mukharji
and Justice A. N. Sen who differed, the former was in favour
of dismissing the appeal while the latter was in favour of
allowing it. The appeal was then laid before Sankar Prosad
Mitra, J. who agreed with Justice Mukherji and the appeal
was dismissed on September 18, 1968. On September 20, 1968
the appellant was reposted to Assam. He, however, filed the
present appeal and has proceeded on leave although no orders
on leave application seemed to have been passed when we
heard the appeal.
In this appeal also, it is contended that the reversion of
the appellant to the Assam Service amounts to a reduction in
rank. This is on the ground that he held a higher post in
the Government of India and there is no post equal to it
under the Assam Government. The post of the Chief Secretary
in the Assam Government is equal to the post of a Joint
Secretary in the Government of India and his reversion would
therefore indirectly mean a reduction in his rank and also
in his emoluments because the highest post in Assam does not
carry a salary equal to that of a Secretary in the
Government of India. He also contends that under Art.
311(2) an enquiry had to be made and he had to be
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given a chance of explaining his case in the reduction in
rank amounted to a penalty. He contends that the letters of
the Cabinet Secretary speak for themselves and clearly show
that he was being offered a lower post even in the
Government of India if he was to continue here denoting
thereby a desire to reduce him in rank. The letters
also speak of his unsatisfactory work and, therefore, cast
a stigma on him and therefore his reversion must be treated as
a penalty and if the procedure laid down under Art. 311(2)
is not followed, the order of the Government of India could
not be sustained. This, in short, is the case which he had
put up before the High Court and has now put up before us.
The Government of India contends that he was on deputation
and the deputation could be terminated at any time; that his
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orders of appointment clearly show that the appointments
were "until further orders" and that he had no right to
continue in the Government of India if his services were not
required and that his reversion to his parent State did not
amount either to any reduction in rank or a penalty, and,
therefore, the order was quite legal.
Prior to 1946 the members of the Indian Civil Service were
in a Civil Service of the Secretary of State. As a result
of a conference between Chief Ministers and the Government
of India an All India Administrative Service was constituted
in October 1946. This agreement was entered into under S.
263 of the Government of India Act, 1935. The Indian
Administrative Service was common to the Centre and the
Provinces. On January 25, 1950 rules were framed under ss.
241(2) and 247 of the Government of India Act, 1935. These
rules were known as the Indian Civil Administrative (Cadre)
Rules, 1950. Under these rules cadres were constituted. A
’cadre’ is defined in Fundamental Rule 9(4) as the strength
of a service or a part of a service sanctioned as a separate
unit. In these rules ’cadre officer’ meant an officer
belonging to any of these categories specified in rule 4 and
’cadre post’ meant any duty post included in the Schedule to
the Rules. In rule 4, it was provided that every cadre post
shall be filled inter alia by an officer who is a member of
the Indian Civil Service.’ In the Schedule Assam was to have
20 senior posts under the Provincial Government, 6 senior
posts under the Central Government and 37 posts-for direct
recruitment, and junior posts and certain services. After
1954 a number of Rules were framed and we are concerned in
this case with the Indian Administrative Service (Cadre)
Rules 1954, Indian Administrative Service (Fixation of Cadre
Strength) Regulations 1955 and Indian Administrative Service
(Pay) Rules 1954. Under the Pay Rules were shown the posts
carrying pay above the time scale pay in the Administrative
Service under the State Governments. In Assam there were
225
four such posts. Chief secretary (Rs. 3,000), Member, Board
of Revenue, Commissioners and Development Commissioners (Rs.
2500-125/2-2750). These four were the Only posts above the
time-scale and the highest pay possible was that of a Chief
Secretary carrying Rs. 3,000/- p.m. [vide All India Service
Manual (1967) p. 2481. The lower-posts in Assam were;
Secretaries, Additional Secretaries, Joint Secretaries etc.
who were on a time scale with ceiling of Rs. 2,250 p.m.
(ibid p. 263) As against this the posts carrying pay above
the time-scale or special pay in addition-to pay in the
time-scale under the Central Government when held by Indian
Administrative Service men were Secretaries to the
Government of India with a pay of Rs. 3,500/- (Rs. 4,000 for
Indian Civil Service men) and so on in a downward position
There was no separate cadre in the Government of India as
defined in the Fundamental Rule mentioned above. There were
only cadres in the States. Posts beyond the State cadre
limit were only to be found in the Government of India. The
Indian Administrative Service (Cadre) Rules 1954 provided as
elaborate machinery for getting persons to fill the posts in
the Government of India.’ Similarly, the Indian
Administrative Service (Fixation of Cadre Strength)
Regulations 1955 provided for these matters. Rule 3 of the
Indian Administrative Service (Cadre) Rules provided as
follows;
"3. "Constitution of Cadres.-
(1) There shall be constituted for each
State or group of States an Indian
Administrative Service Cadre.
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(2) The cadre so constituted for a State or
a group of States is hereinafter referred to
as a ’State Cadre’ or, as the case may be, a
’Joint Cadre.
Rule 4 next provided :
"Strength of Cadres.-
(1) The strength and composition of each of
the cadres constituted under rule 3 shall be
as determined by regulations made by the
Central Government in consultation with the
State Governments in this behalf and until
such regulations are made, shall be as in
force immediately before the commencement of
these rules.
(2) The Central Government shall, at the
interval of every three years, re-examine the
strength and composition of each such cadre in
consultation with the State Government or the
State Governments concerned and may make such
alterations therein as it deems fit :
Provided that nothing in this sub-rule shall
be deemed to affect the power of the Central
Government to alter the strength and
composition of any cadre at any other time;
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Provided further that the State Government
concerned may add for a period not exceeding
one year and with the approval of the Central
Government for a further period not exceeding
two years, to a State or Joint Cadre one or
more posts carrying duties or responsibilities
of a like nature to cadre posts."
Rule 6 then provided for deputation of cadre officers. It
reads as follows:
"6. Deputation of cadre officers.-
(1) A cadre. officer may, with the
concurrence of the State Government or the
State Governments concerned and the Central
Government, be deputed for service under the
Central Government, or another State
Government or under a company, association
or body of individuals, whether incorporated
or not, which is wholly or substantially owned
or controlled by the Government.
(2) A cadre officer may also be deputed for
service under
(i) a Municipal Corporation or a Local Body,
by the State Government on whose cadre he is
borne, or by the Central Government with the
concurrence of the State Government on whose
cadre he is borne, as the case may be and
(ii) an international Organisation, an
autonomous body not controlled by the
Government, or a private body, by the Central
Government in consultation with -the State
Government on whose cadre he is borne:
Provided that no cadre officer shall be
deputed to any Organisation or body of the
type referred to in item (ii) of this sub-rule
except with his consent."
It may be pointed out here that ’permanent post’ is defined
by the Fundamental Rules as a post carrying a definite rate
of pay and sanctioned without limit of time and a ’temporary
pose is defined as a post carrying definite rate of pay
sanctioned for a limited time and a ’tenure post’ means a
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permanent post which an individual Government servant may
not hold for more than a limited period. All cadre posts
were to be filled by cadre officers (rule 8), but temporary
appointments of non-cadre officers to cadre posts were
possible under certain circumstances (rule 9).
Under the Indian Administrative Service (Fixation -of Cadre
Strength) Regulations 1955 Assam was to have a total of 117
cadre posts. Of these, 55 were under the Government of
Assam
227
and 22 senior posts were to be under the Central Government.
19 were promotion posts and 58 were to be filled by direct
recruitment. There were certain reserved posts for leave
reserves, deputation reserves, training reserves and finally
there were ’junior posts. By the agreement which formed an
annexure to the Indian Civil Administrative (Cadre) Rules
1950, Assam -was to have 20 senior posts under the
Provincial Government and 6 senior posts under the Central
Government with some provision for direct recruitment posts,
junior posts and reserves. These posts denoted combined
Service between the Central Government and the Assam
Government. The arrangement allowed an officer to go from
one post to another whether under the Centre or the State
but not a lower post unless the exigency of the case so
demanded. The posts in the Government of India were held in
the ordinary course and were not deputation posts. They
were not as a part of the deputation reserves.
Under Art. 312, these services must be considered common to
the Union and the State : tinder s. 4 of the All India
Services Act 1951 all rules in force immediately before the
commencement of the Act and applicable to an All India
Service were continued, thus the Indian Civil Administrative
(Cadre) Rules 1950 continued to remain in force.
The position that emerges is that the cadres for the Indian
Administratively are to be found in the States only. There
is no cadre in the Government of India. A few of these
persons are, however,intended to serve at the Centre. When
they do so they enjoy better emoluments and status. They
rank higher in the service and even in the Warrant of
Precedence of the President. In the States they cannot get
the same salary in any post as Secretaries are entitled to
in the Centre. The appointments to the Centre are not in
any sense a deputation. They mean promotion to a higher
post. The only safeguard is that many of the posts at the
Centre are tenure posts. Those of Secretaries and
equivalent posts are for five years and for lower posts the
duration of tenure is four years.
Now Das held one of the tenure posts. His tenure ordinarily
was five years in the post. He got his secretaryship on
July 30, 1964, and was expected to continue in that post for
five years, that is, till 29th July, 1969. The short
question in this case is whether his reversion to the Assam
State before the expiry of the period of his tenure to a
post carrying a smaller salary amounts to reduction in rank
and involves a stigma upon him.
Reversion to a lower post does not per se amount to a
stigma. But we have here evidence that the reversion is
accompanied by a stigma. In the first letter issued to him
on June 20, 1969 by Mr. Dharma Vira (Cabinet Secretary) it
was said
228
Government was considering whether the persons at top level
administrative posts were capable of meeting the new
challenges or must make room for younger men. The letter
goes on to say that he may choose one of three alternatives
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: accept a lower post at the Centre, go back to a post
carrying lower salary in Assam or take leave preparatory to
retirement. The offer of a lower post in Delhi is a clear
pointer to the fact of his demotion. It clearly tells him
that his reversion is not due to any exigency of service but
because he is found wanting. The three alternatives speak
volumes. This was not a case of reverting him to Assam at
the end of a deputation or tenure. He can be retained in
the Central Services provided he accepts a lower post, and
the final alternative that he may retire clearly shows that
the Government is bent upon removing him from his present
post. In the next letter this fact is recognised because on
September 7, 1966 he is offered only two alternatives. The
alternative of a lower post is advisedly dropped because it
discloses too clearly a stigma. If any doubt remained it is
cleared by the affidavit which is now filed. Paragraphs 7
and 10 of the affidavit read as follows:
"7. With reference to the allegations made in
paragraphs 13 to 23 of the said application, I
make no admission in respect thereof except
what appears from relevant records. I further
say that the performance of the petitioner did
not come to the standard expected of a
Secretary to the Government. of India."
"10. The allegations made in paragraph 26 of
the said application are correct. I further
say that the said representation was rejected
by the Prime Minister in view of the standard
of performance of the petitioner."
Now it has been ruled again and again in this Court that re-
duction in rank accompanied by a stigma must follow the
procedure of Art. 311(2) of the Constitution. It is
manifest that if this was a reduction in rank, it was
accompanied by a stigma. We are satisfied that there was a
stigma attaching to the reversion and that it was not a pure
accident of service.
It remains to see whether there was a reduction in rank.
There is no definition of reduction in rank in the
Constitution. But we get some assistance from rule 3 of the
All India Services (Discipline and Appeal) Rules, which
provides:
"3 Penalties.-The following penalties , may,
for good and sufficient reasons, and as
hereinafter provided, be imposed on a member
of the Service, namely
229
(iii) reduction in rank including reduction to
a lower post or time-scale, or to a lower
stage in a time scale.
We have shown above that he was holding a tenure post.
Nothing turns upon the words of the notification ’Until
further orders’ because all appointments to tenure posts
have the game kind of order. By an amendment of F.R. 9(30)
in 1967, a form was prescribed and that form was used in his
case. These notifications also do not indicate that this
was a deputation which could be terminated at any time. The
notifications involving deputation always clearly so state
the fact. Many notifications were brought to our notice
during the argument which bear out this fact and none to the
contrary was shown. Das thus held a tenure post which was
to, last till July 29, 1969. A few months alone remained
and he was not so desperately required in Assam that he
could not continue here for the full duration. The fact
that it was found necessary to break into his tenure period
close to its end must be read in conjunction with the three
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alternatives and they clearly demonstrate that the intention
was to reduce him in rank by sheer pressure of denying him a
secretaryship. No Secretary, we were told, has so far been
sent back in this manner and this emphasises the element of
penalty. His retention in Government of India on a lower
post thus was a reduction in rank.
Finally we have to consider whether his reversion to Assam
means a reduction in rank. It has been noticed above that
no State Service (the highest being Chief Secretary’s)
carries the emoluments which Das was drawing as a Secretary
for years. His reversion would have meant a big drop in his
emoluments. Das was prepared to go to Assam provided he got
a salary of Rs. 4,000 per month but it was stated before us
that that was not possible. Das was prepared to serve the
Centre in any capacity which brought him the same salary.
This too was said to be not possible. This case was
adjourned several times to enable Government to consider the
proposal but ultimately it was turned down. All that was
said was that he could only be kept in a lower post. If
this is not reduction in rank we do not see what else it is.
To give him a Hobson’s choice of choosing between reversion
to a post carrying a lower salary or staying here on a lower
salaried post, is to indirectly reduce him in rank.
Therefore, we are satisfied that Das was being reduced in
rank with a stigma upon his work without following the
procedure laid down in Art. 311(2). We say nothing about a
genuine case of -accident of service in which a person
drafted from a State has to go back for any reason not
connected with his work or conduct. Cases must obviously
arise when a person taken from
230
the State may have to go back for reason unconnected with
his work or conduct. Those, cases are different and we are
not expressing any opinion about them. But this case is
clearly one of reduction in rank with a distinct stigma upon
the man. This requires action in accordance with Art.
311(2) of the Constitution and since none was taken, the
order of reversion cannot be sustained. We quash it and
order the retention of Das in -a post comparable to the post
of a Secretary in emoluments till such time as his present
tenure lasts or there is an inquiry against him as
contemplated by the Constitution.
Before we leave this case we are constrained to say that the
attitude in respect of this case was not very happy. Das
offered to take leave preparatory to retirement on the 29th
July, 1969 if he was retained in Delhi on this or other
post. This coincided with his present tenure. But vast as
the Delhi Secretariat is, no job was found for him. This
confirms us in our view’ of the matter that he was being
sent away not because of exigency of service but definitely
because he was not required for reasons connected with his
work and conduct.
The appeal is thus allowed with costs here and in the High
Court.
R.K.P.S. Appeal
allowed.
230