Full Judgment Text
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PETITIONER:
N. RAGHAVENDRA RAO
Vs.
RESPONDENT:
DEPUTY COMMISSIONER, SOUTH KANARA,MANGALORE
DATE OF JUDGMENT:
31/03/1964
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
SHAH, J.C.
AYYANGAR, N. RAJAGOPALA
CITATION:
1965 AIR 136 1964 SCR (7) 549
CITATOR INFO :
RF 1971 SC 117 (9)
RF 1972 SC1640 (9)
R 1973 SC 69 (38)
F 1974 SC1631 (16)
R 1975 SC 73 (12,13)
R 1977 SC 747 (6)
D 1977 SC1233 (13)
ACT:
Fundamental Rights-Conditions of service changed by the
State Government without the previous approval of the
Central Government-Loss of benefit of service and incre-
ments-"Previous approval"-Meaning of-Mysore General Services
Recruitment Rules, 1959-States Reorganisation Act 1956 (37
of 1956), s. 115(7)-Constitution of India, Arts. 16 and
311(2).
HEADNOTE:
The petitioner was selected as a Lower Division Clerk under
the Madras Ministerial Service Rules in 1949, and was posted
in South Kanara District. He was promoted as upper division
clerk on April 2, 1956 and according to him, he should have
teen promoted much earlier. According to the State, the
Petitioner was considered for inclusion in the eligibility
list from 1955 onwards, but was not selected as he was not
considered fit. The State admitted that he was promoted as
Upper Division clerk with effect from April 2, 1956, but
alleged that this was on a temporary basis. He was later
reverted and then again posted as temporary Upper Division
clerk. In August, 1957, the petitioner was considered and
included in the eligibility list at serial No. 14. This
list was regularised on December 12, 1957, in accordance
with Madras State and Subordinate Service Rules, with effect
from October 19, 1957. According to the petitioner this
resulted in the loss of benefit of service and increments.
In the meantime, reorganisati;on of States took place under
the States Reorganisation Act, 1956 and South Kanara
District went to the new Mysore and the petitioner was
allotted to it. On May 11, 1957, the Government of India
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addressed a memorandum to all State Governments and in
respect of departmental promotion it said that "the question
whether any protection should be given in respect of rules
and conditions applicable to Government Servants affected by
reorganisation immediately before the date of reorganisation
in the matter of travelling allowance, discipline, control,
classification, appeal, conduct, probation and departmental
promotion was also considered. The Government of India
agree with the view expressed on behalf of the State res-
presentatives that it would not be appropriate to provide
for any protection in the matter of these conditions. It
was urged on behalf of the petitioner (i) that the Mysore
General Services Recruitment Rules, 1959, were not made with
the previous approval of the Central Government under s.
115(7) of the States Re-organisation Act, and, therefore, do
not govern the petitioner in so far as the conditions of
service have teen varied to his disadvantage and (ii) that
the Madras Government had, prior to November 1, 1956, by
varoius orders, reduced the petitioner in rank in violation
of Art. 311(2) of the Constitution and Art. 16.
550
Held: (i) In the setting in which the proviso to s. 115(7)
of the Act is placed, the expression "previous approval"
would in clude a general approval to the variation in the
conditions of service within certain limits, indicated by
the Union Government. Art. 309 of the Constitution gives,
subject to the provisions of the Constitution, full powers
to a State Government to make rules. The proviso to s.
115(7) of the Act limits that power, but that limitation is
removable by the Central Government by giving its previous
approval. The broad purpose underlying the Proviso to S.
115(7) of the Act was to ensure that the conditions of
service should not be changed except with the prior approval
of the Central Government. In the memorandum, the Central
Government, after examining various aspects, came to the
conclusion that it would not be appropriate to provide for
any protection in the matter of travelling allowance,
discipline, control, classification, appeal, conduct,
probation and departmental promotion. This amounted to
previous approval within the proviso to s. 115(7). By this
memorandum the State Governments were required to send
copies of all new rules to the Central Government for its
information. Therefore, it must be held that the rules were
validly made.
In re Bosworth and Corporation of Gravesend, [1905] 2 K.B.
426 and C. K. Appamna v. State of Mysore, W.P. No. 88 of
1962, held inapplicable.
(ii) The petitioner failed to show, how Art. 16 was in-
fringed before he was allotted to the new Mysore State. The
State in its reply had asserted that all the orders
complained against were passed by competent authorities,
after considering the merits of the petitioner on each
occasion. It was for the competent authorities to judge the
merits of the petitioner. Therefore, it must be held that
infringement of Art. 16 was not established.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 211 of 1963.
Petition under Art. 32 of the Constitution of India for the
enforcement of the Fundamental Rights.
R. K. Garg, for the petitioner.
C. K. Daphtary, Attorney-General, B. R. L. Iyengar and
B.R. G. K. Achar, for the respondents.
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March 31, 1964. The Judgment of the Court was delivered by
SIKRI, J.-This is a petition under Art. 32 of the Consti-
tution for enforcing the fundamental rights of the
petitioner under Arts. 14, 16 and 19 of the Constitution.
Although the petition raises various points, before us only
two points have been argued by Mr. Garg, on behalf of the
petitioner. We are grateful to Mr. Garg, who has argued as
amicus curiae, for the assistance he has given. The two
points may be formulated as follows:
(1) That the Mysore General Services
(Revenue Subordinate Branch) Recruitment
Rules, 1959, were not made with the previous
approval of the Central Government under s.
115(7) of the State
551
Re-organisation Act, and, therefore, do not
govern the petitioner insofar as the
conditions of service have been varied to his
disadvantage;
(2) That the Madras-Government had, prior
to, November 1, 1956, by various orders,
reduced the petitioner in rank in violation of
Art. 311(2) of the Constitution and Art. 16.
In order to appreciate the arguments addressed to us, it is
necessary to give a few facts. The petitioner was selected
by the Madras Public Service Commission as a Lower Division
Clerk under the Madras Ministerial Service Rules in 1949,
and was allotted to the Revenue Department and posted in
South Kanara District. He was promoted as Upper Division
Clerk on April 2, 1956. According to the petitioner, he
should have been promoted much earlier as he had rendered
outstanding and meritorious service. According to the
State, the petitioner was considered for inclusion in the
eligibility list from 1955 onwards, but was not selected as
he was not considered fit. The State admits that he was
promoted as Upper Division Clerk with effect from April 2,
1956, but alleges that this was on a temporary basis. He
was later reverted and then again posted as a temporary
Upper Division Clerk. In August 1957, the petitioner was
considered and included in the eligibility list at Serial
No. 14. This list was regularised on December 12, 1957, in
accordance with Rules 39(e) and 35 of the Madras State and
Subordinate Service Rules, with effect from October 19,
1957. According to the petitioner this resulted in the loss
of benefit of service and increments.
In the meantime, reorganisation of States took place under
the State Reorganisation Act (XXXVII of 1956) South Kanara
District, except Kasaragod Taluk, went to the new Mysore
State and the petitioner was allotted to it. On May 11,
1957, the Government of India addressed a memorandum (No.
S.O. SRDI-1. APM-57) to all State Governments. Broadly
speaking, the Central Government said that some conditions
of service should be protected, e.g., substantive pay of
permanent employees, certain type of special pay, lave rules
unless the Government servant opts for new leave rules, etc.
But in respect of departmental promotion it said that "the
question whether any protection should be given in respect
of rules and conditions applicable to Government servants
affected by reorganisation immediately before the date of
reorganisation in the matter of travelling allowance,
discipline, control, classification, appeal, conduct, pro-
bation and departmental promotion was also considered. The
Government of India agree with the view expressed on behalf
of the State representatives that it would not be
appropriate
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552
to provide for any protection in the matter of these condi-
tions." Therefore, it is evident from this memorandum that
the Central Government had told the State Government that
they might, if they so desire, change service rules as indi-
cated in the memorandum. But Mr. Garg argues that even so
this does not amount to previous approval within s. 115(7)
of the States Reorganisation Act to the making of the Mysore
General Services (Revenue Subordinate Branch) Recruitment
Rules, 1959. What then is the true meaning of the
expression "previous approval" in the proviso to s. 115(7).
Sub-section (7) of s. II 5 provides that:
Nothing in this section shall be deemed to
affect after the appointed day the operation
of the provisions of Chapter 1 of Part XIV of
the Constitution in relation to determination
of the conditions of service of persons
serving in connection with the affairs of the
Union or any State;
Provided that the conditions of service
applicable immediately before the appointed
day to the case of any person referred to in
sub-section (1) of subsection (2) shall not be
varied to his disadvantage except with the
previous approval of the Central Government."
The effect of this sub-section is, inter alia, to preserve
the power of the State to make rules under Art. 309 of the
Constitution, but the proviso imposes a limitation on the
exercise of this power, and the limitation is that the State
cannot vary the conditions of service applicable immediately
before November 1, 1956, to the disadvantage of persons
mentioned in sub-ss (1) and (2) of s. 115. It is not
disputed that the petitioner is one of those persons.
Mr. Garg has submitted that the very fact that the Mysore
General Services (Revenue Subordinate Branch) Recruitment
Rules, 1959, as framed, were not sent to the Central
Government for approval before being promulgated shows that
previous approval has not been obtained. The memorandum, he
says, is not approval but an abdication of the powers of the
Central Government. In this connection he relies on the
decision of the Court of Appeal in the case of In re
Bosworth and Corporation of Gravesend(1), but this, decision
has no bearing on the point under discussion. An Order in
Council had been made under the provisions of the Burial
Act, 1853, whereby it was ordered that no new burial ground
shall be opened in (amongst other places) Gravesend, without
the previous approval of one of Her Majesty’s Principal
Secretaries of State. Permission was sought of the Secre-
tary of State to add additional land to an existing cemetery
(1) [19051 2 K.B. 426.
553
The Secretary of State replied that his sanction to the pro-
posed addition was not required. It is this reply which was
characterised by Collins, M. R., as renouncing of
jurisdiction. We cannot appreciate how this assists us in
interpreting the proviso to s. 115(7). He further relied on
the unreported-’ judgment of the High Court of Mysore in C.
K. Appanna v. State of Mysore(1), but this proceeds on a
concession made by the Government Pleader and does not
advance petitioner’s case. In our opinion, in the setting
in which the proviso to s. 115(7) is placed, the expression
"previous approval" would include a general approval to the
variation in the conditions of service within certain
limits, indicated by the Union Government. It has to be
remembered that Art. 309 of the Constitution gives, subject
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to the provisions of the Constitution, full powers to a
State Government to make rules. The proviso to s. 115(7)
limits that power, but that limitation is removable by the
Central Government by giving its previous approval. In this
context, we think that it could not have been the intention
of Parliament that Service Rules made by States would be
scrutinised in the minutest detail by the Central
Government. Conditions vary from State to State and the
details must be filled by each State according to its re-
quirements. The broad purpose underlying the proviso to s.
115(7) of the Act was to ensure that the conditions of ser-
vice should not be changed except with the prior approval of
the Central Government. In other words, before embarking on
varying the conditions of service, the State Governments
should obtain the concurrence of the Central Government. In
the memorandum mentioned above, the Central Government,
after examining various aspects, came to the conclusion that
it would not be appropriate to provide for any protection in
the matter of travelling allowance, discipline, control,
classification, appeal, conduct, probation and departmental
promotion. In our opinion, this amounted to previous
approval within the proviso to s. 115(7). It may be
mentioned that by this memorandum the State Governments were
required to send copies of all new rules to the Central
Government for its information. Therefore’ in our opinion,
there is no force in the first contention of the learned
counsel for the petitioner, and we hold that the ruler, were
validly made.
There are two preliminary hurdles in the way of the
petitioner regarding the second point taken on his behalf.
Firstly, the State of Madras has not been made a party to
this petition. Secondly, he never raised these points while
he was serving under the State of Madras. It is difficult
at this stage to challenge orders, which if quashed, would
affect the rights of other civil servants who are not
(1) W.P. No 88 of 1962 ; judgement dated January 13,1964.
554
parties to this petition. At any rate, the petitioner has
not been able to show how Art. 16 was infringed before he
was allotted to the new Mysore State. The State in its
reply has asserted that all the orders complained against
were passed by competent authorities, after considering the
merits of the petitioner on each occasion. It was for the
competent authorities to judge the merits of the petitioner.
We find no force in this contention and hold that no
infringement of Art. 16 has been established.
Accordingly, in the result, the petition fails. In the
circumstances of the case we order that the parties will
bear their own costs in this Court.
Petition dismissed.
555