PETITIONER: THE STATE OF RAJASTHAN Vs. RESPONDENT: RAM SARAN DATE OF JUDGMENT: 10/04/1963 BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C. CITATION: 1964 AIR 1361 1964 SCR (2) 982 ACT: Public Servant-Officiating Sub-Inspector of Police in Ajmer- Reorganisation of States-Appointed to same post in Rajasthan-Reversion-Legality of-Police Act, 1861 (V of 1861), ss. 2 , 12-States Reorganisation Act, 1956 (37 of 1956), ss. 115, 116, 117, HEADNOTE: The respondent was an officiating Sub-inspector of Police in Ajmer. After the merger of Ajmer in the State of Rajasthan under the States Reorganisation Act, 1956, the respondent was appointed officiating Sub-Inspector of Police in Rajasthan. On April 6, 1957, he was reverted to his substantive post of Head Constable. He challenged his reversion on the ground that under the standing Orders of the Police Force in Ajmer which formed part of his conditions of service he had a guaranteed right not to be reverted except in strict order of juniority, that the reversion was an alteration in the conditions of his service which the State Government was not competent to effect without the sanction of the Central Government under s. 1 15 (7) of the Act and that there was a direction by the Central Government under s. 117 of the Act which made the right to retain an officiating post without reversion a condition of service. Held that the Standing Orders were mere administrative instructions issued by the Inspector-General of Police under s. 12 of the Police Act and were not conditions of service which could only be framed by the State Government. As such, even if the order of reversion violated the Standing Order there was no violation of the conditions of service. It is not a condition of service that the holder of an officiating post shall not be reverted to his substantive post and there was no alteration of the conditions of service by the order of reversion as contemplated by s. 115 (7) of the Reorganisation Act, 1956. Nor was any direction given by the Central Government under s. 117 of the Act curtailing the powers of the State Government in this respect. On the other hand the powers of the State Government to pass in relation to such a person "any order 983 affecting his continuance in such post or office" have been specifically preserved by s. II 6 (2) of the Act. There is no legal right in an officer to hold an officiating post and he cannot claim that he cannot be reverted except for proper reasons. Parshotam Lal Dhingra v. Union of India, (1958) S. C. R. 828, referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 453 of 1962.
Appeal from the judgment and order dated November 18, 1960,
of the Rajasthan High Court in D. B. Civil Writ No. 264 of
1959.
S. K. Kapur, K. K. Jain and P. D. Menon, for the appellant.
B. D. Sharma, for the respondent.
1963. April 10. The judgment of the Court was delivered by
AYYANGAR.J.-The State of Rajasthan is the appellant in this
appeal which has been filed pursuant to a certificate of
fitness granted by the High Court of Rajasthan under Art.
133 (1) (c) of the constitution and it challenges the
correctness of a judgment of the High Court allowing a
petition under Art. 226 of the Constitution filed by the
respondent.
The respondent, Ram Saran, was appointed a Constable in 1947
in the Ajmer district police force. Two years thereafter he
was promoted to the rank of Head Constable and was confirmed
in that post. On June 29, 1956 he was appointed to
officiate as a SubInspector. At that stage the states
Reorganisation Act (XXXVII of 1956), hereinafter referred to
as the Act, was enacted -which became operative from
November 1, 1956, referred to in the Act as the appointed
date,, and by virtue of its provisions the
984
former State, of Ajmer was merged in the State of Rajasthan
and under its terms again the respondent was absorbed in the
Police Service of the Rajasthan State. To give effect to
this provision a formal order appointing the respondent as
an officiating Sub-Inspector in the Rajasthan State police
force was also passed dated the same day.
Subsequent thereto, on April 6, 1957 the Deputy Inspector
General of Police, Ajmer Range ordered the reversion of the
respondent to his substantive post of Head Constable in the
District Police Force. The respondent was dissatisfied with
this order and his complaint was that it was not one passed
in the normal course of posting since there were, on that
date, officiating Sub-Inspectors in the State police force
who were junior to him but who continued to hold their
officiating posts and that such a reversion to his
substantive post was in effect an order of supersession. He
made representations to the authorities to set the matter
right. When he did not succeed in his efforts, he filed, on
July 22, 1959, a petition under Art. 226 of the constitution
for quashing the order of reversion dated April 6, 1957, and
for a direction to restore him to the rank of officiating.
Sub-Inspector according to his seniority. The State as well
as the Inspector-General of Police and the Deputy Inspector-
General of Police were impleaded as parties to the petition
and the learned judges of the High Court allowed it
principally on the ground that this order of reversion was
in violation of the provisions of s. 115 of the Act. It is
the correctness of this order that is challenged in this
appeal before us.
In order to appreciate the contentions raised it is
necessary briefly to advert to the statutory provisions on
which the judgment of the High Court in the main rests.
Those material in this;
985
context are ss. 115 to 117 of the Act occurring in Part X
headed ‘Provisions as to Services’:
“115. (1). Every person who immediately
before the appointed day is serving in
connection with the affairs of the Union under
the administrative control of the Lieutenant
Governor or Chief Commissioner in any of the
existing States of Ajmer, Bhopal, Coorg, Kutch
and Vindhya Pradesh, or is serving in
connection with the affairs of any of the
existing States of Mysore, Punjab, Patiala and
East Punjab States Union and Saurashtra shall,
as from that -day, be deemed to have been
allotted to serve in connection with the
affairs of the successor State to that
existing State.
(2)
(3)
(4)
(5) The Central Government may by order
establish one or more Advisory Committees for
the purpose of assisting it in regard to-
(a) the division and integration of the
services among the new States and the States
of Andhra Pradesh and Madras; and
(b) the ensuring of fair and equitable
treatment to all persons affected by the
provisions of this section and the proper
consideration of any representations made by
such persons.
986
(6) The for going provisions of this section
shall not apply in relation to any person to
whom the provisions of section 114 apply-
(7) Nothing in this section shall be deemed
to affect after the appointed day the
operation of the provisions of Chapter I of
Part XIV of the Constitution in relation to
the 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) or sub–Section (2) shall not
be varied to his disadvantage except with the
previous approval of the Central Govern.
116. (1). Every person who immediately
before the appointed day is holding or
discharging the duties of any post or office
in connection with the affairs….. . … of
an existing State in any area……… shall
be deemed as from that day to have been duly
appointed to such post or office by the
Government of, or other appropriate authority
in, such State, or by the Central Government
or other appropriate authority in such Part C
State, as the case may be.
2). Nothing in this section shall be deemed
to prevent a competent authority, after the
appointed day, from passing in relation to any
such person any order affecting his
continuance in such post or office.
117. The Central Government may at anytime
before or after the appointed day give such
987
directions to any State Government as may
appear to it to be necessary for the purpose
of giving effect to the foregoing provisions
of this part and the State Government shall
comply with such directions.”
Before proceeding to consider these provisions it would be
convenient to put aside one matter and that is that it was
not suggested that the order of reversion was one by way of
punishment constituting a reduction in rank so as to attract
Art. 311 of the Constitution.
The grievances of the respondent as formulated before us
were threefold : (1) that for the purpose of promotions and
for determining reversions the seniority in the police force
was not computed on the basis of a list of seniority
prepared for the entire State of Rajasthan but that the same
was done on a regional basis i.e., there was a separate
seniority list for Ajmer and another for other areas in the
State and that this had resulted in police officers like
himself being superseded by others junior to them merely
because they happened to be serving in a particular region.
In the petition there was a vague reference to the
maintenance of such regional lists as violative of the
equality guaranteed by Art. 14, (2) It was further contended
by the respondent that the reversion from the officiating
post of Sub-Inspector to the substantive one of Head
Constable was “an alteration in the conditions of his
service” which the State Government was not competent to
effect without the sanction of the Central Government under
s. II 5 (7) of the Act, and that, in any event, there had
been a direction by the Central Government under s. 117 of
the Act which rendered the right to retain an officiating
post without reversion as such a condition, (3) Even if s.
115 were insufficient by itself to constitute the right to
retain an officiating post without
988
being reverted to a substantive post as “a condition of
service,” still there was a guaranteed right not to be
reverted except in the strict order of juniority under the
provisions of the Standing Orders of the Police Force which
were part of his conditions of service and that by reason of
these Standing Orders the reversion was in violation of s.
115 (7) of the Act.
We consider it would be convenient to deal with these in the
reverse order, and take up first the interpretation and
effect of the Standing Order on which reliance has been
placed both by the learned judges of the High Court as well
as by learned Counsel for the respondent before us. In
regard to them there are two distinct questions: (1) their
proper interpretation, (2) whether they ‘would in law
constitute a condition of service and these have to be
considered separately. The Standing Order relied on is one
numbered 46 issued by the Inspector General of Police, Ajmer
and is dated October 20, 1949. The relevant portion of it
relied on is the paragraph numbered 4 (b) which reads :
“An officer who has secured officiating pro-
motion on the basis of his place on the
approved list should normally be considered
for promotion earlier provided that he main-
tains an appropriate standard. If he fails to
do so he may be reverted or his confirmation
postponed. He should not, however, be denied
his claim to confirmation merely because
although lie has maintained his standard
someone else promoted later is considered to
have done even better.”
It is clear from this provision that it deals not with the
order in which holders of officiating posts may be reverted
but with that in which they could be considered for
confirmation, so that in strictness on its language the
clause would not constitute the
989
impugned reversion as one in breach of its terms. But
assuming that what might be called the spirit of the rule or
the reason behind it be taken into consideration and it be
held that it laid down also the order in which reversions
should take place, still we have next to consider whether it
has any legal efficacy as a service condition. This would
depend upon the Standing Orders having been issued by a
competent authority under the provisions of a statute which
empowered that authority to prescribe “conditions of
service.” For undoubtedly if it were not so it would be
merely an administrative instruction issued by the Inspector
General of Police for the guidance of his officers but could
not determine service conditions fixed by statute or
statutory rules by competent authorities or confer any legal
rights which in the event of non-observance could be the
subject of complaint in a Court. Learned Counsel for the
respondent was, therefore, at pains to make out that these
Standing Orders had a statutory basis. For this purpose
reliance was placed upon ss. 12 and 2 of the Police Act (V
of 1861) as empowering the Inspector-General of Police to
issue these Standing Orders. Section 12 of the Police Act
reads, to quote only the material words :
“12. The Inspector-General of Police may,
from time to time, subject to the approval of
the State Government, frame such orders
and rules as he shall deem expedient relative
to the Organisation, classification and
distribution of the police-force, the place at
which the members of the force shall reside,
and the particular services to be performed by
them……
It is clear that the orders and rules referred to in this
section have nothing to do with the determination of the
service conditions of the officers recruited to the Police
force.. The expression “Organisation” cannot, in our
opinion, include within its fold the
990
conditions of service of those in the police force. Turning
next to s. 2 to which our attention was drawn, the material
portion is its second paragraph which reads :
“Subject to the provisions of this Act-the pay
and all other conditions of service of members
of the subordinate ranks of any police force
shall be such as may be determined by the
State Government.”
Under this section, however, it is not the Inspector General
of Police but the State Government that is empowered to
frame rules regulating the conditions of service of members
of the police force. It was not suggested that the Standing
Orders on which reliance was placed were those made by the
State Government as they purport to be only under the
authority of the Inspector General of Police. A feeble
argument was attempted to suggest that the State Government
might have delegated their power to the Inspector General,
but nothing is better settled than that a power to make
rules could not be delegated without express statutory
provision therefore.
Some point was sought to be made of the fact that these
standing Orders were issued in October, 1949, when not the
Constitution but s. 243 of the Government of India Act, 1935
was in force. But the respondent gets no advantage out of
this circumstance, because s. 243 referred to, enacts that
the conditions of service of the subordinate ranks of
various police forces in India “would be such as may be
determined by or under the Acts relating to those forces”
and we are again thrown back on the provisions of s. 2 of
the Police Act by which it is the State Government, not the
Inspector General of Police, that -is vested with authority
to frame conditions of service. We therefore consider, with
great
991
respect to the learned judges of the High Court, that they
were in error in treating Standing Order 46 as a condition
of service which was violatcd by the order of reversion
impugned by the respondent in his Writ Petition.
Standing Order 46 being put aside, we next turn to ss. 115
to 117 of the Act. The respondent was in the service of the
Ajmer State as an officiating Sub-Inspector of Police on the
appointed day i. e., November 1, 1956 and by virtue of s.
115 (1) of the Act he would be deemed to have been allotted
to serve in connection with the affairs of the Rajasthan
State, and, in fact, as noticed earlier, there was a formal
order of appointment dated November 1, 1956, by which he was
appointed as an officiating Sub-Inspector of Police. We do
not consider it necessary to deal with -sub-s. (5) of s. 115
as, in our opinion, nothing turns on it, though it was
referred to by learned Counsel for the respondent. What is
really crucial for the determination of this appeal is the
proviso to sub-s. (7) by which there was a guarantee that
the conditions of service applicable before the appointed
day would not be varied to the disadvantage of persons in
the position of the respondent except with the previous
approval of the-Central Government. The question arising
under this proviso would be whether it is any condition of
service applicable to the holder of an officiating post that
he shall not be reverted to his substantive post. But
before dealing with it, the effect of two other visions
viz., s. 117 and s. 116 (2) may be noticed. We first refer
to s. 117 because if there is a direction of the Central
Government in relation to a class of officers and such
direction is necessary for giving effect to the provisions
of this part, it is the duty of the State Government to give
effect to it and in such a case the question whether such a
direction is strictly a condition of service or not might
not fall for determination. The learned judges of the High
Court
992
considered that there was such a direction by the Central
Government and that was part of the reasoning on which they
granted relief to the respondent. Learned Counsel for the
respondent strenuously sought to sup-port this argument
before us.
The direction was claimed to be contained in a letter from
the Deputy secretary to the Government of India Ministry of
Home Affairs to the Chief Secretary to the Government of
Rajasthan, Jaipur dated March 27, 1957 and headed
‘protection of service conditions to be afforded to
state service personnel.’ In this letter, after referring to
the proviso to sub-s. (7) of s. 115 of the Act which laid
down that conditions of service applicable to persons
referred to in sub-s. (1) shall not be varied to their
disadvantage except with the previous approval of the
Central Government, there was a paragraph reading as under:
“2. (ii) officiating Pay
When an officer had officiated continuously on
a particular scale of pay or would have
officiated on that scale but for his
officiating appointment to a post on a higher
scale or proceeding on leave or deputation
for a minimum period of three years
immediately before November 1, 1956, the pay
on which he had so officiated should be
protected as if it were pay and scale
drawn in
a substantive capacity.”
The letter divides the subject-matter dealt with in it into
several parts and the above paragraph occurs under the part
headed ‘Pay’. It was not suggested on behalf of the
respondent that the clause had as such any relevance to the
question of reversion to a substantive post of an officer in
an
993
officiating post, or that even otherwise the respondent had
qualified for the benefit of the provision contained in it
as regards pay since he had not officiated as a Sub
Inspector for a period of three years prior to the appointed
date i. e., November 1, 1956. The argument, however, was
that since officers holding merely officiating posts had
been mentioned in this directive, the right to continue in
that post became a service condition and that no reversion
could be ordered without the sanction of the Central Govern-
ment. We do not find it possible to read the direction
contained in the clause extracted earlier as, having any
such effect. No doubt, to the extent to which it protects
the pay of certain officers it might have effect under s. 1
17 of the Act but beyond it, subject to the proviso to subS.
(7) of s. 115 the powers of the, State Government are not
intended to be curtailed and, in fact, they are expressly
saved by sub-s. (2) of s. 116 which permits a competent
authority to pass in relation to such persons “‘any order
affecting his continuance in such post or office.”
The contention that survives is merely whether the right to
hold an officiating post is a legal right and whether it
could be stated to be a condition of service that such an
officer shall not be reverted except for proper reasons. In
our opinion, the matter is concluded by the decision of this
Court in Parshotam Lal Dhingra v. Union of India (1).
There, as here, an officer who was appointed to officiate in
Class It Service as an Assistant Superintendent, Railway
Telegraphs was reverted to his substantive Class III
appointment. No doubt, the question there considered was
whether on the facts of that case, this order of reversion
was passed as a punishment so as to attract the
constitutional protection guaranteed by Art. 311 (2) but
this Court had also to consider whether an officer appointed
to an officiating post had any legal right to continue
(1) [1958] S. C. R. 828
994
in that post. As to that Das, C. J. speaking for the
majority observed :
“The petitioner before us was appointed to a
higher post on an officiating
basis…………… He had no right to
continue in that post and under the general
law the implied term of such ‘appointment was
that it was terminable at any time on
reasonable notice by Government and therefore
his reduction did not operate as a forfeiture
of any right and cannot be described as
reduction in rank by way of punishment.”
(Vide also the judgment of this Court in State
of Bombay V. P. A. Abraham
If he had no legal right to continue in that post it would
rather appear that it was one of the Conditions lot his
‘service that he could, for administrative reasons, be
reverted to his substantive appointment. ,It therefore
appears to us that there is no basis for argument that mere
reversion to a substantive post is a breach of the
conditions of service. That is why we said that the proviso
to sub-s. (7) of s. 115 on which stress is laid by the High
Court really affords no assistance to the respondent. The
above was, in general, the reasoning upon which the learned
judges of the High Court allowed the petition. We consider
that they were in error in so doing and the appeal has
accordingly to be allowed.
It is necessary, now, to mention the first of the points we
have set out earlier which learned Counsel for the
respondent strenuously pressed upon us. He submitted that
the respondent had alleged in his petition a violation of
Art. 14 of the Constitution, in that the selection of
officers for promotion. was determined not on ‘the basis of
the seniority of the
(2) Civil Appeal 59 of 1961 (Not yet reported) decided on
December 12, 1961.
995
officers considering the State as a whole but regionwise and
this was the gravamen of the charge in this respect made in
the petition. In this connection he drew our attention to
the terms of s. 2 of the Police Act 5 of 1861 which reads :
“2. The entire police-establishment under a
State Government shall, for the purposes of
this Act, be deemed to be one police-force,
and shall be formally enrolled; and shall
consist of such number of officers and men,
and shall be constituted in such manner as
shall from time to time be ordered by the
State Government.
He also pointed out that in the counter-affidavit filed by
the State this splitting up of the State into regions and
the determination of seniority and promotion on a
regionwise, as distinguished from a Statewise basis, was
defended as dictated by administrative considerations. The
learned judges, in their judgment have made a passing
reference to this feature of the case and seem to express,
the opinion that (he system of regionwise promotion was
productive of inequality and hardship. The difficulty in
the way of the respondent, however, is that the plea raised
i i regard to this matter is of the vaguest, character and
appears to be designed as affording some support for the
main allegations and contentions we have dealt with, and not
as an, independent and distinct ground for impugning the
constitutional validity of the scheme of promotion. In
consequence of this state of the pleadings the facts and
details necessary for sustaining or repelling this
contention were not brought into the record, so that
admittedly the point could not be decided on the record as
it stands. Realising this learned Counsel for the
respondent urged that the matter should be remitted to the
High Court for consideration of this issue
996
about the breach of Art. 14 of the Constitution and the
constitutional validity of the regionwise seniority lists
prepared for promotion, reversion etc. allowing liberty to
the parties to lead further evidence on the matter. Having-
considered the suggestion carefully we have arrived at the
conclusion that on the pleadings, as they stand, this
question could not be determined satisfactorily. If the
issue as to discrimination and a violation of Art. 14 has to
be satisfactorily investigated and decided both the parties
would have to file amended pleadings in order to focus
attention on several details, with the result that this
would virtually amount to the filing of a new petition. We
consider therefore that if the respondent is so advised he
should be at liberty to challenge the order now impugned on
these other grounds and that for that purpose it would
really be in his interest that he should be permitted to
file a fresh petition making necessary allegations and
setting forth the requisite facts when the State, also would
have an opportunity to make its answers to such a plea. It
is in the light of this consideration that we have refrained
from remanding the case to* the High Court, for the
consideration of this point.
The result is that the appeal is allowed and the order of
the High Court set aside and the Writs Petition of the
respondent dismissed. We have to add that this would be
without prejudice to his right to file a fresh petition in
regard to the matter we, have indicated earlier. In the
circumstances of this case there would be no order as to
costs.
Appeal allowed.