Rajvi Amar Singh Vs. The State of
Rajasthan [1957] INSC 109 (28 November 1957)
BOSE, VIVIAN DAS, SUDHI RANJAN (CJ) AIYYAR,
T.L. VENKATARAMA DAS, S.K.
SARKAR, A.K.
CITATION: 1958 AIR 228 1958 SCR 1015
ACT:
State Service-Formation of new State by integration
of States -Effect-Employee under integrating State continuing in service of new
State-Status-If can be inferred from description in orders of transfer and
increment of Pay- Substantive appointment to a lower grade on guaranteed
emoluments-If amounts to reduction in rank Constitution of India, Art. 3II.
HEADNOTE:
The appellant was a District and Session
judge in the State of Bikaner and after its merger in the new State of
Rajasthan, on August 7, 1949, continued to serve in the new State. The covenant
of intergration provided, inter alia, that the conditions of such service were
to be no less advantageous than those under which he was working on November 1,
1948. By a Gazette Notification the appellant was appointed as an ad hoc Civil
and Additional Sessions judge. After the reorganisation of the Services he was
substantively appointed as a Civil judge and placed in grade C (Civil judges
and Munsiffs) and placed at No. 18 in the list of juniors, but his old pay and
emoluments remained as guaranteed. Before such appointment he was, however,
described in certain orders of transfer and increments of pay as District and
Sessions judge. The appellant moved the High Court under Art. 226 of the
Constitution and contended that he had been reduced in rank without being
afforded an opportunity to show cause under Art. 311 of the Constitution. The
High Court held that the appointment must be treated as an ad hoc appointment
till it was regularised under the Constitution. This was done by the Government
after the decision of the High Court and the appellant was again appointed as a
Civil Judge 1014 Held, that it is well settled that when a State is by merger
integrated to form a new State, all contracts of service between the prior
Government and its servants automatically came to an end and those who elect to
serve in the new State, or are taken in by it, serve on such terms and
conditions as the new State may choose to impose.
The State of Madras v. K. M. Rajagopalan,
[1955] 2 S.C.R. 541, relied on.
Virendra Singh & Others v. The State of
Uttar Pradesh, [1955] 1 S.C.R. 415, referred to.
As the appellant's postings in the new State
previous to his substantive appointment were all transitional and temporary in
character and the guarantee given by the covenant was fulfilled, no question of
reduction in rank arose so as to attract Art- 311 Of the Constitution.
No inference of any determination by the new
Government to appoint the appellant in his old post could follow from the
descriptions made in the orders of transfer and increments of pay as
appointments are not made in that casual way.
CIVIL APPFLLATE JURISDICTION: Civil Appeal
No. 330 of 1956.
Appeal by special leave from the Judgment and
decree dated September 5, 1955, of the Rajasthan High Court in Writ Petition
No. 76 of 1954.
A. V. Viswanatha Sastri and Ratnaparkhi A.
G., for the appellant.
R. Ganapathy Iyer, Ram Avtar Gupta and T. M.
Sen, for the respondent.
1957. November 28. The following Judgment of
the Court was delivered by BOSE J.-This appeal arises out of a writ petition
for mandamus under Art. 226 of the Constitution.
The appellant was a District and Sessions
Judge in the former Bikaner State. He was appointed on January 29, 1948, in the
grade of Rs. 500-40-700 and worked as such till April 7, 1949.
On that date a new State of Rajasthan was
formed by the integration of a number of States (including the former State of
Bikaner) by means of a Covenant signed by the High Contracting Parties.
Article XVI (1) of the Covenant ran thus:
" The United State hereby guarantees
either the continuance in service of the permanent members of 1015 the public
services of the former Rajasthan State and of each of the new Covenanting
States on conditions which will not be less advantageous than those on which
they were serving on the 1st November 1948 or the payment of reasonable
compensation or retirement on proportionate pension." The integration
necessarily involved a reorganisation of the various services in the several
integrating States. On the judicial side it was found that there were as many
as twenty eight Courts of District and Sessions Judges in the aggregate. In the
integrated State it was proposed to have only fifteen. The reorganisation took
time and in the interval certain interim arrangements had to be made. These
arrangements are set out in a Rajasthan Gazette Notification dated May 25,
1950. We append the relevant extracts:
" 4. In Appendix F...... have been
indicated the provisional postings on an ad hoc basis of the posts specified in
Appendices A to E. ....................................................... ...
6. All the appointments mentioned in the
different Appendices, attached to this Order, are provisional. The emoluments
of none of these officers appointed are being affected and they will continue
to draw their existing salaries until further orders. All the appointments are
without prejudice to the creation of a Judicial Service in Rajasthan to be
formed in accordance with the rules which may be made therefor." Appendix
F is headed- "Ad hoc postings of Judicial Officers to Civil and Sessions
Courts." The appellant was appointed under this beading in Part 11 as a
Civil and Additional Sessions Judge in the Jaipur Division.
But before this Notification was made, namely,
on December 9, 1949, the appellant received the following order from the new
Rajasthan Government:
" Shri Amar Singh, District and Sessions
Judge, Churu, is transferred to Ganganagar as District and Sessions Judge,
Ganganagar." 129 1016 Among other contentions, the appellant relies on
this as an election by the new Government to continue 'him in his original post
and contends that it could not later change its mind and make his service
provisional as it purported to do in the notification just cited.
Two months after the notification, namely on
July 31, 1950, the appellant's increment became due and Government sanctioned
it in the following terms:
" Sanction is accorded to the grant of a
stipulated increment of Rs. 40 p.m. in the scale of Rs. 500-40-700 to Shri
Rajvi Amarsingh, District and Sessions Judge in Bikaner Division, with effect
from the 23rd March, 1950, thereby raising his salary from Rs. 540 to Rs. 580
p.m." When the final re-organisation was brought into force and the twenty
eight Courts of District and Sessions Judges reduced to fifteen, the appellant
was posted as Civil and Additional Sessions Judge on an ad hoc basis on May 25,
1950.
On September 11, 1950, the appellant made a
representation to the Government of Rajasthan against his posting of May 25,
1950, as an ad, hoc Civil and Additional Sessions Judge.
He says in his writ petition to the High
Court that " he was given to understand that these ad hoc postings were
without prejudice to the claims of the Government servants for a suitable
position in the integrated set up on permanent basis." This allegation was
admitted by the opposite party.
Later, he was appointed substantively as
Civil Judge on April 23, 1951. He was placed in Group C (Civil Judges and
Munsiffs) and placed at No. 18 in the list of junior posts.
His pay and emoluments were as before and he
retained the same grading, namely Rs. 500-40-700. His earned increments were
not affected and, except for the change in name, his conditions of service were
not worse than when he was in the service of the Bikaner State. We were given
the last two facts by his counsel. They do not appear in the paper book.
All that is to be found there are 1017
references to these orders but the orders themselves have not been included.
Being aggrieved by this, the appellant filed
the writ petition out of which this appeal arises on April 3, 1954.
His contention was that under the guarantee
given by 'the United State of Rajasthan, and also otherwise, he was entitled to
be posted as a District and Sessions Judge in the new set up and that the
posting of April 23, 1951, reduced him in rank. As that was done without
affording him an opportunity to show cause, Art. 311 of the Constitution was
violated.
The High Court held that the posting of April
23, 1951, which purports to appoint the appellant substantively as a Civil
Judge, is wrong and that it must be treated as an ad hoc appointment till
proper appointments are made to the Judicial Service of Rajasthan according to
the Constitution of India.
The learned Judges held that as there had
been a clear declaration that a new Judicial Service was to be created in
Rajasthan and that the existing officers from the various covenanting States
were not to be taken into it as a matter of course, it followed that all
appointments to it would be by way of fresh recruitment, and, as the
Constitution of India was in force at that date, these recruitments must
conform to its provisions. It was admitted before the learned Judges that after
the Constitution only the Rajpramukh had power to make rules regulating the
recruitment and conditions of service of those appointed to public services and
posts in connection with the affairs of the State until provision in that
behalf is made by an Act of the Legislature, and it was also admitted that the
State Public Service Commission must be consulted. As this was not done, the
learned Judges directed as follows:
" The petition is allowed, the postings
made by notification dated the 23rd April, 1951, including that of the petitioner
as Civil Judge, are declared to be on an ad hoc basis, and a direction is made
to the Government to provide a machinery according to the 1018 provisions of
the Constitution for the first recruitment to the Rajasthan Judicial
Service." The judgment was delivered on September 5, 1955, and the
appellant thereupon came here and was granted special leave to appeal on April
16, 1956.
In the meanwhile, according to the facts set
out in the respondent's statement of the case, the Rajasthan Government complied
with the orders of the High Court, reframed their rules and made fresh
appointments in accordance with them.
These were duly published in the Rajasthan
Gazette and the appellant was finally selected to the Rajasthan Judicial
Service. He was appointed a Civil Judge.
The Appellant's contention is that the order
of April 23, 1951, reduced him in rank and as he was not afforded an
opportunity of showing cause, Art. 311 of the Constitution was violated. If
this contention is sound, it will follow that the fresh appointment as Civil
Judge after the High Court's order will also be bad for the same reasons.
Now it is well established that when one
State is absorbed in another, whether by accession, conquest, merger or
integration, all contracts of service between the prior Government and its
servants automatically terminate and thereafter those who elect to serve in the
new State, and are taken on by it, serve on such terms and conditions as the
new State may choose to impose. This is nothing more, (though on a more exalted
scale), than an application of the principle that underlies the law of Master
and Servant when there is a change of masters. So far as this Court is
concerned, the law is settled by the decision in The, State of Madras v. K. M.
Rajagopalan (1), which follows the decisions of the Privy Council and the House
of Lords in Reilly v. The King (2), and Nokes v. Doncaster Amalgamated
Collieries Ltd. (3). The distinction between rights to property and contractual
rights when there is a change of sovereignty was pointed out in Virendra Singh
& others v. The State of Uttar Pradesh (4).
(1) [1955] 2 S.C.R. 541, 562.
(2) (1934) A.C. 176.
(3) (1940) A.C. 1014.
(4) [1955] 1 S.C.R. 415, 427.
1019 The appellant founds on Art. XVI(1) of
the Covenant. It was contended that he cannot rely on this because he was not a
party to it but we need not decide this because, even if this be assumed to be
the law of the new State settling the conditions of service of those who
continue in service, all that it says is that the conditions of their service
will not be less advantageous than those on which they were serving on November
1, 1948. We have shown above that this condition is fulfilled.
But that apart, Article XVI(1) indicates that
the old contracts terminate just as they did in The State Of Madras v. K. M.
Rajagopalan (1). In the first place, there were three options:
(1) continuance in service, (2) payment of
reasonable compensation, and (3) retirement on proportionate pension.
That shows that the old contracts terminated
and that those who continued in service did so on the basis of fresh contracts,
the conditions of which had yet to be determined.
The only guarantee (assuming that the
appellant can avail himself of it) was that the new conditions were not to be
less advantageous than those on which the appellant was serving on November 1,
1948. There was no guarantee that they would be the same or better.
This was emphasised in the Rajasthan Gazette
Extraordinary dated June 4, 1949. It first referred to the broad outlines of
the programme of integration that had already been published and then outlined
the procedure and principles to be observed in carrying it out. Paragraph 6 is
as follows:
"After final orders have been passed by
the Government on the Departmental re-organisation schemes and cadres and
strength for different kinds of establishments in each department are fixed,
the heads of departments will prepare gradation lists according to prescribed
rules and put up proposals for fixation of each individual Government servant
in the posts on permanent, officiating or deputation basis.
(1) [1955] 2 S.C.R. 541, 562.
1020 They will also determine the revised
rates of pay admissible to each, Gazetted and non-Gazetted officer under the
new scales etc." and then paragraph 15- " It is not the intention of
Government to throw any Government servant out of employ as far as
.practicable. If necessary, services of efficient and deserving staff will be
retained temporarily on supernumerary basis in the prospect of finding work for
them in connection with new development schemes." The order of December
9,1949, on which the appellant relies, transferring him as District and
Sessions Judge to the District Court at Ganganagar, must be read subject to the
above and, if Article XVI(1) of the Covenant applies, then subject to that as
well. An order of transfer cannot be equated to an order of appointment; and in
any case, the new cadres had not been established and the new Courts under the
proposed scheme of re-organisation had not been constituted, so, anything done
at that stage could only have been part and parcel of the temporary
transitional arrangements pending the final settlement by the new State of the
schemes and conditions of service.
The next set of orders published in the
Gazette of May 25, 1950, brings this out clearly. We have already set out its
terms.
The orders of March 25, 1950, and July 31,
1950, sanctioning the increment do not help the appellant. He is described
there as " Shri Rajvi Amarsingh, District and Sessions Judge in Bikaner
Division." This is merely descriptive as the endorsement on the letter
indicates. It runs- " Copy forwarded to- (1) Shri Amarsingh, Civil and
Addl. Sessions Judge, Jhunjhunu." No determination to post the appellant
permanently in a particular cadre and post can be spelled out of these
accidental descriptions in orders dealing with a different matter. Postings to
a cadre and engagements of service are not made in this incidental way.
1021 The substantive appointment gazetted on
April 23, 1951, after the new cadres and Courts had been fixed, was struck down
by the High Court, and the Government of Rajasthan was directed to treat that
as an ad hoc appointment. According to the respondent in its statement of the
case, the matter was regularised after the High Court's decision and the
appellant was again appointed a Civil Judge. If that is so, then this must be
regarded as his first substantive appointment in the new State. But whether
this is his first substantive appointment after the integration, or the one of
April 23, 1951, no question of reduction in rank can arise and so Art. 311 is
not attracted. All his previous postings in the new State were purely
transitional and temporary; and so far as Art. XVI(1) of the Covenant is
concerned, its guarantee has been fulfilled.
The appeal is dismissed with costs.
Appeal dismissed.
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