1. This is an application under Article 226 of the Constitution against the order of the Government of Orissa in the Home Department No. 21446/P/ SSS/7/62 dated the 4th September 1962 (annexure 6 to the writ petition) rejecting his prayer for confirmation as a Registrar in the Orissa Secretariat with effect from the earlier date, for (he purpose of fixation of his pension.
2. The admitted material facts are as follows:
The petitioner joined as an assistant in the Old Bihar and Orissa Secretariat, prior to the formation of the Province of Orissa and when that Province was formed with effect from the 1st April 1936, he was transferred to the Orissa Secretariat, Home Department. Thereafter he was in due course 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 promoted temporarily as Registrar in the Supply Department of the Orissa Secretariat. On 22nd December 1954 he was reverted to his parent post as Head Assistant in the Home Department, and after taking leave he re-joined that post sometime in 1955. Again he was promoted to officiate as Registrar in the Supply Department on 3-2-56. 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. He eventually retired from Secretariat service on the 17th October 1959.
When the question of fixing the amount of his pension was taken up for consideration the relevant date was obviously the date on which he was confirmed as Registrar, because he held the post of Assistant Secretary only on an officiate basis. Government therefore fixed his pension at Rs. 190.00 per month as he was confirmed as Registrar only with effect from the 14th October 1958 a year and a few days before the actual date of his retirement. Thereupon the petitioner represented to Government that he should be deemed to have been confirmed as Registrar either from the 24th April. 1954 (the date on which he was first promoted as Registrar in the Supply Department), or, at any rate, from the 23rd August 1956 when one Sri J.N. Dutta, who was junior to the petitioner in the cadre of the old Bihar and Orissa Secretariat, was confirmed as Registrar in Bihar. Government, however, rejected this prayer, and hence he has sought relief from this Court, under Article 226 of the Constitution.
3. When the Province of Orissa was formed on the 1st April, 1936, the then Governor General in Council made certain Rules for the protection of officers of the old Bihar and Orissa Service who were permanently transferred to Orissa (hereinafter referred to as the Protection Rules (see Annexure 2 to the petition). Rule 6 of the said Rules is as follows:
'6. The conditions of service as respects pay, allowance, leave and pension of any member of the Provincial subordinate service serving immediately before the first day of April 1936, in or in connection with the affairs of the Province of Bihar and 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 and Orissa, to the service of the Government of Bihar.
Provided further that nothing in this rule shall apply to conditions of service which prescribes the rates of travelling allowance.'
In terms the aforesaid rule protects only the pay, allowances, leave and pension of the aforesaid officer, who may be permanently posted to Orissa and expressly says that in respect of these matters the conditions of service shall not be less favourable than they were immediately before the 1st day of April 1936. The first proviso to the Rule authorises the Government of Orissa to make such alterations in the conditions of service of such officers as would have applied to them, if they had been transferred to the service of the Government of Bihar, that is to say their conditions of service should not be less favourable than what they would have been, if they had continued to serve under the Government of Bihar after the separation of the Province of Bihar.
4. The said rules were framed by the Governor General in Council in exercise of the powers conferred by paragraph 23(2) of the Government of India (Constitution of Orissa) Order 1936, made by the King Emperor under the provisions of the Government of India Act, 1935. Hence these rules afford Constitutional protection to certain class of public servants, and where such protection is withheld, this Court will have jurisdiction, under Article 226 of the Constitution, to give appropriate relief in suitable cases.
5. The learned Government Advocate did not controvert this position but contended that the only conditions of service protected by the aforesaid Rule 6 were (1) pay (2) allowances (3) leave and (4) pension and that in respect of other conditions of service the State Government had full authority to make rules from time to time, even in regard to officers of the old Bihar and Orissa Cadre permanently transferred to Orissa. In particular, he drew our attention to the principles governing promotions from one post to another and the principles dealing with confirmation of an officer of the Secretariat in a permanent post, and urged that in all these matters the transferred officers cannot claim any special protection.
6. This argument though partially correct cannot be accepted in its entirety. Though the pay andpension of these transferred officers are protected it cannot be said that the prospects of promotion of confirmation in the natural course is not protected, because in that case it will be open to the State Government to render the protection Rules illusory by denying promotions to an officer transferred from the old Bihar and Orissa Secretariat, or by refusing to confirm him in any higher post after his transfer to Orissa. Such confirmation and promotion have a direct effect on the fixation of pay and calculation of the pension of these transferred officers and hence protection of pay and pension must necessarily include the protection of these ancillary conditions of service like confirmation on which the fixation of pay and calculation of pension depend.
7. The interpretation of the aforesaid Rule 6 doubtless presents some difficulty. It has first to be ascertained, in a particular case, whether the fixation of the pay and calculation of pension is 'less favourable' than would have been the case if the officer had continued in the old Bihar and Orissa cadre. Such ascertainment is by no means easy because it may depend on conjectural or unascertainable data, but the proviso to the Rule affords some guidance in this respect. It is more easy to ascertain what the conditions of service will be, of such transferred officers, if they had continued to serve under the Government of Bihar, after the 1st of April 1936. because the rules in force in the Province of Bihar regulating the pay and pension of officers of the Bihar Secretariat will be of some assistance. Again the pay, the date of confirmation and pension, of an officer of the Bihar and Orissa cadre, who was immediately junior to the transferred officer and who continued to serve in Bihar after 1st of April, 1936 would serve as a guide.
8. These rules have been in force for nearly 35 years and the interpretation put on them by the competent authority from time to time may also be noticed in this connection. In 1939 the question arose as to whether the prospects of promotion of such transferred officer were also protected by the Protection Rules. The then Joint Public Service Commission (for Bihar, Orissa and the Central Provinces) indicated to the Government of Orissa their decision on the subject in the following terms, (in their letter dated 28th February 1939).
'I have the honour to refer to letter No. 1282-A dated the 18th February 1939 and to state that the Public Service Commission are of opinion that the word 'pay' in Rule 6 of the Rules issued by the Government of India with their notification No. F-54/35-(GB) dated the 15th September 1936 must be interpreted to include the whole pay which an officer might fairly expect to draw during his service. They consider, therefore that the 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 that what he would have drawn if so promoted in Bihar and Orissa. The Commission, however, recognise that in certain cases officers transferred from Bihar and Orissa will secure promotion in Orissa sooner than they would have secured it in Bihar and Orissa, and they consider that in such cases the officers cannot fairly claim more than the Orissa scale of pay for the intervening period.
Sd. G. E. Fawcus.
Here the Commission made it clear that 'pay' would necessarily include the prospects of promotion on which it depends and that the prospects of promotion of a transferred Officer should be as good as they would have been in the old Province of Bihar andOrissa. Subsequently, in 1942 the then Governor of Orissa, after consulting the Governor General in Council issued the following instructions in his letter No. 687-S. G. dated 28th January 1942 (see paragraph 5 of the writ petition): 'It should however be borne in mind that the object underlying the Governor General in Council's Protection Rules of 1936 was to ensure the transferred officers a fair deal under the new Government. It follows that the Provincial Rules should in all cases be so applied as to secure this result. If it were found, by a literal application of the Rules, that the conditions of service of any individual officer or class of officers had been worsened by transfer to Orissa, special orders should be passed to secure in full the purpose of the Protection Rules. In other words, the essential requirement is that the spirit of the Protection Rules should be fully observed and heard cases, should they occur, should be given special treatment'.
Here the Governor pointed out that these Protection Rules should be given a beneficial construction and should not be applied too narrowly or literally and that the transferred officers should get a fair deal under the new Government. One of the tests, for this purpose, was mentioned as: whether the conditions of service of an individual officer or class of officers has been worsened by transfer to Orissa.
9. It is true that this court is not bound either by the opinion given by the Public Service Commission or that given by the Governor of Orissa as regards the construction of a statutory rule. But where an established practice appears to have grown up on the basis of interpretations given by higher authorities, that practice will be a useful guide in construing statutory provisions dealing with conditions of service of public servants.
This aspect was specially emphasised by their Lordships of the Federal Court, in Abzalur Rahman v. Emperor, AIR 1943 FC 18 (at p. 21) where they pointed out that in interpreting constitutional provisions dealing with conditions of service of public servants, such sections 240(2) and 241 of the Government of India Act 1935 the long established service practice may be taken as a guide. I must therefore overrule the extreme contention of the learned Government Advocate and hold 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, nevertheless, 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.
10. Two questions now arise for consideration: (i) Has the petitioner a right to be confirmed as a Registrar in the Secretariat with effect from the 24th April 1954 (ii) Is he entitled to be confirmed as Registrar with effect from the 23rd August 1956 when his junior Shri J.N. Dutta was confirmed as Registrar in the Bihar Secretariat ?
11. The claim for confirmation with effect from the 24th April 1954, cannot be sustained. Even under the Rules prevailing in the Bihar Secretariat (quoted in paragraph 18 of the writ petition):
'The Post of Registrar in the Secretariat is a gazetted one, 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 either Departments of the Secretariat'.
In the Orissa Rules however, a system known as pool system was adopted and promotion to the post of Registrar was made not only from the subordinate officers of the particular Department in which the vacancy arose but also selection from subordinate officers of all the Departments of the Secretariat. A list of all such officers was required to be prepared and sent to the Public Service Commission who used to arrange the candidates selected in order of preference and then the actual appointment was made by Government. Here from the counter affidavit filed by Government it appears that the Public Service Commission did not place the petitioner as first (n the list but that he was given a lower place and according to paragraph 10 of the counter affidavit:
'In 1954, the Public Service Commission after a careful examination of the character roll of Shri Das, recommended him as fit for Registrar for stopgap arrangement only, and specifically mentioned that he should not be given preference over those whose positions were higher up in the said list, even for vacancies exceeding a period of four months.'
Hence, the petitioner could not claim the right to be appointed substantively as Registrar in the Orissa Secretariat in 1954. He was appointed as such only as a stop gap arrangement in the Supply Department. He was subsequently reverted as Head assistant, but was allowed to officiate once again as Registrar in 1956 and therefore he was continued in that post till he was again promoted as Assistant Secretary. Even he had served in the Province ot Bihar he would not have been entitled to be appointed as Registrar unless two conditions were fulfilled; (i) his name should have been recommended by the Public Service Commission; and (ii) though ordinarily each Department of the Secretariat was considered to be a separate unit for promotion to the post of Registrar, nevertheless, by using the expression 'ordinarily' Government reserved to themselves full discretion to bring in an officer from some other Department also if that Officer was of exceptional merit.
It is not stated by the petitioner that any officer junior, to him in the old Bihar and Orissa Secretariat was confirmed as Registrar in the Bihar Secretariat on or before 24th April 1954. Hence it cannot be said that by postponing his confirmation to a later date his service conditions were in any way 'worsened' by his transfer to Orissa. Hence I must hold that by transferring the petitioner and promoting him as Officiating Registrar in the Supply Department on the 24th April 1954, and appointing someone else as Registrar in the Home Department he was not treated less favourably than would have been the case if he has continued to serve in Bihar. On his own admission the Public Service Commission did not put him first in the list and as consultation with the Commission is mandatory in the case of promotions to gazetted posts in the Secretariat whether in Bihar or in Orissa, he cannot claim a right to be appointed to the permanent post of Registrar in preference to those who had been placed higher in rank by the Commission.
12. But I think the petitioner has a good case for confirmation as Registrar with effect from the date on which Sri J.N. Dutta who was junior to him in service in the old Bihar and Orissa Secretariat cadre was confirmed in the Bihar Secretariat. As pointed out by the Chairman of the Joint Public Service Commission (annexure 3 already referred to) in 1939, the principle to be followed is: whether the prospects of promotion available to transferred officers is as good as they would have been if they had served in the old Province of Bihar and Orissa. It may be somewhat difficult to ascertainwhat the prospects of promotion of the petitioner would have been if he hadserved in the old Province of Bihar aridOrissa or continued to serve in the Province ofBihar after 1st April 1936. That will depend, tosome extent, on the nature of the report of the remarks about his work, made by his Superior Officerswhen he held various subordinate posts. But onedecisive test would be the date on which an officerjunior to him in the old Bihar and Orissa cadre wasconfirmed in the post of Registrar.
It is admitted that Sri Dutta who was an officer of that type was confirmed as Registrar in Bihar from 23rd August, 1956. But the petitioner, after being duly recommended by the Public Service Commission, was allowed to officiate continuously as Registrar in the Supply Department of the Secretariat from 3rd February 1956. It must therefore be held that his work was held to be satisfactory by competent authorities. Moreover the very fact that he was allowed to officiate as Assistant Secretary for sometime shows that no adverse comment was made against his work as Registrar. Hence it may be reasonably held that considering the nature of work performed by the petitioner he would have been confirmed as Registrar in the Bihar Secretariat at the latest from the 23rd August 1956, if not earlier.
As pointed out by the Governor of Orissa in his letter No. 687-S.G. dated the 28th January, 1942 (see paragraph 5 of the writ petition already quoted) the Protection Rules should be construed somewhat liberally so as to give a 'fair deal' to officers transferred to the Government of Orissa, and where there Was a reasonable prospect of earlier confirmation available to such officers, they should not be deprived of that benefit especially when such confirmation has a direct bearing on the question of fixation of their pension.
A clever attempt was made to escape this liability, by saying that as the petitioner was drawing higher pay as Registrar, than that drawn bv his junior Sri J. N. Dutta in Bihar, his pay must be deemed to have been protected and that the petitioner had really no grievance. But, as already pointed out his pension should also be equally protected and when the date of confirmation directly affects the quantum of pension, that will also have to be protected and he should not be placed in a less advantageous position than another officer, junior to him in the Bihar and Orissa cadre, who continued to serve in Bihar after separation of Orissa.
13. The petitioner referred to the case of one Sri Hrushikesh Beuria (see annexure 5) who had retired as Head Assistant of the Orissa Secretariat sometime in 1960. He was also an ex-Bihar and Orissa officer and Government, as a special case, fixed his pay as Registrar on a higher scale with retrospective effect from the 1st December 1948 (for nearly 12 years) solely because an Officer junior to him in the Bihar and Orissa cadre and serving in Bihar after separation of Orissa, namely Shri J.N. Prasad, was promoted to the rank of Registrar in the Bihar Secretariat. The learned Government Advocate tried to distinguish this case by saying that Sri Hrushikesh Beuria was given only the pay of the Registrar and was not 'promoted' to that post. But as already indicated, this circumstance will make no difference to the position so far as the present case is concerned where the petitioner's pension is as much affected as his pay, by the fixation of the date of his confirmation at a later date.
14. It is true that, ordinarily the date of confirmation of an officer in a particular post dependson other factors such as the existence of a permanent vacancy, the claim of officers senior to him, etc. But where protection is conferred on a particular class of Officers by statutory rules these considerations do not have such importance.
15. I would therefore allow this application to the limited extent of directing the State Government to confirm the petitioner as Registrar in the Orissa Secretariat with effect from the 23rd of August 1956 and to re-fix bis pension accordingly.
16. The petitioner will also ge.t the costs of this application.