1. The State of Rajasthan is the appellant in this appeal which has beenfiled pursuant to a certificate of fitness granted by the High Court ofRajasthan under Art. 133(1)(c) of the constitution and it challenges thecorrectness of a judgment of High Court allowing a petition under Art. 226 ofthe Constitution filed by the respondent.
2. The respondent, Ram Saran, was appointed a Constable in 1947 in the Ajmerdistrict police force. Two years thereafter he was promoted to the rank of HeadConstable and was confirmed in that post. On June 29, 1956 he was appointed toofficiate as a Sub-Inspector. At that stage the states Reorganization Act(XXXVII of 1956), hereinafter referred to as the Act, was enacted which becameoperative from November 1, 1956, - referred to in the Act, as the appointeddate, and by virtue of its provisions the former State of Ajmer was merged inthe State of Rajasthan and under its terms again the respondent was absorbed inthe Police Service of the Rajasthan State. To give effect to the provision aformal order appointing the respondent as an officiating Sub-Inspector in theRajasthan State police force was also passed dated the same day.
3. Subsequent thereto, on April 6, 1957 the Deputy Inspector General ofPolice, Ajmer Range ordered the reversion of the respondent to the substantivepost of Head Constable in the District Police Force. The respondent wasdissatisfied with the order and the complaint was that it was not one passed inthe normal course of posting since there were, on that date, officiatingSub-Inspectors in the State police force who were junior to him but whocontinued to hold their officiating posts and that such a reversion to hissubstantive post was in effect an order of supersession. He maderepresentations to the authorities to set the matter right. When he did not succeedin his efforts, he filed, on July 22, 1959, a petition under Art. 226 of theconstitution for quashing the order of reversion dated April 6, 1957, and for adirection to restore him to the rank of officiating Sub-Inspector according tohis seniority. The State as well as the Inspector-General of Police and theDeputy Inspector-General of Police were impleaded as parties to the petitionand the learned Judges of high Court allowed it principally on the ground thatthis order of reversion was in violation of the provisions of s. 115 of theAct. It is the correctness of this order that is challenged in this appealbefore us.
4. In order to appreciate the contentions raised it is necessary briefly toadvert to the statutory provisions on which the judgment of the High Court inthe main rests. Those material in this context are Sections 115 to 117 of the Actoccurring in Part X headed 'Provisions as to Services' :
(5) The Central Government may byorder establish one or more Advisory Committees for the purpose of assisting itin regard to -
(a) the division andintegration of the services among the new States and the States of AndhraPradesh and Madras; and
(b) the ensuring of fair andequitable treatment to all persons affected by the provisions of this sectionand the proper consideration of any representations made by such persons.
(6) The foregoing provisions ofthis section shall not apply in relation to any person to whom the provisionsof section 114 apply.
(7) Nothing in this section shallbe deemed to effect after the appointed day the operation of the provisions ofChapter I of part XIV of the Constitution in relation to the determination ofthe conditions of service of persons serving in connection with the affairs ofthe Union or any State :
Provided that the conditions ofservice applicable immediately before the appointed day to the case of anyperson referred to in sub-section (1) or sub-section (2) shall not be varied tohis disadvantage except with the previous approval of the Central Government.
116. (1). Every person whoimmediately before the appointed day is holding or discharging the duties ofany post or office in connection with the affairs ..... of an existing State inany area ...... shall be deemed as from that day to have been duly appointed tosuch post or office by the Government of, or other appropriate authority in,such State, or by the Central Government or other appropriate authority in suchPart C State, as the case may be.
(2). Nothing in this sectionshall be deemed to prevent a competent authority, after the appointed day, frompassing in relation to any such person any order affecting his continuance insuch post or office.
117. The Central Government mayat any time before or after the appointed day give such directions to any StateGovernment as may appear to it to be necessary for the purpose of giving effectto the foregoing provisions of this part and the State Government shall complywith such directions'.
5. Before proceeding to consider these provisions it would be convenient toput aside one matter and that is that it was not suggested that the order ofreversion was one by way of punishment constituting a reduction in rank so asto attract Art. 311 of the constitution.
6. The grievances of the respondent as formulated before us were threefold :(1) that for the purpose of promotions and for determining reversions theseniority in the police force was not computed on the basis of a list ofseniority prepared for the entire State of Rajasthan but that the same was doneon a regional basis i.e., there was a separate seniority list for Ajmer andanother for other areas in the State and that this had resulted in policeofficers like himself being superseded by others junior to them merely becausethey happened to be serving in particular region. In the petition there was avague reference to the maintenance of such regional lists as violative of theequality guaranteed by Art. 14, (2) It was further contended by the respondentthat the reversion from the officiating post or Sub-Inspector to thesubstantive one of Head Constable was 'an alteration in the conditions ofhis service' which the State Government was not competent to effectwithout the sanction of the Central Government under s. 115(7) of the Act, andthat, in any event, there had been a direction by the Central Government unders. 117 of the Act which rendered the right to retain an officiating postwithout reversion as such a condition, (3) Even if s. 115 were insufficient byitself to constitute the right to retain an officiating post without beingreverted to a substantive post as 'a condition of service,' stillthere was a guaranteed right not to be reverted except in the strict order ofjuniority under the provisions of the Standing Orders of the Police Force whichwere part of his conditions of service and that by reason of these StandingOrders the reversion was in violation of s. 115(7) of the Act.
7. We consider it would be convenient to deal with these in the reverseorder, and take up first the interpretation and effect of the Standing Order onwhich reliance has been placed both by the learned judges of the High Court aswell as by learned Counsel for the respondent before us. In regard to themthere are two distinct questions : (1) their proper interpretation, (2) whetherthey would in law constitute a condition of service and these have to beconsidered separately. The Standing Order relied on is one numbered 46 issuedby the Inspector General of Police, Ajmer and is dated October 20, 1949. Therelevant portion of it relied on is the paragraph numbered 4(b) which reads :
8. It is clear from this provision that it deals not with the order in whichholders of officiating posts may be reverted but with that in which they couldbe considered for confirmation, so that in strictness on its language theclause would not constitute the impugned reversion as one in breach of itsterms. But assuming that what might be called the spirit of the rule or thereason behind it be taken into consideration and it be held that it laid downalso the order in which reversions should take place, still we have next toconsider whether it has any legal efficacy as service condition. This woulddepend upon the Standing Orders having been issued by a competent authorityunder the provisions of a statute which empowered that authority to prescribe'conditions of service'. For undoubtedly if it were not so it wouldbe merely an administrative instruction issued by the Inspector General ofpolice for the guidance of his officers but could not determine serviceconditions fixed by statute or statutory rules by competent authorities orconfer any legal rights which in the event of non-observance could be thesubject of complaint in a Court. Learned Counsel for the respondent was,therefore, at pains to make out that these Standing Orders had a statutorybasis. For this purpose reliance was placed upon Sections 12 and 2 of the Police Act(V of 1861) as empowering the Inspector-General of Police to issue theseStanding Orders. Section 12 of the Police Act reads, to quote only the materialwords :
9. It is clear that the orders and rules referred to in this section havenothing to do with the determination of the service conditions of the officersrecruited to the police force. The expression 'organisation' cannot,in our opinion, include within its fold the conditions of service of those inthe police force. Turning next to s. 2 to which our attention was drawn, thematerial portion is its second paragraph which reads :
10. Under this section, however, it is not the Inspector General of Policebut the State Government that is empowered to frame rules regulating theconditions of service of members of the police force. It was not suggested thatthe Standing Orders on which reliance was placed were those made by the StateGovernment as they purport to be only under the authority of the InspectorGeneral of Police. A feeble argument was attempted to suggest that the StateGovernment might have delegated their power to the Inspector General, but nothingis better settled than that a power to make rules could not be delegatedwithout express statutory provision therefor.
11. Some point was sought to be made of the fact that these Standing Orderswere issued in October, 1949, when not the Constitution but s. 243 of theGovernment of India Act, 1935 was in force. But the respondent gets noadvantage out of this circumstance, because s. 243 referred to, enacts that theconditions of service of the subordinate ranks of various police forces inIndian 'would be such as may be determined by or under the Acts relatingto those forces' and we are again thrown back on the provisions of s. 2 ofthe Police Act by which it is the State Government, not the Inspector Generalof Police, that is vested with authority to frame conditions of service. Wetherefore consider, with great respect to the learned Judges of the High Court,that they were in error in treating Standing Order 46 as a condition of servicewhich was violated by the order of reversion impugned by the respondent in hisWrit Petition.
12. Standing Order 46 being put aside, we next turn to Sections 115 to 117 of theAct. The respondent was in the service of the Ajmer State as an officiatingSub-Inspector of Police on the appointed day i.e., November 1, 1956 and byvirtue of s. 115(1) of the Act he would be deemed to have been allotted toserve in connection with the affairs of the Rajasthan State, and, in fact, asnoticed earlier, there was a formal order of appointment dated November 1,1956, by which he was appointed as an officiating Sub-Inspector of Police. Wedo not consider it necessary to deal with sub-s. (5) of s. 115 as, in ouropinion, nothing turns on it, though it was referred to by learned Counsel forthe respondent. What is really crucial for the determination of this appeal isthe proviso to sub-s. (7) by which there was a guarantee that the conditions ofservice applicable before the appointed day would not be varied to thedisadvantage of persons in the position of the respondent except with the previousapproval of the Central Government. The question arising under this provisowould be whether it is any condition of service applicable to the holder of anofficiating post that he shall not be reverted to his substantive post. Butbefore dealing with it, the effect of two other provisions viz. Sections 117 and116(2) may be noticed. We first refer to s. 117 because if there is a directionof the Central Government in relation to a class of officers and such directionis necessary for giving effect to the provisions of this part, it is the dutyof the State Government to give effect to it in such a case the questionwhether such a direction is strictly a condition of service or not might notfall for determination. The learned Judges of the High Court considered thatthere was such a direction by the Central Government and that was part of thereasoning on which they granted relief to the respondent. Learned Counsel forthe respondent strenuously sought to support this argument before us.
13. The direction was claimed to be contained in a letter from the DeputySecretary to the Government of India Ministry of Home Affairs to the ChiefSecretary to the Government of Rajasthan, Jaipur dated March 27, 1957 andheaded 'protection of service conditions to be afforded to state servicepersonnel.' 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 personsreferred to in sub-s. (1) shall not be varied to their disadvantage except withthe previous approval of the Central Government, there was a paragraph readingas under :
When an officer had officiatedcontinuously on a particular scale of pay or would have officiated on thatscale but for his officiating appointment to a post on a higher scale orproceeding on leave or deputation for a minimum period of three yearsimmediately before November 1, 1956, the pay on which he had so officiatedshould be protected as if were pay and scale drawn in a substantivecapacity.'
The letter divides thesubject-matter dealt with in it into several parts and the above paragraphoccurs under the part headed 'Pay'. It was not suggested on behalf of therespondent that the clause had as such any relevance to the question ofreversion to a substantive post of an officer in an officiating post, or thateven otherwise the respondent had qualified for the benefit of the provisioncontained in it as regards pay since he had not officiated as a Sub Inspectorfor 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 postshad been mentioned in this directive, the right to continue in that post becamea service condition and that no reversion could be ordered without the sanctionof the Central Government. We do not find it possible to read the directioncontained 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 haveeffect under s. 117 of the Act but beyond it, subject to the proviso to sub-s.(7) of s. 115, the powers of the State Government are not intended to becurtailed and, in fact, they are expressly saved by sub-s. (2) of s. 116 whichpermits a competent authority to pass in relation to such persons 'anyorder affecting his continuance in such post or office.'
14. The contention that survives is merely whether the right to hold anofficiating post is a legal right and whether it could be stated to be acondition of service that such an officer shall not be reverted except forproper reasons. In our opinion, the matter is concluded by the decision of thisCourt in Parshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC . There,as here, an officer who was appointed to officiate in Class II Service as anAssistant Superintendent, Railway Telegraphs was reverted to his substantiveClass III appointment. No doubt, the question there considered was whether onthe facts of that case, this order of reversion was passed as a punishment soas to attract the constitutional protection guaranteed by Art. 311(2), but thisCourt had also to consider whether an officer appointed to an officiating posthad any legal right to continue in that post. As to that Das, C.J. speaking forthe majority observed :
(Vide also the judgment of this Court in State of Bombay v. F. A. Abraham[Civil Appeal 59 of 1961 (Not yet reported) decided on December 12, 1961.]).
15. If he had no legal right to continue in that post it would rather appearthat it was one of the conditions of his service that he could, foradministrative reasons, be reverted to his substantive appointment. Ittherefore appears to us that there is no basis for argument that mere reversionto a substantive post is a breach of the conditions of service. That is why wesaid that the proviso to sub-s. (7) of s. 115 on which stress is laid by theHigh Court really affords no assistance to the respondent. The above was, ingeneral, the reasoning upon which the learned Judges of the High Court allowedthe petition. We consider that they were in error in so doing and the appealhas accordingly to be allowed.
16. It is necessary, now, to mention the first of the points we have set outearlier which learned Counsel for the respondent strenuously pressed upon us.He submitted that the respondent had alleged in his petition a violation ofArt. 14 of the Constitution, in that the selection of officers for promotionwas determined not on the basis of the seniority of the officers consideringthe State as a whole but regionwise and this was the gravamen of the charge inthis respect made in the petition. In this connection he drew our attention tothe terms of s. 2 of the Police Act 5 of 1861 which reads :
17. He also pointed out that in the counter-affidavit filed by the Statethis splitting up of the State into regions and the determination of seniorityand promotion on a recognise, as distinguished from Statewise basis, wasdefended as dictated by administrative considerations. The learned Judges, intheir judgment have made a passing reference to this feature of the case andseem to express the opinion that the system of regionwise promotion was productiveof inequality and hardship. The difficulty in the way of the respondent,however, is that the plea raised in regard to this matter is of the vaguestcharacter and appears to be designed as affording some support for the mainallegations and contentions we have dealt with, and not as an independent anddistinct ground for impugning the constitutional validity of the scheme ofpromotion. In consequence of this state of the pleadings the facts and detailsnecessary for sustaining or repelling this contention were not brought into therecord, so that admittedly the point could not be decided on the record as itstands. Realising this learned Counsel for the respondent urged that the mattershould be admitted to the High Court for a consideration of this issue aboutthe breach of Art. 14 of the Constitution and the constitutional validity ofthe regionwise seniority lists prepared for promotion, reversion etc. allowingliberty to the parties to lead further evidence on the matter. Havingconsidered the suggestion carefully we have arrived at the conclusion that onthe pleadings, as they stand, this question could not be determinedsatisfactorily. If the issue as to discrimination and a violation of Art. 14has to be satisfactorily investigated and decided both the parties would haveto file amended pleadings in order to focus attention on several details, withthe result that this would virtually amount to the filing of a new petition. Weconsider therefore that if the respondent is so advised he should be at libertyto challenge the order now impugned on these other grounds and that for thatpurpose it would really be in his interest that he should be permitted to filea fresh petition making necessary allegations and setting forth the requisitefacts when the State also would have an opportunity to make its answers to sucha plea. It is in the light of this consideration that we have refrained fromremanding the case to the High Court for the consideration of this point.
18. The result is that the appeal is allowed and the order of the High Courtset aside and the Writ Petition of the respondent dismissed. We have to addthat this would be without prejudice to his right to file a fresh petition inregard to the matter we have indicated earlier. In the circumstances of thiscase there would be no order as to costs.
19. Appeal allowed.