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Debesh Chandra Das Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 381 of 1967
Judge
Reported inAIR1969Cal180
ActsAll India Services Act, 1951 - Section 3 and 3(1); ;Indian Administrative Service (Cadre) Rules, 1954 - Rules 3, 4(1) and 6; ;Constitution of India - Articles 53, 53(1), 77, 77(1), 77(2), 77(3), 226, 309, 311, 311(2) and 314; ;Government of India (Allocation of Business) Rules, 1961; ;Indian Administrative Service (Fixation of Cadre Strength) Regulations; ;All India Services (Discipline and Appeal) Rules, 1955 - Rule 3(4)
AppellantDebesh Chandra Das
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateNani Coomar Chakarvarti, ;Nepal Chandra Sen and ;Sibendra Nath Sen Gupta, Advs.
Respondent AdvocateSankardas Banerjee, ;Salil Kumar Dutta, ;Prasanta Kumar Ghosh and ;S.S. Javali, Advs.
Cases ReferredA. G. Benjamin v. Union of India
Excerpt:
- s.p. mitra, j. 1. this matter has been assigned to me under clause 36 of the letters patent. p. b. mukharji. j., and a. n. sen, j., by their lordships' order of april 11, 1968, have been pleased to state that their point of disagreement is as follows:-- 'whether the order or direction of the government of india contained in the letter dated the 20th june, 1966 and the 7th september, 1966, is unconstitutional or illegal.' 2. in 1933, the petitioner qualified himself for the indian civil service. in 1934, the petitioner, after serving his period of probation, arrived in india and was allotted to assam, now known as the state of assam. between 1938 and 1940 he held the post of under-secretary to the assam government in the home (political) department. in 1940, the government of assam placed.....
Judgment:

S.P. Mitra, J.

1. This matter has been assigned to me under clause 36 of the Letters Patent. P. B. Mukharji. J., and A. N. Sen, J., by their Lordships' order of April 11, 1968, have been pleased to state that their point of disagreement is as follows:--

'Whether the order or direction of the Government of India contained in the letter dated the 20th June, 1966 and the 7th September, 1966, is unconstitutional or illegal.'

2. In 1933, the petitioner qualified himself for the Indian Civil Service. In 1934, the petitioner, after serving his period of probation, arrived in India and was allotted to Assam, now known as the State of Assam. Between 1938 and 1940 he held the post of Under-Secretary to the Assam Government in the Home (Political) Department. In 1940, the Government of Assam placed the petitioner's services at the disposal of the Government of India and he was appointed to the post of Under-Secretary in the Home Department. In 1947, the petitioner held the post of the Deputy Secretary to the Government of India in its Home Department; but at the end of that year the Assam Government required his services and he was successively appointed inAssam to the posts of the Development Commissioner, the Additional Chief Secretary and the Chief Secretary. Between 1951 and 1954 the petitioner again served the Government of India as Secretary to the Union Public Service Commission, Between January 1955 and February 1961, he was the Joint Secretary to the Government of India in the Ministry of Transport and Communication. From February 1961, to July 1964, the petitioner was the Managing Director of the Central Warehousing Corporation which was a statutory corporation outside the Secretariat of the Government of India. In July 1964, the petitioner was appointed Secretary to the Ministry of Social Security, Government of India, later named as the Ministry of Special Welfare. And it is his present post as Secretary to the Government of India which is the subject-matter of this dispute.

3. On the 29th July, 1964, the petitioner's appointment as Secretary, Department of Social Security was approved by the Appointments Committee of the Cabinet for six months in the first instance. Two days later, that is, on the 31st July, 1964, there was a gazette notification to the following effect:--

'The President is pleased to appoint Shri D. C. Das as Secretary, Department of Social Security with effect from the forenoon of the 30th July, 1964 and until further orders.'

4. The notification was signed by a Deputy Secretary to the Government of India. Again, on the 6th March. 1965, the Secretary. Appointments Committee of the Cabinet in a Communication, stated as follows:--

'The Appointments Committee of the Cabinet have approved the proposal to continue Shri D. C. Das, I. C. S. as Secretary Department of Social Security.'

5. A copy of this communication was sent to the petitioner; but it was not followed by a Presidential Order or a gazette notification of that order.

6. In June, 1966, the petitioner received a letter dated June 20. 1966, from Shri Dharma Vira (as he then was), the Cabinet Secretary, which runs thus:--

'For some time, the Government has been examining the question of building up a higher level of administrative efficiency. This is much more important in the context of the recent developments in the country. In this connection, the Government examined the names of those who are at present occupying top level administrative posts with a view to ascertaining whether they are fully capable of meeting the new challenges or whether they should make room for younger people. As a result of this examination. It has been decided that you should be asked either to revert to your parentState or proceed on leave preparatory to retirement or to accept some post lower than that of Secretary of Government. I would be glad if you would please let me know immediately as to what you propose to do, so that further action inthe matter may be taken.

..... ..... ..... ..... ..... '

7. On receipt of this letter the petitioner made various representations including representations to the Prime Minister and had also a personal interview with her; but ultimately, on the 7th September, 1966, he received the following letter from Shri D. S. Joshi, the then Cabinet Secretary:--

'You had submitted on the 23rd July, 1966, a representation to the Prime Minister regarding your case. You had also represented to my predecessor on the 23rd June, 1966. As requested by you, the Prime Minister granted you an interview on the 31st August, 1966. I am now directed to inform you that after considering your oral and written representations in the matter, Government has decided that your services may be replaced at the disposal of your parent State, namely, Assam. In case, however, you like to proceed on leave preparatory to retirement, will you please let meknow?

..... ...... ...... ..... ..... '

8. The two letters of Shri Dharma Vira and Shri D. S. Joshi, are the documents mentioned in the referring order of P. B. Mukharji, J. and A. N. Sen, J., quoted above and I have to decide whether these are illegal or unconstitutional. The petitioner's application to this Court was an application made on the 20th September, 1966, under Article 226 of the Constitution praying, inter alia, for a writ in the nature of mandamus directing, the Union of India to recall, cancel and withdraw the orders dated the 20th June, 1960, and the 7th September. 1966, A rule nisi was issued by A. N. Ray, J., on September 20, 1966; but his Lordship was pleased to discharge the rule on the 19th May, 1967. Thereafter the matter went up to the Appellate Court, and, ultimately, P. B. Mukharji, J. and A. N. Sen, J., delivered their respective judgments which were concluded on the 31st January, 1968. The Division Bench gave a certificate under Article 132(1) of the Constitution; but the Supreme Court on the 29th March, 1968, cancelled the certificate for disposal of this case under clause 36 of the Letters Patent.

9. At the hearing before me, I asked learned Counsel for both the parties to state the details of the differences between the two learned Judges. Counsel for both, the parties have formulated these differences as follows:--

1. P. B. Mukharji, J., has held that the petitioner's post of the Secretary doesnot come under any of three categories of posts, namely, (a) permanent post, (b) temporary post and (c) tenure post: it was a post to be held 'until further orders': and the petitioner had no legal right to hold the post or claim the post for any period of time limited or unlimited (vide pages 6 and 7 of the Judgment). A. N. Sen, J., is of the view that the petitioner held a substantive appointment to a permanent post and, as such, he had a right to the post (vide pages 23 to 25 of the Judgment).

2. According to P. B. Mukharji, J., assuming that the petitioner was substan-tively holding a permanent post, on the facts of this case, the requirements of Article 311(2) of the Constitution have been complied with: in any event, the petitioner has waived his rights under Article 311(2) (vide pages 37 and 41 of the Judgment). A. N. Sen, J., has held that there has been no compliance with the provisions of Article 311(2) nor has there been any waiver of his legal rights by the petitioner (see pages 48 and 49 of the Judgment).

3. P. B. Mukharji, J., has said that the petitioner has not been reduced in rank within the meaning of Article 311 of the Constitution (vide pages 23 and 24 of the Judgment). A. N. Sen, J., thinks that the Government has inflicted on the petitioner the punishment of reduction in rank (see page 44 of the Judgment).

4. Arising out of the point just preceding Mr. Justice P. B. Mukharji's view is that the letters of the 20th June, 1966, and the 7th September, 1966, do not contain any stigma within the meaning of Article 311 of the Constitution; but are policy letters indicating the policy of readjustment in administrative services as is evident from the expressions -- 'context of recent development in the country', 'meeting the new challenges' and 'whether they should make room for younger people' used in the letter of the 20th June (see page 44 of the Judgment). A. N. Sen, J., has said that that anyone reading these documents would naturally conclude that the petitioner was found to be inefficient, incompetent and unfit to hold the post of a Secretary at the Centre, and that necessarily imports an element of punishment which is the basis of the decision and the order and is its integral part (vide pages 43 and 44 of the Judgment).

10. The first question, therefore, that we have to decide is whether the petitioner had any right to the post of a Secretary to the Central Government. Mr. Nani Chakraverty, learned Counsel for the petitioner, has argued that by the document of the 29th July, 1964, the appellant was appointed Secretary to the Central Government for a period of sixmonths in the first instance (page 53 of the paper book): it is common case that he joined his post on the forenoon of the 30th July, 1964: on the 31st July, 1964, there was a notification in the Gazette of India stating that the appellant had been appointed 'Until further orders' (page 54 of the paper book): and by the document of the 6th March, 1965, the appellant's appointment as Secretary is approved without any limitation as to the period for which he is to hold office (page 55 of the paper book).

11. On the basis of these documents Mr. Chakravarty's first contention is that, the petitioner held a substantive appointment to a permanent post. He relies on the Indian Administrative Service (Cadre) Rules, 1954, framed under Section 3(1) of the All India Services Act, 1951. Rule 3 (1) says that there shall be constituted for each State or group of States an Indian Administrative Service Cadre. Then he says that by the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955, it is provided that the State of Assam would have 55 senior posts under the State Government and 22 senior posts under the Central Government.

12. Mr. Chakravarty then asked me to consider some of the instructions of the Union Government. In the Government of India's instructions printed from page 16 of the All India Services Manual (corrected up to 1-5-67) it is stated inter alia, in paragraph 1.3 (at page 17) that the senior posts as notified in the schedule of each State cadre were divided into three main categories, namely, (a) senior posts under the State Government: (b) Central deputation quota and (c) deputation reserve. In paragraph 2.4 of these instructions (at page 19) it is, Inter alia, stated that all cadre posts held by Cadre Officers should be accounted for against the Central deputation quota. In paragraph 5 of these instructions (at page 20) it is provided that the allocation of cadre officers to the various cadres shall be made by the Central Government in consultation with the State Government or the State Governments concerned: and the Central Government may, with the concurrence of the State Government concerned, transfer a cadre officer from one cadre to another cadre. In paragraph 6 of these instructions (at page 20) it is observed, inter alia, that a cadre officer may, with the concurrence of the State Government or the State Governments concerned and the Central Government, be deputed for service under the Central Government or another State Government.

13. Learned Counsel for the appellant then invited me to look at Rule 9 (4) of the Fundamental Rules, VoL I(corrected up to the 30th September, 1966). Under Rule 9 (4) (at page 7) 'cadre' means the strength of a service or a part of a service sanctioned as a separate unit. Then, Rule 9 (19) (at page 25) explains what is meant by the word 'officiate'. It says that a Government servant officiates in a post when he performs the duties of a post on which another person holds a lien. It also says that a local Government may, if it thinks fit, appoint a Government servant to officiate in a vacant post on which no other Government servant holds a lien. Mr, Chakraborty contends that the appellant, in the instant case, was not officiating in the post of the Secretary to the Department of Social Security. No other person held a lien on this post. The post was created for first time in or about July, 1964, and the appellant was immediately appointed to it. Learned Counsel then relies on Rule 9 (22) (at page 26). This sub-rule defines a 'permanent post'. It means a post carrying a definite rate of pay sanctioned without limit of time. The appellant's Counsel thereafter drew my attention to schedule iii C to the Indian Administrative Service (Pay) Rules, 1954 at page 264 of the All India Services Manual (corrected up to 1-5-67). It shows that Secretaries to the Government of India, were to receive a pay of Rs. 3,500.00 per month. Mr. Chakraborty submits that there is a definite rate of pay for secretaries to the Government of India without limit of time and, as such the post of a secretary is a permanent post. He wanted rne to compare the definition of 'permanent post' in the Fundamental Rules quoted above with those of a 'temporary post' and a 'tenure post' in the said Rules. Rule 9 (30) (at page 31) says that a 'temporary post' means a post carrying a definite rate of pay sanctioned for a limited time. Counsel for the appellant contends that the post of the Secretary to the Department of Social Security carried a definite rate of pay; but was not sanctioned for a limited time. Then, Rule 9 (30-A) (at page 31) defines a 'tenure post'. It means a permanent post which an individual Government servant may not hold for more than a limited period. Mr. Chakraborty submits that, the cumulative effect of the provisions cited above is that, the appellant was holding neither an 'officiating post' nor a 'temporary post' nor a 'tenure post' but a 'permanent post' under the Central Government. In other words, the post of a Secretary to the Central Government, is a permanent post and the petitioner, according to Mr. Chakraborty, is holding it substantively and cannot be removed from that post without recourse to the provisions of Article 311(2) of the Constitution.

14. In my view, these arguments of learned Counsel for the appellant are untenable. He had himself relied on Rule 6 of the Indian Administrative Service (Cadre) Rules. 1954. This Rule has to be closely scrutinised and carefully considered to determine the nature of the appointment given to the petitioner under the Central Government Rule 6 runs thus:

'6. Deputation of cadre officers:-- (1) A cadre officer may, with the concurrence of the State Government or the State Governments concerned and the Central Government, be deputed for service under the Central Government or another State Government or under a Company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Government.

(2) A cadre officer may also be deputed for service under:--

(i) A Municipal Corporation or a Local Body, by the State Government on whose cadre he is borne, or by the Central Government with the concurrence of the State Government on whose cadre he is borne, as the case may be; and

(ii) An international organisation, an autonomous body not controlled by the Government or a private body, by the Central Government in consultation with the State Government on whose cadre he is borne: Provided that no cadre officer shall be deputed to any organisation or body of the type referred to in Item (ii) of this sub-rule except with his consent'

15. There is a note under Rule 6 (at page 21) of the All India Services Manual (corrected up to 1-5-67). The note says:

'The terms of deputation of a cadre officer deputed to another State shall be finalised by the borrowing Government in consultation with the lending Government. If there is any point of difference between them, it may be referred to the Government of India'.

16. Now, there is no dispute that Rule 6 of the Indian Administrative (Cadre) Rules, 1954, applies to members of the Indian Civil Service, not permanently allotted to the judiciary under Rule 3 of the Indian Administrative Service (Recruitment) Rules, 1954: vide page 115 of the All India Services Manual (corrected up to 1-5-67). The said Rule 6, therefore, governs the position of the appellant, in the instant case, in the Government of India. It appears from the Assam Civil List (corrected up to 1-1-60) at page 17 as well as the Civil List of the Indian Administrative Service as on 1-1-67 (pages 23 to 29) that the appellant was on deputation to the Government of India from the State of Assam, He had held the post of a Joint Secretary to theCentral Government from January, 1955 to February 1961. Thereafter, he became the Managing Director of the Central Warehousing Corporation and then in July, 1964, he was appointed Secretary to the Department of Social Security. He was a cadre officer on deputation and, as such, the offices that he held, were of transitory nature and the Central Government had the right to replace his services to the State of Assam as and when it thought fit His substantive service was not in the Central Government; but in the Government of Assam, For these reasons I overrule Mr. Chakraborty's contention that the appellant was holding a permanent post in the Central Government or had been appointed to any such post substantively.

17. Mr. Chakraborty's next argument is that, assuming the appellant had not been substantively appointed to a permanent post, the effect of the aforesaid documents of appointment have to be adjudged in the light of Article 314 of the Constitution; Rule 56 (f) of the Fundamental Rules, and clause 7 in Part-II of the Home Ministry's Resolution of the 17th October, 1957 at page 487 of the paper book.

18. Under Article 314 of the Constitution the appellant being a member of the Indian Civil Service, was entitled to receive from the Government of India the same conditions of service as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit as the appellant was entitled to immediately before the commencement of the Constitution. There is no dispute in the instant case that Article 314 applies to the appellant.

19. Rule 56 (f) of the Fundamental Rules provides:

'A member of the Indian Civil Service shall retire after thirty-five years' service counted from the date of his arrival in India; provided that if he has at the end of thirty-five years' service held his post for less than five years, he may, with the sanction of the President, be permitted to retain his post until he has held it for five years.'

I do not see how this rule can be of any assistance to the appellant. Mr. Chakra-borty wanted to say that by virtue of this rule the appellant was entitled to hold the post of a Secretary to the Central Government for five years from the date of his appointment as Secretary; but this rule, on the admitted facts of this case, cannot apply to the appellant. The appellant has not yet reached the end of thirty-five years' service counted from the date of his arrival in India in 1934. There is, therefore, no question of hisholding any post for any additional number of years at the end of thirty-five years' service.

20. Let us now come to Rule 7 in Part-II of the Home Ministry's resolution of October 17. 1957. Mr. Chakraborty was describing it as a 'Rule'; but I find it is not 'Rule 7' but Clause 7 of a 'scheme for staffing senior administrative posts of and above the rank of Deputy Secretary under the Government of India' which was annexed to a resolution of the Ministry of Home Affairs dated the 17th October, 1957. The heading of Part-II is 'tenure deputation' and clause 7 runs thus-

'7. Periods of tenure-- (i) Officers who are borrowed for appointment to posts of or equivalent to Deputy Secretary will ordinarily revert to the parent State cadre or service on the expiry of four years and officers who are borrowed for appointments to posts of or equivalent to Joint Secretary and Secretary will similarly revert on the expiry of a period of five years.

(ii) In exceptional circumstances, however, where public interests so demand the tenure of an individual officer in the same post or any other post or class of post may be extended or curtailed with the concurrence of the lending authority.'

Mr. Chakravarti contends that, in terms of clause 7 quoted above, the appellant has a right to hold the post of a Secretary to the Central Government at least for a period of five years. He concedes, however, that the validity of this contention depends on whether the said Cl. 7 has statutory force.

21. In order to establish that clause 7 has statutory effect. Counsel for the petitioner first relied on the affidavit-in-op-position filed on behalf of the respondents Nos. 1 and 2 on an application for production of documents and affirmed on the 8th April, 1967. In paragraph 5 of this affidavit it is stated, inter alia:

'The Ministry of Home Affairs notification dated 17th October, 1957, sets forth the correct and up-to-date position regarding the appointment of Secretaries to the Government of India. The report, no doubt, recommends that the appointment to the post of a Secretary to the Government of India should be for a term of five years. But this did not take away the right of the Government of India to transfer or revert an officer to his parent State, if, in the opinion of the Government of India, the officer is not fit or not up to the calibre expected of an officer of the status of the Secretary to the Government of India .....'

(Vide page 99 of the paper book).

22. The appellant's Counsel contends that in this paragraph there is a clearadmission that clause 7 represents the correct and up-to-date position regarding the appointment of Secretaries to the Government of India. That is to say, that if a person is borrowed from a State Government for appointment to the post of a Secretary to the Central Government, he would revert to his parent State cadre only on the expiry of five years from the date of his appointment as Secretary and if it is intended to revert him to the State cadre prior to the expiry of five years on the ground of unsuitability or inefficiency. Article 311 of the Constitution would at once be attracted.

23. Apart from the respondents' case in the said affidavit-in-opposition, Mr. Chakraborty says that the Home Ministry's resolution has statutory force by reason of certain provisions of the Constitution of India. Article 74(1) of the Constitution provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. In the Manual of Office Procedure (Diglot Edition), 1963, in clause 2 at page (x) it is, inter alia, stated:

'(a) As an elder statesman chosen as the head of the State by the free will of the people, the President commands universal respect and high esteem and his wise Counsel is always available but every act or decision of Government expressed to be taken in his name is based on a decision taken by or under the authority of a Minister or the Council of Ministers.' Mr. Chakraborty then relies on Article 77. In sub-article (1) of Article 77 it is provided that all executive action of the Government of India shall be expressed to be taken in the name of the President. And sub-article (3) of Article 77 provides that the President shall make rules for the convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business. Now, in the exercise of powers conferred by Article 77(3), the President made the Government of India (Allocation of Business) Rules, 1961 (vide page 650 of 'Encyclopaedia of Statutory Rules under Central Acts', Vol. III, 1963). From page 672 appears the. different items allocated to the Ministry of Home Affairs. Item No. 47 at page 674 is 'Scheme for Staffing senior posts at the Centre.' And Item No. 48 mentions the 'Appointments Committee of the Cabinet'. In other words, the Appointments Committee of the Cabinet is under the Ministry of Home Affairs and this Ministry also makes schemes for the staffing of senior posts at the Centre. Mr, Chakraborty then invites my attention to page 484 of the Paper Book. At this page we find the resolution of the Ministry of Home Affairs dated the 17th October, 1957. The resolution says: 'The Government of India have had under consideration the question of making adequate arrangements for staffing senior administrative posts of and above the rank of Deputy Secretary in the Government of India. In consultation with the State Governments and other authorities concerned, the Government of India have now sanctioned, ..... theconstitution of the Central Administrative Pool as provided for in the scheme annexed. The Ministry of Home Affairs have been authorised to take all steps necessary for the implementation of the scheme.'

24. Mr. Chakraborty contends that by this resolution the Ministry of Home Affairs was framing a scheme for staffing of senior posts at the Centre under item no. 47 aforesaid and that is also the heading of the annexure to the resolution at page 485. The heading is: 'Scheme for Staffing Senior Administrative Posts of and above the rank of Deputy Secretary under the Government of India.' At page 487 in Part-II the heading is: 'Tenure Deputation'. And clause? under this heading provides, inter alia, for the period of tenure of an officer who is borrowed for appointment to the post of a Secretary. The tenure is, as we have seen, for a period of five years. Mr. Chakraborty says that it is true that Article 77(1) requires that all executive action shall be expressed to be taken in the name of the President; but Article 77(3) is independent of Article 77(1) and if any action is taken pursuant to any Rule made under Article 77(3), it need not be expressed to be taken in the name of the President. And that is why, the Home Ministry's resolution of the 17th October, 1957, though not expressed to be taken in the name of the President, has a statutory force under Article 77(3).

25. I agree that a scheme for staffing senior posts for the Centre, may be framed under the Government of India {Allocation of Business) Rules, 1961, which were made in the exercise of powers conferred by Article 77(3); but, it seems to me, that if any executive action is taken pursuant to the scheme or for implementation of the scheme, such action must be expressed to be taken in the name of the President. My attention has not been drawn to any Presidential Order sanctioning the proposal to provide a tenure of five years for a Secretary to the Central Government. I shall, however, express my views on this point in details later in this judgment.

26. Counsel for the appellant then says that the Appointments Committee of the Cabinet has been referred to in Item No. 48 under the Ministry of Home Affairs at page 675 of the Encyclopaedia of Statutory Rules, Vol. III, 1963. ThisAppointments Committee consists of (i) the Prime Minister, (ii) the Minister for Home Affairs and (iii) the Minister or Ministers concerned with the particular appointment in question (see page 496 of the paper book). One of the functions of the Appointments Committee is to consider all recommendations and take decisions in respect of appointments of a Secretary to the Government of India (vide pages 496 and 498 of the Paper Book). Learned Counsel contends that in the instant case the Appointments Committee took the decision to appoint the petitioner as Secretary to the Department of Special Security for six months in the first instance on the 29th July, 1964 (vide page 53 of the Paper Book). This appointment was followed by a gazette notification on the 31st July, 1964, stating that the President was pleased to appoint the appellant as Secretary, Department of Social Security, with effect from the forenoon of the 30th July, 1964, and until further orders, (vide page 54 of the paper book). On the 6th March, 1965, the Appointments Committee again took a decision giving its approval to 'the proposal to continue Shri D. C. Das, I. C. S. as Secretary, Department of Social Security' (vide page 55 of the Paper Book). According to Mr. Chakraborty the Appointments Committee's decision of the 6th March, 1965, signifies that the appellant was entitled to continue as Secretary for the full period of five years commencing from the date of his appointment as Secretary.

27. Here, again, I am unable to uphold the contentions of the petitioner's Counsel. The Appointments Committee may have been constituted under the Government of India (Allocation of Business) Rules, 1961. It may consider recommendations and take decisions in respect, inter alia, of appointments of Secretaries to Government Departments; but under Article 77(1) the implementation of its decisions must, in my view, be expressed to be made in the name of the President. Mr. Chakraborty contends that the appointment of a Secretary is not the business of the President but of the Government of India. And no Presidential Order is required for appointing a Secretary. He points to several Articles in the Constitution, as for example, Article 76 (Appointment of the Attorney-General for India), Article 217 (Appoint-ment of High Court Judges), Article 124 (Appointment of Judges of the Supreme Court), Article 148 (Appointment of Comptroller and Auditor-General of India), Article 155 (Appointment of a Governor of a State), Article 316 (Appointment of the Public Service Commission), Article 338 (Appointment of a Special Officer for the Scheduled Castes and Scheduled Tribes), Article 340 (Appointment of a Commission to investigate the conditions of backward classes) and Article 350 (Appointment of a Special Officer for linguistic minorities), and comments that all these appointments are made by the President himself; but there is no Article in the Constitution providing for appointment by the President of a Secretary to the Government of India. I agree that a Secretary is not directly appointed by the President or by a Warrant under his hand and seal. The appointment of a Secretary may be the business of the Government of India; but the manner in which this business is to be conducted, has been provided for in the Constitution. And Article 77(1) clearly lays down that all executive action of the Government of India shall be expressed to be taken in the name of the President. Mr. Chakraborty laid special emphasis on the personnel of the Appointments Committee; but the position of the Council of Ministers as we have seen, has been dealt with in Article 74(1). It says: 'There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions'. The ministers, in terms of our Constitution, may 'aid and advise' the President; but any executive action taken on the advice of ministers must be expressed to be taken in the name of the President. That is why, in the instant case, on the 29th July, 1964, the Appointments Committee announced the petitioner's appointment as Secretary for six months; but this announcement was followed by a Presidential Order on the 31st July, 1964, appointing the petitioner as Secretary 'until further orders'. There was no Presidential Order following the Appointments Committee's decision on the 6th March, 1965. The position, therefore, is that the only order of appointment which this Court is entitled to take notice of, is the order of the President made on the 31st July, 1964, which was published in the Gazette of India and that order merely appoints the petitioner 'until further orders'. In other words, the petitioner's appointment as Secretary could be brought to an end at any time by a further order of the President which, in fact, I am told, was passed by the President on the 20th May, 1967, after A. N. Ray, J., had discharged the Rule on the 19th May, 1967. By this order in the name of the President the petitioner's services were 'replaced at the disposal of the Government of Assam with immediate effect'. The order has not been implemented as the petitioner had preferred an appeal against the Judgment of A. N. Ray, J. Now, there is a difference of opinion between P. B. Mukharji, J. and A. N. Sen, J., on the construction of the Appointments Committee's decision of the 6th March, 1965. By this decision the Appointments Committee 'approved the proposal to continue' the appellant as Secretary, Department of Social Security. P. B. Mukharji, J., is of the view that the Appointments Committee was merely continuing the appointment made by the President by the gazette notification dated the 31st July, 1964, (vide pages 5 to 6 of the Judgment). A. N. Sen, J., is of the view that the decision of the Appointments Committee recorded in the document of the 6th March, 1965, indicates that the appellant had a substantive appointment to the post. To my mind, whatever may be the construction of the document. If the intention was to give to the petitioner the post of a Secretary to the Government of India either permanently or for a fixed period, there should have been a Presidential Order to that effect. P. B. Mukharji, J., if I may say so with great respect, has rightly pointed out that the only gazetted and announced appointment, in the instant case, was that in the name of the President on the 31st July, 1964, which expressly stated that the appointment was to be 'until further orders' (vide page 5 of the Judgment). This Court, having regard to the provisions of the Constitution, already noted, cannot in my judgment take into consideration any other alleged order of appointment or any assurances that might have been given by high authorities in the Government of India. Mr. Chakraborty has also showed to me a standard form of appointment to tenure posts which shows that these appointments are also made 'until further orders'. Relying on this form Mr. Chakraborty submits that the Presidential order of the 31st July, 1964, was in conformity with the standard form of appointment for tenure posts as the post of Secretary to the Government of India was for a fixed period of tenure. Mr. Chakraborty's argument might have been sound if he could establish that the Home Ministry's resolution of the 17th October, 1957, had statutory force; but as I have said no statutory effect was given to this resolution. It seems to me that Articles 53 and 77 of the Constitution should be read together. Article 53(1) provides that the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. In other words, in the exercise of executive power the President may act either directly or through his officers; but whether he acts directly or through officers the act must be done in accordance with the Constitution. Then Article 77(1) says that all executive action of the Government of India shall be expressed to be taken in the name of the President It means that when the President instead of acting directly, acts through his officers, the action of the officers must be expressed to be taken in the name of the President. That is why, Article 77(2) says that orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. In this appeal my attention has not been drawn to any rule made by the President showing that a resolution of the Home Ministry signed or authenticated by its Joint Secretary and Establishment Officer (vide page 484 of the paper book), would be treated as an executive action of the Government of India 'expressed to be taken in the name of the President'. In fact, I do not think that such a rule could ever be made. Lastly, comes sub-article (3) of Article 77 which lays down that the President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation amongst Ministers of the said business. I agree with the appellant's counsel that the Government of India (Allocation of Business) Rules, 1961, was made, as the preamble to the order of the President dated the 14th January, 1961, shows, under Article 77(3). By these Rules the affairs of the Appointments Committee of the Cabinet were allocated to the Ministry of Home Affairs. This Ministry had also the power, under these Rules, to frame schemes for staffing senior posts at the Centre; but the implementation of the decisions of the Appointments Committee or the scheme for staffing officers required, in my view, compliance with the provisions of sub-Articles (1) and (2) of Article 77. And until these requirements were fulfilled, the decisions or resolutions concerned, could not be said to have statutory force.

28. Counsel for the appellant advanced two other alternative arguments in support of his contention that the Home Ministry's resolution of the 17th October, 1957, gave to the appellant the right to hold the post of a Secretary to the Central Government for a period of five years. He first relied on Article 309 of the Constitution. The Article runs thus:-

'Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services andposts in connection with the affairs of the Union, ..... to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.'

29. Learned Counsel for the appellant submits that the resolution of the Ministry of Home Affairs dated the 17th October, 1957, is a rule within the meaning of the proviso to Article 309. I shall express my views on this submission a little later.

30. Mr. Chakraborty also contended that assuming that the aforesaid resolution is not a rule under the proviso to Article 309, it is a rule under Section 3 of the All India Services Act, 1951. Section 3 of this Act provides as follows:--

'1. The Central Government may, after consultation with the Governments of the States concerned ..... makerules for the regulation of recruitment, and the conditions of service of persons appointed, to an all India service.

2. All rules made under this section shall be laid for not less than fourteen days before Parliament as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as Parliament may make on a motion made during the session in which they were so laid.'

31. The petitioner's counsel contends that the said resolution of the Home Ministry dated the 17th October, 1957, is a Rule under Section 3 of the All India Services Act. 1951 and under this Rule the petitioner has a right to the post of a secretary to the Government of India for five years. Learned counsel contends further that it is immaterial whether or not this Rule was placed before Parliament. Its validity is not affected by non-compliance with the provisions of subsection (2) of Section 3 of the Act of 1951. In support of his second contention he relies on Krishan Khanna v. State of Punjab. ; Munnalal v. Harold : (1956)IILLJ474Cal ; and Brojendra v. Union of India : AIR1961Cal217 .

32. It may be that the statutory effect of a rule made under Section 3(1) of the All India Services Act, 1951, is not affected by non-compliance with sub-section (2) of Section 3; but the question is whether the Home Ministry's resolution is at all a rule under Sec. 3 of the Act. No doubt, the resolution says; 'In consultation with the State Governments and other authorities concerned, the Government of India have now sanctioned, ..... the Constitution of the Central Administrative Pool as provided forin the scheme annexed. 'The consultation, it appears, was not with respect to the making of a rule, but only to the Constitution of a Central Administrative Pool. There was also no consultation, either with regard to (i) the regulation of recruitment or (ii) the conditions of service. Reading the resolution as a whole it seems to me that the Government of India is not making any rules but merely sanctioning the Constitution of a Central Administrative Pool. The sanction had to be followed by a rule properly framed.

33. Moreover, the document in question at page 484 of the Paper Book does not say that it is a rule made either under Article 77 or under the proviso to Article 309 of the Constitution or under Section 3 of the All India Services Act, 1951. In fact, the term 'resolution' has a special meaning in the official procedure of the Government of India. At page 28 of the Manual of Office Procedure (Diglot Edition), 1963, in Clause 74, what is meant by a resolution has been explained. It says:

'This form of communication is used for making public announcements of decisions of Government on important matters of policy, appointment of committees or commissions of enquiry and of the results of the review of important reports of such bodies. Resolutions are also usually published in the Gazette of India.'

34. Clause 74 in the Manual of Office Procedure sets this controversy in this appeal, in my view, at rest. The resolution of the Ministry of Home Affairs dated the 17th October, 1957, is neither a rule under the proviso to Article 309 nor a rule under Section 3 of the All India Services Act, 1951 nor is it an executive action under Article 77 of the Constitution. It is merely a public announcement of the decisions of the Government of India on certain important matters of policy and, by itself, has no statutory force. It is also to be observed that by this resolution the Government of India merely sanctioned the Constitution of the Central Administrative Pool and then it says that the Ministry of Home Affairs 'have been authorised to take all steps necessary for the implementation of the scheme'. There is no evidence on record as to what steps, if any, the Ministry of Home Affairs took to implement the scheme. From this point of view also the petitioner cannot claim that he had a right to the post of a Secretary for five years.

35. I have also to point out that both P.B. Mukharji, J. and A.N. Sen, J., came to the conclusion that the Home Ministry's resolution of the 17th October, 1957, had no statutory force or validity (vide the judgment of P.B. Mukharji, J., pages 15 to 21 and the judgment of A.N. Sen, J., pages 37 to 46). P. B. Mukharji, J., has, inter alia, said:

'That resolution is more in the nature of an administrative arrangement .....It created no legal right in the publicservant and it created no law for theGovernment.'

A. N. Sen. J., has said, inter alia:

'I am of opinion, in agreement with the view of the learned Trial Judge, that this resolution is really in the nature of an executive direction for administrative convenience and does not amount to any Service Rule. The resolution by itself does not make the post of the Secretary a tenure post and does not confer on the appellant any special or particular right to the post for any term. The right to the post, the appellant enjoys or has, is by virtue of his substantive appointment to a permanent post.'

36. Mr. Chakraborty, learned Counsel for the appellant, submitted to me that although on the question of the statutory effect of the Home Ministry's resolution, there was no difference of opinion between the two learned Judges, I was not bound by their Lordships' reasonings. He relied on the judgment of the Full Bench of the Patna High Court in Kanai Lal Paul v. Province of Bihar, AIR 1949 Pat 369 (FB) at p. 388, paragraph 50. Learned Counsel for the respondents has urged that under Clause 36 of the Letters Patent, I have no jurisdiction to differ from the referring Bench on a point on which both the Hon'ble Judges of that Bench had agreed. I do not intend to enter into this controversy in this appeal. I respectfully agree with P.B. Mukharji, J. and A.N. Sen, J., that the Home Ministry's resolution of the 17th October, 1957, has no statutory effect.

37. The next argument of Mr. Chakraborty, is on the assumption that the Home Ministry's resolution of the 17th October, 1957, has no statutory force. Learned Counsel relies on the Judgment of the Supreme Court in Union of India v. Anglo-Afgan Agencies and Union of India v. Om Prakash, reported in AIR 1968 SC 718. The Textile Commissioner published on October 10, 1962, a Scheme called. 'The Export Promotion Scheme' providing incentives to Exporters of Woollen goods. By the Scheme as extended to export to Afganisthan, the exporters were invited to get themselves registered with the Textile Commissioner for exporting woollen goods, and it was represented that the exporters will be entitled to import raw materials of the total amount equal to 100% of the F. O. B. value of exports. One of the questions that arose before the Supreme Court was whether the said representation of the Textile Commissioner was statutory in character. The Supreme Court has observed, inter alia, that granting that it was executive in character, the Courts have the power in appropriate cases to compel performance of the obligations, imposed by the scheme upon the departmental authorities: it could not be said that executive necessity released the Government from honouring its solemn promises relying on which the citizens had acted to their detriment, under our constitutional set up, no person may be deprived of his right or liberty except in due course of and by authority of law: and if a member of the executive seeks to deprive a citizen of his right or liberty otherwise than in exercise of power derived from the law --common or statute -- the Courts will be competent to, and indeed would be bound to, protect the rights of the aggrieved citizen.

38. Mr. Chakraborty says that the principles laid down by the Supreme Court in the above case should be applied to the facts in the present appeal. By the said resolution, submits Mr. Chakraborty, the Home Ministry made a solemn promise that officers who were borrowed for appointments to the post of a Secretary to the Central Government would revert on the expiry of a period of five years. And if the Government of India seeks to go back on this promise, the Court should compel its performance. I do not think that the principles decided in the case reported in AIR 1968 SC 718 can be applied to the facts before me. There is no averment here as to any representation made by the Government of India. There is no averment that the petitioner acted upon any representation to his detriment, Further, under Article 309 of the Constitution any service rule having the force of law, must be either under an Act of the appropriate legislature or made by the President or the Governor, as the case may be, until provision in that behalf is enacted by the appropriate legislature. The requirements of Article 309 cannot, in my view, be replaced by any representation made by the Government of India.

39. Learned Counsel for the appellant advanced another alternative argument. In the case of Sant Ram Sharma v. State of Rajasthan : (1968)IILLJ830SC , the Supreme Court had to deal with a case of promotion to 'Selection Grade Posts' under the Indian Police Service (Pay) Rules, 1954, and under the Indian Police Service (Regulation of Seniority) Rules, 1954.

In paragraph 7 at p. 1914 the Supreme Court observes:

'It is true that there is no specific provision in the rules laying down the principle of promotion of junior or senior grade officers to selection Grade Posts.But that does not mean that till statutory rules are framed in this behalf, the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the Officers concerned to Selection Grade Posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.'

40. The appellant's counsel argues that the respondents, in the instant case, cannot point to any statutory Rules relating to appointments of Secretaries to the Central Government. And in the absence of cuch Rules the administrative instructions contained in the Home Ministry's Resolution of the 17th October, 1957 (assuming it has no statutory force) would fill up the gap and would govern the position of Secretaries to the Central Government.

41. This argument of Counsel for the appellant cannot be accepted. The appellant was appointed as a Secretary to the Central Government in July, 1964; but the Indian Administrative Service (Cadre) Rules, 1954, came into force long before this date, and under Rule 4 (1) thereof, the Indian Administrative Service (Fixation of Cadre Strength) Regulations, were made in 1955. The appellant's appointment as Secretary to the Central Government, is covered by the said Rules and the said regulations and, as such, there was no gap to be filled up by administrative instructions.

42. I have in the foregoing paragraphs of this judgment dealt with all the arguments advanced before me of learned Counsel for the appellant in support of his contention that his client had a substantive right to the post of a Secretary to the Central Government and have stated my reactions thereto. Learned Counsel, incidentally drew my attention to the Maxwell Committee's report which did not carry the matter any further as there was no dispute that it had no statutory force. For the reasons I have enumerated, I am of opinion that the appellant was on deputation from the State of Assam and was not holding any permanent or substantive post in the Government of India. He had no right to the post of a Secretary: he had been appointed 'until further orders': and at any time he could be reverted to his parent State viz., the State of Assam.

43. I am not dealing, in this judg-ment, with the argument on behalf of the respondents, that, in any event, the appellant had a full period of five years in the Central Government, if his periods of service as Joint Secretary andSecretary were taken together. Having regard to the conclusions I have already reached it is unnecessary to consider this point.

44. I would now consider the next question that arises in this appeal, namely, whether the action that was proposed against the appellant amounted to a reduction in rank within the meaning of Article 311(2) of the Constitution.

45. Counsel for the petitioner contends that in Shri Dharma Vira's letter of June 20, 1966, three alternatives were suggested to his client, namely (1) he should be asked to revert to his parent State or (2) he should proceed on leave preparatory to retirement or (3) he should accept some post lower than that of Secretary to Government. My attention was invited to the All India Services (Discipline and Appeal) Rules, 1955. According to Rule 3(iii) & (v), reduction in rank including reduction to a lower post or time-scale or to a lower stage in a time-scale as well as compulsory retirement are penalties which may for good and sufficient reasons, be imposed on a member of the service. Learned Counsel then says that the final order in this regard was in the letter of Shri D.S. Joshi dated, September 7, 1966. In this letter the petitioner was informed that his services might be replaced at the disposal of his parent State, namely, Assam. According to the petitioner the order of the 20th June, 1966, became merged in the order of the 7th September, 1966 (vide paragraph 29 of the petition at page 13 of the Paper Book). Mr. Chakraborty contends that this order of the 7th September, 1966, amounted to 'reduction in rank', so far as the petitioner was concerned, and it required compliance with the procedure laid down in Article 311(2) of the Constitution. It is a reduction in rank, submits Mr. Chakraborty, for four reasons, namely, (1) the salary of a Secretary to the Central Government is Rs. 3,500.00 per month; the salary of the Chief Secretary to the Government of Assam is Rs. 3,000.00 per month which is the maximum the appellant could expect; (2) in the order of precedence a Secretary to the Union Government occupies the 28th place whereas the Chief Secretary to a State Government occupies the 30th place; (3) as it is clear from Shri Dharma Vira's letter of the 20th June, 1966, and Shri D. S. Joshi's letter of the 7th September, 1966, that the appellant has been found to be unfit to serve as Secretary to the Central Government his future chances of promotion have been seriously affected and (4) if the petitioner is given a post lower than the post of the Chief Secretary to the State of Assam, his Seniority would be lost.

46. On behalf of the respondent it is contended (a) that Article 311 has no application to this case; (b) assuming that it applies there has been no reduction in rank; and (c) assuming that it applies and further assuming that there has been reduction in rank, the requirements of the said Article have, in fact, been complied with or at any rate waived by the appellant,

47. I shall first take up the third argument of the respondent's Counsel. It is stated that the appellant, after receipt of Shri Dharma Vira's letter, made an appeal to the Prune Minister on the 23rd July, 1966. The Prime Minister granted him an interview on the 31st August, 1966. And thereafter the final decision of Government was communicated to him by Shri Joshi's letter of the 7th September, 1966, According to Counsel for the respondents, the procedure that the petitioner chose to adopt, gave him 'a reasonable opportunity of being heard' within the meaning of Article 311(2) after he was informed of the charges against him. He was also, according to the respondent's Counsel, on the facts of this case, given a reasonable opportunity of making representation on the penalty proposed. In any event, submits the respondents' Counsel, the petitioner has waived his rights under Article 311(2). I do not accept these arguments advanced on behalf of the respondents. An apoeal to the Prime Minister and the communication of the Prime Minister's decision is not the procedure contemplated by sub-article (2) of Article 311 which is meant to give protection to Government servants against arbitrary or unreasonable dismissal or removal or reduction in rank. Moreover, the fact that the petitioner appealed to the Prime Minister cannot, in my view, be treated as waiver of his constitutional rights. I do not think there is any evidence in this case of an intentional relinquishment of a known right. I agree, in this respect, with the views of A. N. Sen, J.

48. Let us now deal with the first and second contentions aforesaid of Counsel for the respondents. I have already held that the petitioner was on deputation to the Central Government from his parent State, namely, the State of Assam. Under sub-rule (4) of Rule 3 of the All India Services (Discipline and Appeal) Rules, 1955, the reversion to a lower post of a member of the service who is officiating in a higher post, after a trial in the higher post or for administrative reasons (such as the return of the permanent incumbent from leave or deputation, availability of a more suitable officer, and the like) does not amount to reduction in rank.

49. On the point at issue the observations of the Supreme Court in Civil Appeal No. 1272 of 1966 (SC), Jasbir Singh Bedi v. Union of India, made on the 12th January, 1968, appear to be relevant. The Supreme Court has observed:

'It is well established that a Government servant who is officiating in a post has no right to hold it for all time and the Government servant who is given an officiating post holds it on the implied term that he may have to be reverted it his work was found unsuitable. In a case of this description a reversion on the ground of unsuitability is an action in accordance with the terms on which the officiating post is held and not a reduction in rank by way of punishment to which Article 311 of the Constitution could be attracted. It was argued on behalf of the appellant that the order of reversion was made by way of reversion (sic) dated February 2, 1965, which would throw a stigma on the appellant. It is, of course, well settled that temporary Government servants are entitled to the protection of Article 311(2) of the Constitution in the same manner as permanent Government servants if the Government takes action against them meting out one of the three punishments, namely, dismissal/removal or reduction in rank, See Parshottam Lal Dhingra v. Union of India : (1958)ILLJ544SC . But this protection is only available where the dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. As pointed out in Parshottam Lal Dhingra's case : (1958)ILLJ544SC the two tests applicable in a matter of this description are: (1) whether the Government servant has a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the Government servant had been punished. Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influence the Government to take action under express or implied terms of the contract of employment or under the statutory rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The test for attracting Article 311(2) of the Constitution in such a case is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee (see the decision of this Court in Champak Lal Chimanlal Shah v. Union of India : (1964)ILLJ752SC . In the present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct of the appellant and therefore it cannot beheld that the order of reversion was made by way of punishment and the provisions of Article 311 of the Constitution are consequently attracted. This view is supported by the decision of this Court in State of Bombay v. F. A. Abraham : (1963)IILLJ422SC in which the respondent who held the substantive post of Inspector of Police and had been officiating as the Deputy Superintendent of Police was reverted to his original rank of Inspector without being given any opportunity of being heard in respect of the reversion. His request to furnish him with reasons of his reversion was refused. Later a departmental enquiry was held behind his back in respect of certain allegations of misconduct made against him in a confidential communication from the District Superintendent of Police to the Deputy Inspector-General of Police but these allegations were not proved at the enquiry. The Inspector-General of Police thereafter wrote to the Government that the respondent's previous record was not satisfactory and that he had been promoted to officiate as Deputy Superintendent of Police in the expectation that he would turn a new leaf but the complaint made in the confidential memorandum was a clear proof that the respondent was habitually dishonest and did not deserve promotion. As the order of reversion was maintained by the Government, the respondent filed a suit challenging the order. The suit was decreed by the Court of first instance and the decree was affirmed by the High Court on appeal. On further appeal to this Court it was held that reversion of the respondent on the ground of unsuitability was an action in accordance with the terms on which the officiating post was being held and was not a reduction in rank by way of punishment to which Section 240 of the Government of India Act, 1935, would be attracted. The appeal of the Government was allowed and the suit of the respondent dismissed. A similar view was expressed by this Court in L.N. Saksena v. State of Madhya Pradesh : (1967)IILLJ427SC where it was pointed out that since there were no express words in the order of compulsory retirement itself which would throw a stigma on the Government servant, there was no order of 'removal' of the Government servant requiring action under Article 311 of the Constitution. On behalf of the appellant reference was made to the decision in Jagdish Mitter v. Union of India : (1964)ILLJ418SC but the material facts of that case are different. The order impugned in that case was in the following terms: Shri Jagdish Mitter, a temporary second division clerk of this office having been found undesirable to be retained in Government service is here-by served with a month's notice of discharge with effect from November 1, 1949. It was held that when the order referred to the fact that Jagdish Mitter Was found undesirable to be retained in Government service, it expressly cast a Stigma on him, and in that sense must be held to be an order of dismissal and not a mere order of discharge. In the present case, however, the order of reversion D/-February 2, 1965 does not show on the face of it that any stigma was cast on the appellant and, though the inspection note of the Additional Member (Vigilance) Railway Board may constitute a motive for the reversion of the appellant, It is not possible to hold that the reversion of the appellant was by way of punishment and the provisions of Article 311 of the Constitution are consequently applicable to the case.'

50. I have extensively quoted the above observations for two reasons. Firstly, several previous decisions of the Supreme Court have been considered in this case. Secondly, this is one of the latest judgments of the Supreme Court on the point under consideration. For our purposes in this appeal, it appears that, in considering whether there has been a 'reduction in rank', the following principles should be borne in mind:--

1. A Government servant officiating in a post has no right to hold it for all time: he holds it on the implied term that he would have to be reverted if his work was found unsuitable and in a case of this description a reversion on the ground of unsuitability is an action in accordance with the terms on which the officiating post is held and not a reduction in rank by way of punishment to which Article 311 of the Constitution could be attracted.

2. Temporary Government servants are also entitled to protection of Article 311(2) if the Government takes action against them meting out one of the three punishments, namely, dismissal or removal or reduction in rank.

3. Where an order of reversion does not contain any express words of stigma attributed to the conduct of the Government servant concerned, it is not an order of reversion made by way of punishment and Article 311 of the Constitution is not attracted to it.

51. In Jasbir Singh Bedi's case, Civil App. No. 1272 of 1966, D/- 12-1-1968 (SC) the order of reversion dated February 2, 1965, simply stated: 'Sri Jasbir Singh Bedi, Officiating Vigilance Inspector in scale of Rs. 335-425(AS) is reverted to his parent department with immediate effect'. This is why, the Supreme Court was of the view that this order of reversion did not show on the face of it that any stigma was cast on the appellant

52. In Jasbir Singh Bedi's case. Civil App. No. 1272 of 1966, D/- 12-1-1968 (SC) the judgment was delivered by Rama-swami, J., and Shah, J. and Bhargava, J. concurred with it.

53. There is a more recent judgment of the Supreme Court delivered on the 22nd February, 1968, in Civil Appeal No. 433 of 1965: : (1970)ILLJ373SC , State of Punjab v. Sukh Raj Bahadur. This judgment was delivered by G. K. Mitter, J. with whom Shah, J. and Ramaswami J. had concurred. In this appeal the order complained of was as follows:--

'The Governor of Punjab is pleased to revert Shri Sukh Raj Bahadur, Extra Assistant Commissioner, from P. C. S. (Executive Branch) to the post of Superintendent under the Chief Secretary, Delhi Administration, with Immediate effect.'

54. Before the order of reversion was issued there was departmental enquiry; but the enquiry did not proceed beyond the stage of submission of charge sheet followed by the respondent's explanation thereto. The enquiry was not proceeded with, there were no sittings of any Enquiry Officer; no evidence was recorded; and no conclusion was arrived at on the enquiry. The Supreme Court took the view that Article 311(2) was not attracted to the facts of the case. In this judgment several decisions of the Supreme Court have been reviewed and Mitter, J., on a conspectus of these cases has laid down the following propositions:

1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.

2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.

3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.

14. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.

5. If there be a full-scale departmental enquiry envisaged by Article 311 that is an Inquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article.

55. Let us now try to apply the principles that emanate from the judgments in Jasbir Singh Bedi's case, Civil App. No. 1272 of 1966, D/- 12-1-1968 (SC) and in the case of the State of Punjab, Civil App. No. 433 of 1965, D/- 22-2-1968 : (1970)ILLJ373SC to the orders or directions of the Government of India contained in the letters dated the 20th June, 1966 and the 7th September, 1966, in the instant case.

56. In the letter of Shri D. S. Joshi dated the 7th September, 1966, I do not find any express words of stigma. It refers to the representation which the appellant submitted to the Prime Minister on the 23rd July, 1966, and also the appellants' representation to Shri Dharma Vira dated the 23rd June, 1966. It refers also to the interview the Prime Minister granted to the appellant on the 30th August, 1966. Then it proceeds to state 'I am now directed to inform you that after considering your oral and written representation in the matter Government has decided that your services may be replaced at the disposal of your parent State namely, Assam. In case, however, you like to proceed on leave preparatory to retirement, will you please let me know?'

57. To my mind, this is an order of reversion in 'unexceptionable form' to which the provisions of Article 311 are not attracted at all. The President had appointed the petitioner a Secretary to the Central Government 'until further orders'. And an order of reversion in these circumstances 'without anything more' would not attract the operation of Article 311.

58. We have now to consider whether the letter of Shri Dharma Vira dated the 20th June, 1966, attracts Article 311. This letter contains, inter alia, the following statements:--

1. The Government has been examining the question of building up a higher level of administrative efficiency.

2. The Government has examined the names of those who are at present occupying top level administrative posts with a view to ascertain whether they are fully capable of meeting the new challenges or whether they should make room for younger people.

3. It has been decided that you should be asked either to revert to your parent State or to proceed on leave preparatory to retirement or to accept some post lower than the post of Secretary to Government.

59. It is apparent from this letter that the Government made an enquiry as to the suitability of officers occupying top level administrative posts and decided that the appellant was unsuitable and proposed to him that he should either goback to his parent State or proceed on leave preparatory to retirement or accept a post lower than the post of a Secretary to the Government. The question is whether such a decision preceded by an enquiry as to suitability attracts the provisions of Article 311. In the case of the State of Punjab, Civil App. No. 433 of 1965, D/- 22-2-1968 : (1970)ILLJ373SC G.K. Mitter, J., has referred to three decisions of the Supreme Court which appear to be relevant to the point under consideration. In State of Orissa v. Ram Narayan Das : (1961)ILLJ552SC the respondent was a Sub-Inspector of Police on probation in the Orissa Police Force. He was served with a notice to show cause why he should not be discharged from service 'for gross neglect of duties and unsatisfactory work'. He submitted an explanation which the Deputy Inspector-General of Police considered to be unsatisfactory. He passed an order discharging the respondent from service 'for unsatisfactory work and conduct'. The respondent's contention was that the order was invalid because he had not been given a reasonable opportunity to show cause against the proposed action in terms of Article 311(2) and that he was not given an opportunity to be heard nor was there any evidence taken on the charges. The Supreme Court was of the view that the enquiry against the respondent was only for ascertaining whether he was fit to be confirmed and although.

'an order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualifications, may appropriately be regarded as one by way of punishment, an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed, is not of that nature.'

The Supreme Court said further

'..... the fact of the holding of anenquiry is not decisive of the question. What is decisive is whether the order is by way of punishment in the light of the tests laid down in Parshotam Lal Dhingra's case.'

60. It is clear, therefore, that if an enquiry is held with a view to ascertainwhether a probationer is fit to be confirmed and if as a result of enquiry the probationer's services are terminated, the provisions of Article 311 would not be attracted.

61. The next case is the case of R.C. Lacy v. State of Bihar, Civil Appeal No. 590/1962, decided on the 23rd October, 1963 (SC). In this case the appellant was working as an Assistant Professor of Botany in Class II of the Bihar Educational Service. He was temporarily promoted to Class I of the service against apermanent post created in April, 1949, and appointed Professor of Botany in the college in which he was working. He was informed that Government would consider him for permanent appointment depending on the efficiency with which he ran the department, the extent to which he enjoyed the goodwill of his colleagues and the devotion to research work that he revealed during the course of the year. In April, 1950, the appellant moved the Government for confirmation in Class I. The Government, however, decided to continue his temporary service in Class I for another year with the concurrence of the Public Service Commission. Following an incident on the 9th February, 1951, the Commissioner of Patna Division was appointed to make an enquiry into the same. The report of the enquiry went against the appellant. On August 21, 1951, the Government passed an order reverting the appellant to his substantive post in Class II and transferred him from the Patna College to the Ranch! College, The appellant filed a suit which ultimately came up before the Supreme Court. In dismissing the appeal the Supreme Court said:

'The enquiry which was held by the Commissioner ..... was in the natureof a preliminary enquiry to enable the Government to decide whether disciplinary action should be taken against the appellant. ..... It is clear, however,that the Government did not decide to hold any enquiry for the purpose of taking disciplinary action against the appellant, for no enquiry officer was appointed, no charges were framed and no regular departmental enquiry as envisaged by the rules and Article 311(2) of the Constitution was ever held.'

According to the Supreme Court the Government's action was in pursuance of its right to revert an officer holding a higher post temporarily if he was not found fit for the purpose.

62. In the instant appeal also the appellant was holding the post a Secretary 'until further orders': the Government had the right to revert him to his parent State: and the enquiry referred to in Shri Dharma Vira's letter of June 20, 1966, as to the suitability of persons occupying top level administrative posts, appears to me to be in the nature of a preliminary enquiry and not a departmental enquiry contemplated by Article 311(2).

63. The next case is the case of A. G. Benjamin v. Union of India, Civil Appeal No. 1341 of 1966 decided on the 13th December, 1966 (SC). The appellant was temporarily employed as Stores Officer in the Central Tractor Organisation. He was not a confirmed Government servant: his services could be terminated under Rule 5 of the Central Civil Service(Temporary Service) Rules, 1949, with one month's notice on either side: and his services were, in fact, terminated on April 23, 1954. There had been complaints against him and the Chairman of the Central Tractor Organisation sent a notice to him asking him to show cause why disciplinary action should not be taken against him and an enquiry officer was appointed. But before the enquiry could be completed, the Chairman recommended that the services of the appellant should be terminated under R, 5 observing in his note to the Secretary that 'The departmental proceedings will take a much longer time and we are not sure whether after going through all the formalities we will be able to deal with the accused in the way he deserves.' Acting upon this suggestion the appellant was served with the order complained of. The order was to the effect that the appellant was being informed that his services were no longer required in the Organisation and the same were terminated with effect from the date on which the notice was served on him. He was further informed that in lieu of the notice one month's pay and allowances would be given to him. The Supreme Court came to the conclusion that Article 311 of the Constitution did not apply to the facts of this case.

64. It was argued before me that the principles the Supreme Court had discussed in the cases cited above, do not apply to the appellant as he was neither a temporary servant nor a probationer nor was he holding an officiating post. To my mind, on principle, there should be| no difference between a post held temporarily or on probation or on an officiating basis and a post held on deputation 'until further orders'. In the appellant's case, it appears from Shri Dharma Vira's letter, there was an enquiry as to his suitability or to ascertain whether he should be retained in the post of a Secretary to the Government of India; but there was no full-scale departmental enquiry; no enquiry officer was appointed; no charge-sheet was submitted and no explanation was called for and consi-dered. The appellant was on deputation from the State of Assam and was holding the post of the Secretary to the Depart-ment of Social Security 'until further orders'. He had been reverted to his parent State without any departmental enquiry. In these circumstances, I do not find any scope for invoking the provisions of Article 311.

65. No other point, so far as my recollection goes, was argued before me except that Mr. Chakraborty mentioned at one stage that the appellant had no substantive post or lien on a particular post in the State of Assam and, as such, it could not be said that he had been reverted to his substantive rank; but, as P. B. Mukharji, J., has pointed out at page 13 of his Lordship's judgment that, in paragraph 15 of the affidavit-in-oppo-sition, it was specifically, expressly and directly alleged that the appellant held a lien on his substantive post in the Assam Cadre and the appellant in his affidavit-in-reply did not deny that crucial fact as he could not.

66. In the premises, my answer to thequestion referred by the Division Bench,is that the order or direction of the Government of India contained in the lettersdated the 20th June, 1966, and the 7thSeptember, 1966, is not unconstitutionalor illegal. The matter would now goback to the Division Bench for final disposal.


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