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TMI Blog1958 (2) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... orandum further stated that if the persons concerned were retained in service and confirmed in the posts, they would be allowed pensionary benefits and would also be eligible to contribute to the General Provident Fund. In the first instance the appointments were made on probation for six months subject to termination on certain conditions mentioned in para. 4 of the memorandum, which need not be set out at this stage. The duties of a Liaison Officer were stated in para. 5 of the memorandum, the main duty being to organise and conduct publicity for the programmes and other activities of a Radio Station. The designation Liaison Officer was later changed to Public Relations Officer, and along with other posts of Listener Research Officer and Assistant Station Director, the posts of Public Relations Officers were upgraded to ₹ 450-25-500-30-800 with effect from January 1, 1947. On May 23, 1952, the Director General, All India Radio, passed an order bearing No. 2(1)A/50 in which it was stated that whereas the appellant had been in continuous Government service for more than three years and a declaration had been issued to him in pursuance of rr. 3 and 4 of the Central Civil Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on should be forwarded to the Union Public Service Commission. While Government was considering the representation of the appellant, the Union Public Service Commission interviewed in March, 1953, candidates for the posts of Assistant Station Directors. The appellant appeared before the Commission on March 26, 1953. On April 18, 1953, the appellant was informed that the Union Public Service Commission had not selected him and the appellant was again informed that it was not possible to continue him in service. The appellant made fresh representations to the effect that the order purporting to terminate his service on the ground that the Union Public Service Commission had not selected him for the post of Assistant Station Director, was an illegal order inasmuch as the appellant held a quasipermanent status and was entitled to hold a post in the grade of Assistant Station Directors, as long as anyone not in permanent or quasi-permanent service continued to hold such a post. To these representa- tions the appellant received a reply to the effect that Government had decided to keep in abeyance the post of Public Relations Officer held by him and therefore it was not possible to reta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Public Relations Officer, All India Radio, was appointed to that post in a quasi-permanent capacity with effect from the 1st May, 1949. Subsequently, in August 1952, all posts of Public Relations Officers, except the one in the External Services Division, were held in abeyance. As the post of Public Relations Officer belongs to the same grade as Assistant Station Director carrying identical scales of pay Shri Srinivasan was appointed Assistant Station Director in the External Services Division with effect from the 22nd September, 1952. Under the provision contained in the Ministry of Home Affairs Office Memorandum No. 54/136 /51- NGS, dated the 24th April, 1952, Shri Srinivasan will carry with him the quasi-permanent status of his former post of Public Relations Officer while holding the post of Assistant Station Director. (Sd.) M. Lal, Director-Geiieral. A copy of the order was also sent to the Secretary, Union Public Service Commission. Unfortunately, the appellant soon found that his troubles did not end with the order dated December 14, 1953. On August 31, 1955, the appellant was informed by the then, Secretary, Miniistry of Information and Broadcasting, that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the post of Assistant Station Director in an open selection and also since the Union Public Service Commission have not accepted his transfer, the Government of India regret that they are unable to allow him to continue in the post of Assistant Station Director. He is, therefore, required to relinquish charge of the post of Assistant Station Director immediately. To save him the hardship of retrenchment, the question of offering Shri Srinivasan alternative employment has been considered. There is no intention of reviving the posts of Public Relations Officer that were held in abeyance in 1952. For publicity and public relations work of All India Radio, a few poste of Assistant Information Officer in the scale of ₹ 350-25-500-EB-30-620 have been sanctioned on the strength of the Press Information Bureau and it is proposed to absorb him on temporary basis, against one of these posts. The absorption in this post also, is subject to the approval by the Union Public Service Commission to whom a reference has been made. Meanwhile, after relinquishing the charge of the post of Assistant Station Director, he should report himself for duty to the Principal Information Officer, Press ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition under Art. 32 of the Constitution. It will be convenient to take up the appeal first. The main question for decision in the appeal is whether the impugned orders violate the constitutional guarantee given by Art. 311 (2) to the appellant, who is admittedly the holder of a civil post under the Union. The true scope and effect of Art. 311 of the Constitution was fully considered in a recent judgment of this Court in Parshotam Lal Dhingra v. Union Of India 1958] S. C. R. 828, pronounced on November 1, 1957, and it was there held by the majority as follows ( we are quoting such observations only as have a bearing on the present case): Shortly put, the principle is that when a servant has a right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto, But if the servant has no right to the post, as where he is app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had a right of which he could not be deprived except in accordance with those rules, and the impugned orders were passed in derogation of those rules. Furthermore, it is contended on behalf of the appellant that the Union Public Service Commission failed to appreciate the, correct legal position and their opinion, officious or otherwise, was neither decisive nor binding on Government or the appellant. On behalf of the Union of India, respondent before us, it has been conceded that the Central Civil Services (Temporary Service) Rules, 1949 are the relevant rules governing the conditions of the appellant's service. But the argument is that the impugned orders are in consonance with those rules and the service of the appellant who was in quasi-permanent service in the post of Public Relations Officer was liable to termination under r. 6 (1) (ii), because (1) a reduction had occurred in the number of posts of Public Relations Officers available for Government servants not in permanent service, and (2) the post of Assistant Station Director to which the appellant was appointed in a purely temporary capacity was not a post of the same grade as the specified post held by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on no such declaration shall be issued except after consultation with the Commission. Rule 6. (1) The service of a Government servant in quasi- permanent service shall be liable to termination- (i) in the same circumstances and in the same manner as a Government servant in permanent service, or (ii) when the appointing authority concerned has ,certified that a reduction has occurred in the number of posts available for Government servants not in permanent service: Provided that the service of a Government servant in quasi- permanent service shall not be liable to termination under cl. (ii) so long as any post of the same grade and under the same appointing authority as the specified post held by him, continues to be held by a Government servant not in permanent or quasipermanent service: Provided further that as among Government servants in quasi- permanent service whose specified posts are of the same grade and under the same appointing authority, termination of service consequent on reduction of posts shall ordinarily take place in order of juniority in the list referred to in r. 7. As rule 6(1) refers to r. 7, we may as well quote that rule. Rule 7. (1) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Government of India to be in the same class. Appointments in the same class are sometimes divided into Grades according to pay. Note:-Appointments do not belong to the same Class or Grade unless they have been so constituted or recognised by proper authority. There are no Classes or Grades of Ministerial Officers. It is, therefore, clear that so far as the posts known as Public Relations Officers, All India Radio, are concerned, they formed a grade and the appellant held a quasi-permanent status in that grade. Rule 6(1) of the Temporary Service Rules lays down how the service of a Government servant in quasi- permanent service can be terminated. We are concerned in this case with cl. (ii) of the said rule. That clause says that the service of a Government servant in quasi-permanent service can be terminated when the appointing authority concerned has certified that a reduction has occurred in the number of posts available for Government servants not in permanent service . Learned counsel for the appellant has very strongly submitted that there was no reduction within the meaning of the clause in the present case, far less any certification of such reduction. Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1952, all the posts of Public Relations Officers, except the one in the External services Division, were held in abeyance. In the impugned order of September 7, 1955, it was stated that in 1952 all the posts of Public Relations Officers excepting one in the External Services Division were held in abeyance as a measure of economy and the only post that survived the economy drive was assigned to a permanent incumbent. In his representation dated July 10, 1953, the appellant himself admitted that as per Director General, All India Radio's memorandum dated May 21, 1953, he was informed that it was decided to keep the post in abeyance . Learned counsel for the appellant has sought to draw a distinction between 'keeping a post in abeyance' and 'reducing a post' and has suggested that the latter expression means abolishing a post permanently or temporarily whereas the former expression merely suggests not filling the post for the time being. Words and phrases necessarily take their meaning from the context in which they are used. In cl. (ii) the expression used is reduction...... in the number of posts available for Government servants not in permanent service. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier history regarding the reorganisation of the All India Radio in 1944. The reorganisation, as enunciated in letter No. K- 404/2397 dated December 15/28, 1944 from the Government of India, Ministry pf Information and Broadcasting, was in three parts: (1) revision of the scales of pay of certain existing posts ; (2) creation of some additional posts; and (3) creation of certain new categories of posts. The posts of Liaison Officer and Listeners' Research Officer came within the third category and nine posts were created under each head. The posts of Assistant Station Directors came within the first two categories. In 1950 Government made necessary declaration in respect of the cadres on the programme side of the All India Radio in their letter No. 17(83)/49-BI dated March 20, 1950. The cadres so constituted included that of Assistant Station Directors : that cadre consisted of the following posts: (a) Assistant Station Directors; (b) Instructor (Programmes); (c) Assistant Director of Programmes; (d) Listener Research Officer; (e) Officer on Special Duty (Kashmir); and (f) Officer Special Duty (Hyderabad)-the last two being tempo- rary. The Public Relations Officers were not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 106) and an Assistant Engineer (no. 105) have the same scales of pay and both belong to Class 11; but they do not belong to the same grade or cadre; otherwise a strange result will follow in that a chemist holding a quasi-permanent status will be entitled to be appointed as an Engineer, on the reduction of the chemist's post. On behalf of the appellant it has been next argued that the order dated December 14, 1953, contains a clear admission to the effect that the post of Public Relations Officer belongs to the same grade as Assistant Station Director, and the order shows that it was made after unofficial consultation with the Ministry of Information an Broadcasting. It is contended that this admission should be accepted as an admission of fact and held binding on the respondent, particulary when the respondent has not produced the particular order by which a separate cadre, if any, of Public Relations Officers might have been created, in order to disprove the correctness of the admission. We are unable to accept this argument. An admission is not conclusive proof of the matter admitted, though it may in certain circumstances operate as an estoppel. It is not suggested t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded the order as an independent declaration under rr. 3 and 4(a) and if the parties thereto understood the order in that sense; (3) if the order is so read, whether consultation with the Public Service Commission was necessary under r. 4(b); and (4) whether any estoppel arises out of the order. it seems to us that the order itself is very clear and if it is contrasted with the earlier order dated May 23, 1952 (by which a declaration was indeed made in favour of the appellant under rr. 3 and 4 of the Temporary Service Rules in respect of the post of Public Relations Officer), it is at once clear that the order dated December 14,1953, is not a declaration under rr. 3 and 4 of the said rules. What does the order state in terms ? Firstly, it states that the appellant was appointed in a quasi-permanent capacity to the post of Public Relations Officer; secondly, it states that all the posts of Public Relations Officer are held in abey- ance except one; thirdly, it states that as the post of Public Relations Officer belonged to the same grade as Assistant Station Director carrying identical scales of pay, the appellant was appointed as Assistant Station Director in September 1952; and fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect to the decision embodied in the aforesaid memorandum, and was in no sense an independent declaration under rr. 3 and 4 of the Temporary Service Rules. If it were an independent declaration in respect of a different and new post, a reference to the office memorandum was wholly unnecessary; it was equally unnecessary to recite that the appellant held a quasi- permanent status in his former post and that the former post belonged to the same grade as the new post and, therefore, he carried his former status to the latter post. In the order itself there is no reference to rr. 3 and 4 and it is in sharp contrast to the order dated May 23, 1952, which was indeed a declaration under the said rules. To hold that the order dated December 14, 1953, is an independent declaration under rr. 3 and 4 is to tun counter to the entire tenor of the document. It is worthy of note that under r. 4(a), a declaration issued under r. 3 shall specify the particular post or particular grade of posts within a cadre in respect of which it, is issued and the date from which it is to take effect. The order dated December 14, 1953, does not ,state that the appellant is declared to hold a quasipermanent sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cadre or grade concerned due to reduction in the number of posts or other causes. Such shifting does not affect his rights. As the posts of Assistant Station Director and Public Relations Officer carry the same grade of pay, consultation with the Commission in this case was not considered necessary . This letter makes it abundantly clear that the appropriate authority never intended the order dated December 14, 1953 to be a declaration under rr. 3 and 4 of the Temporary Service Rules. Even the appellant did not take the order in that sense. In all his representations, the appellant's plea was that the post of Public Relations Officer in which ,he, held a quasi- permanent status was in the same grade as that of Assistant Station Director and there,fore he carried his status in the former post to his new post. He never pleaded anywhere that the order dated December 14,1953, was an independent declaration in respect of the post of Assistant Station Director. We refer first to para. 17 of the appellant's writ petition to the Punjab High Court. In that paragraph the appellant said: That after four months' careful ,consideration and discussion between the Ministry o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution, as respects consultation of the Public Service Commission on all disciplinary matters affecting a person serving the Government of India or a State Government, are not mandatory in spite of the use of the word I shall' therein. That decision is founded on the following garounds: (1) the proviso to Art. 320 itself indicates that in certain cases or classes of cases the Commission need not be consulted; (2) the requirement of consulting the Commission does not extend to making the advice of the Commission binding on Government as respects disciplinary matters; and (3) on a proper construction of the Article, it does not confer any right or privilege on an individual public servant. We may point out that none of these grounds have any application so far as r. 4 (b) of the Temporary Service Rules is concerned. Article 320 may not be mandatory as against the President; but a subordinate appointing authority who has to make a declaration under the rules cannot ignore or abrogate the very rules under which he has to make the declaration. Quasi-permanent status is a creature of the rules, and r 4 (b) requires that no declaration under r. 3 shall be made except after consulta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in which that expression was used when the Regulations were made, and quasi-permanent servant as defined in the Temporary Service Rules also meant temporary service, but subject to certain benefits in the matter of leave etc., and certain safeguards in the matter of termination of service. Whether the Union Public Service Commission is right in this view or not we are not called upon to decide, particularly when the Union Public Service Commission is not before us. It is enough for us to hold that the post of Assistant Station Director is not a post in the same grade or cadre as that of the Public Rela- tions-Officer. That being the position, the appellant had no qutsi-permanent status in the post of Assistant Station Director and his service was liable to be terminated when there was a reduction in the number of posts of Public Relations Officers within the meaning of cl. (ii); nor was he entitled to the benefit of the proviso to el. (ii) so far as the post of Assistant Station Director was concerned. For the reasons given above, we hold that there has been no violation of the constitutional guarantee under Art. 311 (2) in the case of the appellant. The appeal must, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52. (Order No. 1 (101)51/52). Later, on December 14, 1953, further orders were passed by the same authority (Order No. (113)-51/52). These orders confirmed the order appointing the appellant Assistant Station Director and concluded- Under the provision contained in the Ministry of Home affairs Office Memorandum No. 54 /136/51NGS, dated the 24th April, 1952, Shri Srinivasan will carry with him the quasi- permanent status of his former post of Public Relations Officer while holding the post of Assistant Station Director. This order is a further order and, in my judgment, it clearly and unequivocally makes him quasipermanent in the new post. It is true that this was done under a mistake which was discovered at a later date but the mistake is that of Government and others cannot be made to suffer because of the unilateral mistake of Government. I had occasion to observer while delivering the judgment of the Court in The Commissioner of Police, Bombay v., Gordhandas Bhan i [1952] S.C.R. 135, 140, that- Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation, flexible and fluid with the drive behind to do real justice between man and man, and man and the State, rather than to continue to apply a set of ancient hide-bound technicalities forged and fashioned in a wholly different world with a different conscience and very different evaluations of human dignity and human rights. At pp. 54 and 55 Lord Denning sums up this new orientation in legal thinking thus: In coming to those decisions, the Courts expressly applied a doctrine of equity whith says a court of equity will not allow a person to enforce his strict legal rights when it would be inequitable to allow him to do so. This doctrine warrants the proposition that the courts will not allow a person to go back on a promise which was intended to be binding, intended to be acted on, and has in fact been acted on. I am not advocating sudden and wild departure from doctrines and precedents that have been finally settled but I do contend that we, the highest Court in the land giving final form and shape to the laws of this country, should administer them with the same breadth of vision and understanding of the needs of the times as do the Courts in England. The underlying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormer post of Public Relations Officer while holding the post of Assistant Station Director. What else can this mean especially when coupled with their previous conduct showing, their anxiety to do the just and right thing by this unfortunate man, except that because he was protected before he will continue to be protected in the same way. With the deepest respect I consider it ultra technical and wrong to construe this as conditional on Government having the power. The point at this stage is not whether Government had the right and the power but what they intended; and about that I have no doubt whatever. They wanted, and intended, and were straining every nerve, to do the right and just thing by him and to give him the same status as he had before, in the matter of pay, in the matter of service and in the protections that he had in his other post. The interpretations that Government put upon their order at a later date are not relevant to construe it but it is t matter of satisfaction that Government themselves viewed their action in the same light as I am doing now. In their reply to the Public Service Commission dated June 22, 1954, Government said The Commission were not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic duty, the formality is to be regarded as directory only if to hold it as mandatory would cause serious general inconvenience or injustice. Will it not cause injustice here? Why should we take a narrower view of a mere set of rules than this Court and the Federal Court and the Privy Council have taken of the Constitution and the Act of a Legislature and even of a supreme Parliament? Why should we give greater sanctity and more binding force to rules and regulations than to our own Constitution ? Why should we hesitate to do justice with firmness and vigour? If we apply the same principles here, then the words required to be made in r. 4(b) lose their sting and the way is free and open for us to do that justice for which the Courts exist. Here is Government straining to temper justice with mercy and we, the Courts, are out Shylocking Shylock in demanding a pound of flesh, and why? because this writ in the bond. I will have none of it. All I can see is a man who has been wronged and I can see a plain way out. I would take it. I am not quarrelling with the interpretation which the Public Service Commission has placed upon these rules. I have no doubt that they should be o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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