Nohiria Ram vs The Union of India and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeals Nos. 116 and 117 of 1957

Decision Date: 08/11/1957

Coram: S. K. Das

In the matter titled Nohiria Ram versus The Union of India and Others, the Supreme Court of India delivered its judgment on 8 November 1957. The opinion was authored by Justice S.K. Das, who sat on a bench that also included Justice A.K. Sarkar. The case is reported in the 1958 volume of the All India Reporter at page 113 and in the 1958 Supreme Court Reports at page 923. The dispute concerned the status of an appointment that was made as an additional post to a regular civil service establishment. The principal issues involved whether such a post formed an integral part of the regular cadre, the authority to create a post outside an existing cadre, the competence of the appointing authority, the effect of the transfer of the incumbent to foreign service, and the applicability of various provisions of the Fundamental Rules, namely Rules 9(4), 111, 113 and 127, as well as the Civil Services (Classification, Control and Appeal) Rules, Rules 24 and 44.

The appellant had originally been employed as a civilian clerk with the Royal Air Force in Quetta. He subsequently applied to the Director General of the Indian Medical Service and was appointed as an additional clerk in that office to handle the work of the Indian Research Fund Association. The appointment was made on the understanding that the average cost of the post, including leave and pension contributions, would be recovered from the Association. The Public Service Commission approved the appointment but imposed a condition that the appointment would not give the appellant any right to be appointed in the Central Secretariat or any of its attached offices. On 12 June 1930 the appellant was confirmed in the additional post, with effect retroactive to 1 April 1930. On 10 April 1931 he was transferred on “foreign service” under the Indian Research Fund Association, a posting he held until 17 September 1944. After making representations that his post was a permanent position in the regular establishment of the Director General, Indian Medical Service, the Government decided that, while he would continue to hold the extra‑cadre post originally sanctioned for the Association’s work, he would thereafter be employed on ordinary work in the Director General’s office. The Government nevertheless retained the existing disqualifications, stating that the appellant would have no claim to appointment in the regular cadre of the ministerial establishment of that office. Consequently, on 30 March 1948 the appellant instituted legal proceedings against the Union of India, seeking a declaration that he was a member of the permanent regular ministerial establishment of the Director General, Indian Medical Service. In support of his claim, he argued, first, that the post to which he had been permanently appointed in 1930 was not created as a separate cadre and therefore should be regarded as an addition to the regular establishment and an integral part of the same cadre; and second, that, under the Fundamental Rules relating to foreign service, members of the

In considering whether the appellant could be regarded as a member of the regular establishment of the Director General, the Court observed that only persons belonging to the regular establishment could be sent on foreign service. Since the Government had expressly sanctioned the appellant’s transfer on foreign service, the Court held that the appellant must consequently be treated as a member of the regular establishment of the Director General. The Court further held that it lay within the competence of the appropriate authority to create an additional post outside the regular cadre of a particular office, for the purpose of attaching that post to the office for administrative control. The Court explained that Fundamental Rule 127 merely establishes the principles by which the cost of such an additional post is to be recovered. The Court then examined the applicability of Fundamental Rule 113 and concluded that this rule did not apply, because the appellant did not belong to a cadre immediately before his transfer on foreign service. The Court left unresolved the question of whether the Public Service Commission could impose a condition on, or give conditional concurrence to, the appellant’s appointment.

The matter before the Court comprised two civil appeals, numbered 116 and 117 of 1957, which were filed by special leave. Both appeals were filed by Pt. Nohiria Ram, who was the appellant in each case. The appellant had earlier filed a petition, numbered 397 of 1955, under Article 32 of the Constitution, seeking a writ directing the Union of India, respondent one, and the Director General of Health Services, New Delhi, respondent two, to refrain from giving effect to an order of dismissal issued by respondent two on 3 October 1955. That petition was subsequently withdrawn, and therefore the present judgment is confined to the two appeals. The Court recorded that the appeals were taken on special leave from the judgment and order dated 30 October 1953 of the Circuit Bench of the Punjab High Court at Delhi, relating to Civil Regular First Appeal No. 190 of 1951 and Civil Writ No. 82‑D of 1952. Counsel for the appellant were D. R. Prem, T. S. Venkataraman and K. R. Choudhry, while counsel for the respondents were R. Ganapathy Iyer, Porus A. Mehta and R. H. Dhebar. The judgment was delivered on 8 November 1957 by Justice S. K. Das.

The Court set out the factual background relevant to the appeals. The appellant had previously held a permanent appointment as a civilian clerk in the office of the Royal Air Force, No. 3 (Indian) Wing, Quetta. On 17 March 1928, the appellant applied for a clerk’s position in the office of the Director General, Indian Medical Service, New Delhi, which is now known as the Director General, Health Services, New Delhi. The appellant’s application was successful, and on 28 March 1928 he was informed that a vacancy existed in the Director General’s office in the grade of Rs. 75‑4‑155. The communication further stated that the appointment would initially be for a period of one year, with a likelihood of becoming permanent, and directed the appellant to join the office at Simla on 16 April 1928 if he accepted the post. The Court noted that this appointment formed the basis of the subsequent administrative and service‑related issues that were the subject of the present appeals.

The authorities of the Royal Air Force were requested to grant the appellant a lien on his permanent post in that service until 28 February 1929, the date on which the decision regarding the permanency of his appointment in the Director General’s office was to be taken. The appellant reported for his Dew post on 16 April 1928 as directed. Later, on 26 February 1930, the Government of India, acting through the Department of Education, Health and Lands, which exercised control over the office of the Director General of the Indian Medical Service, sanctioned an additional clerkship in the Director General’s office. This additional post, in the grade of Rs. 75‑4‑155, was to commence on 1 April 1930 and was created to handle work for the Indian Research Fund Association, with the understanding that the average cost of the appointment, including leave and pension contributions, would be recovered from the Association.

Subsequently, on 30 April 1930, the Director General of the Indian Medical Service wrote to the Secretary of the Public Service Commission informing him that the Government of India had approved the additional clerkship for work of the Indian Research Fund Association. The Director General identified the incumbent of the new post as the appellant, who previously held a permanent position in the Royal Air Force at Quetta, and pointed out that the appellant had not been selected through the Public Service Commission. The Director General therefore requested the Commission’s approval for the appellant’s permanent appointment to the post.

The Secretary of the Public Service Commission responded, stating that the Commission had no objection to confirming the temporary clerk who was currently serving on the Indian Research Fund Association work, provided that the confirmation would not create any entitlement for the clerk to a routine division appointment in the Secretariat or its attached offices. This reply was shown to the appellant, who was specifically asked to note the condition that he would have no claim to an appointment as a routine division clerk in the Secretariat or its attached offices, the Director General’s office being an attached office of the Secretariat. On 26 May 1930, the appellant acknowledged receipt of the Commission’s letter by writing “Seen. Thanks.” On 12 June 1930, the appellant was confirmed in the additional post with effect from 1 April 1930.

On 10 April 1931, the appellant was transferred to foreign service under the Indian Research Fund Association as a second‑grade assistant in the grade of Rs. 120‑8‑160‑10‑350, on the condition that the Association would continue to bear the average cost of the post, including leave and pension contributions. The appellant served under the Indian Research Fund Association until 17 September 1944, with occasional short periods during which he returned to the Director General’s office to act as an assistant of the first grade or special grade, receiving the salary of Rs. 200‑12‑440 for those intervals.

For brief intervals the appellant returned to the office of the Director General to serve as an assistant of the first or special grade, receiving a salary of Rs 200‑12‑440. On 10 June 1932 the Governor‑General‑in‑Council authorised his transfer to foreign service under the Indian Research Fund Association, effective from 10 April 1931. On 15 August 1944 the appellant submitted a representation to the Secretary of the Indian Research Fund Association requesting that he be restored to his parent office. He explained that he felt he was being treated indifferently, that previous misunderstandings had occurred, and that he feared similar misunderstandings might arise in the future. The Secretary replied on 11 September 1944, informing the appellant that his request for reversion to the office of the Director General had been approved and that the reversion would take effect on 18 September 1944. Because the Director General had not previously consented to the reversion, the Director General raised objections and instructed the appellant to report back to the Indian Research Fund Association for duty. In November 1944 and again in January 1945 the appellant made further representations, contending that the position he occupied was a permanent post within the regular establishment of the Director General, Indian Medical Service, and that upon reversion he should be treated as a senior assistant entitled to all increments and promotions accorded to a regular permanent employee of that establishment. The reply to these representations stated that, pursuant to a recent communication from the Secretary of the Indian Research Fund Association, the Government of India’s E.H. & L. Department confirmed that the appellant was governed by the orders issued in letters No F‑9‑22/39‑H dated 8 August 1939 and No F‑37‑13/41‑H dated 27 November 1941. Those orders expressly provided that (i) the substantive post held by the appellant was attached to the office for work of the Indian Research Fund Association; (ii) the post lay outside the regular cadre of that office; (iii) the appellant should not be absorbed into the regular cadre when a vacancy arose; and (iv) the post should remain outside the regular cadre until the appellant’s retirement. The appellant had been confirmed in that post only after he signed a written condition accepting that he would have no claim to a regular establishment position, a condition imposed because he was described as an “unqualified clerk.” Dissatisfied with this determination, the appellant continued to submit further representations and, on 17 December 1945, expressed that he was unable to continue working in the Indian Research Fund Association, characterising the situation in his own words.

In the present case the appellant described the Indian Research Fund Association as a “private body”. Following that description the appellant was suspended effective from 14 December 1945, which was the day on which he was scheduled to assume duties as a clerk attached to the office of the Director General, Indian Medical Service, for work of the Indian Research Fund Association. Subsequently, a charge sheet was issued to the appellant on 10 January 1946, alleging that after the expiry of a ten‑day leave he had refused to return to his substantive post of clerk attached to the same office and performing the same functions for the Indian Research Fund Association. The appellant responded by filing a written statement and by making additional representations. On 5 September 1946 the earlier orders of suspension were modified, and the Government of India issued a new order stating that, while the extra‑cadre post originally sanctioned for work of the I.R.F.A. would continue to be held, the appellant would from that date onward be employed on the ordinary work of the office. The order further clarified that the appellant would remain subject to the existing disqualifications, meaning that he would have no claim to appointment as a routine division clerk in the Secretariat or its attached offices, nor to inclusion in the regular cadre of the ministerial establishment of the office. Accordingly, the appellant was directed to report immediately for duty to Captain J. M. Richardson, D.A.D.G. (P), at the office in Simla, and was to be posted in the Indian Medical Review Section. Pursuant to this direction the appellant joined the office at Simla. On 30 March 1948 the appellant instituted a suit against the Union of India seeking a declaration that he was in the service of the Union as a member of the permanent regular ministerial establishment of the office of the Director General, Indian Medical Service. He also claimed other reliefs, which he later withdrew. The learned Subordinate Judge of Delhi decreed the suit on 10 March 1951. The Union of India appealed the decree, filing First Appeal No. 190 of 1951. The Punjab High Court allowed that appeal by judgment dated 30 October 1953, thereby dismissing the appellant’s suit. The appellant then applied to the Punjab High Court for a certificate granting leave to appeal to this Court; the application was denied. Subsequently, the appellant moved this Court and obtained special leave. In compliance with the special leave, Civil Appeal No. 116 of 1957 was filed, challenging the judgment and decree of the Punjab High Court dated 30 October 1953 in First Appeal No. 190 of 1951. A second appeal, Civil Appeal No. 117 of 1957, was also filed, continuing the appellant’s alleged grievances after the decree of the learned subordinate judge.

In the proceedings that followed the decree of the Subordinate Judge of Delhi, the Union of India lodged an appeal on 24 July 1951. While that appeal was still pending, the appellant approached the Punjab High Court through a petition filed under Article 226 of the Constitution, seeking a writ that would compel the Director General of Health Services in New Delhi to pay the appellant the salary and allowances he claimed to be entitled to for November 1952. The factual background relevant to that petition was as follows. In October 1952 the appellant was employed in Public Health Section I. He departed on leave with ordinary pay on 3 October and remained on leave until 11 October 1952. Upon returning to work on 13 October, he submitted a joining report and requested posting orders. The authorities directed him to resume duties in the same Public Health Section I from which he had taken leave. The appellant refused to obey that direction and asked for an interview with the Director General, a request that was denied. He was warned that if he did not report back to Public Health Section I he would be considered absent from office without permission. Nevertheless, the appellant persisted in his refusal, apparently believing that the favorable decree awarded to him entitled him to all promotions and increments that a permanent member of the regular establishment would receive. He reported to the office but, rather than reporting to Public Health Section I, he took up the seat designated for the record sorter in the General Section and performed no work whatsoever from 13 October 1952 onward. His salary was paid up to the end of October 1952, but the payment for November 1952 was withheld. On 20 December 1952 the appellant filed his petition under Article 226. On the same day that the Union’s appeal was allowed, the Punjab High Court dismissed the appellant’s petition, holding that he had engaged in disobedient and insubordinate conduct and therefore was not entitled to any relief. The appellant subsequently filed Civil Appeal 117 of 1957 after obtaining special leave from this Court.

The decisive issue for resolution in both the Union’s appeal and the appellant’s civil appeal is whether the appellant occupied a post that formed part of the permanent and regular ministerial establishment of the office of the Director General, Indian Medical Service, New Delhi. The Punjab High Court concluded that, although the post to which the appellant had been made permanent was indeed attached to the Director General’s office for the purpose of work relating to the Indian Research Fund Association, it lay outside the regular cadre of the Director General’s establishment. The court further noted that this distinction had been clearly communicated to the appellant from the outset. Accordingly, the High Court found that the appellant was aware of, and had accepted, the conditions under which he was appointed, and that the grievance he later raised was…

In this case, the Court observed that the appellant’s grievance, which was raised after a lapse of roughly fourteen years, was considered unsubstantial and fanciful. Counsel for the appellant challenged the correctness of those findings. It was not disputed that the appellant had knowledge of the condition that the Public Service Commission had imposed when his appointment was approved on 16 May 1930. The matters presented before the Court were twofold. First, the appellant argued that a proper construction of the applicable rules and Government orders governing his service conditions showed that, on his confirmation effective from 1 April 1930, he became a permanent member of the regular establishment of the office of the Director General, Indian Medical Service. Second, the appellant contended that the Public Service Commission possessed no authority to impose any condition that would derogate from those established rules and orders. The Court then examined the rules and orders upon which the appellant relied. Fundamental Rule 9(4) defined the term “cadre” as the strength of an establishment or service, later amended to include a part of a service, that was sanctioned as a separate unit. The establishment relevant to the present dispute was that of the office of the Director General, Indian Medical Service, which had a total sanctioned strength of thirty posts. In a letter dated 26 February 1930, the Government of India communicated approval for the appointment of an additional clerk to handle the work of the Indian Research Fund Association, on the understanding that the average cost of the post together with leave and pension contributions would be recovered from the Association. The Court identified the key question as whether this additional post represented a permanent increase of the regular cadre or constituted a post outside the cadre. In 1934, the Accountant General, Central Revenues, raised the issue and queried the Director General, Indian Medical Service, as to how the pay of thirty‑one persons appeared in his establishment when the sanctioned strength was only thirty. The Director General replied that the figure of thirty‑one included the additional clerk, although that post was not part of the sanctioned strength of his office. In 1935, the Director General wrote to the Government stating that, in practice, the post had since been regarded as outside the regular cadre of his office. He further expressed the view that Fundamental Rule 127 was the sole rule permitting additions to a regular establishment for work performed for private bodies, and that this rule did not contemplate the creation of two separate establishments within the same office; consequently, he was of the opinion that the two posts in question should be treated as additions to the strength of his office and therefore must remain under his administrative control. The Government of India responded that, although the post was under the administrative control of the Director General, Indian Medical Service, it was a post outside the regular establishment and that incumbents of that post, as well as of a similar post, should be absorbed into the regular establishment when vacancies occurred in the future.

The authority issued an order stating that the position in question was outside the regular establishment and that the holders of this position, as well as another similar position, should be incorporated into the regular establishment only when vacancies arose in the future. This directive was later partially altered in 1939. The amended order declared that the Government of India had resolved that the clerk attached to the office for the work of the Indian Research Fund Association, a post that lay outside the regular cadre of the office, should not be merged into that cadre when a vacancy occurred. The order further instructed that the post should remain outside the cadre as long as Mr Nohiria Ram continued to serve on deputation to a post under the Indian Research Fund Association, and that the Association should continue to make leave and pension contributions to the Government for the latter post. The order added that if Mr Nohiria Ram reverted to his substantive post, the Association would, as originally stipulated in Department letter No 467‑H dated 26 February 1930, be required to pay the average cost of the post together with leave and pension contributions. Finally, the order specified that the post would be abolished upon Mr Nohiria Ram’s retirement from service. It was thus clear from these orders that the appointment made permanently in 1930 was to a post that lay outside the regular cadre of the Director General, Indian Medical Service. On 2 April 1935 the Home Department, then known as the Home Department, ruled on a reference to the matter that the strength of the ministerial staff of the Director General, Indian Medical Service, excluded the two posts whose cost was recovered from the Indian Research Fund Association.

The appellant’s counsel anchored his case on Fundamental Rule 127 in Section 111, Chapter XII, read together with Rules 24 and 44 of the Civil Services (Classification, Control and Appeal) Rules, 1930. The argument presented was that, under the Classification, Control and Appeal Rules, only the Governor‑General in Council possessed the competence to create a cadre by declaring the sanctioned strength of the establishment of the Director General, Indian Medical Service. Fundamental Rule 127, the counsel asserted, prescribed the method of cost recovery when an addition was made to a regular establishment for the benefit of private persons or bodies. Since the post to which the appellant had been permanently appointed in 1930 was not constituted as a separate cadre, the counsel contended that the post must be treated as an addition to the regular establishment of the Director General, Indian Medical Service and therefore form an integral part of that cadre. The Court was unable to accept this argument. While it acknowledged that the additional post in which the appellant was made permanent had not been constituted into a separate cadre, it observed that the obvious reason for this was that the post was expressly an additional post situated outside the regular cadre. Consequently, the Court rejected the contention that the post could be deemed an addition to the regular establishment.

The learned counsel cited certain provisions that, in his view, barred the competent authority from creating an additional post that lay outside the regular cadre of a specific office, even though such a post might be attached to that office for administrative control. The provision relied upon most heavily was Fundamental Rule 127, which reads in full: “When an addition is made to a regular establishment on the condition that its cost, or a definite portion of its cost, shall be recovered from the persons for whose benefit the additional establishment is created, recoveries shall be made under the following rules: (a) The amount to be recovered shall be the gross sanctioned cost of the service, or of the portion of the service, as the case may be, and shall not vary with the actual expenditure of any month; (b) The cost of the service shall include contributions at such rates as may be laid down under Rule 116 and the contributions shall be calculated on the sanctioned rates of pay of the members of the establishment; (c) A local Government may reduce the amount of recoveries or may entirely forego them.” This rule corresponds to Article 783 in Chapter XLI of the Civil Service Regulations and sets out the principles by which the cost, or a specified portion of the cost, of an additional post is to be recovered. Crucially, the rule does not determine whether the added post forms part of the cadre; that determination rests on the decision of the appropriate authority. In the present matter, the appropriate authority had, from the outset, decided that the additional post occupied by the appellant was outside the regular establishment of the Director‑General, Indian Medical Service.

The counsel further argued that, because members of the regular establishment alone could be sent on foreign service, and because the Government had sanctioned the appellant’s transfer to foreign service effective 10 April 1931, the appellant must consequently be regarded as a member of the regular establishment of the Director‑General, Indian Medical Service. The Court found this contention to be untenable. The rules governing foreign service are located in Section III of Chapter XII, and the specific provisions invoked were Fundamental Rules 111 and 113. Fundamental Rule 111 provides that a transfer to foreign service is not permissible unless the servant being transferred holds a lien on a permanent post. Fundamental Rule 113 states that a servant transferred to foreign service shall remain in the cadre or cadres in which he was serving in a substantive or officiating capacity immediately before his transfer, and may be given such substantive or officiating promotion in those cadres as the authority competent to order promotion may decide. In the case at hand, the appellant possessed a lien on the additional post, which made the transfer to foreign service admissible under Fundamental Rule 111. However, because the appellant did not belong to any cadre immediately before his transfer, Fundamental Rule 113 did not apply to his situation.

In this matter, the fact that the appellant had been confirmed to the post meant that his transfer to foreign service was permissible under Fundamental Rule 111. However, the appellant was not a member of any cadre immediately before his transfer, and consequently Fundamental Rule 113 did not apply to his situation. An additional contention raised by the appellant was that the Public Service Commission possessed no authority to impose a condition that barred him from claiming an appointment as a Routine Division Clerk in the Secretariat or its attached offices. The appellant stated, in one of his representations, that he had signed the note containing that condition on the belief that it held no legal effect because it was contrary to existing rules and Government orders. The appellant further argued that the Public Service Commission, which had been established in 1926 and operated under the rules announced in the Home Department notification No F 178/14/24 Ests dated 14 October 1928, was responsible only for recruiting Class I and Class II officers of the Civil Services in India. He maintained that the rules then in force did not assign any function to the Commission regarding the recruitment to or control of the subordinate service to which he belonged. This argument was accepted by the learned Subordinate Judge. On appeal, the High Court held that the appellant’s appointment was governed by the instructions set out in an office memorandum of the Government of India, Home Department, dated 8 December 1928, paragraph VIII. That paragraph addressed “Special cases” and provided that where a candidate, though lacking the prescribed educational qualification, had performed satisfactorily in higher‑level examinations, possessed extensive Government service experience outside the ministerial staff, or held special qualifications for a particular class of work, the Public Service Commission was empowered (a) to admit such persons to the examination despite differing qualifications, and (b) to exempt from the examination or admit to a particular division individuals whose previous records, in the Commission’s opinion, justified such exemption or admission. For persons already in Government service, the Commission’s action could be taken only on the recommendation of the concerned department. The Court emphasized that the discretion vested in the Commission by this provision meant that departmental authorities could no longer independently recruit individuals with special or technical qualifications for their offices or subordinate offices without first obtaining the Commission’s concurrence. The appellant, who had not passed the qualifying examination previously conducted by the Staff Selection Board before the Board’s functions were taken over by the Public Service Commission in 1926, was therefore presumed to have been referred to the Commission under the aforesaid paragraph. Counsel for the appellant contended that even these instructions did not justify the imposition of a condition by the Public Service Commission, and that the Commission’s powers were limited to those specified in clauses (a) and (b) of the paragraph.

The Court observed that the only powers the Public Service Commission possessed were those enumerated in clauses (a) and (b) of the relevant provision. The Court considered it unnecessary to analyse the validity of the submissions advanced on this point at the present stage. Assuming, without deciding, that it was either unnecessary to refer the appellant’s case to the Public Service Commission or that the Commission lacked authority to impose any condition on the appellant’s appointment, the Court noted that the authority which had sanctioned the additional post had expressly stated that the post lay outside the regular cadre. The Director General of the Indian Medical Service further affirmed that, in practice, the post was treated as being outside the regular establishment, although it was attached to his office for purposes of administrative control. In view of this factual position, the Court held that the precise extent of the Commission’s powers with respect to the appellant’s case was of little consequence. The Court also clarified that it did not dissent from the view expressed by the High Court, which had held that, when granting its concurrence to the appellant’s appointment, the Public Service Commission was entitled to give a conditional concurrence. With this observation, the Court brought the matter of the appellant in Civil Appeal 116 to a close.

Only a brief statement was required to dispose of Civil Appeal 117. The Court found that the appeal did not demand a detailed interpretation of any obscure service rule or departmental order. On the basis of the finding that the appellant was not a member of the regular establishment of the Director General of the Indian Medical Service, the Court concluded that the appellant could not claim seniority in that office. The Court acknowledged that the appellant had obtained a decree from the learned Subordinate Judge, but noted that the decree was merely declaratory because the appellant had not sought any additional relief such as increment or promotion. Moreover, the declaratory decree was placed in jeopardy when Respondent No 1 filed an appeal against it. In these circumstances, the Court questioned how the appellant could refuse to perform the work assigned to him. It recorded that the appellant had declined to work in the Public Health Section to which he had been allotted, had ceased working from 13 October 1952, and had not received any salary from November 1952 onward. The Court observed that the appellant was responsible for the predicament in which he now found himself and suggested that, had he exercised patience, good sense and moderation, he could have avoided much of the trouble he created. Accordingly, the Court dismissed both appeals with costs. Because the two appeals were heard together, a single hearing fee was ordered to be shared by the respondents in the two appeals. The appeals were dismissed.