R.P. Kapur vs Union Of India And Anr

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

Court: supreme-court

Case Number: Civil Appeal No. 647 of 1963

Decision Date: 19 November 1963

Coram: K.N. Wanchoo, P.B. Gajendragadkar, J.C. Shah, Raghubar Dayal, K. Subba Rao

In this case, the Court recorded that the judgment was rendered on the nineteenth day of November, 1963, in the Supreme Court of India. The opinion was authored by Justice K. N. Wanchoo and was delivered by a bench comprising Justices K. N. Wanchoo, P. B. Gajendragadkar, J. C. Shah and Raghubar Dayal. The petitioner was R. P. Kapur and the respondents were the Union of India and another party. The citation for the decision appears as 1964 AIR 787 and 1964 S.C.R. (5) 431, with additional citator references including F 1968 S.C. 800 (3,5), R 1968 S.C. 1372 (4), D 1970 S.C. 140 (5), R 1970 S.C. 1494 (8), R 1971 S.C. 823 (10) and M.V. 1972 S.C. 544 (64). The matters addressed involved the validity of a suspension of a member of the former Secretary of State’s Service by a Governor, pending criminal proceedings, and whether the rule authorising such suspension was ultra vires. The statutes and rules relied upon included the All India Services (Discipline and Appeal) Rules, 1955, rule 7; Article 314 of the Constitution of India; sections 241 and 247 of the Government of India Act, 1935; sections 49 and 56 of the Civil Services (Classification, Control and Appeal) Rules; rule 53 of the Fundamental Rules; rule 3 of the Indian Administrative Service (Recruitment) Rules, 1954; Article 7(1) of the India (Provisional Constitution) Order, 1947; and section 10 of the Indian Independence Act, 1947.

The headnote set out the factual background. The appellant had entered the Indian Civil Service in 1939 and was initially posted in the Madras Province. Following the transfer of power effected by the Indian Independence Act on the fifteenth of August, 1947, he was transferred to the Punjab Province. When the Indian Administrative Service was later constituted, he became a member of that service. On the eighteenth of July, 1959, the Governor of the State of Punjab suspended him under rule 7(3) of the Indian Services (Discipline and Appeal) Rules, 1955, on the basis that a criminal case was pending against him. The appellant challenged the suspension by filing a writ petition before the Punjab High Court. He argued that the suspension violated the guarantee of security of tenure enshrined in Article 314 of the Constitution and contravened rule 49 of the Civil Services (Classification, Control and Appeal) Rules, which he contended permitted suspension only as a punitive measure. He further submitted that, immediately prior to the commencement of the Constitution on the twenty‑sixth of January, 1950, there was no provision allowing suspension except as a penalty. The Punjab High Court dismissed the petition.

The Court then set out its reasoning, delivered by Justices Gajendragadkar, Subba Rao, Wanchoo and Shah. It observed that the general law of master and servant, together with section 247 of the Government of India Act, rule 53 of the Fundamental Rules and rules 49 and 56 of the Civil Services (Classification, Control and Appeal) Rules, when read together, clearly demonstrated that members of the former Secretary of State’s Services were, as of the fourteenth of August, 1947, subject to suspension either as an interim measure or as a punitive action. The Court explained that an interim suspension could be imposed by the appointing authority, which could be the Secretary of State, the Governor‑General or the Governor, depending on the circumstances, as the statutory authority. The Court referred to the decisions in Management of Hotel Imperial, New Delhi v. Hotel Workers’ Union, [1960] 1 S.C.R. 476 and T. Cajee v. U. Jormanik Siem, [1961] 1 S.C.R. 750, to support this view. Consequently, the Court held that it was incorrect to assert that, before the commencement of the Constitution, suspension could occur only as a punishment under rule 49 of the Appeal Rules.

In 1947, when an employee of the former Secretary of State’s Services was placed under interim suspension, the law did not provide any right of appeal against that suspension. The Court explained that Article 314 of the Constitution, when interpreted correctly, gave protection to members of the Secretary of State’s Services that they had enjoyed immediately before the Constitution came into force. The Court held that there was no doubt that a suspension imposed while a departmental inquiry or a criminal proceeding was pending fell within the meaning of the term “disciplinary matters” used in Article 314.

The Court rejected the contention that the attainment of independence automatically terminated the services of all former employees of the Secretary of State and that, as a result, all such employees were legally re‑appointed by the Governor of the province. The Court clarified that the Governor, even if deemed to have re‑appointed provincial officers, did not acquire the authority to order their suspension. Instead, the Court examined Article 7(1) of the India (Provisional Constitution) Order, 1947 (G.G.O. 14) together with section 10 of the Independence Act, 1947, and concluded that the ultimate decision on whether any former member of the Secretary of State’s Services should continue in service rested with the Government of India. Consequently, the Government of India was to be regarded as having appointed those officers to positions either under the Union or in the provinces.

The Court further observed that section 241(b) of the Government of India Act, as it then stood, and section 240(2) of the same Act, as amended by G.G.O. 14, could not change this legal position. The Court cited State of Madras v. K.M. Rajagopalan, [1955] 2 S.C.R. 541, in support of this view. Accordingly, on the eve of the Constitution’s commencement—specifically on 25 January 1950—a former member of the Secretary of State’s Services could be suspended only by the Government of India, which was the appointing authority, and only as an interim measure pending a departmental enquiry or criminal proceeding. No other authority could lawfully impose such an interim suspension.

The Court noted that the same officer was also subject to suspension as a penalty under section 49 of the Civil Services (Classification, Control and Appeal) Rules. Under rule 53 of the Fundamental Rules, the officer’s salary during either an interim suspension or a punitive suspension was governed. While there was no provision for an appeal against an order of interim suspension, rule 56 of the Appeal Rules allowed an appeal against a suspension imposed as a penalty. The Court explained that Article 314 was intended to protect this very arrangement.

Turning to the statutory framework introduced after independence, the Court found that rule 7 of the All India Services (Discipline and Appeal) Rules, 1955, contravened the guarantee contained in Article 314 with respect to interim suspensions. The Court declared that rule 7 was ultra vires insofar as it applied to members of the Indian Administrative Services who fell within clauses (a) and (b) of rule 3 of the Indian Administrative Services (Recruitment) Rules, 1954. Consequently, the Court held that the Governor’s order issued under rule 7(3) to effect an interim suspension of the appellant was invalid and had to be set aside.

The Court directed that any interim suspension of a member of the Indian Administrative Services must be sought from the Government of India, not from the Governor. The Court referred to the decision in Accountant General, Bihar v. N. Bakshi, [1962] Supp. 1 S.C.R. 505, to support this procedural requirement. Finally, the Court, delivering the opinion of Dayal J., observed that the provisions of section 241 of the Government of India Act, as amended, reinforced the need for the correct appointing authority to be the one to order any interim suspension.

The Court explained that under the India (Provisional Constitution) Order, 1947 (G.G.O. 14 of 1947), any member of the Secretary of State’s Services who occupied a post in a provincial government immediately before the appointed day of 15 August 1947 and who continued to serve thereafter was, by virtue of article 7(1) of that Order, to be deemed appointed to the corresponding post by the appropriate provincial authority, namely the Governor of the Province. That provision was intended to apply to all appointments made on or after the appointed day and did not treat the Governor‑General or the Government of India as the appointing authority for such individuals. The Court emphasized that the mere fact that the Order was issued by the Governor‑General did not mean that the deemed appointments were to be considered as made by him. To hold otherwise would create an absurd situation in which the Governor, who exercised administrative control over the services, could not issue an interim order of suspension against a person whose appointment was deemed to have been made by the Secretary of State, while still being empowered to impose a penalty of suspension under rules 49 and 52 of the Civil Services (Classification, Control and Appeal) Rules that remained in force until the All India Services (Discipline and Appeal) Rules were enacted in 1955. The Court further observed that the Indian Civil Services ceased to exist on 15 August 1947, and consequently the services of its members automatically terminated on 14 August 1947. In the appellant’s case, although his service technically ended on that date, he had been serving under the Madras Government immediately before 15 August 1947 and continued in that role thereafter. Accordingly, he was to be deemed appointed by the Governor of Madras to the post he held on the appointed day. The Court held that Rule 7 of the All India Services (Discipline and Appeal) Rules, 1955, did not infringe the guarantee contained in Article 314 of the Constitution, and that the lack of a right of appeal against interim suspension could not be said to violate that guarantee because the appellant had no such right before the Constitution came into force. Consequently, the appellant’s suspension by the Governor of Punjab under rule 7(3) was upheld as valid, with reference to the precedent in State of Madras v. K.M. Rajagopalan, [1955] 2 S.C.R. 541.

The appeal arose under civil appellate jurisdiction as Civil Appeal No. 647 of 1963, filed against the judgment and order dated 21 September 1962 of the Punjab High Court in Civil Writ No. 280 of 1962. The appellant appeared in person before the Court. The counsel representing the Union of India comprised the Additional Solicitor‑General and two additional counsel. The State of Punjab was represented by the Advocate‑General of Punjab together with two further counsel. The judgment was delivered on 19 November 1963 by a bench consisting of Justices P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo and J.C. Shah, with Justice Wanchoo authoring the majority opinion and Justice Raghubar Dyal delivering a dissenting opinion. In his opening remarks, Justice Wanchoo noted that the matter before the Court was an appeal on a certificate granted by the Punjab High Court. He recounted that the appellant had entered the Indian Civil Service in 1939 and that his disciplinary matters were governed by the Civil Services (Classification, Control and Appeal) Rules, hereinafter referred to as the Appeal Rules, which were promulgated by the Secretary of State for India in Council. The appellant had continued in service up to the transfer of power under the Indian Independence Act, 1947, thereby situating the factual and legal backdrop for the Court’s subsequent analysis.

In this case, the Court explained that the appellant had remained in service up to the moment when authority passed under the Indian Independence Act of 1947. Section ten of that Act provided that, after the transfer of power, the appellant continued to serve under the Government of India and was thereby entitled to receive from the Government of India or from whichever provincial government he was serving at any given time the same conditions of service that applied to his remuneration, leave and pension. The provision also guaranteed that he would retain the same rights in disciplinary matters, or any similar rights concerning the tenure of his office, as those that he enjoyed immediately before the transfer of power, which had taken place on 15 August 1947. The Court noted that Article 314 of the Constitution extended the same guarantee to the appellant and to all persons who had been members of the Secretary of State’s Services before 15 August 1947. The Court set out the text of that constitutional article, which reads: “Except as otherwise expressly provided by this Constitution, every person who having been appointed by the Secretary of State or Secretary of State in Council to a civil service of the Crown in India continues on and after the commencement of this Constitution to serve under the Government of India or of a State shall be entitled to receive from the Government of India and the Government of the State, which he is from time to time serving, 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 that person was entitled to immediately before such commencement.” The Court said that henceforth such a person would be referred to as a member of the former Secretary of State’s Services. The Court observed that the appellant was, at the time of the transfer of power, assigned to the Indian Civil Service cadre in the State of Madras, although he was subsequently transferred to the Punjab. After the transfer, the Indian Civil Service as a Secretary of State’s Service ceased to exist, and a new service called the Indian Administrative Service was created. The Court stated that the legal framework for the new service was provided by the All India Services Act, No LXI of 1951, and that the Indian Administrative Service (Recruitment) Rules, 1954, hereinafter referred to as the Recruitment Rules, were framed under that Act. Under rule 3 of those Recruitment Rules, the Court listed the categories of persons who would constitute the Indian Administrative Service: (a) members of the Indian Civil Service who were not permanently allotted to the judiciary; (b) members of the Indian Civil Service permanently allotted to the judiciary who had been holding executive posts from the date of the commencement of the Constitution and who could be declared members of the Service by the Central Government in consultation with the State Government; (c) persons who, at the commencement of these Rules, were holding substantively listed posts other than posts in the judiciary; (d) persons who had been recruited to the Service before the commencement of these Rules; and (e) persons recruited to the Service in accordance with the provisions of these Rules.

By virtue of rule (e) of the Recruitment Rules, which allowed persons to be recruited to the Service in accordance with the provisions of those rules, the appellant became a member of the newly created Indian Administrative Service. After his induction, he continued his service in the State of Punjab. In 1955 the Central Government issued the All India Services (Discipline and Appeal) Rules, 1955, hereinafter called the Discipline Rules, and made those rules applicable to every member of the Indian Administrative Service as well as to members of the Indian Police Service. On 18 July 1959 the Governor of Punjab ordered the appellant’s immediate suspension on the ground that a criminal case was pending against him. The suspension order further stipulated that, for the duration of the suspension, the appellant would receive a subsistence allowance equal to the leave salary he would have drawn under the leave rules if he had been on leave, calculated at half of his average pay. The order also stated that if the suspension extended beyond twelve months, a separate order would be issued to fix the rate of the subsistence allowance. The order appears to have been issued under rule 7(3) of the Discipline Rules, and consequently the appellant remained under suspension pursuant to that provision.

The appellant filed a writ petition in the Punjab High Court on 16 February 1962 challenging the Governor’s suspension order. He argued that he was entitled to the protection guaranteed by article 314 of the Constitution and that the suspension order contravened that guarantee, rendering it ineffective and invalid. To support his claim, he relied on rule 49 of the Appeal Rules, which described suspension only as a penalty. He maintained that the Appeal Rules continued to govern him because article 314 required that any suspension be imposed as a penalty, and that no rule or statute existing immediately before 26 January 1950— the date the Constitution came into force—provided for suspension in any form other than as a penalty. Accordingly, he contended that the Governor could not lawfully suspend him in the manner adopted in this case, although he did not deny that suspension pending criminal proceedings could be permitted if it was imposed as a penalty under rule 49 of the Appeal Rules. He asserted that a mere suspension pending a criminal case, not imposed as a penalty, was not authorized by any rule or statute governing him prior to 26 January 1950. Therefore, when the Governor suspended him under rule 7(3) of the Discipline Rules, the appellant argued that the Governor violated the guarantee contained in article 314. The appellant further maintained that, because no authority could suspend him except as a punishment before 26 January 1950, rule 7 of the Discipline Rules—which provides for suspension during disciplinary proceedings or during the pendency of a criminal case—was ultra vires article 314 as applied to him.

The appellant argued that the charge against him was beyond the authority granted by Article 314 of the Constitution. He challenged Rules 3 and 10 of the Discipline Rules, asserting that they violated Article 314. Rule 3 dealt with penalties imposed on members of the Indian Administrative Service, while Rule 10 concerned the right of appeal. According to the appellant, Rule 3 omitted the penalty of suspension that was provided under Rule 49 of the Appeal Rules; consequently, a suspension imposed under Rule 7 could not be appealed under Rule 10, which allowed appeals only against penalties enumerated in Rule 3. The appellant contended that this omission breached the guarantee of Article 314 because, before the Constitution came into force, a member of the Secretary of State’s Services could appeal a suspension as a penalty under Rules 5 and 6 of the Appeal Rules. He maintained that the overall scheme of the Discipline Rules therefore removed a protection that had previously existed for members of the Secretary of State’s Service, and that Rules 3 and 10 were consequently ultra vires Article 314. The appellant sought a writ of mandamus, or any appropriate order or direction, to strike down Rules 3, 7 and 10 of the Discipline Rules as unconstitutional, and also asked that the Governor’s order dated 18 July 1959, which suspended the appellant, be set aside, together with any further relief that the Court deemed just and proper.

The State of Punjab opposed the petition, maintaining that Rules 3, 7 and 10 of the Discipline Rules were fully valid and did not contravene the guarantee in Article 314. It argued that Article 314 offered only limited protection to former members of the Secretary of State’s Services in disciplinary matters, emphasizing the phrase “or rights as similar thereto as changed circumstances may permit.” The State submitted that suspension pending a departmental enquiry or pending a criminal case was distinct from suspension imposed as punishment, and that before 26 January 1950 such suspensions could occur without any right of appeal. It further asserted that a suspension pending enquiry or criminal proceedings was not a disciplinary matter and therefore fell outside the scope of Article 314. Even if suspension were related to disciplinary issues, the State said the rule could be varied to meet changed circumstances, and Rule 7 had been framed for that purpose. The State also argued that removing suspension as a penalty from Rule 3 did not affect the guarantee in Article 314 because the removal meant there was no longer a suspension penalty against which an appeal under Rule 10 could be made. It maintained that Rule 7, which provided for suspension, did not create a penalty and thus did not require an appeal mechanism. Finally, the State contended that a clear distinction existed between suspension as a penalty and suspension as an interim measure pending enquiry or criminal proceedings, and that recognizing this distinction removed any basis for holding Rules 3 and 10 ultra vires Article 314. The State concluded that the Governor’s order under Rule 7(3) was lawful and did not infringe Article 314. The High Court had dismissed the petition, holding that it was inconceivable that, under the pre‑Constitution rules, a civil servant could never be suspended while an inquiry was pending.

In this case the Court observed that there could be no future penalty of suspension imposed upon a member of the Indian Administrative Service. Consequently, because the penalty no longer existed, Rule 10 did not logically provide for an appeal against a non‑existent penalty. Rule 7, which governs suspension, itself does not create any penalty; therefore there was no need to furnish an appeal mechanism for it. It was submitted that a clear distinction must be drawn between suspension imposed as a punitive measure and suspension used merely as an interim step while a departmental inquiry or a criminal case is pending. The argument continued that, keeping this distinction in mind, there was no basis for holding that Rules 3 and 10 were beyond the scope of Article 314. The State, as respondent, finally maintained that the Governor’s order issued under Rule 7(3) was completely valid and did not contravene the guarantee contained in Article 314. The High Court dismissed the petition, holding that it was unimaginable that, under the rules in force before 26 January 1950, a civil servant could never be suspended while an inquiry into his conduct was pending. The High Court further opined that the power to suspend during the pendency of an inquiry was an inherent authority of the employer, such as the Government, and that the power to suspend was always implied in the authority that made the appointment. Accordingly, the High Court rejected the appellant’s contention that, under the old rules, no member of the Secretary of State’s Services could be suspended except as punishment. The High Court additionally held that, even if the appellant’s claim that a member of the Secretary of State’s Services possessed a right of appeal while suspended during a departmental inquiry were accepted, the Discipline Rules provided a procedure for a memorial to the President under Rule 20, thereby granting a right similar to that which existed before 26 January 1950, as changed circumstances permitted. On that basis the High Court again dismissed the petition. After the dismissal the appellant applied for a certificate, which was granted, and thereby the matter came before this Court. The sole issue that this Court needed to consider was the nature of suspension—whether as a punishment or otherwise—of a member of one of the Secretary of State’s Services, specifically the Indian Civil Service, whose members later became members of the Indian Administrative Service under the Recruitment Rules. This is the only question that required determination on appeal. Although the appellant also challenged Rules 3 and 10 of the Discipline Rules, those rules do not address suspension. Accordingly, the Court decided not to examine the constitutional validity of Rules 3 and 10, because the order under review was not made under Rule 3 and pertained solely to suspension. Hence, it was unnecessary for the Court to decide on the vires of Rules 3 and 10 in the present proceedings.

The Court examined whether rules 3 and 10 could, in the changed circumstances, be applied to members of the Indian Administrative Service who had at one time been members of the Indian Civil Service. The Court expressly refrained from expressing any opinion either for or against the validity of rules 3 and 10 and limited its consideration to rule 7, which governs suspension. The Court also clarified that any discussion of suspension in this judgment would pertain solely to those members of the Indian Administrative Service who became members under rule 3(a) and 3(b) of the Recruitment Rules, and not to other members of the service who were not members of the Indian Civil Service before 1947. Only the former category of members is entitled to the protection of Article 314, and the entire case presented by the appellant rests upon that protection. Consequently, the Court turned its attention to Article 314, which had already been set out above. Article 314 had previously been considered by the Court in Accountant General Bihar v. N. Bakshi (1). In that earlier decision, the Court examined the portion of the article dealing with “conditions of service as respects remuneration, leave and pension” and held that rule 3 of the All India Services (Overseas Pay, Passage and Leave Salary) Rules, 1957, was ultra vires because it conflicted with the guarantee contained in Article 314 of the Constitution. That case therefore serves as authority for the proposition that any rule inconsistent with the guarantee in Article 314 concerning remuneration, leave or pension is invalid. The present matter, however, concerns a different segment of Article 314, namely the clause that provides “the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit as that person was entitled to immediately before such commencement.” The Court indicated that the same principle applies to this disciplinary‑rights clause, and that any rule contravening the guarantee contained in this part of Article 314 with respect to former members of the Secretary of State’s Services would be invalid. Article 314, as it relates to disciplinary matters, declares that members of the former Secretary of State’s Services who continue to serve under the Government of India or a State are entitled to the same rights concerning disciplinary matters or rights similar thereto, as far as the changed circumstances may permit. The respondent stressed the words “rights as similar thereto as changed circumstances may permit” and argued that, in view of those words, the changed circumstances allowed the framing of rules specifically concerning suspension pending departmental inquiry or pending criminal proceedings. The Court, however, held that these words cannot be interpreted in that manner.

In this case the Court explained that the expression “changed circumstances” refers only to the alterations brought about by the transfer of power in August 1947 and the commencement of the Constitution in January 1950, and to nothing beyond those events. Accordingly, when Article 314 mentions “rights as similar thereto as changed circumstances may permit”, it conveys that a member of the former Secretary of State’s Services is entitled to rights that correspond to the rights he possessed before the constitutional changes, to the extent that those constitutional changes allow. For example, before August 1947 a member of a Secretary of State’s Service could be dismissed solely by the Secretary of State; after the transfer of power and the advent of the Constitution there was no longer a Secretary of State, so the authority to dismiss had to be identified in the new situation. The Court found that, in the absence of any specific statutory provision existing before 26 January 1950, the Government of India is the only authority that can now exercise the power of dismissal. The Court further clarified that the phrase “changed circumstances” does not imply that, as time goes on, new circumstances arise which would justify the framing of fresh rules; it is limited to the constitutional changes that occurred after the transfer of power in 1947 and the coming into force of the Constitution in 1950. Moreover, Article 314 protects only those disciplinary rights that a member of the former Secretary of State’s Services enjoyed immediately before the Constitution commenced, that is, on 25 January 1950, and no other rights. The respondent contended that a suspension pending a departmental inquiry or a criminal proceeding is not a disciplinary matter and therefore falls outside the protection of Article 314. The Court could not accept this contention. It held that the term “disciplinary matters” appearing in a constitutional provision must be given its broadest meaning consistent with what may reasonably be included in disciplinary matters. The Court observed that suspension can occur in two forms: as a punishment or as an interim measure pending a departmental inquiry or pending criminal proceedings, and it indicated that it would consider these forms in detail later. While it is undisputed that punitive suspension is a disciplinary matter, the dispute concerned suspension pending an inquiry or criminal process. The Court concluded unequivocally that such suspensions also fall within the scope of “disciplinary matters” as used in Article 314.

In the situation where a public servant is suspended pending a departmental enquiry, the primary purpose of that suspension is to enable the enquiry to proceed effectively and to prevent the officer from continuing to exercise authority in a manner that could aggravate the alleged misconduct. The enquiry may involve serious lapses on the part of the servant, and the suspension therefore serves to keep the servant from misusing his position while the investigation is underway. Consequently, such a suspension cannot be characterised as anything other than a measure that is closely connected with disciplinary matters. The Court also considered the circumstance in which suspension is ordered pending criminal proceedings. Typically, a suspension of this kind is premised on the allegation that the criminal charge is linked to the servant’s official duties, that it may embarrass the servant in the performance of those duties, or that it involves moral turpitude. Under those circumstances, the servant may be placed on suspension while the investigation, enquiry or trial concerning the criminal charge is pending. The Court held that this form of suspension is likewise directly related to disciplinary considerations. If the criminal trial ends in a conviction, disciplinary action against the servant is inevitably required. Even where the servant is acquitted, disciplinary proceedings may still be initiated if the acquittal does not fully restore the servant’s honour. The usual administrative practice, as observed by the Court, is that when a public servant faces a criminal charge, the Government defers the departmental enquiry until the criminal trial concludes, and subsequently conducts disciplinary proceedings based on the outcome of that trial. Accordingly, suspension during any stage of investigation, enquiry or trial connected with a criminal charge is, in the Court’s view, also intimately linked with disciplinary matters. The Court therefore rejected the respondent’s contention that suspension pending a departmental enquiry or suspension pending investigation, enquiry or trial of a criminal charge does not fall within the meaning of “disciplinary matters” under Article 314. Before examining the specific rights that a member of the former Secretary of State’s Services possessed with respect to suspension—whether as punishment, as a measure pending a departmental enquiry, or as a measure pending criminal proceedings—the Court deemed it necessary to address the general rights of the Government in imposing either type of suspension. The Court referred to its earlier rulings in two cases, namely The Management of Hotel Imperial New Delhi v. Hotel Workers’ Union and T. Cajee v. U. Jormanik Siem, to establish the prevailing law on suspension. Those decisions clarified that, under the ordinary master‑servant relationship, the authority to suspend an employee without pay cannot be implied into a standard service contract; it must stem either from an explicit contractual term or from a statutory provision that governs the contract. Furthermore, the Court observed that an order of interim suspension may be issued against an employee while an inquiry into his conduct is pending, even in the absence of a specific contractual or rule‑based provision addressing such suspension.

In this case, the Court explained that an employer could place an employee on suspension while an inquiry into the employee’s conduct was pending, even if the employee’s appointment terms or the applicable rules did not contain an explicit provision authorising such suspension. The Court held that, in the absence of any statutory provision or rule that permitted the withholding of salary, the employee was entitled to receive his full remuneration for the period of the interim suspension. Accordingly, the general rule was that the only issue that could arise from a suspension of this kind related to the payment of salary during the suspension. If the contract of service contained an express clause dealing with suspension and the payment of wages during suspension, or if a statute or rule prescribed a particular scale of payment for a suspended employee, then the employer was bound to follow that provision. Conversely, where no such contractual term or statutory rule existed, the employee could claim his full emoluments for the period of suspension. The Court observed that these principles applied equally when the employer was the Government and the employee was a public servant, with the modification that, because of the unique hierarchical structure of the Government, the authority that possessed the power to appoint the public servant was the same authority that could suspend him pending a departmental enquiry or pending criminal proceedings that might eventually lead to a departmental enquiry. The Court cited section 16 of the General Clauses Act, No X of 1897, as an illustration of the rule that, where a Central Act or Regulation conferred a power of appointment, it also implied a power to suspend or dismiss unless the legislation clearly indicated a contrary intention. Although that specific provision did not directly govern the present dispute, it was consistent with the master‑servant law. The Court further clarified that the amount payable to a public servant during such a suspension depended on the existence of a statutory or rule‑based provision governing payment; if such a provision existed, payment would be made in accordance with it, whereas in its absence the servant was entitled to his full salary. The Court distinguished this interim suspension from a punitive suspension, which represented a punishment and was governed by the relevant disciplinary rules. Finally, the Court stated that, like any other employer, the Government could suspend a public servant in one of two ways: either as an interim measure pending a departmental enquiry or criminal proceedings, or as a punitive measure after a departmental enquiry had found the servant guilty, provided that the applicable rules permitted such punishment.

In this case the Court observed that when suspension is imposed as a penalty the general principles applicable to all public servants become relevant, but those principles are necessarily limited by the provisions of Article 314. Article 314, the Court noted, safeguards only those rights that existed at the moment the Constitution became operative; consequently the inquiry had to determine the status of members of the former Secretary of State’s Services as of the day before the transfer of power on 14 August 1947 and as of 25 January 1950, just prior to the Constitution’s commencement. The Court explained that members of the Secretary of State’s Services who fell within the protection of Article 314 had been appointed either by the Secretary of State himself or by the Secretary of State in Council. On that basis, the Court held, it would have been permissible for the appointing authority – that is, the Secretary of State or the Secretary of State in Council – to suspend any such member as an interim measure while a departmental enquiry was pending or while criminal proceedings were contemplated, if the appointing authority deemed such action appropriate. The Court further clarified that the remuneration to which a public servant was entitled during an interim suspension would be determined by any applicable rules; in the absence of such rules the servant would retain his full emoluments throughout the period of suspension. The Court then turned to the practical difficulty that the appointing authority was situated in London, and for reasons of administrative convenience it was considered suitable to permit suspension by officials other than the appointing authority. In support of this view the Court referred to section 247(2) of the Government of India Act 1935, which remained in force until 13 August 1947. That subsection provided that any order effecting the suspension of a person who was a member of the former Secretary of State’s Services, if the person was serving in connection with the affairs of the Federation, had to be made by the Governor‑General exercising his individual judgment; if the person was serving in connection with the affairs of a Province, the order had to be made by the Governor exercising his individual judgment. The Court therefore concluded that this statutory provision created a specific mechanism for suspension by authorities other than the appointing authority, and that it operated in addition to the general common‑law right of the employer – the Secretary of State or the Secretary of State in Council – to suspend an employee. Moreover, the Court held that the language of section 247(2) was not confined to suspension as a penalty; the terms were broad and must be given their full meaning, encompassing any form of suspension, whether imposed as a penalty or for other reasons. Accordingly, the power to suspend was vested first in the Secretary of State or the Secretary of State in Council under the general law of master and servant, and also in the Governor‑General and the Governor, as the case required, by virtue of the statutory provision.

In this case the Court explained that, under the Government of India Act, 1935, the Governor‑General or, as the circumstance required, the Governor possessed the authority to suspend a member of the former Secretary of State’s Services by virtue of the statutory provision contained in section 247 (2). Section 247 (3) further dealt with the remuneration of a suspended employee and stipulated that “if any such person as aforesaid is suspended from office, his remuneration shall not during the period of his suspension be reduced except to such extent, if any, as may be directed by the Governor‑General exercising his individual judgment or, as the case may be, by the Governor exercising his individual judgment”. In addition to this specific statutory rule, the Court noted the existence of a general rule on payment to a government servant who is under suspension, namely Fundamental Rule 53, which provided that a suspended servant was entitled to at least one‑fourth of his salary. However, this general rule operated subject to the limitations imposed by section 247 (3). Consequently, for members of the former Secretary of State’s Services the Governor‑General or the Governor, as applicable, was required to specify the exact amount of remuneration, and that amount could be greater than the minimum prescribed by Fundamental Rule 53. The Court emphasized that Fundamental Rule 53 used the term “suspension” in a broad sense, covering every form of suspension, whether imposed as a punitive measure or otherwise.

The Court further observed that Rule 49 of the Appeal Rules addressed penalties and expressly provided for suspension as a disciplinary penalty, while Rule 56 and related provisions set out the procedure for appealing such punitive suspensions when they were imposed for good and sufficient reasons. These rules were applicable to the former Secretary of State’s Services, meaning that members of that service could be subject to suspension as a penalty and could seek redress through the appeal mechanism provided in the rules. By reviewing the common law principles of master‑and‑servant relationships, the relevant sections of the Government of India Act, the Appeal Rules, and the Fundamental Rules, the Court concluded that the legal position as at 13 August 1947 was that members of the former Secretary of State’s Services could be suspended either as an interim measure or as a punishment. An interim suspension, which was not punitive, could be ordered either by the appointing authority—being the Secretary of State or the Secretary of State in Council—or by the Governor‑General or the Governor, acting under the statutory power. A punitive suspension could be imposed by the proper authority under Rule 49 of the Appeal Rules, and such orders were subject to appeal in accordance with the procedures laid down in the Appeal Rules. The Court also reiterated that payment during any suspension was governed by the subsistence allowance provisions of Fundamental Rule 53, but for members of the former Secretary of State’s Services this was subject to the specific direction of the Governor‑General or Governor under section 247 (3) of the Act. Accordingly, the Court rejected the appellant’s contention that suspension could not be imposed in any form other than as a penalty under Rule 49 before 1947.

The Court observed that the proposition that suspension before 1947 could occur only as a punishment under rule 49 of the Appeal Rules was incorrect. It further explained that when a suspension before 1947 was imposed as an interim measure and not as a punishment under rule 49, there was no provision for an appeal against such an interim suspension while a departmental enquiry or a criminal proceeding was pending. The Court then considered the hypothetical that the legal position on 25 January 1950 was identical to that on 13 August 1947; under that assumption, the appellant would not have been able to meaningfully challenge the Governor’s order dated 18 July 1959 because the order would have been governed by section 247(3) of the Government of India Act, 1935, and the appellant could not claim any additional protection under Article 314 of the Constitution. However, the Court clarified that Article 314 does not refer to the protection enjoyed by members of the All‑India Services on 13 August 1947; rather, it refers to the protection that they possessed immediately before the commencement of the Constitution on 25 January 1950. This distinction required an examination of the changes that occurred between the transfer of power on 15 August 1947 and the commencement of the Constitution in 1950.

The Court then referred to its earlier decision in State of Madras v K.M. Rajagopalan, where it held that the grant of independence automatically and legally terminated civil service on the date of Independence, but persons who had previously held civil posts were deemed to have been appointed and therefore continued in service, except where they were subject to specific general or special orders. The Court noted that the guarantee of prior conditions of service and the existing statutory safeguards relating to disciplinary action continued to apply to those who were deemed to continue, but not to those who were excluded. Section 10 of the Indian Independence Act, relating to the Secretary of State’s Services, provides that any person who had been appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India and who continued to serve after the appointed day under the government of either of the new Dominions or any province, shall be entitled to the same conditions of service with respect to remuneration, leave, pension, disciplinary matters, tenure of office, or similar rights as were applicable immediately before the appointed day, namely 15 August 1947. By virtue of this provision, members of the Secretary of State’s Services who continued to serve the Government of India or any province from 15 August 1947 were entitled to the protection of section 10. The Court reiterated that, as decided in Rajagopalan’s case, the Government of India was not obligated to continue the service of every member of the Secretary of State’s Services; the protection of section 10 applied only to those whose services the Government agreed to retain after 14 August 1947.

In interpreting the effect of section 10 of the Indian Independence Act, the Court observed that the statutory protection afforded by that provision extended only to those members of the Secretary of State’s Services whose employment was expressly continued by the Government of India after the fifteenth day of August, 1947. The Court therefore held that, in the case of Rajagopalan, the Government of India had not agreed to retain his services, and consequently he could not invoke the protection of section 10 of the Indian Independence Act. By contrast, the appellant’s employment continued after the transfer of sovereign authority, and on that basis the appellant was entitled to the protection of section 10. The Court further noted that the protection granted by section 10 was substantially analogous to the provisions of Article 314 of the Constitution with respect to disciplinary matters, thereby ensuring that the appellant could rely on the same safeguards that applied to civil servants under the Constitution.

On the fourteenth day of August, 1947, the India Provisional Constitution Order 1947 was issued as Government Gazette Order 14, and by that Order the existing section 247 of the Government of India Act was replaced with a new provision. The earlier sub‑sections (2) and (3) of section 247 were expressly repealed. The new section 247 set out the conditions of service for persons originally recruited by the Secretary of State. It provided that any person appointed by the Secretary of State or the Secretary of State in Council to a Crown civil service in India, who continued to serve after the establishment of the Dominion under the Government of the Dominion or any Province, would have his conditions of service determined as follows: (a) for persons engaged in the affairs of the Dominion, the conditions would be prescribed by rules made by the Governor‑General; (b) for persons engaged in the affairs of a Province, (i) matters relating to pay, leave, pensions, general rights such as medical attendance and any other matters previously regulated by rules of the Secretary of State would be prescribed by rules of the Governor‑General, and (ii) any other matters would be prescribed by rules made by the Governor of the Province. The Court pointed out that the disappearance of sub‑sections (2) and (3) on 14 August 1947 meant that no rules were ever framed by the Governor‑General under the new provision to address what the Court had termed “interim suspension.” Consequently, neither the Governor‑General nor any Provincial Governor retained any power to suspend a former Secretary of State servant as an interim measure. The only authority capable of imposing such a suspension became the appointing authority, which in the altered constitutional context was the Government of India. The Court suggested that this shift was logical because the office of the Secretary of State ceased to exist, his functions having been transferred to the Government of India, and therefore it was unnecessary to preserve the additional powers conferred by the now‑repealed sub‑section (2) alongside the general suspensory power of the appointing authority.

The Court observed that the substantive effect of the disappearance of section 247(2) on 14 August 1947 was that the Governor‑General and the Governor were no longer authorised to suspend, even on an interim basis, a member of the former Secretary of State’s Services. From that date onward, the power to suspend could be exercised only by the appointing authority, which in the altered constitutional situation had to be regarded as the Government of India. The Court noted that the power to suspend a civil servant as a punitive measure remained preserved in the Appeal Rules, and those rules had not been altered after Independence.

The Court addressed an argument that the grant of Independence automatically terminated the service of all members of the former Secretary of State’s Services on the date of Independence, thereby requiring a legal re‑appointment of each such officer. It was further contended that, for those officers who were serving in connection with provincial affairs, the re‑appointment should be deemed to have been made by the Governor of the relevant Province, which would consequently vest the Governor with the power to suspend as the appointing authority. The Court rejected this line of reasoning, stating that it lacked any legal force.

The Court referred to the earlier decision in Rajagopalan’s case (1) and explained that the circumstances surrounding those Services had been fully examined therein. The earlier case showed that the question of retaining officers of the former Secretary of State’s Services was resolved through negotiations between the Government of India and His Majesty’s Government. It was the Government of India that decided that all such officers would continue in service, except for a limited number whom the Government of India chose not to invite to continue, and that for this limited class the Government of India consented to provide compensation. Consequently, section 10 of the Independence Act was incorporated to provide that the officers who continued would retain the same conditions of service that they enjoyed immediately before 14 August 1947. The Court emphasized that the Governors of the Provinces played no role in that arrangement and that there was no basis to treat the appointment of those officers as having been made by the Provincial Governors, as noted in Rajagopalan’s case (1) [1955] 2 S.C.R. 541.

The Court further recognised that the Indian Administrative Service was formally constituted as an all‑India Service in 1951. It also acknowledged that, under section 10 of the Indian Independence Act, members of the former Secretary of State’s Services continued to serve after 14 August 1947 under the Government of the new Dominions or of any Province or part thereof. While some passages in the correspondence between His Majesty’s Government and the Government of India suggested a view that these officers might become members of the Provincial Services, the Court held that such passages were not conclusive and could not be used to alter the established legal position.

In order to determine the legal effect of the exchange of letters that took place between the Government of India and His Majesty’s Government concerning the former Secretary of State’s Services, the Court examined the subsequent legislative and constitutional measures. The Court noted that Section 10 of the Indian Independence Act was introduced as a direct result of that correspondence. Following this, the India (Provisional Constitution) Order, 1947—referred to as General‑Governing Order 14—was enacted on 14 August 1947 under the authority granted to the Governor‑General by Section 9(1)(a) of the Indian Independence Act. Article 7(1) of that Order provided, in substance, that any individual who, immediately before the appointed day, occupied a civil post under the Crown in connection with the affairs of the Governor‑General, the Governor‑General in Council, or any province other than Bengal or the Punjab, would, from that day onward, be deemed to have been duly appointed to the corresponding post under the Crown in relation to the Dominion of India or, as appropriate, to the province, subject to any general or special orders or arrangements affecting his case. The Court read this provision together with Section 10 of the Independence Act and concluded that, for members of the former Secretary of State’s Services, the law required that they be deemed appointed to the posts they occupied at the moment of India’s independence by the Government of India.

The Court observed that the deemed appointment under Article 7(1) of General‑Governing Order 14 was expressly made “subject to any general or special orders or arrangements affecting his case,” and that the relevant arrangements were evident from the subsequent correspondence between the Government of India and His Majesty’s Government. That correspondence, together with the special orders contemplated by Article 7(1), demonstrated that the Government of India held the ultimate authority to decide whether a former Secretary of State’s Service officer would continue in service. Although the Government of India consulted the various Provincial Governments and gave considerable weight to their views—especially for officers serving in provincial affairs—the Court cited the facts of Rajagopalan’s case to show that the ultimate decision on continuation lay with the Government of India. Consequently, the Court held that it was proper to deem the Government of India, rather than any provincial authority, as the appointing authority for former Secretary of State’s Service members after the conferral of independence, irrespective of whether the officers were serving under the central Government or under Provincial Governments at that time.

The Court observed that the conclusion was reinforced by the fact that before 1947 the administrative system assigned every member of the Secretary of State’s Services to a particular province, and those members who were needed for central work were placed on deputation to the Government of India for direct service. It would be highly anomalous, as noted in the citation (1) [1955] 2 S.C.R. 541, to allow the mere accident of whether an officer was on deputation to the Government of India on 13 August 1947 or was serving within his assigned province to determine which authority should be regarded as the appointing authority at the moment of the transfer of power. The Court held that such an anomaly could not have been intended, and, having considered the historical discussion in Rajagopalan’s case (1), it found that on the conferral of Independence, even if the legal continuance of the former Secretary of State’s Services ceased, the re‑appointment of those officers had to be deemed to have been made by the Government of India and not by the Governors of the provinces, even for officers who were then engaged in provincial affairs. In examining this issue, the Court turned to section 241(1) of the Government of India Act 1935, as it then stood, which provides that, except as expressly provided by the Act, appointments to civil services and civil posts under the Crown in India shall be made—(a) for services of the Dominion and posts connected with the Dominion’s affairs, by the Governor‑General or a person designated by him; and (b) for services of a Province and posts connected with provincial affairs, by the Governor or a person designated by him. The Court expressed the view that this provision did not apply to the unique circumstances created by the transfer of power in August 1947, because it is a general rule concerning appointments to civil services and posts under the Dominion or the Provinces. The Court further stated that the provision had no bearing on the situation of members of the civil services and holders of civil posts who were deemed to have continued by virtue of Article 7 of G.G.O. 14 dated 14 August 1947. Consequently, clause (b) of section 241(1) could not, in the Court’s opinion, be used to infer that the appointments of former Secretary of State’s Service members, who were deemed to have been appointed in connection with provincial affairs under Article 7(1) of G.G.O. 14, were to be considered as made by the provincial Governor. The Court concluded that such deemed appointments must be validated on the basis of Article 7 of G.G.O. 14 rather than on section 241 of the Government of India Act, because the latter is not a deeming provision, and therefore the proper reference for determining the appointing authority is Article 7.

In order to determine by whom the appointments of members of the former Secretary of State’s Services must be deemed to have been made, the Court examined Article 7, which begins with the words “subject to any general or special orders or arrangements affecting his case.” Considering the detailed historical background set out in the Rajagopalan case, the Court concluded that, for those former officers, the Government of India must be regarded as the appointing authority because of the special orders and arrangements that applied to each individual officer. The Court also relied on the amendment of section 240(2) of the Government of India Act effected by the same General Government Order. Originally, section 240(2) stated that “no such person as aforesaid … shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed,” where the phrase “such person” referred to a member of a civil service of the Crown in India or a person holding any civil post under the Crown. When the position of the Secretary of State for India ceased to exist, it became necessary to amend this subsection to create an authority capable of dismissing members of the former Secretary of State’s Services. Consequently, General Government Order 14 provided that no member of a Secretary of State’s Service who continued in service after 14 August 1947 could be dismissed by any authority subordinate to the Governor‑General or to the Governor, depending upon whether the officer was serving in connection with the affairs of the Dominion or of a Province. This amendment therefore gave the Governor the power to dismiss even members of the former Secretary of State’s Services. The respondent emphasized this amendment, arguing that it demonstrated that the appointments of those serving in provincial affairs should be deemed to have been made by the Governor concerned, and cited the decision in (1) [1955] 2 C.R. 541 to support that contention.

The Court observed, however, that the provision allowing the Governor to dismiss a former Secretary of State’s servant may have been introduced inadvertently, because on its face it appeared to conflict with the guarantee contained in section 10 of the Indian Independence Act. Moreover, the subsection was later altered by General Government Order 34, which removed the power of dismissal from the Governor and vested it exclusively in the Governor‑General. In view of these developments, the Court held that no logical inference could be drawn from the brief period during which section 240(2) permitted the Governor to dismiss a member of the former Secretary of State’s Services that the appointments of such provincial officers were made by the Governor rather than by the Government of India. The Court therefore rejected the argument that the temporary amendment altered the source of authority for those appointments, maintaining that the appointing authority remained the Government of India.

In this matter, the Court observed that the proposition urged by the learned counsel was contrary to the conclusion that could be plainly drawn from the historical record concerning the continuation and appointment of members of the former Secretary of State’s Services at the moment of Independence, and also contrary to the provisions of Article 7(1) of Government Gazette Order 14 dated 14 August 1947. The Court therefore set out the final position that existed on 25 January 1950 with respect to the suspension of a member of the former Secretary of State’s Services, whether the suspension was imposed as a punishment or as an interim measure pending a departmental enquiry or a criminal proceeding. The Court held that such a member could be suspended under the general law by the appointing authority, which, in the altered circumstances following Independence, was the Government of India. No other authority possessed the power to issue an order of interim suspension, because, as already noted, the power conferred by section 247(2) had been repealed by Government Gazette Order 14 of 14 August 1947.

Beyond this power of interim suspension that was not a punishment, the Court pointed out that the authority to suspend as a punishment continued under rule 49 of the Appeal Rules. An order of suspension made under that rule was subject to appeal under rule 56 and any other applicable provisions of the same Rules. Regarding the payment of salary during the period of interim suspension or during a period of suspension imposed as a penalty, section 247(3) had been removed; consequently the general provision contained in Financial Rules 53 applied. Although Financial Rules 53 made certain distinctions between members of the Indian Civil Service and other categories of officers, the Court considered those distinctions to be matters of technical detail and not essential to the present analysis.

The Court explained that immediately before the commencement of the Constitution, members of the former Secretary of State’s Services could be suspended in one of two ways: either as an interim measure pending a departmental enquiry or a criminal proceeding, or as a punitive suspension. Where the suspension was an interim measure and not a punishment, the Court held that such suspension could be effected only by the appointing authority, which under the changed circumstances was to be deemed the Government of India. The Court further observed that an interim suspension of this kind was not subject to any appeal. Conversely, when suspension was imposed as a punishment, rule 49 of the Appeal Rules governed the exercise of that power, and the authorities specified in those Rules could issue a punitive suspension order, which would then be open to appeal pursuant to rule 56 and the other related rules.

The Court also clarified that the question of salary payment during any period of suspension—whether interim or punitive—was governed by Financial Rules 53. This overall position, covering both interim and punitive suspensions of members of the former Secretary of State’s Services, was protected by Article 314 of the Constitution. The Court then turned to the Discipline Rules of 1955. It noted that rule 3 of those Rules enumerated penalties but omitted suspension as a penalty. The Court observed that, had suspension remained a penalty under rule 3 of the Discipline Rules, the appellant would have been entitled to the rights that would then arise under the constitutional safeguards, but the removal of suspension as a penalty in the 1955 Rules precluded that consideration.

In this case the Court observed that, under Article 314, a person who was formerly a member of the Secretary of State’s Services was entitled to the same rights with respect to suspension as a punishment, or to rights that were similar, as the changed circumstances might allow. However, Rule 3 of the Discipline Rules of 1955 had completely eliminated the penalty of suspension for members of the Indian Administrative Service, a category that also covered members of the Indian Civil Service pursuant to Rule 3(a) and 3(b) of the Recruitment Rules. Moreover, Rule 23 of those Discipline Rules repealed any other rules that corresponded to the earlier disciplinary framework. Consequently, after the Discipline Rules became effective in 1955, a member of the Indian Administrative Service – including those who had previously been members of the Indian Civil Service and who had become members of the Indian Administrative Service – could no longer be punished by suspension.

The Court therefore found it unnecessary to examine whether the order dated 18 July 1959 could be justified as a punishment, nor to consider whether the memorial required by Rule 20 of the Rules provided adequate protection under Article 314, which speaks of “rights as similar thereto as changed circumstances may permit.” The respondent did not argue that the appellant had been suspended as a punishment by the 18 July 1959 order. Instead, the respondent relied on Rule 7(3) of the Discipline Rules and maintained that the Governor had issued the suspension not as a punitive measure but as an interim measure, permissible while a departmental inquiry or a criminal charge was pending. Accordingly, the appellant was placed under suspension by the 18 July 1959 order solely as an interim step because a criminal case was pending against him.

The Court, however, reiterated that the authority to issue an interim suspension for a former Secretary of State’s Services officer, as established on 25 January 1950, rested exclusively with the appointing authority – namely, the Government of India. Since Rule 3 of the Discipline Rules of 1955 had removed the power to suspend an Indian Administrative Service member as a punishment, the Governor could not validly suspend the appellant even as an interim measure; such a suspension could only be made by the Government of India. Therefore, the proper procedure when a State Government wishes to suspend a former Secretary of State’s Services officer pending a departmental enquiry or a criminal investigation is to request the Government of India, acting as the appointing authority, to impose the interim suspension. The Court concluded that it was not within the Government of India’s power to eliminate the guarantee protected by Article 314 by enacting a rule such as Rule 7 of the Discipline Rules.

In this case, the Court observed that Rule 7 of the Discipline Rules could not extinguish the guarantee provided by Article 314 of the Constitution. The Court reiterated that the guarantee for a member of the former Secretary of State’s Services is that, in disciplinary matters, his rights must remain the same. The Court added that the rights must be as similar as changed circumstances permit, as they were immediately before the Constitution commenced. The Court distinguished the right to interim suspension from the right to suspension as a punishment, stating that a member of the former Secretary of State’s Services could be suspended only by the appointing authority. The Court further explained that, under the present circumstances, the appointing authority is the Government of India. This limitation is entrenched in Article 314 and cannot be overridden by a rule such as Rule 7 of the Discipline Rules. The Court referred to the earlier decision in Bakshi’s case, which held that the rights guaranteed by Article 314 could not be destroyed or removed by the Central Government exercising its rule‑making power. Applying that principle, the Court held that the right concerning interim suspension, distinct from punitive suspension, requires that only the appointing authority – the Government of India – may impose such suspension. The Court found that Rule 7 permits an authority other than the Government of India to suspend a public servant who formerly belonged to the Secretary of State’s Services. Such suspension may be ordered pending a departmental enquiry or a criminal charge. In the Court’s view, that provision violates the guarantee contained in Article 314 and is therefore ultra vires with respect to members of the Indian Administrative Service. It applies to those who fall within clauses (a) and (b) of Rule 3 of the Recruitment Rules. Consequently, the Court concluded that the order issued by the Governor on 18 July 1959, purportedly made under Rule 7(3) of the Discipline Rules, lacked legal authority and must be set aside. Turning to the question of relief, the Court noted that the Governor had, on 11 September 1963, issued an order reinstating the appellant for the period from 18 July 1959 to 4 April 1963. The Governor also granted the appellant full emoluments for that period. Since the writ petition was filed in February 1962, the appellant was not entitled to any additional monetary relief beyond what the Governor had already provided. The Court observed that the reinstatement order was unnecessary in view of its present decision and that the order granting full emoluments could be considered as issued in compliance with this judgment. The Court therefore

In this case the Court permitted the appeal and held that rule 7 of the All‑India Services (Discipline and Appeal) Rules, 1955, is invalid to the extent that it authorises any authority other than the Government of India to impose an interim suspension on members of the Indian Administrative Service who are members by virtue of rule 3(a) and 3(b) of the Recruitment Rules. Accordingly the Court set aside the order dated 18 July 1959 issued by the Governor of Punjab that had suspended the appellant. The Court observed that the subsequent order of September 1963 had already provided the appellant with all monetary relief that could be granted as a consequence of setting aside the 1959 order; therefore no further relief could be awarded to the appellant. The Court directed the State of Punjab to pay the costs incurred by the appellant both in this Supreme Court proceeding and in the earlier High Court proceedings.

Justice Raghuvar Dayal, however, expressed a separate opinion that the appeal should be dismissed. He noted that the appellant had been a member of the Indian Civil Service and was serving under the Government of Madras immediately before the appointed day of 15 August 1947, as prescribed in sub‑section (2) of section I of the Indian Independence Act, 1947 (10 & 11 Geo. VI, Ch. 30). The appellant continued in the service of the Madras government after the appointed day and was later transferred to the State of Punjab. On 18 July 1959, while a criminal case was pending against him, the Governor of Punjab suspended him. The appellant, at that time, was a member of the Indian Administrative Service, and the suspension was made under the authority granted by rule 7 of the Discipline Rules. He challenged the validity of that suspension on the ground that rule 7 contravened article 314 of the Constitution. His argument was that, before 15 August 1947, a member of the Indian Civil Service could be suspended only as a punitive measure under rule 49 of the Civil Services (Classification, Control and Appeal) Rules, and there was no provision for suspension other than as a penalty. Consequently, any disciplinary suspension at that time would have been treated as a penal suspension and would have been subject to an appeal under rule 56 of the Classification Rules. Since the Discipline Rules did not provide any avenue of appeal against a suspension imposed under rule 7, the appellant contended that this omission violated article 314, which guarantees that a person holds the same rights in disciplinary matters as he possessed immediately before the commencement of the Constitution, subject to the condition of “changed circumstances.” He further asserted that the lack of an appeal mechanism under the Discipline Rules therefore infringed his constitutional right.

In this matter, the petitioner argued that sub‑section (2) of section 10 of the Independence Act guaranteed him the same rights concerning disciplinary matters, or rights analogous to them, as were permissible under changed circumstances, because he had been entitled to such rights immediately before the appointed day. The petitioner further maintained, during the oral submissions before the Court, that prior to the appointed day an order of suspension issued during the pendency of a departmental enquiry or a criminal charge could have been granted only by the Governor‑General or the Governor. He contended that after that date, and up to 26 January 1950, such a suspension order could be made solely by the Governor‑General, and consequently, a suspension order issued after the Constitution came into force could be made only by the Union Government and not by the Government of Punjab. On this basis, he asserted that rule 7 of the Discipline Rules, which empowered the State Government to issue a suspension order, contravened article 314 of the Constitution. The Court indicated that it would not revisit every point of agreement with the learned brother Wanchoo, J., but it accepted certain propositions. First, it accepted that the phrase “changed circumstances” in article 314 referred exclusively to the constitutional changes that took place after the transfer of power in August 1947 and after the Constitution became effective in January 1950. Second, it accepted that a suspension imposed while a disciplinary proceeding or criminal charge was pending fell within the meaning of “disciplinary matters” within article 314. Third, the Court observed that, from the appointed day, there was no express provision in the Government of India Act or in the rules made thereunder that authorised the Governor‑General or the Governor to suspend, as a penalty, officers appointed by the Secretary of State for India. Accordingly, any order of suspension pending an enquiry against a person appointed by the Secretary of State on the day immediately before the Constitution’s commencement had to be issued by the Government exercising the general power of suspension that an employer possesses in relation to an employee. The Court further explained that this general power of an employer to suspend an employee pending an enquiry vested in the appropriate authority, where the Government acted as the employer and a public servant as the employee. In the Government’s case, because of the distinctive hierarchical structure, that authority was identified as the authority that possessed the power to appoint the public servant concerned. Nevertheless, the Court also expressed the view that the appropriate authority in this context could include officers who were senior to the appointing authority, and that, for members of the All India Services serving under any State, this senior authority encompassed the Governor, who, as the executive head of the State, exercised administrative control over all officers serving under the State Government. The Court warned that it would be anomalous to hold that the Governor could not suspend a person appointed by the Secretary of State during the pendency of departmental proceedings or a criminal charge, even though the Governor could impose a penalty of suspension under rules 49 and 62 of the Classification Rules that were in force between the appointed day and 25 January 1950 and continued thereafter until the Discipline Rules came into effect.

In this case the Court observed that the penalty of suspension imposed on the respondent was based on rules 49 and 62 of the Classification Rules that were applicable from the appointed day until 25 January 1950 and that continued to be operative thereafter until the Discipline Rules came into force. The Court, however, stated that its decision would not rest on that consideration because, in its view, the appellant should be regarded as having been appointed by the Governor of Madras on the appointed day to a post corresponding to the post he held immediately before that day under the Madras Government. The Court then turned to the question of identifying the authority that should be treated as the appointing authority for persons who had been appointed by the Secretary of State to the Civil Services or to any Crown post and who continued in Government service after the appointed day. To answer that issue, the Court listed five matters that needed examination: (1) whether the Service known as the Indian Civil Service, whose members were recruited by the Secretary of State for India under section 244(1) of the Government of India Act, ceased to exist on and from the appointed day and, if it did, whether another Indian Service immediately replaced it; (2) if the Service ceased, whether the employment of its members terminated immediately before the appointed day; (3) which members of the Service remained in Government service on or after the appointed day; (4) whether those who continued did so because they became servants of the new Government under any statutory provision or because they were newly appointed; and (5) if their continuance was due to fresh appointment, which authority made that appointment and to which post or Service the appointment related. Before addressing these questions, the Court set out the relevant statutory provisions. It noted that the Independence Act was passed by the British Parliament on 18 July 1947 to create two independent Dominions in India and to provide for consequential matters. Under subsection (1) of section 1 of that Act, the Dominions of India and Pakistan were to be established from 15 August 1947. Subsection (2) of the same section described the new Dominions as “the new Dominions” and designated 15 August 1947 as “the appointed day.” One consequence of establishing the new Dominions was embodied in subsection (1) of section 7, which provided that His Majesty’s Government in the United Kingdom would have no responsibility for the government of any territory that, immediately before the appointed day, had been part of British India. Further, section 9 conferred on the Governor‑General the power to issue orders that he considered necessary or expedient for certain purposes.

Subsections (1) and (2) of section 10 of the Act were set out as follows: “(1) The provisions of this Act keeping in force provisions of the Government of India Act, 1935, shall not continue in force the provisions of that Act relating to appointments to the civil services of, and civil posts under, the Crown in India by the Secretary of State, or the provisions of that Act relating to the reservation of posts.” The second clause continued, “(2) Every person who— (a) having been appointed by the Secretary of State, or Secretary of State in Council, to a civil service of the Crown in India continues on and after the appointed day to serve under the Government of either of the new Dominions or of any Province or part thereof; or (b) having been appointed by His Majesty before the appointed day to be a judge of the Federal SCI/64-30 Court or of any court which is a High Court within the meaning of the Government of India Act, 1935, continues on and after the appointed day to serve as a judge in either of the new Dominions, shall be entitled to receive from the Governments of the Dominions and Provinces or parts which he is from time to time serving or, as the case may be, which are served by the courts in which he is from time to time a judge, the same conditions of service as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or, as the case may be, as respects the tenure of his office, or rights as similar thereto as changed circumstances may permit, as that person was entitled to immediately before the appointed day.” These provisions therefore preserved the existing conditions of service, remuneration, leave, pension, disciplinary safeguards and tenure for persons who had been appointed under the former British authority and who continued to serve after the appointed day in the newly created Dominions or their provinces.

The Governor‑General, exercising the authority given by section 9 of the Act, issued the India (Provisional Constitution) Order, 1947 (G.G.O. 14 of 1947), which is hereafter referred to as the Provisional Constitution Order. Article 7(1) of that Order provides: “Subject to any general or special orders or arrangements affecting his case, any person who immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor‑General or Governor‑General in Council or of a province other than Bengal or the Punjab shall, as from that day, be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India or, as the case may be, of the Province.” Sub‑section (1) of section 241 of the Government of India Act, as modified by this Order, states: “Except as expressly provided by this Act, appointments to the civil services of, and civil posts under, the Crown in India, shall be made— (a) in the case of services of the Dominion, and posts in connection with the affairs of the Dominion, by the Governor‑General or such person as he may direct; (b) in the case of services of a Province, and posts in connection with the affairs of a Province, by the Governor or such person as he may direct.” This framework thereby allocated the authority for future appointments to the Governor‑General for Dominion services and to the provincial Governor for provincial services, while preserving the service conditions of those already appointed under the pre‑independence regime.

The judgment noted that the provision for appointments to civil posts under the Crown continued after the establishment of the Dominion, stating that such appointments were to be made by the Governor or by any person designated by the Governor. Section 247 of the Government of India Act, as amended, was quoted in full. It provided that the conditions of service for all individuals who had been appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India, and who remained in service after the Dominion was established, would be governed as follows: for persons serving in connection with the affairs of the Dominion, their conditions of service would be prescribed by rules made by the Governor‑General; for persons serving in connection with the affairs of a Province, their pay, leave, pensions, medical attendance and any other matters that had previously been regulated by rules of the Secretary of State would now be prescribed by rules of the Governor‑General, while any other matters would be prescribed by rules of the Governor of the Province. The Court observed that Sections 244 to 246 of the 1935 Government of India Act, which dealt with services recruited by the Secretary of State, had been omitted from the Act by the Order under consideration.

The Court further referred to an announcement made by His Excellency the Viceroy on 30 April 1947. That announcement dealt with compensation for the premature termination of service in India of members of the Civil Services appointed by the Secretary of State, as well as regular officers and British Warrant Officers of the Indian Naval and Military Forces. The first seven paragraphs of that announcement were reproduced in the reported case of State of Madras v. K.M. Rajagopalan and were located on pages 548 to 550 of the law report. Paragraph 8 of the announcement was quoted, wherein it was expressed that, in order to provide every possible assistance to the Government of India in establishing the new services, His Majesty’s Government agreed that its obligation extended to the ultimate compensation claim of those British members of the Services who were asked to continue serving in India and who decided to do so.

The Court also noted that after 3 June 1947 the Government of India, through the Provincial Governments, had queried members of the Secretary of State’s Services—including the Indian Civil Service—about their willingness to remain in service after the transfer of power. Simultaneously, the Provincial Governments were asked whether they were prepared to retain those officers who indicated a desire to continue. The Court recalled that it had previously examined the effect of these governmental steps and the provisions of the Independence Act and the Provisional Constitution Order in the case of Rajagopalan. In that case, the petitioner, Rajagopalan, had been a member of the Indian Civil Service serving in the Province of Madras until 14 August 1947, when his service was terminated, despite his expressed willingness to continue in the service of the Government of Madras after the appointed day.

Rajagopalan had expressed his willingness to continue in the service of the Government of Madras on and after the appointed day. The Court set out that the observations and holdings made in that case would be referenced at suitable points while discussing the five issues previously formulated. The first two of those issues had been directly decided in the earlier case. The Court held that the Secretary of State and the services under his authority ceased to exist as of the appointed day and that section 10(2) of the Independence Act together with article 7(1) of the Provisional Constitution Order reflected a clear and unequivocal acknowledgment of the validity of the various special orders and individual arrangements, thereby constituting an implicit statutory recognition of the principle of automatic termination of the services resulting from the political change. Consequently, the Indian Civil Service, which was one of the Secretary of State’s services, terminated on the appointed day and the employment of its members automatically ended on 14 August 1947. The Court did not need to examine whether any All‑India Service had been established to replace the Indian Civil Service from that day, because the termination of Rajagopalan’s service was held to be valid. The record contained no indication that a new service had taken the place of the Indian Civil Service at the moment of transition, although the Indian Administrative Service was later created as an All‑India Service. The exact date of that creation was not known. Article 312 of the Constitution, clause (2), provides that the services identified at the commencement of the Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under that article. The All India Services Act, 1951 (Act LXI of 1951) defined an All‑India Service as either the Indian Administrative Service or the Indian Police Service. The Indian Administrative Service Recruitment Rules, 1954, which came into force in 1954, contain rule 3 dealing with the constitution of the service. That rule provides, inter alia, that the service shall consist of (a) members of the Indian Civil Service who are not permanently allotted to the judiciary; (b) members of the Indian Civil Service permanently allotted to the judiciary who have been holding executive posts since the commencement of the Constitution; and (d) persons recruited to the service before the commencement of those rules. From this it appears that all members of the Indian Civil Service who continued to serve the Government after the appointed day were not automatically made members of the Indian Administrative Service, and those who did become members of that service only in 1954. Had the Indian Administrative Service been established to replace the Indian Civil Service immediately on the appointed day, the provisions of rule 3(a) and (b) would have been framed differently.

In this matter the Court observed that if the members of the Indian Civil Service had automatically become members of the Indian Administrative Service on the appointed day, then the wording of rule 3(a) and rule 3(b) would necessarily have been different from the language that actually appears in those provisions. The Court therefore concluded that the Indian Administrative Service did not automatically replace the Indian Civil Service at the moment of the changeover, and consequently the officers who remained in service after the appointed day did not continue as members of any All‑India Service. The Court further noted that the Viceroy’s announcement dated 30 April 1947 made no reference to an All‑India Service taking the place of the Indian Civil Service immediately upon the transfer of power; the announcement merely referred, in paragraph 8, to the provision of all possible assistance to the Government of India for the establishment of the new Services and to the continuation of members of the Secretary of State’s Services in their duties under the Government of India after the transfer. The Court then examined the text of article 7(1) of the Provisional Constitution Order and found that that article also failed to describe the persons in the Secretary of State’s Services as continuing in service as members of any All‑India Service, even though it dealt specifically with the appointment of other governmental employees to the posts they had held on the day immediately preceding the appointed day. On the basis of this analysis the Court formed the opinion that the appellant’s service as a member of the Indian Civil Service terminated on 14 August 1947 and that, thereafter, he did not automatically—or by any other mechanism—become a member of an All‑India Service on 15 August 1947. The Court then referred to point 3 that it had formulated and cited the decision in Rajagopalan’s case, reported in [1955] 2 S.C.R. 541, page 552, where the Court had held that the continuance of service was contemplated only for those former servants who had expressed a desire to continue and whose offer had been accepted. The Court further quoted the same decision at page 563, noting that subsection (2) of section 10 of the Independence Act said nothing about which persons would continue in service or receive the benefits, leaving that question to be settled by delegated legislation in the form of Orders of the Governor‑General. At page 565 the Court observed that, in view of article 7(1) of the Provisional Constitution Order, all persons who had previously held civil posts were deemed to have been appointed and therefore to continue in service, except for those whose situations were governed by special or general orders or arrangements. From these passages the Court inferred that only those members of the Secretary of State’s Services who were occupying civil posts immediately before the appointed day were deemed to have been appointed to corresponding posts under article 7(1), and that such persons did not automatically become servants of the new Government on the appointed day. The Court therefore reiterated that article 7(1) did not create an automatic transfer of employment status to the new Government for all civil servants who were in post on the appointed day.

The Court observed that the Provisional Constitution Order envisioned a “deemed appointment” of individuals to their respective posts on the appointed day. However, the wording of that article did not support the view that, by virtue of the Independence Act or the Provisional Constitution Order, those individuals automatically became holders of the posts on that day. The Court noted that the language of Article 7(1) differed markedly from the language employed in Articles 374, 376, 377 and 378 of the Constitution, which expressly provided that persons who held office immediately before the commencement of the Constitution would, on that commencement, become holders of the corresponding posts. The Court further compared Article 7(1) with Article 375 of the Constitution, which deals with the continuance of courts, authorities and officers after the Constitution’s commencement and states that all courts of civil, criminal and revenue jurisdiction, all authorities and all judicial, executive and ministerial officers throughout the territory of India shall continue to exercise their functions subject to the Constitution. The Court pointed out that Article 7(1) contained no similar expression indicating that the officers were to be freshly appointed or deemed appointed on the Constitution’s commencement.

The Court then examined the similarity between Article 7(1) of the Provisional Constitution Order and Section 58 of the 21 & 22 Vict. Cap. CVI, 1858, an Act for the better Government of India passed when the Government of India was transferred from the East India Company to Her Majesty. Section 58 provided that all persons who, at the time of the commencement of that Act, held any offices, employments or commissions under the Company in India would thereafter be deemed to hold such offices, employments and commissions under Her Majesty “as if they had been appointed under this Act.” For comparison, the Court quoted the wording of Article 7(1), which read: “Any person who immediately before the appointed day is holding any civil post under the Crown shall, as from that day, be deemed to have been duly appointed to the corresponding post under the Crown.” The Court emphasized that the language of Section 58 contemplated a fresh appointment, albeit a deemed one, as made clear by the phrase “shall … be deemed to hold … as if they had been appointed under this Act.”

On the basis of this analysis, the Court concluded that Article 7(1) of the Provisional Constitution Order provided for a deemed fresh appointment of the members of the Secretary of State’s Services whose service had automatically terminated on the day immediately preceding the appointed day. The Court indicated that the next issue to consider would be the authority deemed to have made those appointments to the corresponding posts on the appointed day. The Court then turned to the Government of India Act, 1935, hereinafter referred to as “the Act,” as the relevant statutory framework for determining the appointing authority.

At the relevant date, the legal framework that had been altered by the Orders issued by the Governor‑General remained operative, and the persons who possessed the authority to make appointments on that date were to be regarded as having made the appointments of those former employees who had previously served in the Secretary of State’s Services. No other body possessed the power to effect those appointments, and consequently no body other than the competent authority could be considered to have made the appointments that were treated as having been carried out under article 7(1) of the Provisional Constitution Order. Section 241 of the Government of India Act, 1935, expressly provided that the Governor‑General, or any individual to whom he delegated authority, could appoint individuals to the civil services of the Dominion and to civil positions connected with the affairs of the Dominion, while the Governor of a Province could appoint persons to the services of that Province and to positions connected with the affairs of that Province. Accordingly, any former member of the Secretary of State’s Services who was occupying a post that related to provincial affairs was to be deemed appointed to the analogous post on the appointed day by the Governor of that particular Province, because only the provincial Governor possessed the jurisdiction to make such appointments. It is important to note that article 7(1) of the Provisional Constitution Order speaks of appointments to specific posts rather than to entire services, and even before the appointed day the appointments to the various provincial posts of members of the All India Services who were assigned to provincial cadres were also carried out by the provincial Governors and not by the Governor‑General. In this respect, concerning all appointments to posts that were linked to provincial affairs, there was essentially no alteration in the appointing authority. The appellant argued that his deemed appointment to the post corresponding to the one he held on 14 August 1947 had been effected by the Governor‑General or by the Government of India. However, article 7(1) of the Provisional Constitution Order does not expressly provide for such a construction, and Section 241 of the Act does not empower the Governor‑General to appoint to posts that are attached to provincial matters. The language of article 7(1) refers to every individual employed in the civil services and occupying civil posts under the Crown, without limiting its scope to those who had been appointed by the Secretary of State. The simple fact that the Provisional Constitution Order was issued by the Governor‑General does not imply that the deemed appointments of all Crown‑servants, whether members of a civil service or holders of posts, were made by the Governor‑General; that interpretation would be contrary to intention. Rather, each such employee is to be deemed appointed by the appropriate authority on the appointed day, and the appropriate appointing authority for any particular employee is identified in Section 241 of the Act. It is also evident that the former members of the Secretary of State’s Services were not actually re‑appointed by any other authority but were only deemed to have been appointed in accordance with article 7(1) of the Provisional Constitution Order.

The Court observed that the individuals serving in the State’s Services had not been physically reappointed by the authority entitled to make such appointments. Instead, their continued service was treated as a deemed appointment according to the provisions of article 7(1) of the Provisional Constitution Order. That article was intended to confirm the uninterrupted service of those persons even though a formal appointment had not taken place. The Court found no justification for excluding the provisions of section 241 of the Act from applying to those deemed appointments of persons who had formerly been members of the Secretary of State’s Services. It was emphasized that the article was not a special, one‑off rule for the specific occasion, but a provision of general application to all appointments occurring on or after the appointed day. Consequently, whether an appointment was actual or deemed, and whether it was made by the new Governments immediately after the change of Government, the appointment must be governed by the provisions of section 241.

The Court also noted that in Rajagopalan’s case the Court had not referred to section 241 of the Act. That omission was not because the section failed to apply to the former members of the Secretary of State’s Services, but because the issue before the Court did not involve fresh deemed appointments. Rajagopalan’s services had been held to have terminated lawfully on 14 August 1947, and therefore his continuance was not at issue. Counsel for the appellant had argued that the retention of officers from the Secretary of State’s Services was settled through negotiations between the Government of India and His Majesty’s Government, as reflected in various documents relating to the establishment of the two Dominions. The argument further asserted that only those officers whom the Government of India invited to continue remained in service, while those not invited were to receive compensation. The Court found that the antecedent circumstances did not clearly show that the Government of India alone decided which officers, previously serving under a provincial Government, would continue in service. Even assuming that the Government of India made such a decision and extended invitations, that act could not be equated with appointing the officers to provincial posts, given the requirements of section 241. The Court acknowledged that negotiations concerning the services were conducted between the Government of India and His Majesty’s Government, as evidenced by the citation [1955] 2 S.C.R. 541, and that a Provincial Government could not have continued those negotiations. Moreover, the Court could locate no specific reference in any of the documents cited in Rajagopalan’s case indicating that the Government of India alone determined which officers would continue. The Court referred to the Viceroy’s announcement dated 30 April 1947, which effectively summarized the outcome of the negotiations between the Government of India and His Majesty’s Government, and noted that paragraphs 3 and 6 of that announcement clarified the respective assurances given by the Government of India and the Provincial Governments regarding officers transferring to provincial services.

In the announcement dated 30 April 1947, the Government of India declared that the assurances and undertakings concerning persons appointed by the Secretary of State, who were to continue in service, were provided respectively by the Government of India for those who would remain under its service and by the Provincial Governments for those who would join the Provincial Services. Paragraph 3 of the announcement, which dealt with matters of pay and related conditions, stated that the Government of India would propose to the Provincial Governments that they extend comparable assurances to members of the Secretary of State’s Services who consented to transfer to Provincial Services. Paragraph 6 recorded that His Majesty’s Government had reviewed the entire situation and had taken note of the undertaking given by the Government of India regarding officers whom it wished to retain in its own service. The paragraph further explained that many Indian members of the Secretary of State’s Services would become members of Provincial Services, and that, in such cases, His Majesty’s Government’s agreement that no compensation was required was conditional upon the Provincial Governments guaranteeing the existing terms of service. The paragraph warned that if a Provincial Government was unwilling to provide such guarantees, His Majesty’s Government reserved the right to reconsider the matter.

The Court observed that, although the negotiations were formally conducted by the Government of India, the Provincial Governments were also parties to those negotiations because they had to agree to guarantee existing service terms, discipline safeguards, and the payment of compensation where applicable. The Court noted that it might appear anomalous that some individuals who had been members of the Secretary of State’s Services could be deemed to have been appointed to their respective posts on the appointed day by the Governor of a Province when they had been holding posts under a Provincial Government, while others would be deemed to have been appointed by the Governor‑General if they were serving in posts connected with the affairs of the Government of India or the Dominion at that time. This apparent anomaly, the Court explained, was inevitable and had been contemplated during the negotiations between the Government of India and His Majesty’s Government. The Court further held that the members of the Secretary of State’s Services who were serving under a Provincial Government had no alternative when their services automatically ceased at the moment of the changeover and they wished to continue in Government service. Their wishes were ascertained in the context of the Viceroy’s announcement of 30 April 1947, and it was only with their consent that their services were continued after the changeover. Consequently, the Court found that they could not claim grievance for being appointed to Provincial Services or posts under Provincial Governments, which naturally placed them under the administrative control of those Governments. The Court also pointed out that, even before the changeover, such individuals had already been under the administrative control of the Provincial Government. In Rajagopalan’s Case, the Court referred to the Government of India’s letter dated 18 June 1947, which asked Provincial Governments to indicate, when forwarding officers’ replies, whether the officers wished to continue in service and, if not, whether the Provincial Government preferred that the officer not continue, noting that refusal to retain the officer would expose the Provincial Government to liability for compensation. This inquiry, the Court concluded, demonstrated that the decision to retain such persons after the changeover rested with the Provincial Government, which consequently bore the liability for any compensation payable.

On June 18 1947 the Government of India sent a letter to each Provincial Government requesting that, when the Provinces forwarded the responses of individual officers concerning their willingness to remain in service, the Provinces also indicate whether, for any reason, they would prefer that a particular officer not continue in service even though the officer himself desired to remain. The letter further warned that if a Provincial Government chose not to retain such an officer, it would become liable to pay compensation to that officer. This inquiry, in the Court’s view, demonstrates that the authority to decide whether an officer would continue after the change‑over rested with the Provincial Government and that the Provincial Government alone would bear any compensation liability that might arise.

The Court explained that this responsibility lay with the Provinces because it was envisaged that officers who were already serving under a Provincial Government would, after the change‑over, be appointed to the same positions by that Provincial Government itself, and that the Government of India would not be involved in those appointments. Consequently, it was the Provincial Government that invited officers to continue in service, not the Government of India. The Court noted that the Madras Government had informed the officer Rajagopalan that the Government of India had decided not to retain him after 15 August 1947 and that a formal communication to that effect would be issued by the Government of India. While the Government of India subsequently approved the Madras Government’s decision not to keep Rajagopalan in service, the Court held that such approval was not a prerequisite for the Madras Government to retain any other officers it was prepared to keep.

The Court observed that the termination of service of these officers occurred before the Act, as modified by the Provisional Constitution Order, came into force. Therefore, the termination order had to be issued formally by the Government of India before the change‑over, and at that stage it was appropriate that any order terminating service bear the Government of India’s approval. The Court further explained that a fresh appointment was deemed to take effect on 15 August 1947, immediately after the change‑over, but because of practical difficulties the actual appointment was not carried out; instead, it was deemed to have occurred pursuant to article 7(1) of the Provisional Constitution Order. When the appointment concerned persons already serving under a Provincial Government, the Court found that prior approval from the Government of India was unnecessary for the retention of those officers. Accordingly, the Court concluded that members of the Secretary of State’s Services who were holding posts under a Provincial Government immediately before the appointed day and who continued in service on or after that day are to be deemed to have been appointed to the corresponding posts by the Governor of the Province, as provided for under section 241 of the Act.

In this case, the Court observed that, pursuant to section 241 of the Act, persons who were holding posts under a Provincial Government immediately before the appointed day were to be deemed appointed to the corresponding posts by the Governor of that Province. The appellant had been an officer of the Madras Government at the moment preceding the appointed day. Accordingly, he was deemed to have been appointed by the Governor of the Province of Madras to the same post he occupied on the appointed day. Because the Governor of the Province was the appointing authority, the Court held that the Governor could lawfully suspend the appellant on the day immediately before the commencement of the Dominion, provided the appellant was then serving under that Governor. The appellant could at most invoke his right not to be suspended while a departmental inquiry or criminal charge was pending, and such protection could be claimed only against an authority of lower rank. The Court noted that Rule 7 of the Discipline Rules did not authorise suspension of a former member of the Secretary of State’s Services by any authority inferior to the Governor. Nevertheless, the appellant was suspended by the Governor of Punjab on 18 July 1959. The Court found that the appellant possessed no statutory right of appeal against that suspension order, because the Discipline Rules contained no provision for an appeal. Since no appeal right existed before the Constitution came into force, the Court concluded that the absence of an appeal provision did not breach article 314 of the Constitution. Consequently, Rule 7 of the Discipline Rules was held not to contravene the constitutional article, and the suspension order was deemed valid. Accordingly, the Court dismissed the appeal. The order was issued in accordance with the view of the majority, allowing the appeal with costs in this Court and in the High Court.