N. Raghavendra Rao vs Deputy Commissioner, South Kanara, Mangalore

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

Court: supreme-court

Case Number: Writ Petition No. 211 of 1963

Decision Date: 31 March 1964

Coram: S.M. Sikri, P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, N. Rajagopala Ayyangar

In the matter titled N. Raghavendra Rao versus Deputy Commissioner, South Kanara, Mangalore, the Supreme Court of India delivered its judgment on 31 March 1964. The opinion was authored by Justice S. M. Sikri and was pronounced by a bench consisting of Justices S. M. Sikri, P. B. Gajendragadkar, K. N. Wanchoo, J. C. Shah, and N. Rajagopala Ayyangar. The case is reported in the 1965 volume of the All India Reporter at page 136 and also appears in the 1964 Second Series of the Supreme Court Reports at page 549. Citations to the decision appear in subsequent reports, including references in 1971, 1972, 1973, 1974, 1975, 1977, and other law reports. The issues raised involve fundamental rights relating to conditions of service, the alteration of service conditions by the State Government without prior approval of the Central Government, loss of service benefits and increments, the meaning of “previous approval,” the applicability of the Mysore General Services Recruitment Rules of 1959, provisions of the States Reorganisation Act of 1956 (specifically section 115(7)), and constitutional provisions contained in Articles 16 and 311(2) of the Constitution of India.

The petitioner, N. Raghavendra Rao, was initially recruited as a Lower Division Clerk under the Madras Ministerial Service Rules in 1949 and was posted in the South Kanara District. He was promoted to the rank of Upper Division Clerk with effect from 2 April 1956, but he contended that the promotion should have occurred much earlier. The State Government asserted that the petitioner had been considered for inclusion in the eligibility list from 1955 onward, yet they claimed he was not selected because he was deemed unfit. Although the State admitted that the promotion to Upper Division Clerk was granted on 2 April 1956, it maintained that the promotion was temporary. Subsequently, the petitioner was reverted to his former position and later reappointed as a temporary Upper Division Clerk. In August 1957, the petitioner’s name appeared at serial number 14 on the eligibility list, and this list was regularised on 12 December 1957 in accordance with the Madras State and Subordinate Service Rules, with effect dated 19 October 1957. The petitioner argued that these actions caused him to lose service benefits and salary increments. During this period, the States Reorganisation Act of 1956 was implemented, and the South Kanara District was transferred to the newly formed Mysore State, to which the petitioner was allotted. On 11 May 1957, the Government of India issued a memorandum to all State Governments concerning departmental promotion, stating that the question of providing protection for rules and conditions applicable to government servants affected by reorganisation—covering matters such as travelling allowance, discipline, control, classification, appeal, conduct, probation, and departmental promotion—had been considered, and that the Government of India agreed with the view expressed by the State representatives that it would not be appropriate to grant any protection in respect of those conditions. The petitioner submitted that (i) the Mysore General Services Recruitment Rules of 1959 were framed without the prior approval of the Central Government required under section 115(7) of the States Reorganisation Act, and therefore should not be applied to his case, and (ii) the Madras Government, prior to 1 November 1956, had reduced his rank by various orders, thereby violating Article 311(2) of the Constitution and Article 16.

The petition raised two principal contentions. First, it was asserted that the Mysore General Services Recruitment Rules of 1959 had been issued without the prior approval required under section 115(7) of the States Re‑organisation Act, and consequently those rules could not be applied to the petitioner where they altered his conditions of service to his detriment. Second, the petitioner claimed that, before the re‑organisation took effect on 1 November 1956, the Madras Government had issued a series of orders that demoted him in rank, thereby violating Article 311(2) of the Constitution as well as Article 16. In examining the first contention, the Court explained that the proviso to section 115(7) uses the expression “previous approval” to denote a general sanction by the Union Government for any variation in service conditions, provided such variation stays within limits that the Union has indicated. Article 309 of the Constitution confers, subject to the Constitution itself, complete authority on a State Government to make service rules, but the proviso to section 115(7) imposes a restriction on that authority which can be removed only if the Central Government gives its prior approval. The underlying purpose of the proviso was to ensure that changes to conditions of service could not be effected without such approval. The Court noted that, after reviewing the relevant matters, the Central Government issued a memorandum stating that it would not be appropriate to extend any protection concerning travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion. This memorandum was deemed to constitute the requisite prior approval under the proviso to section 115(7). The memorandum also required State Governments to forward copies of all new rules to the Central Government for its information. Accordingly, the Court held that the rules in question had been validly made. The Court further observed that the authorities cited in In re Bosworth and Corporation of Gravesend [1905] 2 K.B. 426 and C.K. Appamna v. State of Mysore (W.P. No. 88 of 1962) were not applicable to the present case.

Turning to the second contention, the Court found that the petitioner had not demonstrated how Article 16 of the Constitution had been infringed prior to his allocation to the newly formed Mysore State. In response, the State asserted that each order complained of had been issued by a competent authority after a careful assessment of the petitioner’s merits on every occasion. The Court reiterated that it is the duty of such competent authorities to evaluate the merits of an individual employee. Because the petitioner failed to establish a breach of Article 16, the Court concluded that no infringement of that right had been proved. The judgment proceeded to set out the procedural background: the case originated as Writ Petition No. 211 of 1963, filed under Article 32 of the Constitution for the enforcement of the petitioner’s fundamental rights under Articles 14, 16 and 19. The petition was argued on behalf of the petitioner by counsel, while the respondents were represented by the Attorney‑General and other counsel. The judgment was delivered on 31 March 1964 by Justice Sikri. Although the petition raised several issues, the Court identified that only two points were argued by counsel for the petitioner. The Court expressed gratitude to the counsel for the assistance provided and then set out the two points for consideration.

In this petition the applicant raised two specific claims. The first claim was that the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules of 1959 had been issued without obtaining the prior approval of the Central Government that is required under section 115(7) of the State Re‑organisation Act, and that, consequently, those rules could not be applied to vary his conditions of service to his disadvantage. The second claim was that, before the reorganisation date of 1 November 1956, the Madras Government had, by a series of orders, reduced the applicant’s rank in contravention of article 311(2) of the Constitution and article 16.

To understand the submissions, the Court set out the relevant factual background. The applicant had been selected by the Madras Public Service Commission in 1949 as a Lower Division Clerk under the Madras Ministerial Service Rules and was assigned to the Revenue Department with a posting in South Kanara District. On 2 April 1956 he was promoted to the position of Upper Division Clerk. The applicant contended that, in view of his outstanding and meritorious service, this promotion should have taken place much earlier. The State, however, explained that the applicant had been placed on the eligibility list only from 1955 onward and that he had not been selected because he was deemed unfit. While the State acknowledged that the applicant was appointed as Upper Division Clerk on 2 April 1956, it asserted that the appointment was on a temporary basis. Subsequently the applicant was reverted to his former grade and later posted again as a temporary Upper Division Clerk.

In August 1957 the applicant was again considered and was entered in the eligibility list at serial number 14. That list was regularised on 12 December 1957 in accordance with rules 39(e) and 35 of the Madras State and Subordinate Service Rules, with effect dated 19 October 1957. The applicant claimed that this regularisation caused him to lose benefits of service and the increments that he would otherwise have been entitled to. During this period the reorganisation of States effected by the State Reorganisation Act (Thirty‑seven of 1956) transferred South Kanara District, except for Kasaragod Taluk, to the newly formed Mysore State, and the applicant was accordingly allotted to that State.

On 11 May 1957 the Government of India issued a memorandum (No S.O. SRDI‑1. APM‑57) addressed to all State Governments. In that memorandum the Central Government indicated that certain conditions of service, such as the substantive pay of permanent employees, particular types of special pay, and existing leave rules (unless a servant opted for the new leave rules), should be protected. With respect to departmental promotion, the memorandum recorded that the Central Government, agreeing with the view expressed by the State representatives, considered it inappropriate to provide any protection concerning rules and conditions relating to travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion. The memorandum therefore made clear that the Central Government had informed the State Governments that they were free, if they chose, to amend service rules in the manner indicated in the memorandum.

In this case the Court examined the contention raised by counsel Garg that the memorandum issued by the Central Government did not amount to “previous approval” under section 115(7) of the States Reorganisation Act for the making of the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules, 1959. The Court first set out the question that had to be answered, namely the true meaning of the expression “previous approval” in the proviso to section 115(7). It then reproduced the language of sub‑section (7) of section 115, which reads that nothing in that section shall be deemed to affect after the appointed day the operation of the provisions of Chapter 1 of Part XIV of the Constitution relating to the determination of conditions of service of persons serving in connection with the affairs of the Union or any State; provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub‑section (1) of subsection (2) shall not be varied to his disadvantage except with the previous approval of the Central Government. The Court explained that the effect of this sub‑section was, inter alia, to preserve the State’s power to make service rules under article 309 of the Constitution, while simultaneously imposing a limitation on the exercise of that power. That limitation required that the State could not alter, to the detriment of the persons mentioned in sub‑sections (1) and (2) of section 115, the conditions of service that were in force immediately before 1 November 1956 unless it first obtained the prior approval of the Central Government. The Court observed that it was not in dispute that the petitioner was one of the persons covered by those subsections and therefore fell within the protection contemplated by the proviso.

Counsel Garg argued that because the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules, 1959 were framed and promulgated without first being transmitted to the Central Government for its approval, the requisite “previous approval” had not been secured. He described the memorandum as an abdication of the Central Government’s authority rather than as a grant of approval. To buttress this position, he relied on the Court of Appeal decision in In re Bosworth and Corporation of Gravesend, a case decided under an Order in Council made pursuant to the Burial Act 1853. In that case an Order required “previous approval” of one of Her Majesty’s Principal Secretaries of State before opening any new burial ground at certain locations, including Gravesend. When the Secretary of State was asked for sanction to add land to an existing cemetery, his reply stated that his sanction was not required. That reply was later characterised by Collins, M. R., as a renunciation of jurisdiction. The Court held that this precedent did not assist in construing the proviso to section 115(7). Counsel Garg further cited an unreported judgment of the High Court of Mysore in C. K. Appanna v. State of Mysore, but the Court noted that the decision was based on a concession made by the Government Pleader and therefore did not advance the petitioner’s case. In the Court’s opinion, considering the setting in which the proviso to section 115(7) was inserted, the expression “previous approval” must be understood as a general approval granted by the Union Government for any variation in conditions of service within the limits laid down by the Act, rather than as a narrowly defined procedural step.

In this case, the Court explained that the expression “previous approval” meant a general approval by the Union Government for any variation in the conditions of service that fell within the limits specified by that Government. The Court noted that Article 309 of the Constitution authorised a State Government to make its own service rules, subject only to the other provisions of the Constitution. The proviso to section 115(7) of the Act placed a restriction on that power, but that restriction could be removed when the Central Government gave its prior approval. The Court observed that Parliament could not have intended that every State rule be examined in detail by the Central Government, because the conditions of service differed from State to State and each State needed to fill in the details according to its own requirements. The broad purpose of the proviso, the Court held, was to ensure that the conditions of service could not be altered unless the Central Government first gave its concurrence. Accordingly, before a State Government varied any condition of service, it had to obtain the Central Government’s approval. The memorandum referred to by the Court showed that, after reviewing various aspects, the Central Government decided that it would not be appropriate to provide protection in matters such as travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion. The Court considered this decision to be the “previous approval” contemplated in the proviso to section 115(7). The memorandum also required the State Governments to forward copies of all new rules to the Central Government for its information. On this basis, the Court found no merit in the petitioner’s first contention and held that the service rules had been validly made.

Turning to the petitioner’s second point, the Court identified two preliminary obstacles. First, the State of Madras had not been joined as a party to the petition. Second, the petitioner had never raised the issues while he was serving under the State of Madras. The Court observed that it would be difficult at this stage to set aside orders whose cancellation could affect the rights of other civil servants who were not parties to the petition. Moreover, the petitioner had failed to demonstrate how Article 16 of the Constitution had been violated before he was transferred to the newly created Mysore State. The State, in its response, maintained that each order complained of had been passed by a competent authority after considering the petitioner’s merits on each occasion, and that it was the competent authority’s role to assess those merits. The Court found no force in that contention and concluded that no infringement of Article 16 had been established. Consequently, the Court held that the petition could not succeed. In the circumstances, the Court ordered that each party bear its own costs and dismissed the petition.