Appeal No 647 of 1963
Appeal from the judgment and order dated September 21 1962 of the Punjab High Court in Civil Writ No 280 of 1962
the appellant appeared in person
SV Gupte Additional Solicitor General NS Bindra and RH Dhebar for the respondent Union of India
SM Sikri Advocate General Punjab NS Bindra and RH Dhebar for the respondent State of Punjab
November 19 1963
The Judgment of PB Gajendragadkar K Subba Rao KN Wanchoo and JC Shah JJ was delivered by Wanchoo J Raghubar Dyal J delivered a dissenting Opinion
WANCHOO J This is an appeal on a certificate granted by the Punjab High Court
The appellant joined the Indian Civil Service in 1939 and was governed in matters relating to discipline by the Civil Services Classification Control and Appeal Rules hereinafter referred to as the Appeal Rules made by 435 the Secretary of State for India in Council
He continued in service till the transfer of power under the Indian Independence Act 1947
Under s10 of that Act he continued to serve under the Government of India and was entitled to receive from the Government of India or of the Province which he might from time to time be serving 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 cir cumstances may permit as he was entitled to immediately before the transfer of power which took place on August 15 1947
The same guarantee was extended to the appellant and all members of what were the Secretary of State s Services before August 15 1947 by article 314 of the Constitution
As the appellant s case is based on that Article we may set it out 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
 We shall hereafter refer to such a person as a member of the former Secretary of State s Services
It appears that the appellant was in the Indian Civil Service cadre in the State of Madras at the time of transfer of power though later he was transferred to the Punjab
After the transfer of power the Indian 436 Civil Service as a Secretary of State s Service came to an end and thereafter a new Service was constituted known as the Indian Administrative Service
Formal legal shape was given to the new Service after the enactment of the All India Services Act No LXI of 1951 and the Indian Administrative Service Recruitment Rules 1954 hereinafter referred to as the Recruitment Rules were framed under Act LXI of 1951
By r 3 of these Rules the Indian Administrative Service was to consist of a members of the Indian Civil Service not permanently allotted to the judiciary b members of the Indian Civil Service per manently allotted to the judiciary who have been holding executive posts from the date of the commencement of the Constitution and who may be declared by the Central Government to be members of the Service in consultation with the State Government c persons who at the commencement of these rules are holding substantively listed posts other than posts in the judiciary d persons 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
The appellant thus became a member of the new Indian Administrative Service by virtue of these rules and continued to serve in the Punjab
In 1955 the Central Government framed the All India Services Discipline and Appeal Rules 1955 hereinafter referred to as the Discipline Rules which were applicable to all members of the Indian Administrative Service and the Indian Police Service
On July 18 1959 the appellant was suspended with immediate effect by the Governor of the Punjab on the ground that a criminal case was pending against him
The order also provided that for the period of suspension the appellant shall be paid subsistence 437 allowance which shall be equal to leave salary which he would have drawn under the leave rules applicable to him if he bad been on leave on half average pay with a further provision that in case the suspension lasted for more than twelve months a further order fixing the rate of subsistence allowance shall be passed
This order appears to have been passed under r 73 of the Discipline Rules and in consequence thereof the appellant remained under suspension
The appellant filed a writ petition in the Punjab High Court on February 16 1962 challenging this order of suspension
His contention was that he was entitled to
the guarantee contained in article 314 of the Constitution and the order of suspension passed against him violated that guarantee and was therefore ineffective and invalid
He relied for this purpose on r 49 of the Appeal Rules which provided for suspension as a penalty
He contended that the Appeal Rules which governed him and which must be held to have continued to govern him in view of the guarantee contained in article 314 provided for suspension as a penalty only and that there was no provision anywhere in any rule or statute immediately before January 26 1950 on which date the Constitution came into force providing for suspension otherwise than as a penalty
Therefore it was not open to the Governor to suspend him in the manner in which he did so in the present case though it was not denied that he could be suspended pending criminal proceedings provided the suspension was as a penalty under r 49 of the Appeal Rules on the other hand mere suspension pending a criminal case not inflicted as a penalty was not provided at all by the Rules or the statute governing the appellant immediately before January 26 1950
Therefore when the Governor proceeded to suspend him under r 73 of the Discipline Rules he violated the guarantee contained in article 314
The appellant also contends that as it was not open to any authority to suspend him except as a punishment immediately before January 26 1950 r7 of the Discipline Rules 438 which provides for suspension during disciplinary proceedings or during the pendency of a criminal charge insofar as it applies to him was ultra vires article 314 of the Constitution
He also attacked rr3 and 10 of the Discipline Rules as violative of article 314 of the Constitution r3 being concerned with penalties to be imposed on members of the Indian Administrative Service and r10 with the right of appeal
The contention in this connection was that r3 omitted the penalty of suspension which was to be found in r49 of the Appeal Rules with the result that suspension under r7 was not open to appeal under r10 which provided for appeals against penalties mentioned in r3
Therefore the guarantee under Art314 was violated inasmuch as previously whenever the penalty of suspension was inflicted on a member of the Secretary of State s Services it was open to him to appeal under r 5 6 of the Appeal Rules
Therefore the scheme of the Discipline Rules was such as to take away the protection to a member of the Secretary of State s Service which was available to him immediately before the Constitution came into force and in consequence rr3 and 10 also violated the guarantee contained in article 314 and were ultra vires
The appellant therefore prayed for an appropriate writ order or direction in the nature of mandamus striking down rr37 and 10 of the Discipline Rules being violative of article 314 of the Con stitution and also for an order striking down the order of the Governor dated July 18 1959 by which he suspended the appellant and such other appropriate relief as was just and proper
The petition was opposed by the State of Punjab and its main contention was that rr
37 and 10 of the Discipline Rules were perfectly valid and did not violate the guarantee contained in Art314
It was urged that article 314 only gave restricted protection to the members of what were formerly the Secretary of State s Services in respect of disciplinary matters and stress was laid on the words or rights as similar thereto as changed circumstances may permit appear 439 ing therein
It was also urged that suspension pending departmental enquiry or pending a criminal case was not the same thing as suspension by way of punishment and that previous to January 26 1950 there could be suspension pending departmental enquiry or pending a criminal case and that no appeal lay from such suspension even then
It was also urged that suspension pending a departmental enquiry or pending a criminal case was not a disciplinary matter at all and was therefore not included within the sweep of article 314 and in any case the rule relating to suspension even if it is connected with disciplinary matters was liable to variation as changed circumstances might demand and r7 was framed in view of the changeed circumstances
It was also urged that removal of suspension as a penalty under r 3 could not affect the guarantee contained in article 314 for the effect of such removal was that there could be in future no penalty of suspension
against a member of the Indian Administrative Service
Therefore as the penalty had gone r 10 did not naturally provide for an appeal against a penalty which did not exist
Rule 7 which provides for suspension does not provide for any penalty and therefore there was no necessity of providing for any appeal against it
It was urged that a difference must be made between suspension as a penalty and suspension as an interim measure only pending a departmental enquiry or pending a criminal case and if that difference was borne in mind there was no reason for holding that rr3 and 10 were ultra vires article 314
The respondent State finally contended that the order of the Governor passed under r 73 was perfectly valid and did not violate the guarantee contained in article 314
The High Court dismissed the petition
It was of the view that it was inconceivable that under the old rules prevailing before January 26 1950 a civil servant could never be suspended while an enquiry into his conduct was pending
It was further of the view that suspension during the pendency of an enquiry was a power inherent in an employer like the 440 Government and the power to suspend was always implied in the authority making the appointment
The High Court therefore rejected the contention of the appellant that under the old rules no member of the Secretary of State s Services could have been suspended except by way of punishment
The High Court further held that even if the contention of the appellant be accepted that a member of the Secretary of State s Services had a right of appeal even where he was suspended during a departmental enquiry there was a provision in the Discipline Rules for a memorial to the President see r20 and that in the opinion of the High Court gave a right as similar to the right existing before January 26 1950 as the changed circumstances permitted
The High Court therefore dismissed the petition
The appellant then applied for a certificate which was granted and that is how the matter has come up before us
The only question that has been debated before us is with respect to suspension whether as a punishment or otherwise of a member of one of the Secretary of State s Services in this case the Indian Civil Service members of which have become members of the Indian Administrative Service under the Recruitment Rules and it is only this question that falls to be determined in the present appeal
But the appellant has also challenged rr3 and 10 of the Discipline Rules which do not deal with suspension at all
In these circumstances we do not propose to consider the vires of rr 3 and IO for that does not fall for decision as the order which is challenged has not been made under r 3 and relates only to suspension
It is therefore unnecessary to decide whether rr 3 and 10 can in the changed circumstances apply to those members of the Indian Administrative Service who were at one time members of the Indian Civil Service
We shall therefore express no view one way or the other on the vires of r 3 and r 10 and consider only r 7 which deals with suspension
We should also like to make it clear that what we say during the course of  this judgment 441 with respect to suspenion refers only to those members of the Indian Administrative Service who became members thereof under r 3 a and b of the Recruitment Rules and not to other members of the Indian Administrative Service who were not members before 1947 of the Indian Civil Service for it is only the former kind of members of the Indian Ad ministrative Service who are entitled to the protection of article 314 and the whole case of the appellant is based on that protection
Let us therefore turn to article 314 which we have already set out above
This Article came to be considered by this Court in the Accountant General Bihar vs N Bakshi1
In that case however that part of it was considered which related to conditions of service as respects remuneration leave and pension and it was held that r 3 of the All India Services Overseas Pay passage and leave salary Rules 1957 was ultra vires having regard to the guarantee contained in article 314 of the Constitution
That case is an authority for the proposition that where any rule is framed which is inconsistent with the guarantee contained in article 314 with respect to remuneration leave and pension that rule would be bad
In the present case we are concerned with another part of article 314 namely 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 same principle will apply to this part of article 314 also and if any rule is framed which goes against the guarantee contained in this part of article 314 with respect to members of what were former Secretary of State s Services it will be bad
What article 314 provides with respect to disciplinary matters is that the members of the former Secretary of State s Services who continue to serve under the Government of India or of a State would be entitled to the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances 1 1962 Supp 1
SCR 505
442 may permit
Stress has been laid on behalf of the respondent on the words rights as similar thereto as changed circumstances may permit and it is urged that in view of these words it was open in the  changed circumstances to frame rules in particular with respect to suspension pending departmental enquiry or pending criminal proceedings
These words in our opinion cannot bear this interpretation
What the words changed circumstances mean is the change in circumstances due to transfer of power in August 1947 and the coming into force of the Constitution in January 1950 and no more
Therefore when article 314 speaks of rights as similar thereto as changed circumstances may permit it only means that a member of the former Secretary of State s Services would have rights similar to his pre existing rights as the changed circumstances resulting from constitutional changes may allow
As an illustration take a case where a member of a Secretary of State s Service could before August 1947 be dismissed only by the Secretary of State but after the transfer of power and the coming into force of the Constitution circumstances have changed and there is no Secretary of State therefore we have to look to the changed circumstances and find out which would be the authority to dismiss such a member in the changed circumstances
If we do so we find that the Government of India can be the only authority which now in the changed circumstances will have the power to dismiss such a member in the absence of a specific provision of law in force before January 26  1950
These words do not mean that as time passes circumstances change and therefore new rules may be framed to meet the new circumstances due to passage of time
The words changed circumstances in article 314 only refer to the constitutional changes which occurred after the transfer of power in August 1947 and the coming into force of the Constitution in January 1950
Further article 314 provides that the protection is limited only to those rights as to disciplinary matters which a member of the former Secretary of State s 443 Services was entitled to immediately before the commencement of the Constitution ie on January 25 1950
It is only those rights which are protected and no more
Another argument that is urged on behalf of the respondent is that suspension pending a departmental enquiry or pending a criminal proceeding cannot be said to be a disciplinary matter at all and therefore the protection of article 314 does not extend to such suspension
We cannot accept this argu ment
The words disciplinary matters with which we are concerned appear in a constitutional provision and must be given their widest meaning consistent with what disciplinary matters may reasonably include
Suspension is of two kinds namely as a punishment or as an interim measure pending a departmental enquiry or pending a criminal proceeding
We shall deal with these aspect s of suspension in detail later
So far as suspension as a punishment is concerned it is conceded that it is a disciplinary matter
The dispute is only as to suspension pending a departmental enquiry or pending a criminal proceeding
There can in our opinion be no doubt that suspension of this kind also must be comprised within the words disciplinary matters as used in article 314
Take the case of suspension pending a departmental enquiry
The purpose of such suspension is generally to facilitate a departmental enquiry and to ensure that while such enquiry is going on it may relate to serious lapses on the part of a public servant  he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the enquiry
In such a case suspension pending a departmental enquiry cannot be but a matter intimately related to disciplinary matters
Take again the case where suspension is pending criminal proceedings
The usual ground for suspension pending a criminal proceeding is that the charge is connected with his position as a government servant or is likely to embarass him in the discharge of his duties or involves moral turpitude
444 In such a case a public servant may be suspended pending investigation enquiry or trial relating to a criminal charge
Such suspension also in our opinion is clearly related to disciplinary matters
If the trial of the criminal charge results in conviction disciplinary proceedings are bound to follow against the public servant so convicted
Even in case of acquittal proceedings may follow where the acquittal is other than honourable
The usual practice is that where a public servant is being tried on a criminal charge the Government postpones holding a departmental enquiry and awaits the result of the criminal trial and departmental proceedings follow on the result of the criminal trial
Therefore suspension during investigation enquiry or trial relating to a criminal charge is also in our opinion intimately related to disciplinary matters
We cannot therefore accept the argument on behalf of the respondent that suspension pending a departmental enquiry or pending investigation enquiry or trial relating to a criminal charge is not a disciplinary matter within the meaning of those words in article 314
Before we investigate what rights a member of the former Secretary of State s Services had with respect to suspension whether as a punishment or pending a departmental enquiry or pending criminal proceedings we must consider what rights the Government has in the matter of suspension of one kind or the other
The general law on the subject of suspension has been laid down by this Court in two cases namely The Management of Hotel Imperial New Delhi vs Hotel Workers  Union and T Cajee vs U Jormanik Siem2
These two cases lay down that it is well settled that under the ordinary law of master and servant the power to suspend the servant without pay could not be implied as a term in an ordinary contract of service between the master and the servant but must arise either from an express term in the contract itself or a statutory provision governing such contract
It was further held that an order 1  2  445 of interim suspension could be passed against an employee while inquiry was pending into his conduct even though there was no specific provision to that effect in his terms of appointment or in the rules
But in such a case he would be entitled to his remuneration for the period of his interim suspension if there is no statute or rule existing under which it could be withheld
The general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension
If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule the employee is entitled to his full remuneration for the period of his interim suspension on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension the payment would be in accordance therewith
These general principles in our opinion apply with equal force in a case where the government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of government the employer in the case of government must be held to be the authority which has the power to appoint a public servant
On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding which may eventually result in a departmental enquiry against him
This general principle is illustrated by the provision in section 16 of the General Clauses Act No X of 1897 which lays down that where any Central Act or Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears
Though this provision does not directly apply in the present case 446 it is in consonance with the general law of master and servant
But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or rule in that connection
If there is such a provision the payment during suspension will be in accordance therewith
But if there is no such provision the public servant will be entitled to his full emoluments during the period of suspension
This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rules in that behalf
On general principles therefore the govern ment like any other employer would have a right to suspend a public servant in one of two ways
It may suspend any public servant pending departmental enquiry or pending criminal proceedings this may be called interim suspension
Or the Government may proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit
This will be suspension as a penalty
These general principles will apply to all public servants but they will naturally be subject to the provisions of article 314 and this brings us to an in vestigation of what was the right of a member of the former Secretary of State s Services in the matter of suspension whether as a penalty or otherwise
As article 314 only guarantees protection to those rights which were in existence immediately before the Constitution came into force all that is necessary is to find out the position before August 14 1947 when the transfer of power took place and on January 25 1950 just before the Constitution came into force
Members of the Secretary of State s Services who are protected under article 314 were appointed either by the Secretary of State or by the Secretary of State in Council
Therefore on general principles it would have been open to the Secretary of State or the Secretary of State in Council as the case may be to suspend a member of such Services as the appointing authority as an interim measure pending a departmental enquiry or pending a criminal proceeding if it thought fit to do so
What 447 remuneration such a public servant would get during such interim suspension would depend upon the rules if any and if there were no rules he would be entitled to his full emoluments during such interim suspension
But it appears that as the Secretary of State or the Secretary of State in Council was in London it was thought proper for the sake of administrative convenience to provide for suspension by authorities other than the appointing authority
Reference in this connection may be made to section 247 2 of the Government of India Act
1935 as in force upto August 13 1947
That subsection provided that any order suspending any such person meaning thereby a member of the former Secretary of State s Services from office shall if he is serving in connection with the affairs of the Federation be made by the Governor General exercising his individual judg ment and if he is serving in connection with the affairs of a Province be made by the Governor exercising his individual judgment
This sub section therefore made a specific provision for suspension by authorities other than the appointing authority this was in addition to the general right of the employer namely the Secretary of State who was the appointing authority to suspend an employee namely a member of one of the former Secretary of State s Services
Suspension in section 247 2 cannot in our opinion be confined only to suspension as a penalty
The words are general and must be given their full meaning and would include any kind of suspension whether as a penalty or otherwise and this power vested firstly in the Secretary of State or the Secretary of State in Council as the case may be under the general law of master and servant and also in the Governor General and the Governor as the case may be by virtue of this provision of the statute
Further section 247 3 also provided for remuneration of a suspended member of one of the former Secretary of State s Services and laid down 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 in 448 dividual judgment or as the case may be by the Governor exercising his individual judgment
Besides this statutory provision relating to former Secretary of State s Services there was a general provision as to payment to a government servant under suspension in Fundamental Rule 53
That general provision is that a suspended governmentservant is at least entitled to one fourth of his pay
This general provision was subject to section 247 3 andin the case of members of the former Secretary of State s Services the Governor General or the Governor as the case may be had to specify the amount which could be even more than what was provided by FR 53
Here again when FR 53 speaks of suspension it speaks of it in general terms
It applies to all kinds of suspension whether as a penalty or otherwise
Further r 49 of the Appeal Rules deals with penalties and provides suspension as a penalty
It also provides for appeals in r 56 etc
where suspension is inflicted as a penalty for good and sufficient reasons
Rule 49 applied to the former Secretary of State s Services also and thus these members were subject to the penalty of suspension
A review therefore of the general law of master and servant the provisions of the Government of India Act 1935 of the Appeal Rules and the Fundamental Rules discloses that the position on August 13 1947 with respect to members of the former Secretary of State s Services with respect to suspension whether as a punishment or otherwise was as follows
Members of the former Secretary of State s Services were liable to suspension either as an interim measure or as a punishment
Where suspension was as an interim measure and not as a punishment it could be imposed either by the Secretary of State or the Secretary of State in Council as the appointing authority or by the Governor General or the Governor as the case may be as the statutory authority
Suspension could also be imposed by the proper authority as a punishment under the Appeal Rules and such orders of suspension were subject to appeals as provided by the Appeal Rules
There 449 was also provision for payment during suspension in the shape of subsistence allowance which was governed generally by FR 53 and in the case of members of the former Secretary of State s Services FR 53 was subject to section 247 3 of the Government of India Act 1935
Therefore the contention of the appellant that there could be no suspension except by way of punishment under r 49 of the Appeal Rules before 1947 is not correct
It is equally clear that where suspension before 1947 was an interim measure and not as a punishment under r 49 there was no question of any appeal from such an interim suspension pending a departmental enquiry or pending a criminal proceeding
If the position on January 25 1950 stood as it was on August 131947 the appellant could not susbstantially challenge the order of the Governor passed on July 18 1959 for it would have been covered by section 2473 of the Govemment of India Act 1935 and the appellant could not claim anything more under article 314 of the Constitution
But article 314 does not speak of the protection which members of the All India Services had on August 13 1947 it speaks of protection which they had immediately before the commencement of the Constitution ie on January 25 1950 and that brings us to a consideration of the changes that took place between 1947 and 1950 after the transfer of power on August 15 1947
The effect of the transfer of power on the Secretary of State s Services in particular came up for consideration be fore this Court in State of Madras vs
KM Rajagopalan1 and it was held that the conferral of Independence on India brought about an automatic and legal termination of service on the date of Independence
But all persons previously holding civil posts in India are deemed to have been appointed and hence to continue in service except those governed by general or special orders or arrangements  affecting their respective cases The guarantee about prior conditions of service and the previous statutory safeguards relating to disciplinary 1  1 SCI64 29 450 action continue to apply to those who are thus deemed to continue in service but not to others
Section 10 of the Indian Independence Act provides or the Secretary of State s Services and lays down that 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 appointed day to serve under the Government of either of the new Dominions or of any Province or part thereof shall be entitled to receive 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 ie August 15 1947 By virtue of this provision those members of the Secretary of State s Services who continued to serve the Government of India or the Government of any Province from August 15 1947 were entitled to the protection of section 10
What Rajagopalan s case decided was that the Government of India was not bound to continue in service every member of the Secretary of State s Services because of section 10 of the Indian independence Act but that the protection of that section only applied to such members of the afore said services whose services the Government of India agreed to continue after August 14 1947
In Rajagopalan s case the Government of India did not agree to continue Rajagopalan s services and therefore he could not claim the protection of section 10 of the Indian Independence Act
In the appellant s case his service continued after the transfer of power and therefore he was entitled to the protection of section 10 of the Indian Independence Act which was almost in similar terms as article 314 of the Constitution so far as disciplinary matters were concerned
On August 14 1947 however the India Provisional Constitution Order 1947 was promulgated as GGO 14
By that Order section 247 of the Government of India was substituted by a new section and sub sections
2 and 3 1  451 thereof to which we have already referred were repealed
The substituted section 247 read as under Conditions of service of persons orginally recruited by Secretary of State The conditions of service of all persons who having been appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India continue on and after the date of the establishment of the Dominion to serve under the Government of the Dominion or of any Province shall a as respects persons serving in connection with the affairs of the Dominion be such as may be prescribed by rules made by the Governor General b as respects persons serving in connection with the affairs of a Province i in regard to their pay leave pensions general rights as medical attendance and any other matter which immediately before the establishment of the Dominion was regulated by rules made by the Secretary of State be such as may be prescribed by rules made by the Governor General and ii in regard to any other matter be such as may be prescribed by rules made by the Governor of Province
 It will be clear from this that sub sections
2 and 3 of section 247 disappeared on August 14 1947
No rules framed by the Governor General under the new section with respect to what we have called interim suspension have been brought to our notice
Therefore no power was left in the Governor General or the Governor as the case may be to suspend a member of the former Secretary of State s Services as an interim measure and only the appointing authority could suspend such a public servant which in the changed circumstances would be the Government of India
The explanation for this may be that as the Secretary of State disappeared and his place was taken by the Government of India 452 it might not have been thought necessary to continue the further powers conferred by section 247 2 in addition to the general power of the appointing authority to suspend
Be that as it may the fact remains that on August 14 1947 section 247 2 disappeared and therefore the Governor General and the Governor lost the power to suspend as an interim measure a member of the former Secretary of State s Services and such power could only be exercised by the appointing authority which in the changed circumstances must be deemed to be the Government of India
As for suspension as a punishment that continued to be provided in the Appeal Rules and no change was made therein
It has however been urged that as the conferral of Independence on India brought about an automatic and legal termination of service on the date of Independence there must in law have been reappointment of all members of the former Secretary of State s Services
This reappointment in case of those serving in connection with the affairs of a Province must be deemed to have been made by the Governor of the Province concerned and consequently the Governor will have the power to suspend as the appointing authority
We are of opinion that there is no force in this argument
The antecedent circumstances with respect to such Services have been fully dealt with in Rajagopalan s case 1 and those circumstances show that the question of the retention of officers serving in these Services was dealt with between the Government of India and His Majesty s Government and it was the Government of India which decided that all such officers should continue except those whom the Government of India was not prepared to invite to continue and in the case of this limited class the Government of India agreed to compensation
It was in consequence of this agreement between the Government of India and His Majesty s Government that section 10 of the Independence Act provided that those officers who continued would have the same conditions of service etc
as they were entitled to immediately before August 14 1947
The Governors of Provinces were nowhere in the picture in this matter and we can see 1  453 no warrant for holding that the appointment must be deemed to be by the Governors of Provinces where such officers were serving in connection with the affairs of a Province
It is true that the Indian Administrative Service as an all India Service was legally and formally constituted in 1951
It is also true that under section 10 of the Indian Independence Act members of the former Secretary of State s Services continued on and after August 14 1947 to serve under the Government of either of the new Dominions or of any Province or part thereof It is also true that there are some passages in the correspondence between His Majesty s Government and the Government of India which suggest that His Majesty s Government was thinking on the lines that members of the former Secretary of State s Services will become members of the Provincial Services
These however are not conclusive of the matter and we have to find out what actually took place after this exchange of correspondence between the Government of India and His Majesty s Government in connection with the former Secretary of State s Services
We have already indicated that section 10 was incorporated in the Indian Independence Act in consequence of this correspondence between the Government of India and His Majesty s Government
Thereafter we find that the India Provisional Constitution Order 1947 ie GGO 14 was passed on August 141947 under powers conferred on the GovernorGeneral by virtue of section 9 1 a of the Indian Independence Act
Article 7 1 of that Order is in these terms 1 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 theCrownin connec 454 tion with the affairs of the Dominion of India or as the case may be of the Province
 Reading this provision along with the provision in section 10 of the Indian Independence Act it would in our opinion be right to say that so far as the
members of the former Secretary of State s Services are concerned they must be deemed to have been appointed to the posts on which they were serving at the time of conferral of Independence by the Govemmentof India
The deemed appointment under article 7 1 of GGO 14 was subject to any general or special orders or arrangements affecting his case and these arrangements are clear from the correspondence which ensued between the Government of India and His Majesty s Government
That correspondence and the special orders or arrangements contemplated by article 7 1 of GGO 14 show that so far as the members of the former Secretary of State s Services were concerned it was the Government of India which took the final decision whether to continue such officers or not
It is true that in so doing it consulted the various Provincial Governments and was to a large extent guided by the views of the Provincial Governments particularly in connection with such officers who were serving in connection with the affairs of the Provinces even so as the facts in Rajagopalan s case1 show the final decision whether to continue or not a member of the former Secretary of State s Services was taken by the Government of India
In these circumstances it would in our opinion be reasonable to hold that in the case of the members of the former Secretary of State s Services it was the Government of India which must be deemed to have appointed them after the conferral of Independence on India to the respective posts which they were holding whether under the Government of India or under the Governments of Provinces
This conclusion is reinfored by the fact that the system in force before 1947 was that all members of the Secretary of State s Services were assigned to one Province or other and from them such members as were necessary used to be on deputation to the Government of India for serving it directly
It would be very anomalous 1 19552 SCR 541
indeed that the accident whether an officer was serving on August 13 1947 on deputation under the Government of India directly or in the Province to which he was assigned should determine who the appointing authority must be deemed to be on the date of the transfer of power
Such an anomaly could in our opinion never have been intended and we have no doubt therefore in view of the history dealt with in Rajagopalan s case1 that on the conferral of Independence even if there was legal termination of the services of members of the former Secretary of State s Services the reappointment must be deemed to be by the Government of India and not by the Governors of Provinces even in the case of officers who were serving in connection with the affairs of Provinces
In this connection our attention has been drawn to section 241 1 of the Government of India Act 1935 as it then stood which is in these terms 1 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 provision in our opinion does not apply in the peculiar circumstances arising out of the transfer of power in August 1947
It is a general provision relating to appointments to civil services and civil posts under the Dominion or under the Provinces
It has in our opinion nothing to do with the case of members of the civil services and holders of civil posts who were deemed to have continued by virtue of article 7 of GGO 14 of August 14 1947
Clause b of section 241 1 therefore cannot in our opinion lead to the inference that in the case of those members of the former Secretary of State s 1 456 Services who were deemed to have been appointed in connection with the affairs of a Province under article 7 1 of GGO 14 the appointments must be deemed to have been made by the Governor
Such deemed appointments in our opinion must depend for their validity on article 7 GGO 14 and not on section 241 of the Government of India Act which is not a deeming provision and therefore we have to look to article 7 1 to find out by whom the appointments must be deemed to have been made in these of the members of the former Secretary of State s Services
As article 7 opens with the words subject to any general or special orders or arrangements affecting his case  ie each individual officer s case it must be held in view of the history which is elaborately set out in Rajagopalan s case  that so far as members of the former Secretary of State s Services were concerned it was the Government of India who must be deemed to have made the appointments in view of the special orders and arrangements with respect to such officers
Reliance in this connection was also placed on the amendment of section 240 2 of the Government of India Act by the same GGO Section 240 2 as it originally stood provided that  no such person as aforesaid meaning thereby a member of a civil service of the Crown in India or a person holding any civil post under the Crown in India shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed
Amendment of this sub section became necessary as the Secretary of State for India was disappearing and some authority had to be provided which could dismiss members of the former Secretary of State s Services
GGO 14 therefore provided that no member of a Secretary of State s Services who continued in service after August 14 1947 shall be dismissed by any authority subordinate to the Governor General or the Governor according as that person was serving in connection with the affairs of the Dominion or of a Province
This amendment gave power to the Governor to dismiss even members of the former Secretary of State s Services and stress has been laid on behalf of 1 457 the respondent on this amendment and it is urged that this shows that appointments of such members who were serving in connection with the affairs of the Provinces must be deemed to have been made by the Governor concerned
It appears however that the amendment by which the Governor could dismiss a member of the former Secretary of State s Services may have crept in by inadvertence for it would prima facie be against the provisions of the guarantee contained in s10 of the Indian Independence Act
In any case this sub section was further amended by GGO 34 and the power of dismissal was only vested in the Governor General and was taken away from the Governor
We are therefore of opinion that no inference can be drawn from the fact that for a short time section 240 2 provided that the Governor may dismiss a member of the former Secretary of State s Services that the appointments of such members who were serving in connection with the affairs of the Province was by the Governor and not by the Government of India
Such an inference is in our opinion against the conclusion which can be plainly drawn from the history relating to the continuance and appointment of the members of the former Secretary of State s Services at the time of conferral of Independence and the provisions of article 7 1 of GGO 14 of August 14 1947
The final position therefore on January 25 1950 with respect to suspension of a member of the former Secretary of State s Services whether as a punishment or as an interim measure pending departmental enquiry or pending a criminal proceeding was this
Such member could be suspended under the general law by the appointing authority which in the changed circumstances was the Government of India as an interim measure pending a departmental enquiry or pending a criminal proceeding but there was no power in any other authority to pass such an order of interim suspension for as we have already indicated the power under section 247 2 was repealed by GGO14 of August 14
Besides this power of interim suspension otherwise than as a punishment the power to suspend 458 as punishment continued under r 49 of the Appeal Rules and an order of suspension made in exercise of that power was subject to appeal under r 56 etc
 thereof So far as payment during the period of interim suspension or during the period of suspension as a penalty is concerned section 247 3 had disappeared and therefore the general provision contained in FR 53 applied
That general provision has made some distinction between the members of the Indian Civil Service and others but that is a matter of detail in which it is unnecessary to go
So the position immediately before the commencement of the Constitution was that members of the former Secretary of State s Services could be suspended either as an interim measure pending departmental enquiry or pending criminal proceeding or as a punishment
Where suspension was as an interim measure and not as a punishment such suspension could only be by the appointing authority which in the changed circumstances should be deemed to be the Government of India
Such interim suspension was not subject to any appeal
So far as suspension as a punishment was concerned r 49 of the Appeal Rules applied and the authorities specified in these Rules could pass an order of suspension as a punishment and that order would be subject to appeal provided in r 56 and other rules therein
As to the payment during the period of suspension that was governed by FR 53
It is this position which was protected by article 314 of the
Constitution so far as suspension of members of the former Secretary of State s Services was concerned whether as an interim measure or as a punishment
Then we come to the Discipline Rules 1955
Rule 3 of these Rules provides for penalties and omits suspension as a penalty
Now if suspension had remained a penalty under r 3 of the Discipline Rules the appellant would have been entitled to the same rights as respects suspension as a punishment or rights as similar thereto as changed circumstances would permit in view of article 314
But r 3 of the Discipline Rules has altogether done away with the penalty of suspension for members of 459 the Indian Administrative Service which includes the members of the lndian Civil Service under r 3 a and b of the Recruitment Rules
Further rules corresponding to the Discipline Rules was repealed by r 23 of the Discipline Rules  so after the Discipline Rules came into force in 1955 suspension could no longer be inflicted as a penalty on a member of the Indian Administrative Service including members of the Indian Civil Service who became members of the Indian Administrative Service
It is therefore unnecessary for us to consider whether the order of July 18 1959 can be justified as a punishment and if so whether the memorial provided by r 20 of the Rules is a sufficient protection for the purpose of article 314 which speaks of rights as similar thereto as changed circumstances may permit
Nor is it the case of the respondent that the appellant was suspended by way of punishment by the order of July 18 1959
The respondent justifies the said order under r 7  3 of the Discipline Rules and thus the case of the respondent is that the appellant was suspended not as a punishment but that the order of suspension was passed by the Governor as an interim measure which he could do either pending a departmental enquiry or pending a criminal charge
The appellant has thus been suspended by the order of July 18 1959 not as a punishment but as an interim measure pending a criminal charge against him and this is what practically in terms the order says for it places the appellant immediately under suspension because a criminal case was pending against him
But as we have already pointed out the power to pass an order of interim suspension in the case of a member of the former Secretary of State s Services on January 25 1950 was only in the appointing authority namely the Government of India
The power to suspend a member of the Indian Administrative Service which the appellant became by virtue of r 3 of the Recruitment Rules as punishment has disappeared from r 3 of the Discipline Rules 1955
The appellant therefore could not be suspended by the Governor as an interim measure and such suspension could only be by the Government of India
The proper procedure therefore in a case 460 where the State Government wants a member of the former Secretary of State s Services to be suspended pending departmental enquiry or pending investigation inquiry or trial of a criminal charge against him is to approach the Government of India and ask it as the appointing authority to suspend such officer as an interim measure
It is not open to the Government of India by framing a rule like r 7 of the Discipline Rules to take away the guarantee as to Disciplinary matters contained in article 314
We have already said that the guarantee in the case of a member of the former Secretary of State s Services is that in disciplinary matters his rights would be the same or as similar thereto as changed circumstances would permit as they were immediately before the commencement of the constitution
The right in the matter of interim suspension As distinct from suspension as a punishment was that a member of the former Secretary of State s Services could not be suspended by any authority other than the Government of India
That was guaranteed by article 314 and could not be taken away by framing a rule like r 7 of the Discipline Rules
We have already referred to Bakshi s case in which it has been held that the rights guaranteed by article 314 of the Constitu tion could not be destroyed or taken away by the Central Government in exercise of its rule making power  In the present case the right guaranteed to a member of the former Secretary of State s Services with respect to interim suspension as distinct from suspension as a punishment is that such a member cannot be so suspended except by the appointing authority which in the changed circumstances is the Government of India
That right has in our opinion been violated by r 7 of the Discipline Rules insofar as it permits any authority other than the Government of India to suspend pending a departmental enquiry or pending a criminal charge a public servant who was a member of the former Secretary of State s Services
Rule 7 therefore insofar as it permits this violation of the guarantee contained in article 314 with respect to interim suspension other than suspension 1 1962 Supp
I SCR 505
461 as a punishment is to that extent ultra vires article 314 ie insofar as it applies to the members of the Indian Adminstrative Service who fall within cls
a and b of r 3 of the Recruitment Rules
it follows therefore that the order of the Governor dated July 18 1959 purporting to be passed under r 7 3 of the Discipline Rules is without authority and must be set aside
This brings us to the question of relief to be granted to the appellant
it appears that on September 11 1963 the Governor passed an order by which he reinstated the appellant for the period from July 18 1959 to April 4 1963 and granted him his full emoluments for that period
The writ petition in the present case was filed in February 1962
So the appellant is apparently not entitled to any further relief in the matter of his emoluments besides what has been granted to him by the Governor
The order of reinstatement contained therein is unnecessary in view of our decision and the order granting full emoluments may be taken to be in pursuance of our judgment
We therefore allow the appeal and declare r 7 of the Discipline Rules insofar as it applies to members of the Indian Administrative Service who are members thereof by virtue of r 3 a and b of the Recruitment Rules to be bad to the extent to which it permits an authority other than the Government of India to suspend as an interim measure and not as a punishment such members of the Services
In consequence we set aside the order of the Governor dated July 18 1959
As however the order of September 1963 has granted all such monetary reliefs to the appellant as we could grant him on setting aside the order of July 18 1959 no further relief can be granted to the appellant
We order the respondent the State of Punjab to pay the costs of the appellant in this Court as well as in the High Court
RAGHUBAR DAYAL J
I am of opinion that this appeal should be dismissed
The appellant a member of the Indian Civil Service was serving under the Government of Madras immediately before the appointed day  ie August 15 462 1947 as laid down in sub section
2 of section I of the Indian Independence Act 1947 10  11 Geo 6 Ch 30 hereinafter referred to as the Independence Act
He continued to serve under the Government of Madras on and after the appointed day
Subsequently he was transferred to the State of Punjab where he was serving on July 18 1959 when he was suspended by the Governor of Punjab as a criminal case was pending against him the appellant was a member of the Indian Administrative Service in 1959 and the order of suspension appears to have been made by the Governor in exercise of the power conferred by r 7 of the All India Services Discipline and Appeal Rules 1955 hereinafter referred to as the Discipline Rules
The appellant challenges the validity of this order on the ground that this rule violates the provisions of article 314 of the Constitution
His contention is that prior to August 15 1947 a member of the Indian Civil Service could be suspended by way of punishment in view of r 49 of the Civil Services Classification Control and Appeal Rules hereinafter referred to as the Classification Rules and that there was no provision for his suspension otherwise than as a penalty and that his suspension as a disciplinary measure though permissible would have been then treated as suspension by way of penalty and therefore as subject to an apeal under r 56 of the Classification Rules
No appeal is provided under the Discipline Rules against an order of suspension under r 7 which therefore violates article 314 of the Constitution as according to that article he was entitled to receive from the Government the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances permitted as he was entitled to immediately before the commencement of the Constitution
He further contends that sub section
2 of section 10 of the Independence Act guaranteed to him the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances permitted as he was entitled to immediately before the appointed day
It was further contended during the course of the submissions in Court that though prior to the appoin 463 ted day an order of suspension during the pendency of a departmental enquiry or of a criminal charge could have been made only by the Governor General or the Governor such an order thereafter and till January 26 1950 could be made only by the Governor General and that therefore such a suspension order subsequent to the commencement of the Constitution could be made by the Union Government and not by the Government of Punjab and that for this reason too r 7 of the Discipline Rules empowering the State Government to make an order of such suspension violates article 314
I need not discuss the various points on which I agree with my learned brother Wanchoo J
I agree that the expression changed circumstances  in article 314 only refer to the constitutional changes which occurred after the transfer of power in August 1947 and the coming into force of the Constitution in January 1950 that suspension during the pendency of disciplinary proceedings or of a criminal charge is related to disciplinary matters within the meaning of those words in article 314 that from the appointed day there was no express provision in the Government of India Act or in the rules framed thereunder empowering the Governor General or the Governor to suspend otherwise as penalty officers appointed by the Secretary of State for India and that any order of suspension pending enquiry against a person appointed by the Secretary of State on a day immediately before the coming into force of the Constitution had to be made by the Government in the exercise of the general power of suspension which an employer has with respect to his employee that this general power an employer has to suspend an employee pending an enquiry into his conduct vests in the appropriate authority where the Government is the employer and a public servant is the employee and that such an authority in the case of Government in view of the peculiar structure of the hierarchy of Government be taken to be the authority which has the power to appoint the public servant concerned
I am however
further of opinion that the appropriate authority in this connection can also include officers superior to 464 the appointing authority and that in the case of members of All India Services serving under any state includes the Governor who as the executive head of State has administrative control cover all officers serving under the State Government
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 against him though he could have imposed a penalty of suspension on such a person in view of rr 49 and 62 of the Classification Rules which were in force between the appointed day and January 25 1950 and continued in force subsequently up to the coming into force of the Discipline rules
1 however do not rest my decision on this view as in my view the appellant is to lie deemed to have been appointed by the Governor of Madras on the appointed day to the post corresponding to the post he was holding immediately before the appointed day under the Madras Government
I now deal with the question of the authority which should be taken to be the appointing authority for persons who had been appointed by the Secretary of State to the Civil Services or to any post under the Crown and who continued to serve the Government after the appointed day
To determine this question it is necessary to consider the following matters 1 Did the Service known as the Indian Civil Service whose members were to be recruited by the Secretary of State for India in view of section 244 1 of the Government of India Act cease to exist on and from the appointed day and if so whether any other AR India Service took its place immediately after it had ceased to exist 2 If it ceased to exist were the services of the members of the Indian Civil Service terminated immediately before the appointed day 3 Which members of the Service continued in service of the Government on or after the appointed day
4  Whether those who so continued did so on account of their becoming servants of the new Government under the provisions of any Act or their continuance in service was on account of their fresh appointment
5 If it was due to fresh 465 appointment which authority appointed them and to which post or service Before I deal with the above questions I may set out the relevant provisions which have a bearing in this connection
The Independence Act was enacted by the British Parliament on July 18 1947 for setting up in India two independent Dominions and to provide for necessary consequential matters
By sub section
1 of section 1 two independent Dominions known as India and Pakistan were to be set up from August 15 1947
Subsection  2 of that section provided for their being referred to as the new Dominions and August 15 1947 being referred to as the appointed day
One of the consequences of the setting up of the new Dominions was stated in sub section
1 of section 7 to be that His Majesty s Government in the United Kingdom was to have no responsibility as respects the government of any of the territories which immediately before the appointed day were included in British India
Section 9 empowered the Governor General to make such provisions by order as appeared to him to be necessary or expedient for certain purposes mentioned therein
Subsections 1 and 2 of section 10 of the Act read 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
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 SCI64 30 466 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 The Governor General in the exercise of the powers conferred on him by section 9 made the India Provisional Constitution Order 1947 GGO 14 of 1947 hereinafter called the Provisional Constitution Order
Article 71 of this Order is 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 GovernorGeneral 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 reads 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 467 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 Section 247 of the Government of India Act as modified reads The conditions of service of all persons who having been appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India continue on and after the date of the establishment of the Dominion to serve under the Government of the Dominion or of any Province shall a as respects persons serving in connection with the affairs of the Dominion be such as may be prescribed by rules made by the GovernorGeneral b as respects persons serving in connection with the affairs of a Province i in regard to their pay leave pensions general rights as to medical attendance and any other matter which immediately before the establishment of the Dominion was regulated by rules made by the Secretary of State be such as may be prescribed by rules made by the GovernorGeneral and ii in regard to any other matter be such as may be prescribed by rules made by the Governor of the Province
 Sections 244 to 246 of the Government of India Act 1935 which dealt with Services recruited by the Secretary of State was omitted from the Act by this Order
Reference may also be made to the announcement by His Excellency the Viceroy on April 30 1947
It purported to relate to grant of compensation for premature termination of their service in India to members of the Civil Services appointed by the Secre 468 tary of State and to regular officers and British Warrant Officers of the Indian Naval and Military Forces
Its first 7 paragraphs are set out at pp
548 to 550 in State of Madras vs KM Rajagopalan1
Its para 8 stated inter alia In pursuance of their wish to give all possible help to the Government of India in building up the new services His Majesty s Government agree that their obligation covers the claim to ultimate compensation of those British members of the Services who are asked to serve on in India and decide to do so
 It may also be mentioned that subsequent to June 3 1947 the Government of India made enquiries through the Provincial Governments from the members of the Secretary of State s Services including the Indian Civil Service
about their desire to continue in service of the Government after the transfer of power and also made enquiries from the Provincial Governments themselves about their readiness to retain those officers in service who expressed their desire to continue in service
This Court had occasion to discuss the effect of the steps taken by the Government of India prior to the appointed day and of the provisions of the Independence Act and the Provisional Constitution Order in Rajagopalan s case1 Rajagopalan was a member of the Indian Civil Service and was serving in the Province of Madras till August 14 1947 when his services were terminated though he had expressed his willingness to continue in the service of the Government of Madras on and after the appointed day
What this Court directly held and observed in connection with the points urged before it in that case would be mentioned at appropriate places in discussing the five points I have formulated earlier
This first two points were directly decided in that case
This Court held that the Secretary of State and his Services disappeared as from the appoin 1  469 ted day and that section 102 of the Independence Act and article 71 of the Provisional Constitution Order proceeded on a clear and unequivocal recognition of the validity of the various special orders and the individual arrangements made and amounted to an implicit statutory recognition of the principle of automatic termination of the Services brought about by the political change
It is clear therefore that the Indian Civil Service one of the Secretary of State s Services ceased to exist from the appointed day and that the services of its members automatically terminated on August 14 1947
This Court had not to consider whether any All India Service was set up to take the place of the Indian Civil Service on and from the appointed day as the termination of Rajagopalan s services was held to be valid
There is nothing on the record to show that any such new Service took the place of the Indian Civil Service at the changeover though subsequently the Indian Administrative Service was set up as an All India Service
When it was actually set up is not known
Article 312 of the Constitution states in cl
2 that the Services known 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 to mean the service known as the Indian Administrative Service or the service known as the Indian Police Service
The Indian Administrative Service Recruitment Rules 1954 came into force in 1954 and its r 3 dealing with the constitution of the service provides inter alia that the Service shall consist of a members of the Indian Civil Service not permanently allotted to the judiciary b members of the Indian Civil Service permanently allotted to the judiciary who have been holding executive posts from the date of commencement of the Constitution d persons recruited to the Service before the commencement of those Rules
It appears therefore that all the 470 members of the Indian Civil Service who continued to serve the Government on and after the appointed day were not made members of the Indian Administrative Service and that those who were made members of the Service became members of such Service in 1954
If the Indian Administrative Service had been set up to replace the Indian Civil Service immediately on the appointed day and the erstwhile members of the Indian Civil Service had become its members the provisions of r 3 a and b would have been different from what they are
This indicates that the Indian Administrative Service did not take the place of the Indian Civil Service automatically after the changeover on the appointed day and that therefore the members of the Indian Civil Service who continued in service did not continue so as members of any All India Service
The Viceroy s announcement dated April 30 1947 makes no mention of any All India Service replacing the Indian Civil Service immediately on the transfer of power though it specifically mentioned in para 8 about the giving of all possible help to the Government of India in building up the new Services and to the members of the Secretary of State s Services continuing to serve under the Government in India after the transfer of power
The provisions of article 71 of the Provisional Constitution Order also do not refer to the persons in the Secretary of State s Services to continue in service as members of any All India Service though it specifically deals with the appointment of such other employees of Government to the posts they had held on the day immediately preceding the appointed day
I am therefore of opinion that the service of the appellant as a member of the Indian Civil Service came to an end on August 14 1947 and that thereafter he did not automatically or otherwise become member of any All India Service on August 15 1947
In connection with point No 3 formulated by me
this Court said in Rajagopalan s case1 at P 552 1  471 that the continuance of service was contemplated only in respect of such of the previous servants who intimated their desire for the continuance of their services and whose offer in that respect was accepted and at p 563 that sub section
2 of section 10 of the Independence Act had nothing to say as to who were the persons who would continue in service and receive the benefit that being obviously left to be provided by delegated legislation in the shape of Orders of the Governor General and at p 565 that in view of the provisions of article 71 of the Provisional Constitution Order all persons who were previously holding civil posts were deemed to have been appointed and hence to continue in service excepting those whose case was governed by general or special orders or arrangements affecting their cases
It is clear therefore that only those members of the Secretary of State s Services continued in service who had been holding civil posts immediately before the appointed day and were deemed to have been appointed to the corresponding post in view of the provisions of article 7 1 of the Provisional Constitution Order
The persons who had been holding civil posts immediately before the appointed day did not automatically become servants of the new Government on the appointed day
Article 71 of the Provisional Constitution Order contemplates deemed appointment  of such persons to their respective posts on that day
The language of this article is not consistent with any suggestion that they automatically by the force of the Independence Act or the Provisional Constitution Order became holders of the respective posts on the appointed day
The language is very much different from the language used in articles 374 376 377 and 378 of the Constitution which provide for certain persons holding office immediately before the commencement of the Constitution becoming on such commencement holders of corresponding posts on such commencement
The language is also different from that of article 375 of the Constitution which deals with the continuance of courts authorities 472 and officers after the commencement of the Constitution and reads All courts of civil criminal and revenue jurisdiction all authorities and all officers judicial executive and ministerial throughout the territory of India shall continue to exercise their respective functions subject to the provisions of this Constitution
 There is no such expression in this article which would indicate that any of these officers had to be freshly appointed or would be deemed to have been appointed to their respective posts on the commencement of the Constitution
The language of article 71 of the Provisional Constitution Order correspond to some extent to that of section 58 of 21  22 Vic Cap
CVI 1858 an Act for the better Government of India which was passed when the Government of India was transferred to Her Majesty from the East India Company
Section 58 reads All persons who at the time of the commence ment of this Act shall hold any offices employments or commissions whatever under the said Company in India shall thenceforth be deemed to hold such offices employments and commissions under Her Majesty as if they had been appointed under this Act    The language of article 71 of the Provisional Constitution Order for purposes of comparison may be just noted and is  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 language of section 58 of the 1858 Act contemplated a fresh appointment though deemed appointment as is abundantly clear from the words shall be deemed to hold such offices employments and corn 473 missions
as if they had been appointed under this Act  I am therefore of opinion that the Provisional Constitution Order by its article 71 provided for deemed fresh appointment of the members of the Secretary of State s Services whose services had terminated automatically on the day immediately preceding the appointed day
I will now deal with the last point as to which authority would be deemed to have appointed the persons who had been in the Secretary of State s Services to their corresponding posts on the appointed day
The Government of India Act 1935 hereinafter called the Act as modified by the Orders of the Governor General was in force on that day and the authorities competent to make appointments on that day would be deemed to have made the appointments of the erstwhile servants in the Secretary of State s Services
No other authority could have made those appointments and therefore no other authorities could be deemed to have made those appointments which were deemed to be made in view of the provisions of article 71 of the Provisional Constitution Order
Section 241 of the Act provided that the GovernorGeneral or such person as he may direct would make appointments to the civil services of the Dominion and civil posts in connection with the affairs of the Dominion and that the Governor would make appointments to the services of a Province and posts in connection with the affairs of a Province
Such persons of the Secretary of State s Services who were holding posts in connection with the affairs of a Province would therefore be appointed to the corresponding posts on the appointed day by the Governor of that Province as only he could have made appointments to those posts
It is to be noticed that article 71 of the Provisional Constitution Order refers to appointments to posts and not to appointments to Services and that even prior to the appointed day the appoint 474 ments to the various posts in the Provinces of members of All India Services allotted to the cadre of the Provinces were also made by the Governor and not by the Governor General
In this respect with regard to all appointments to posts in connection with the affairs of the Provinces there had been really no change
It is contended for the appellant that his deemed appointment to the post corresponding to the post he had held on August 14 1947 was by the GovernorGeneral or the Government of India
Article 71 of the Provisional Constitution Order does not expressly provide so
Section 241 of the Act did not authorize the Governor General to make appointments to posts in connection with the affairs of the Provinces
The provisions of article 71 of the Provisional Constitution Order refer to all the persons employed in the civil services and holding civil posts under the Crown and are not restricted to those persons only who held posts and had been appointed by the Secretary of State
The mere fact that the Provisional Constitution Order was made by the Governor General would not lead to the result that the deemed appointments of all the persons serving under the Crown whether as members of civil services or as holders of posts had been made by the Governor General
That could not have been intended
All such employees would be deemed to be appointed by the appropriate authority on the appointed day and the appropriate authority for the appointment of a particular employee is to be found in section 241 of the Act
It is also true that the erstwhile members of the Secretary of State s Services were not actually reappointed by the appropriate appointing authority and that they were merely deemed to be so appointed in view of the provisions of article 71 of the Provisional Constitution Order whose purpose was to validate the continuity of the service of such persons even though they had not been actually appointed
I see no reason why the provisions of section 241 of the Act be not applicable to the deemed appoint 475 ments of such persons who had been in the Secretary of State s Services
Undoubtedly it was not a special provision for the deemed appointments at the particular occasion but was of general application to appointments on and after the appointed day
Appointments whether actual or deemed to be made by the new Governments immediately on the changeover of the Government must be governed by its provisions
This Court did not make any reference to section 241 of the Act in Rajagopalan s Case1 This is not because that section did not govern all the erstwhile members of the Secretary of State s Services but because the Court was not concerned in that case with the question of such fresh deemed appointments as Rajagopalan did not continue in service as his services were held to be validly terminated on August 14 1947
It has been urged in support of the appellant s case that the retention of persons of the Secretary of State s Services was dealt with between the Government of India and His Majesty s Government as would appear from the various documents in connection with the steps taken for the setting up of the two Dominions and that only those officers continued in service whom the Government of India invited to continue and that those who were not so invited were to be paid compensation
It is not clear from the antecedent circumstances that it was the Government of India which decided about the continuance in service of such officers of the Secretary of State s Services who had been prior to the changeover serving under the Government of a Province
Even if it was the Government of India which was to decide and invite the officers to continue such a decision and invitation cannot amount to its appointing those officers to the various posts in connection with the affairs of a Province in view of section 241 of the Act
of course negotiations with respect to the services took place between the Government of India 1  476 and His Majesty s Government
A Provincial Government could not have continued such negotiations
I do not find any specific mention in any of the documents referred to in Rajagopalan s Case   to the effect that it was the Government of India which decided which officers were to continue in service
The Viceroy s announcement dated April 30 1947 practically sums up the result of the negotiations between the Government of India and His Majesty s Government
It is clear from what was stated in paragraphs 3 and 6 of this announcement that the undertakings and assurances with respect to persons appointed by the Secretary of State and who were to continue in service were given by the Government of India with respect to those who were to continue under its service and by the Provincial Governments with respect to those who would join the Provincial Services
It is said in para 3 which dealt with the terms of pay etc that the Government of India would then propose to Provincial Governments that they should give similar assurances to members of the Secretary of State s Services who agreed to join Provincial Services
It was said in para 6  His Majesty s Government have been reviewing the whole position
They have noted the undertaking which the Government of India have given in regard to officers whom they desire should continue to serve under the Government of India 
Many Indian members of the Secretary of State s services will however become members of provincial services and in their cases His Majesty s Government s agreement that the need not be compensated is conditional upon the Provincial Governments guaranteeing the existing terms of service
If they are not prepared to do so His Majesty s Government reserve the right to reconsider the matter
It is therefore clear that the Provincial Governments were also concerned in the negotiations though they Were actually made by the Government 1  477 of India and had to agree to guarantee the existing terms of service and safeguards in matters of discipline And had also to agree to pay compensation
It may look anomalous that some persons who had been members of the Secretary of State s Services may be deemed to have been appointed to their respective posts on the appointed day by the Governor of a Province if they had been holding Posts under the Provincial Government and others be deemed to have been appointed by the Governor General if they happened to be then serving posts in connection with the affairs of the Government of India or the Dominion
Such an anomaly was bound to come into existence and had been contemplated during the negotiations between the Government of India and His Majesty s Government
There was no other choice open to the members of the Secretary of State s Services who were serving under the Government of a Province when their services automatically came to an end and when they desired to continue  in Government service
Their wishes were ascertained in the context of what was taking place
They knew of the announcement by the Viceroy dated April 30 1947
It was only with their consent that their services were continued after the changeover
They can therefore have no grievance for being appointed to provincial services or posts under the Provincial Governments and naturally under its administrative control
In fact even prior to the changeover such persons had been under the administrative control of the Provincial Government
This Court in Rajagopalan s Case1 refers at p 551 to the Government of India asking the Provincial Govemments by its letter dated June 18 1947 to state when forwarding the replies from the individual officers about their willingness or otherwise to continue in service whether for any reason they Would prefer such officer not to continue in service notwithstanding his desire to remain in service and pointing out to the Provincial Government that in case it did not 1  478 desire to retain the services of such persons the Pro vincial Government would be incurring the liability to pay compensation
Such an enquiry indicates to my mind that the decision to continue such persons in service after the changeover rested with the Provincial Government and It was on this account that it had to bear the liability to the compensation payable to such persons
Such a decision had to be taken by the Provincial Government because it was contemplated that officers serving under the Provincial Government would be appointed to their respective posts after the changeover by that Government itself and that the Government of India will have nothing to do with their appointments
In the circumstances it follows that it was the Provincial Government which invited such officers to continue in service and not the Government of India
It is true that the Madras Government informed Rajagopalan of the Government s decision not to retain him in service after August 15 1947 and stated that a formal communication in that respect would issue from the Government of India
The Government of India in a way approved of the decision of the Madras Government not to continue Rajagopalan in service
But it does not follow that the Government of India s approval was necessary for the Government of Madras to continue under its service officers whom it was prepared to keep in service
The ter mination of service of such officers was prior to the coming into force of the Act as modified by the Provisional Constitution Order and therefore the termination order had to be formally made by the Government of India
The order had to be passed prior to the changeover and at that time it was proper that any order about the termination of the services be with the approval of the Government of India
The fresh deemed appointment was to be made on August 15 1947 immediately after the changeover and in view of the practical difficulties such a fresh appointment was not actually made but was deemed to have been made as provided by article 71 of the Provisional 479 Constitution Order
When the appointment was to be made of persons serving under the Provincial Governments there was no necessity of obtaining prior approval of the Government of India to retain such officers in service
I am therefore of opinion that such members of the Secretary of State s Services who were holdingposts under a Provincial Government immediately before the appointed day and continued in service on and after the appointed day are to be deemed to be appointed to the corresponding posts by the Governor of the Province in view of the provisions of section 241 of the Act
The appellant was serving under the Madras Government immediately before the appointed day
He will therefore be deemed to be appointed by the Governor of the Province of Madras to the post he was holding on the appointed day
The Governor of the Province was his appointing authority and therefore he could be suspended on the day immediately before the commencement of the Dominion by the Governor of the Province where he might have been then serving
He can at best claim protection of his right of not being suspended pending departmental enquiry or of a criminal charge by any authority of a lower rank
Rule 7 of the Discipline Rules does not provide for such suspension of a person who had been a member of the Secretary of State s Services by an authority lower than the Governor
The appellant was suspended by the Governor of Punjab on July 18 1959
He had no right of appeal against such an order of suspension
The Discipline Rules did not provide for an appeal against such an order of suspension and in not so providing cannot be said to violate the provisions of article 314 of the Constitution as the appellant had no right of appeal against such an order before the commencement of the Constitution
It follows that r 7 of the Discipline Rules does not violate the provisions of that Article and that the impugned order of suspension was therefore valid
480 1 would therefore dismiss the appeal
ORDER in accordance with the opinion of the majority the appeal is allowed with costs in this Court and in the  High Court


Summary:
The appellant joined the Indian Civil Service in 1939 and was posted in the province of Madras
After the transfer of power under the Indian independence Act on August 151947 he was 432 transferred to the Punjab and later when the Indian Administrative Service was constituted he became its member
On July 18 1959 he was suspended by the Governor of the State of Punjab under r 73 of the Indian Services Discipline and Appeal Rules 1955 on the ground that a criminal case was pending against him
He challenged the order of suspension by a writ petition in the Punjab High Court as being violative of the guarantee contained in article 314 of the Constitution and contrary to r 49 of the Civil Services Classification Control and Appeal Rules which provided only for suspension as a penalty
His case was that there was no provision immediately before January 26 1950 that provided for suspension otherwise than as penalty
The High Court dismissed the petition
Held per Gajendragadkar Subba Rao Wanchoo and Shah JJ
The general law of master and servant and section 247 of the Government of India Act r 53 of the Fundamental Rules and rr 49 56 of the Civil Services Classification Control and Appeal Rules read together clearly show that members of the former Secretary of State s Services were on August 14 1947 liable to suspension either as an interim measure or as a punishment
Interim suspension could be imposed either by the Secretary of State as the appointing authority or the Governor General or the Governor as the case might be as the statutory authority
Management of Hotel Imperial New Delhi v Hotel Workers  Union 19601 1 SCR 476 and T Cajee vs U Jormanik Siem   referred to
It was not therefore correct to say that there could be no suspension except by way of punishment under r49 of the Appeal Rules before 1947
In a case of interim suspension before 1947 there was however no right of appeal
Article 314 of the Constitution properly construed affords such protection to the members of the Secretary of State s Services as they were entitled to immediately before the commencement of the Constitution
There can be no doubt that suspension pending a departmental enquiry or a criminal proceeding falls within the word disciplinary matters  used in that Article
It was not correct to say that as independence was conferred on India and the Services automatically terminated there was in law reappointment of all the former Secretary of State s Services and those serving in a province must be deemed to have been reappointed by the Governor and that consequently the Governor as the appointing authority had the power to order suspension
Article 71 of India Provisional Constitution Order 1947 GGO 14 read with section 10 of the Independence Act 1947 in the light of other relevant circumstances shows that the final decision whether or not the former members of the Secretary of State s Services should continue was of the Government of India and that Government therefore must be deemed to have appointed 433 them to posts either under itself or in the Provinces
Section 241b of the Government of India Act as it then stood and s2402 of the said Act as amended by GGO 14 could not alter this position
State of Madras vs KM Rajagopalan   referred to
On the eve of the commencement of the Constitution ie January 25 1950 a former member of the Secretary of State s Services could be suspended under the general law by the Government of India alone as the appointing authority as an interim measure pending departmental enquiry or criminal proceeding and by no other authority
He was liable to suspension as punishment under section 49 of the Civil Services Classification Control and Appeal Rules
Rule 53 of the Fundamental Rules governed pay during interim suspension or suspension as penalty
While there was no appeal from an order of interim suspension r 56 of the Appeal Rules provided for an appeal from an order of suspension as penalty
It was this position which article 314 of the Constitution sought to protect
Rule 7 of the All India Services Discipline and Appeal Rules 1955 violated the guarantee contained in article 314 in respect to interim suspension and was to that extent ultra vires in so far as it applied to the members of the Indian Administrative Services who fell within cls
a and b of r3 of the Indian Administrative Services Recruitment Rules 1954
The Governor s Order under r73 directing interim suspension of the appellant must therefore be set aside
The proper procedure would be to approach Government of India for such interim suspension
The Accountant General Bihar vs N Bakshi 1962 Supp 1 SCR 505 referred to
Per Dayal J In view of the provisions of section 241 of the Government of India Act as modified by the India Provisional Constitution Order 1947 GGO 14 of 1947 members of the Secretary of State s Services who were holding posts under a provincial Government immediately before the appointed day ie August 15 1947 and continued in service thereafter must be deemed in view of article 71 of the said Order to have been appointed to the corresponding posts by the appropriate authority the Governor of the Province
That article generally applied to all appointments on and after the appointed day
The appellant cannot be deemed to have been appointed by the Governor General or the Government of India
It was not intended that merely because that Order was made by the Governor General the deemed appointments must be taken to have been made by him
It would be anomalous to hold that the Governor who was in administrative control of the services could not pass an interim order of suspension against a person appointed by the Secretary of State though he could impose a penalty of suspension under 1SCI64 28 434 rr
49 and 52 of the Civil Services Classification Control and Appeal Rules which continued in force till the All India Services Discipline and Appeal Rules came into force in 1955
The Indian Civil Services ceased to exist from August 151947 and the services of its members automatically terminated on August 14 1947
The appellant s service therefore came to an end on August 14 1947 but since he was serving under the Madras Government immediately before August 15 1947 and continued to do so thereafter he must be deemed to have been appointed by the Governor of Madras to the post he was holding on the appointed day
Rule 7 of the All India Services Discipline and Appeal Rules 1955 does not violate the provision of article 314 of the Constitution nor can the absence of a right of appeal against interim suspension do so since the appellant had none before the Constitution
His suspension by the Governor of Punjab under r73 was therefore valid
State of Madras vs KM Rajagopalan   considered