Appeal No 2172 of 1968
Appeal from the judgment and order dated August 10 1967 of the Delhi High Court in Letters Patent Appeal No 97 D of 1965
Frank Anthony K B Rohatgi and P Parameswara Rao for the appellant
Jagadish Swarup Solicitor General of India and section P Nayar
for the respondent
451 The Judgment of the Court was delivered by Beg J
This is an appeal by grant of a Certificate of the Delhi High Court under Article 132 read with Article 1331b and c of the Constitution
The Appellant had filed a petition under Article 226 of the Constitution for quashing an order dated 10 3 1960 and had prayed for a consequential order also in the nature of a mandamus
Information of the impugned order Annexure C  to the petition given to the petitioner reads as follows The Union Public Service Commission have in pursuance of Rule 5 of the Central Information Service Rules 1959 recommended Shri P B Roy at present officiating as Editor in the Publications Division for appointment in a substantive capacity to Grade III of the service at its initial constitution
Shri Roy is informed that the President has been pleased to post him as an Assistant Editor in the Publications Division with immediate effect
Those relevant facts preceding and following the impugned order which are admitted by both sides may now be mentioned
In 1955 the post of Editor Publications Division in the Department of Information and Broadcasting of the Government of India hereinafter referred to as the Department  was advertised
The appellant who had applied for the post was selected by the Union Public Service Commission and on its recommendation was offered a temporary post of Editor in the Publications Division of the Department on an initial salary of Rs 720 per month in the scale of Rs 720 40 1000 together with the usual allowances
The material terms and conditions of this employment were i The post is to be gazetted Class I ii The temporary post was sanctioned upto 28 2 1957 but was likely to continue iii Shri Roy the Appellant will be governed by the Central Civil Services Temporary Service Rules and other Rules applicable to temporary Govt
servants of his category iv He was to be on probation for 6 months which may be extended at the discretion of the appointing authority
The Appellant had reported for duty on 1st August 1956 as directed On 27 3 1957 the Appellants probation was extended 452 by three months
Immediately thereafter on 28 3 57 the Appellant s services were terminated under Rule 5 of the Central Civil Services Temporary Service Rules 1949 Annexure D  to the Rejoinder Affidavit of 20th February 1964
On 5 3 1957 the Appellant made a representation against this termination of his service Annexure B  to the Rejoinder Affidavit
On 27 4 1957 in response to this representation the above mentioned termination to the Appellants service was rescindedAnnexure F  to the Re joinder Affidavit
On 28 4 1958 the President was pleased to terminate the probationary period of the
Appellant and permitted him to continue in his post in a temporary capacity Annexure B  to the Affidavit supporting the Petition On 16 2 1959 the President of India in exercise of powers conferred by the Proviso to Article 309 of the Constitution of India promulgated the Central Information Service Rules 1959 hereinafter referred to as the Rules which came into force on 21 2 1959
These rules were meant for the creation of a Central Information Service with prescribed grades and their strengths
Entry into this service was open to departmental candidates by a procedure laid down in Rule5 for the initial constitution of the service
In accordance with this procedure the Appellant was required to appear before a Selection Committee on a given date and after selection he was posted by the impugned order as indicated above
On 11 31960 the Appellant assumed charge of the post thus assigned to him on the recommendation of the Union Public Service Commission
The Appellant then made a representation dated 11 3 1960 Annexure E  to the Rejoinder Affidavit against his appointment in Class II grade III post
He made other similar representations after that
His last representation was made on 25 8 1962
the Appellant received a communication dated 10 12 1962 forward ing extract of an order dated 26 11 1962 which said  The representation from Shri P B Roy has been carefully considered in the Ministry
All relevant facts were fully taken into account by the Departmental Promotion Committee before drawing up the recent panel of Grade III officers considered suitable for promotion to Grade II
Shri Roy may be informed accordingly
The Appellant treating this as the rejection of his last representation filed his petition on 11 1 1963 which was allowed by a learned Judge of the Punjab High Court sitting on the Circuit Bench at Delhi
A Letters  Patent Appeal against this decision had been allowed by a Division Bench of the Delhi High Court which then granted a certificate on 12 8 1968 for leave to Appeal primarily because it held that the required test relating to valuation of the subject matter had been satisfied
453 The learned Judge who had initially heard the petition had pointed out that the representation of the Appellant was first rejected on 29 7 1960 and that it did not matter that the petitioner had continued making subsequent representations
The learned Judge had noticed the explanation that the petitioner could not approach the Court as he was admitted to a Tuberculosis Clinic in June 1961
The learned Judge having found that this was not sufficient to explain the delay between 29 7 1960 and June 1961 was disposed to reject the petition on the ground of laches
But in view of the decision of the majority of the Full Bench of the Punjab High Court in section Gurmej Singh vs Election Tribunal Gurdaspur1 the delay in filing the petition was overlooked on the ground that after the admission of a Writ Petition and hearing of arguments the rule that delay may defeat the rights of a party is relaxed and need not be applied if his case is positively good
The learned Single Judge had come to the conclusion on the facts stated above that the petitioner s case would be governed by the decision of this Court in Moti Ram Deka  Ors
vs General Manager North East Frontier Railway 2   as the petitioner s prospects and emoluments were adversely affected by the impugned order
The learned Judge thought that the mere fact that the Department was reorganized and that the petitioner was to be fitted into an appropriate category by the procedure laid down in Rule 5 did not take away the effect that is to say the loss of his emoluments of the procedure to which the petitioner had been subjected
This view implied that article 311 of the Constitution was attracted by the case despite the above mentioned creation of the Central Information Service by the rules
The Division Bench which heard the Appeal of the Union of India was not inclined to interfere with the discretion of the learned Single Judge in rejecting the objection to the petition on the ground of delay
We too will not enter into this question which was not argued before us
The Division Bench after reviewing facts  leading to the absorption of the Appellant into a newly constituted Central Information Service in accordance with the procedure laid down in Rule 5 mentioned above held that the News and Information Cadre of the Department in which the Appellant was initially appointed had been superseded by the cadres and grades constituted by the rules of the new service
It overruled the contention of the Petitioner that the effect of the rules was merely to transfer employees in existing posts to corresponding posts with new designations
It held that the Rules did create an altogether new service
It pointed out that the process of entry into the new service was of 1 1964 PLR p 589
2 ATR 1964 SC P 600
454 selection of each individual candidate after an examination of his individual record and qualifications by a Selection Committee be fore which he appeared so that there could be no automatic fitting into some corresponding appropriate post of a predetermined class and grade
The rules and process for the constitution of the new service did not guarantee the class or grade or emoluments enjoyed by any candidate in a cadre in which he served prior to the setting up of the new service
It therefore held that no question of demotion or reduction in rank without observing the procedure laid down in article 3 1 1 of the Constitution arose at all in the instant case
Mr Anthony appearing on behalf of the Appellant has assailed the correctness of the decision of the Division Bench of the Delhi High Court on five grounds
We will take up and consider each of these seriatim
Firstly it is contended that the Division Bench had erred in allowing an affidavit to be filed on 26 6 1967 before it without affording an opportunity to the Appellant to repel its contents by filing a counter affidavit
It was urged that the result was that an altogether new case neither argued before nor referred to by the learned Single Judge had been allowed to be raised
This ground is no doubt mentioned among the grounds on which a certificate of the fitness for an appeal to this Court was sought
The Judgment of the Division Bench mentions that in the course of arguments the question arose whether the post of Editor in the Publications Division was abolished or had ceased to exist
It appears that an affidavit was then allowed to be filed before the Division
Bench on behalf of the Union
of India in which it was stated that two posts of Editors in the scale of Rs 720 40 1000 in the Publications Division had ceased to exist as a consequence of the inclusion of two posts in the revised grade of Rs 700 40 1100 502 1250 with effect from 1 7 1959 in the Central Information Service constituted from 1 3 1960
There is nothing in the Judgment or anywhere else to show that the petitioner had asked for any opportunity to controvert any statement made in the affidavit dated 26 7 1967 and had been denied that
The case and the contention on behalf of the Appellant have been that the new posts in the services are really old posts in a new garb
This raised what was primarily a question of law depending for decision upon an interpretation of the relevant rules of which the Court takes judicial notice
The rules certainly did not provide for the continuance of any ex cadre posts outside the new service introduced by the rules
Facts stated in the Affidavit of 26 7 1967 could have some bearing on the question whether there were two posts in the revised scale which could be considered as corresponding posts
They could if they had 455 any effect on the respective stands perhaps help the Appellant s case that there was nothing more than a re designation of posts with same duties and corresponding scales
And this seems to explain why there is nothing to show that the Petitioner Appellant asked for an opportunity to meet any allegation made in the affidavit of 26 7 1967 filed on behalf of the Union
Moreover what the fresh affidavit contained about the dis appearance of the temporary post given to the Petitioner in 1956 before the Rules came into force flowed logically from the order of Petitioner s initial appointment in a temporary post which was to continue only upto 28 2 1957 unless its life was shown to have been extended for some definite or indefinite period
The Petitioner had not averred anywhere that the post was continued beyond 28 2 1957 for any period by any order or rule
Indeed the very argument advanced on behalf of the Appellant that his initial post merged in another corresponding post implied that the post to which he was initially appointed at least lost its identity or could not be deemed to continue without a transmutation
The question whether the constitution of the Central Information Service did or did not involve fresh appointments to new posts but was simply an automatic process of transmutation by the pooling together of existing incumbents of certain posts to form a new service as the appellants alleged was already the subject matter of assertion made in the Rejoinder Affidavit of the Petitioner and counter assertions in a reply filed to the Rejoinder on 2 4 1964
The affidavit of 24 6 1967 did not introduce anything new but only clarified the position still more
We find no force in the first objection
Secondly  it is contended that the impugned order constitutes
on the face of it a reduction in rank of the petitioner Looking at the communication dated 10 3 1960 set out above we find nothing there to indicate that the petitioner had been demoted as a measure of punishment
To hold as it was suggested that we should that the procedure laid down by Rule 5 was adopted as a cloak to cover up an intended reduction in rank and emoluments of an officiating Editor by appointing him in a permanent substantive capacity of a grade carrying lesser emoluments in the new service would necessitate going behind the order of 10 3 1960
At any rate on the face of it the order discloses no such devious action against the Appellant
Thirdly it was contended that the impugned order violates article 14 and 16 of the Constitution inasmuch as it places an employee who was serving as an Editor in a post of lower grade with less emoluments whereas no such result had followed in the case of any other employee in the Information and Broadcasting 456 Department
We are unable to see how an order which has the effect of terminating an officiating appointment in which the petitioner had no right to continue and which gives him a fresh appointment with a different designation but permanent tenure and prospects constitutes a violation of either article 14 or 16 of the Constitution simply because the process which resulted in such an order did not have a similar effect upon the position or rights of any other servant in the Department
Indeed the Selection Committee had apparently after taking into account the special features of the petitioners individual case recommended the maximum pay in the class and grade of the post given to him and the petitioner got this exceptional pay
Even his prospects improved to the extent that from the precarious position of a temporary servant he had moved into a permanent service
It could not be definitely stated that his position had worsened on the whole
He was at least no longer subject to the hazards of temporary employment which could be terminated by a month s notice at any time
The results of applying Rule 5 to the facts of individual cases could not be expected to be identically similar in all cases
All candidates were subjected to the same process or pro cedure contemplated by Rule 5
It is not the Appellant s case that the Selection Committee did not function honestly or that its proceedings
were vitiated by any defect in its constitution or of any bias on its part or any unifairness or inequality of the test applied in judging the merits of the Appellant as against other candidates
The alleged defect with the material said to have been used by the Committee is another matter which we will consider last
Fourthly it was urged that Rule 5 mentioned above is itself void for conflict with the provisions of Article 311 and 14 and 16 of the Constitution
It was urged that Rule 5 permits violation of article 311 of the Constitution inasmuch as it enables that to be done indirectly which could not be done directly
The Rule reads as follows  5
INITIAL CONSTITUTION OF THE SERVICE 1 The Commission shall constitute a Selection Committee with the Chairman or a Member of the Commission as President and not more than three representatives of the Ministry of Information and Broadcasting as members to determine the suitability of departmental candidates for appointment to the different grades and to prepare an order of preference for the initial constitution of the service 457 2 On receipt of the Committee s report the Commission shall forward its recommendations to the Government and such recommendations may include a recommendation that a person considered suitable for appointment to a grade may if a sufficient number of vacancies are not available in that grade be appointed to a lower grade 3 Vacancies in any grade which remain unfilled after the appointment of departmental candidates selected under sub rules 1 and 2 above shall be filled by direct recruitment through the Commission
Rule 3 indicates that appointments to the newly created  service could take place either by selection under Rule 5 or by direct recruitment with which we are not concerned here
The grades and the fixation of an authorized strength of each grade are provided for by Rule 4
Only posts in the first 3 grades are classified as Class I Gazetted posts


Summary:
The appellant was holding a temporary post of Editor in the Publications Division of the Department of Information and Broadcasting
The temporary post was sanctioned upto 28 2 1957
On 16 2 1959 the President of India in exercise of the powers conferred by the proviso to article 309 of the Constitution promulgated the Central Information Service Rules 1959
These Rules were meant for the creation of a Central Information Service with prescribed grades and strengths and entry into the service was open to departmental candidates according to r 5 for the initial constitution of the service
The appellant was chosen by the Selection Committee and was posted as an Assistant Editor
He challenged the order
A single Judge of the High Court allowed the petition
On appeal in the course of arguments the question arose whether the post of Editor was abolished or had ceased to exist and the respondent was allowed to file an affidavit stating that the post of Editor had ceased to exist
The Division Bench then held that there was no question of demotion or reduction in rank and hence that article 31 1 was not applicable
In appeal to this Court it was held 1 The additional affidavit filed by the respondent did not introduce anything new but only clarified the position
455 E a There was nothing to show that the temporary post of Editor in which the appellant was initially appointed had been continued beyond 28 2 1957 for any period
455 C b The question whether the constitution of the Central Information Service involved fresh appointments to new posts or its effect was merely to transfer existing employees to corresponding posts with new designations was already before the court
455 D E c The appellant himself never asked for any opportunity to meet any allegation in the additional affidavit
454 F G 2 There is nothing to indicate that on the face of the impugned order that the appellant had been demoted as a measure of punishment
455 F G 3 it could not be held that the order which had the effect of terminating an officiating appointment in which the appellant had no right to continue and which gave him a fresh appointment with a different designation out permanent tenure and prospects constituted a 450 violation of either article 14 or 16 simply because the process which resulted in such an order did not have a similar effect upon the position or rights of any other person in the Department especially when after taking into account the appellant s individual case the Selection Com mittee recommended the maximum pay in the class and grade of the post given to him
456 A C 4 a The new rules had the effect of constituting a new service with a fair and reasonable procedure for entry into it
 Such a procedure could not be characterized as a device to defeat the provisions of article 311 or a fraud upon the Constitution simply because the result of subjection to the process of appraisement of the merits of each candidate may not meet the expectations of some candidates
457 F G b Article 311 afford  a reasonable opportunity to defend against threatened punishment to those already in Government service
Rule 5 of the Central Information Service Rules provides a method of recruitment or entry into a new service of persons who even though they may have been serving the Government had no right to enter the newly constituted service before going through the procedure prescribed by the rule
The fields of operation of article 311 and r 5 are quite different and distinct
457 G H 458 A B c The definition of departmental candidates  in r 2b was meant only as an aid in interpreting r 5 and was not intended to operate as a fetter on the functions and powers of the Selection Committee
It does not require that all persons falling within the definition of departmental candidate  should be placed in a single class Under r 5 the Selection Committee could assign different grades to the departmental candidates
The post actually held by the appellant before his selection for appointment to the newly constituted service did not automatically or wholly determine the position of a departmental candidate who offered himself to the process of appraisement of his merits by the Selection Committee to be made on the totality of relevant facts
That Committee was presided over by the Chairman or a Member of the Union Public Service Cornmission and had officials of the Department on it who were in a position to correctly evaluate the appellant s merit s and the weight to be attached to his confidential records
459 B H 5 The appellant s allegations of mala fides and that he was the victim of the prejudice and machinations of an unnamed officer in the Transport Ministry could not properly be tried in writ proceedings and without impleading that official
460 F G