Case: State Of Madras And Another Vs. K.M. Rajagopalan

necessarily to be taken before the appointed day in order to facilitate a smooth transition, the legislative authorities concerned must be taken to have proceeded on a recognition of the factual situation as it then existed.For a similar approach in a similar situation see for instance Malojirao v. the State of Madhya Bharat, AIR 1954 SC 259 at p. 262 (F), where this Court held that Art. 385 of the Constitution proceeded on a recognition of the factual situation, at the time, relating to the matter involved. Even apart from this answer to the objection, the objection itself appears to be based on a misapprehension. It is true there is no clear evidence in the case that the order of termination of the service of the plaintiff was one made with the sanction of then Secretary of State.It may also be that the decision not to retain his services as and from 15-8-1947, was based on his past record as admitted in the written-statement and works serious hardships in view of his not having-had an opportunity to show cause. But it was an order to come into operation at the precise moment when the Indian Independence Act came into force. At that moment the Secretary of States concern with this matter was at an end.There is no reason to think that an order of this kind with the sanction of the Central Government, not purporting to exercise a power of termination of services, but acting on the the assumption implicit in the Viceroys announcement that the services would come to an automatic termination and intimating the decision of the appropriate Govt. not to retain the services of the plaintiff as and from 15-8-1947, is not within the competence of the very Government under whose service, the plaintiff wanted to serve.The very nature of the situation demanded the taking of such anticipatory decisions and the communication of the same to the person concerned, in order to become operative at the crucial moment of the transition of power. As regards the second objection, it appears to us that the contention as regards the inadmissibility of reference to the announcement of the viceroy and the action taken thereupon by the Central and the Provincial Governments, both in its general aspect as also with reference to individual cases like that of the plaintiff, is without any substance.The phrase "special orders or arrangements affecting his case" in Art. 7(1), India (Provisional Constitution) Order, 1947, can only refer to this and similar other material culminating in the orders and arrangements relating to the concerned individuals. That there were any other kind of special orders or arrangements contemplated by this provision concerning the Secretary of States services has not been suggested and it is clear there were none.That such previous material which led up to the particular legislative provision is admissible in evidence has been so held in "Ladore v. Bennett, 1939 AC 468 (G), which was held valid in Govindan Sellappah Nayar v. Punchi Banda Mudanayake, 1958 AC 514 at p. 528 (H).As pointed out by Lord Atkin in the case in 1939 AC 468 (G), at p. 477, such documents indicate the materials which can be taken to have been before the Governor-General when he passed the relevant legislative order.This material indicates quite clearly that while the initial option to continue or not in service was with the servant concerned, the final option to continue him or not to continue him was with the appropriate Government and that the special orders or arrangements contemplated were the action taken in pursuance of that find option.17. It was faintly suggested that the Viceroys announcement of 30-4-1947, was before His Majestys Government decided to advance the date of transfer of power by nearly a year and that the original announcement contemplated a treaty between the British Government and the future Dominion Government to regulate all these matters and that since no such treaty has in fact been entered into, the announcement was not admissible in evidence The fact that the transition of power took the form of legislation by the British Parliament and not of a regular treaty, between the two Governments in view of the changed circumstances is not a mater which can in any way effect the situation so far as it relates to the particular matter with which we are concerned.It is that very announcement that has been acted upon after the further announcement of 3-6-1947." This appears clearly from the fact that the circular letter of the Government of India to the various provincial Chief Secretaries referred to this very announcement and from the further fact that the letter which was sent to each and every individual civil servant was accompanied by a copy of the said announcement.18. It is clear, therefore, from the above discussion that apart from the fact that the Secretary of State and his services disappeared as from 15-8-1947, S. 10(2) Indian Independence Act and Art. 7(1), India (Provisional Constitution) Order proceeded on a clear and unequivocal recognition of the validity of the various special orders and the individual arrangements made and amount to an implicit statutory recognition of the principle of automatic termination of the services brought about by the political change.In our opinion, therefore, the services of the plaintiff came to an automatic termination on the emergence of Indian Dominion. The special order and arrangement affecting his case that was made in pursuance of the Viceroys announcement resulted in his service not being continued from and after 15-8-1947, and the plaintiff is not entitled to the declaration prayed for.19. The learned Judges of the High Court in coming to the conclusion they did, have, with respect, missedthe significance of the phrase "special orders or arrangements affecting his case" used in Art.7(1) India (Provisional Constitution) Order, 1947, and failed to appreciate that this was to be construed in the light of all the relevant events that proceeded, commencing from and following upon the announcement of the Viceroy dated 30-4-1947.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Thus 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 this respect was accepted. While there fore, discontinuance of service was to be brought about by the option of either of the parties and on such discontinuance the servant was to become entitled to compensation, the continuance of the service was a matter which would depend upon the mutual consent of both, viz, the individual servant and the Governmentsome of the conditions of service previously governing these persons were continued by S. 10 (2) of the Indian Independence Act and the adaptation made thereunder which will be noticed presently. But apart from the question whether such continuance is available to all the previous members of the service - a matter which will be dealt with presently - the ultimate responsibility for the framing and maintenance of the conditions of service was no longer with the Secretary of State. It is also true that in respect of such of these civil servants whose services were retained by the new Dominion Government the service continued to be under the Crown (as shown by the adaptation of S. 240 Government of India Act). But this was only because in theory the new Government of India was still to be carried on in the name of Histhe essential structure of the Secretary of States services was altered and the basic foundation of the contractual -cum-statutory tenure of the servicethese various provisions together, it is clear that the guarantee of the prior conditions of service and the previous statutory safeguards relating to the disciplinary action are now confined to such as continue in service on and after the establishment of the Dominion to serve under the Crown, i.e., of the Government of the Dominion or of a Province, as the case may be. Who the persons are who fall within the category of persons "so continuing is clearly indicated by implication in Art. 7(1) India (Provisional Constitution) Order, 1947, already quoted,which says that 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 Goveror-General in Council or of a province, 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.It is clear that the continuance contemplated by S.10 (2) (a), Indian Independence Act and by S. 240 (2) and S. 247, Government of India Act, as adapted, is the continuance impliedly brought about by this deeming provision in Art. 7(1) India (Piovisional Constitution) Order.But it has to be noted that this provision is specifically preceded by the qualifying phrase "subject to any general or special orders or arrangements affecting his case". Thus all persons who were previously holding civil posts are deemed to have been appointed and hence to continue in service, excepting those whose case is governed by " general or special orders or arrangements affecting his case."Now, omitting "general orders" which has no application in this case, there can be no reasonable doubt that the special orders or arrangements contemplated herein, in so far as the members of the secretary of States services are concerned, are the special orders or arrangements which followed on the Viceroys announcement dated 30-4-1947, in pursuance of the individual civil servants had been circularised and their wishes ascertained, and the Governments concerned had finally intimated their option not to invite the continuance of the service of particular individuals as has happened in the case of the presentis no reason to think that an order of this kind with the sanction of the Central Government, not purporting to exercise a power of termination of services, but acting on the the assumption implicit in the Viceroys announcement that the services would come to an automatic termination and intimating the decision of the appropriate Govt. not to retain the services of the plaintiff as and from 15-8-1947, is not within the competence of the very Government under whose service, the plaintiff wanted to serve.The very nature of the situation demanded the taking of such anticipatory decisions and the communication of the same to the person concerned, in order to become operative at the crucial moment of the transition of power. As regards the second objection, it appears to us that the contention as regards the inadmissibility of reference to the announcement of the viceroy and the action taken thereupon by the Central and the Provincial Governments, both in its general aspect as also with reference to individual cases like that of the plaintiff, is without any substance.The phrase "special orders or arrangements affecting his case" in Art. 7(1), India (Provisional Constitution) Order, 1947, can only refer to this and similar other material culminating in the orders and arrangements relating to the concerned individuals. That there were any other kind of special orders or arrangements contemplated by this provision concerning the Secretary of States services has not been suggested and it is clear there were none.It is clear, therefore, from the above discussion that apart from the fact that the Secretary of State and his services disappeared as from 15-8-1947, S. 10(2) Indian Independence Act and Art. 7(1), India (Provisional Constitution) Order proceeded on a clear and unequivocal recognition of the validity of the various special orders and the individual arrangements made and amount to an implicit statutory recognition of the principle of automatic termination of the services brought about by the political change.In our opinion, therefore, the services of the plaintiff came to an automatic termination on the emergence of Indian Dominion. The special order and arrangement affecting his case that was made in pursuance of the Viceroys announcement resulted in his service not being continued from and after 15-8-1947, and the plaintiff is not entitled to the declaration prayed for.The learned Judges of the High Court in coming to the conclusion they did, have, with respect, missedthe significance of the phrase "special orders or arrangements affecting his case" used in Art.7(1) India (Provisional Constitution) Order, 1947, and failed to appreciate that this was to be construed in the light of all the relevant events that proceeded, commencing from and following upon the announcement of the Viceroy dated 30-4-1947.