Case: P. B. Roy Vs. Union Of India

was not intended to operate as a fetter on the functions and powers of the Selection Committee. We may add that the validity of R.5 does not appear to us to have been assailed in arguments before the High Court. And in any case, the attack on it must fail on merits.22. Fifthly and lastly, it was urged that the action against the Petitioner was vitiated by mala fides. We find no such ground taken either in the Writ Petition or argued at any stage in the High Court or mentioned in the grounds of appeal taken in the application for certifying the case as fit for appeal to this Court. It was, however, a ground taken by the Petitioner - Appellant in his Rejoinder affidavit in attempting to reply to the affidavit filed in opposition to the Writ Petition.23. It had been stated in the affidavit filed on behalf of the Union of India that the appellants work was not found to be up to the mark even during the period of his probation which had to be extended thrice by two months on each occasion before the probationary period was at last terminated. It had also been pointed out that the appellant had been given a warning that he should improve his work. Furthermore, it was stated that all the facts of the Appellants case were carefully examined, from the point of view of his merit, by the Selection Committee. The case of the Union of India was that 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 had to be presided over either by the Chairman or a Member of the Union Public Service Commission and had officials of the Department on it who must have been in a position to correctly evaluate the petitioners merit and to know the weight to be attached to such entries as the Appellants confidential records contained.24. In reply to the case of the Union of India the Appellants merits were duly considered by the Selection Committee, the Appellant had characterised what had happened as an "attempt to create prejudice against the Petitioner and to justify its mala fide reduction of rank of the Petitioner". He also said that this amounted to "raking up the past" which had no relevance to "the admitted case of the Appellant" that he was holding the temporary substantive rank of Editor when he was reduced to the rank of an Assistant Editor. This assertion was incorrect if it implied as it seemed to, that it was admitted that the petitioner was being punished. The Appellant had also referred to assertions made by him, in his representation dated 5-4-57 (Annexure B to the Rejoinder) to the Minister of Information and Broadcasting against the termination of his service by notice dated 23-3-57, and also to those contained in another representation dated 11-3-1960 (Annexure E to the Rejoinder Affidavit) against the impugned order. In these representations, the petitioner had complained that he was a victim of the prejudice and machinations of an officer in the Transport Ministry (not named by him) whose mistakes, in the publications of the Transport Ministry, had been pointed out by the Appellant. He had also referred to a number of his own publications. Thus, the Appellants case on mala fides rests on allegations which had been examined by the Department and may also have been considered by the Selection Committee, The petitioner had assumed that there were some malicious reports against him which, according to him, he had no chance to meet and on which he thinks that the recommendations of the Selection Committee about him were based. The reply of the Union of India to this case of mala fides was that it was an afterthought and that the assessment of the Selection Committee was based on the results of the interview given to the Appellant and a total assessment of all the facts concerning the Appellant which were before the Selection Committee.25. Even if we were to assume that the Appellant had thus taken up a case of action vitiated by mala fides at its foundations and had supported it with necessary particulars and averments, it is evident that such a case could not be properly tried upon the materials on the record before us, without even impleading the official who was alleged to be the architect of his misfortunes. If could not, as it has been, argued seriously for the first time before us.26. The fatal weakness in the Appellants case arises from the fact that he was holding only a temporary post so that he could have no right to continue in it after it had ceased to exist. We think that the necessary effect of setting up of the Central Information Service, together with the determination of its classes and grades and their strengths was that the temporary posts in the Department which were not shown to have been continued, automatically came to an end. The Appellant was offered a new post altogether after going through the process of selection in accordance with R.5 to which he subjected himself. Indeed, the Appellant had no option, if he wanted to continue in the service of the Department, except to go through the procedure provided by the rules. We are unable to hold that the procedure contemplated by R.5 either automatically fixed the Appellant in any particular grade or post or could be held to be void for any reason whatsoever. Therefore, if the Appellant was selected for a particular post, by a process which, for the purposes of the case before us, must be assumed to have been fair, honest, and legal, he cannot complain that he was entitled to a better one.27.

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

Explanation:
0[ds]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 atleast 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 appellant alleged, was already the subject matter of assertions 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 firstat 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 R.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 theare 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 Art.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 months notice at any time. The result of applying R.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 procedure contemplated by R.5. It is not the Appellants 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 unfairness or inequality of the test applied in judging the merits of the Appellant as against other candidates.Art.311 affords reasonable opportunity to defend against threatened punishment to those already in a Government service. R.5 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 though the procedure prescribed by the Rule. If the petitioner had already been appointed a permanent Government servant, there may have been some justification for contending that R.5 could not be so applied as to deprive him of a permanent post without complying with Art.311 as such deprivation would have been per se a punishment. The mere possibility of misuse of R.5 could not involve either its conflict with or attract the application of Art.311. The fields of operation of R.5 and Art.311 of the Constitution are quite different and distinct so that the two do not collide with each other.It is clear that this definition of a "departmental candidate" is 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. We may add that the validity of R.5 does not appear to us to have been assailed in arguments before the High Court. And in any case, the attack on it must fail onthe Appellants case on mala fides rests on allegations which had been examined by the Department and may also have been considered by the Selection Committee, The petitioner had assumed that there were some malicious reports against him which, according to him, he had no chance to meet and on which he thinks that the recommendations of the Selection Committee about him were based. The reply of the Union of India to this case of mala fides was that it was an afterthought and that the assessment of the Selection Committee was based on the results of the interview given to the Appellant and a total assessment of all the facts concerning the Appellant which were before the Selection Committee.Even if we were to assume that the Appellant had thus taken up a case of action vitiated by mala fides at its foundations and had supported it with necessary particulars and averments, it is evident that such a case could not be properly tried upon the materials on the record before us, without even impleading the official who was alleged to be the architect of his misfortunes. If could not, as it has been, argued seriously for the first time before us.The fatal weakness in the Appellants case arises from the fact that he was holding only a temporary post so that he could have no right to continue in it after it had ceased to exist. We think that the necessary effect of setting up of the Central Information Service, together with the determination of its classes and grades and their strengths was that the temporary posts in the Department which were not shown to have been continued, automatically came to an end. The Appellant was offered a new post altogether after going through the process of selection in accordance with R.5 to which he subjected himself. Indeed, the Appellant had no option, if he wanted to continue in the service of the Department, except to go through the procedure provided by the rules. We are unable to hold that the procedure contemplated by R.5 either automatically fixed the Appellant in any particular grade or post or could be held to be void for any reason whatsoever. Therefore, if the Appellant was selected for a particular post, by a process which, for the purposes of the case before us, must be assumed to have been fair, honest, and legal, he cannot complain that he was entitled to a better one.