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

This is an appeal by the State of Madras and the Union of India against the judgment and decree of the High Court on a certificate granted by that court under Art. 133 of the Constitution. The appeal arises out of a suit filed by the respondent herein, who was a member of the Indian Civil Service, for a declaration that the order issued by the Chief Secretary to the Government of Madras on 7-8-1947, purporting to terminate his services as from the afternoon of 14-8-1947, is null, void and inoperative and that he must be deemed to continue in the Indian Civil Service as a membersuit was filed on the original side of the High Court of Madras and after having been partly tried by a Single Judge who recorded the evidence, was thereafter heard by a Bench of two Judges in view of the important constitutional question that arose for consideration in the case. The Bench found in favour of the plaintiff and decreed the suit and hence the appeal by the State to this Court.2. The case for the plaintiff is short and simple. He was recruited to the Indian Civil Service by open campetitive examination in 1936 and joined duty in the then Province of Madras in October,Since then he was serving under the Government of Madras in various situations. The last office he held was as Sub-Collector and Joint Magistrate at Dindigal. On 2-6-1947, ho went on leave. While on leave, he received a letter from the Government of India dated 19-6-1947, Wherein he was asked whether he was willing to continue in the service of the Government after the then contemplated transfer of power from the British Government to the Dominion of India onplaintiff sent a reply expressing his willingness. On 9-8-1947, however, he received a communication from the Government of Madras dated 7-8-1947, and signed by the Chief Secretary thereof, stating that it was decided not to retain him in service from and after 13-8-1947, and that his services would therefore be terminated as on the afternoon of 14-8-1947. He was directed, therefore, to apply for extension of leave for which he was then eligible so as to avail himself of the full period of leave which was to hisreceiving the order of termination of his services, he made attempts to get it cancelled, by interviewing the Chief Secretary and the Chief Minister of the Madras State at the time. But the attempts proved futile. In the course of these interviews, he says he was given the impression that the order of termination, though issued under the signature of the Chief Secretary to the Government of Madras was in fact so issued under the sanction of the Secretary of State for India, which, according to him, subsequently turned out not to be athen under the mistaken impression, he reconciled himself to the situation and availed himself of the full period of leave and accepted the compensation which was awarded for premature termination of services and also began drawing his pension. Later on he came to know from one Shri Seshadri, another young Civilian, who was in a similar plight and who had also filed a similar suit that certain documents produced in the course of that suit showed that these orders were passed without the sanction of the Secretary of State foraccordingly brought these matters again to the notice of the Government and made further attempts to get the order in his case reverted. These again proved futile. He thereupon filed an application for a writ in the High Court on 7-11-1951, to quash this alleged illegal order against him. But the High Court rejected it on the ground of there having been long delay since the passing of the orders sought to beplaintiff thereafter gave the requisite notice to the Government under S. 80, Civil P. C. and filed this suit on 13-7-1952. In the plaint he made the offer to refund the amount of compensation paid to him after making such adjustments as may be called for towards his claim for salary for the intervening period.The plaintiffs claim is based on the contention that the termination of his services by the order dated 7-8-1947, is in violation of the statutory guarantee relating to his service under S. 240, Government of India Act,1935, which continued to be operative till the midnight of 14-8-1947, and he relies on High Commissioners for India v. I. M. Lalls. AIR 1948 PC 121   (A). To this suit both the State of Madras and the Union of, India were impleaded as defendants and their defence was substantially the same. It is to be found in para 6 of the written statement filed by the State of Madras which is as followsdefendant states that on the transfer of power to the newly constituted Dominion of India in pursuance of the Indian Independence Act as and from the appointed day, viz., 13-8-1947, the tenure of the service of the plaintiff came to an end and he had no legal claim to continue in serviceplaintiff was holding office only during His Majestys pleasure. When His Majestys Government decided to transfer its power to the Dominion of India as and from 15-8-1947, the career of the plaintiff under covenant with the Secretary of State came to a legal termination as and from 13-8-1947. It is therefore, not correct to state that there was any termination by the Government of Madras and that there has been utter lack of legality in the order passed by the saidis further submitted that the alleged termination of the plaintiffs services was only from 15-8-1947, and that on such date the Province of Madras acting under the insrtuctions from the Government of India were competent to decline to accept the offer to continue in Service made by the plaintiff".There were other minor pleas such as estoppel, etc. which, it is unnecessary to notice at this stage. The High Court negatived the defence of the State and accepted the contention of the plaintiff and granted him the declaration prayed for.

Reasoning: 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.