Case: Nohiria Ram Vs. Union of India

These are two appeals by special leave. Pt. Nohiria Ram is the appellant in both appeals. He had also filed a petition (petition No. 397, of 1955) under Art. 32 of the Constitution in which he had prayed for the issue of an appropriate writ to the Union of India, respondent 1, and the Director General of Health Services, New Delhi, respondent 2, directing them to forbear from giving effect to an order of dismissal passed by respondent 2 against the petitioner on October 3, 1955. That petition was, however, dismissed, as withdrawn. Therefore, the present judgment is confined to the two appeals, and the relevant facts relating thereto are stated below2. Formerly, the appellant held a permanent appointment as a civilian clerk in the office of the Royal Air force, No. 3 (Indian) Wing, Quetta. On March 17, 1928, he applied for the post of a clerk in the office of the Director General, Indian Medical Service, New Delhi (now known as the Director. General Health Services, New Delhi.) The appellant succeeded in his application and on March 28, 1928, he was told that there was a vacancy in the office of the Director General in the grade of Rs. 75-4-155,. It was further stated that the appointment would be for one year in the first instance, though there was likelihood of its being made permanent; and if the appellant agreed to accept the post, he was directed to join in the office of the Director General at Simla on April 16, 1928. A request was also made to the authorities of the Royal Air Force to grant the appellant a lien on his permanent post in the Royal Air Force till February 28, 1929, by which date the question of the permanency of the appointment in the director Generals office was to be decided. The appellant joined his new post on April 16, 1928. On February 26, 1930, the Government of India in the Department of Education, Health and Lands, which was the controlling Department so far as the office of the Director General, Indian Medical Service, was concerned, conveyed sanction to the appointment, with effect from April 1, 1930, of an additional clerk in the office of the Director General in the grade of Rs. 75-4-155 to deal with the work of the Indian Research Fund Association on the understanding that the average cost of the appointment together with leave and pensionary contributions thereon was to be recovered from the Association. On April 30, 1930, the Director General, Indian Medical Service, wrote to the Secretary, Public Service Commission, intimating that the appointment of an additional clerk had been sanctioned by the Government of India for work of the Indian Research Fund Association; the Director General then stated that the incumbent of the additional post was the appellant, who formerly held a permanent post in the Royal Air Force, Quetta, and as he was not a candidate who had passed through the Public Service Commission the Commission was asked to give approval to his permanent appointment in the said post. To this the Secretary, Public Service Commission, gave the following reply :"With reference to your letter No. 219/516 dated the 30th April, 1930, I am directed to say that the Public Service Commission have no objection to the confirmation of the temporary clerk who is at present employed on the work of the Indian Research Fund Association subject to the condition that this will not give him any claim to appointment as a Routine Division clerk in the Secretariat and its attached offices."This reply of the Public Service Commission was shown to the appellant and he was specifically asked to note the condition that he would have no claim to an appointment as a routine division clerk in the Secretariat or attached offices, the office of the Director General, Indian Medical Service, being an office attached to the Secretariat. On May 26, 1930, the appellant saw the letter of the Public Service Commission and noted- "Seen. Thanks". On June 12, 1930, the appellant was confirmed in the additional post with effect from April 1, 1930. On April 10, 1931, the appellant was transferred on foreign service under the Indian Research Fund Association as a second grade assistant in the grade of Rs. 120-8-160-10-350 on condition that the Association would continue to pay the average cost of the post together with leave and pensionary contributions etc. The appellant continued to serve under the Indian Research Fund Association till September 17, 1944, with some breaks for small periods during which he reverted to the office of the Director General to officiate as assistant, first grade or special grade, on Rs. 200-12-440. On June 10, 1932 the Governor General-in-Council sanctioned the transfer of the appellant to foreign service under the Indian Research Fund Association with effect from April 10, 1931. On August 15, 1944, the appellant made a representation to the Secretary, Indian Research Fund Association, in which he made a request that he should be reverted to his parent office. The reason given was that the appellant was "being treated indifferently and there had been some misapprehensions in the past and there might be similar misapprehensions in the future." On September 11, 1944, the Secretary, Indian Research Fund Association, wrote to the appellant to say that his application for reversion to the office of the Director General was granted and that the appellant should revert to the office of the Director General with effect from September 18, 1944. As the previous consent of the Director General has not been obtained to the reversion, there was naturally some trouble and the Director General asked the appellant to report himself for duty to the Indian Research Fund Association. The appellant then made certain representations in November 1944 and January 1945 in which he submitted that the post which he held was a permanent post in the regular establishment of the Director General, Indian Medical Service, and that he should be treated, on reversion to the parent office, as a senior assistant who was entitled to all increments and promotions available to a permanent member of the regular establishment of the Director General, Indian Medical Service. To these representations, the appellant received the following reply:"In reply to a recent communication from the Secretary, I.R.F.A., the Govt. of India, E. H. and L. Department, affirmed that Mr. Nohiria Ram was governed by the orders contained in their letters No. F. 9-22/39-H dated the 8th August, 1939, and No. F. 37-13/41-H, dated the 27th November, 1941. These orders clearly state-(1) that the substantive post of Mr. Nohiria Ram is attached to this office for the work of the I.R.F.A.;(2) that it is outside the regular cadre of this office;(3) that Mr. Nohiria Ram should not be absorbed in the regular cadre of this office on the occurrence of a vacancy in that cadre; and(4) that the post should continue to be retained outside this cadre until Mr. Nohiria Ram retiresMr. Nohiria Ram was confirmed in the above post only after he had accepted in writing the condition that he would have no claim to a post on the regular establishment of this office. This condition was imposed as he is an "unqualified" clerk."The appellant was, however, dissatisfied with this order and continued to make further representations, and ultimately on December 17, 1945, he expressed his inability to work in the office of the Indian Research Fund Association, which he characterised as a "private body". It appears that the appellant was then suspended with effect from December 14, 1945, the date on which he was to have joined his duty in the post of a clerk attached to the office of the Director General, Indian Medical Service, for work of the Indian Research Fund Association. A charge sheet was served on the appellant on January 10, 1946, to the effect that on the expiry of his leave for ten days, he had refused to return to duty to his substantive post of clerk attached to the office of the Director General, Indian Medical Service, for work of the Indian Research Fund Association. The appellant submitted a written statement and made certain further representations. On September 5, 1946, the orders of suspension etc. were modified, and the following order was passed:"Mr. Nohiria Ram is informed that in modification of the existing orders on the subject the Government of India have decided that while continuing to hold the extra cadre post which was originally sanctioned for the work of the I.R.F.A. he will in future be employed on the ordinary work of this office. He will continue to be subject to the existing disqualifications, namely, that he will have no claim to appointment as a routine division clerk in the Secretariat or its attached Offices or to inclusion in the regular cadre of the ministerial establishment of this officeIn accordance with the above decision Mr. Nohiria Ram is directed to report himself for duty to Captain J. M. Richardson, D.A.D.G. (P). in this office at Simla immediately. He will be posted in the Indian Medical Review Section."In pursuance of the aforesaid order, the appellant joined at Simla and on March 30, 1948, he instituted a suit against the Union of India asking for a declaration that he was in the service of the Union of India as a member of the permanent regular ministerial establishment of the office of the Director General, Indian Medical Service. He also claimed certain other reliefs which were, however, given up. The suit was decreed by the learned Sub-ordinate Judge of Delhi on March 10, 1951. The Union of India filed an appeal, being First Appeal No. 190 of 1951. This appeal was allowed by the Punjab High Court by its judgment dated October 30, 1953. The result was that the appellants suit was dismissed. The appellant asked the Punjab High Court for a certificate for leave to appeal to this Court. That application was refused. The appellant then moved this Court and obtained special leave, and Civil Appeal No. 116 of 1957 has been filed in pursuance of the special leave granted by this Court and is directed against the judgment and decree of the Punjab High Court dated October 30, 1953, in First Appeal No. 190 of 1951Civil Appeal No. 117 of 1957 continues the story of the appellants alleged grievances after he had obtained his decree from the learned Subordinate Judge of Delhi. We have stated before that against that decree the Union of India filed an appeal on July 24, 1951. During the pendency of that appeal, the appellant moved the Punjab High Court by means of a petition under Art. 226 of the Constitution for the issue of a writ directing the Director General, Health Services, New Delhi to disburse immediately the pay and allowances to which the appellant said he was entitled for the month of November, 1952. What happened was this. In October, 1952, the appellant was working in the Public Health Section I, and on October 3, 1952, he proceeded on leave on average pay till October 11, 1952. On his return from leave on October 13, 1952, he submitted a joining report and asked for posting orders. He was asked to work in the Public Health Section I from where he had gone on leave. He refused to do so, and asked for an interview with the Director General. This was refused, and the appellant was told that unless he resumed duty in the Public Health Section I, he would be deemed to have been absent from office without permission. The appellant still continued in the recalcitrant attitude which he had adopted, presumably in the belief that after decree in his favour he was entitled to all promotions and increments available to a permanent member of the regular establishment. He came to office, but instead of going to the Public Health Section I, he occupied the seat meant for the record sorter in the General Section. In other words, since October 13, 1952, the appellant did not work. He was paid his salary till the end of October, 1952, but payment was withheld for November, 1952. On December 20, 1952, the appellant filed his petition under Art. 226. On the same date on which the appeal of the Union of India was allowed, the application under Art. 226 was also dismissed by the Punjab High Court on the ground that the appellant was guilty of disobedience and insubordinate conduct and was not entitled to any relief. Against this order the appellant has filed Civil Appeal 117 of 1957, after having obtained special leave from this CourtThe crucial question for decision in these two appeals is if the appellant held a post in the permanent and regular ministerial establishment of the office of the Director General, Indian Medical Service, New Delhi. The High Court has held that the post in which the appellant was made permanent was no doubt a post attached to the office of the Director General for the purpose of the work of the Indian Research Fund Association, but it was a post outside the regular cadre of the office of the Director General, and this was made clear to the appellant from the very beginning. The High Court found that the appellant knew and had accepted the condition on which he was appointed; and the grievance he made after a lapse of about 14 years was unsubstantial and fanciful.

Reasoning:
7. It is quite clear from the aforesaid orders that the post to which the appellant was appointed permanently in 1930,was a post outside the cadre of the regular establishment of the Director General, Indian Medical Service. Indeed, on April 2, 1935, the Home Department (as it was then called) ruled on a reference made to it that "the strength of the ministerial staff of the Director General, Indian Medical Service, was exclusive of the two posts the cost of which was recovered from the Indian Research Fund Association."It is true that the additional post in which the appellant was made permanent was not constituted into a separate cadre; the obvious reason was that it was an additional post outside the regular cadre. None of the rules to which learned counsel has drawn our attention prevents the appropriate authority from creating an additional post outside the regular cadre of a particular office, to which the post may be attached for purposes of administrative controlThe rule corresponds to Art. 783 in Chapter XLI of the Civil Service Regulations, and lays down the principles in accordance with which the cost, or a definite portion of the cost, of the additional post shall be recovered. It does not decide the question if the post is part of the cadre or not; that depends on the decision of the appropriate authority, and we know that in the present case the appropriate authority had decided from the very beginning that the additional post which the appellant held was outside the regular establishment of the Director General, Indian Medical ServiceIn so far as it is relevant for our purpose, Fundamental Rule 111 says that a transfer to foreign service is not admissible unless the Government servant transferred holds a lien on a permanent post; Fundamental Rule 113 says that a Government servant transferred to foreign service shall remain in the cadre or cadres in which he was included in a substantive or officiating capacity immediately before his transfer and may be given such substantive or officiating promotion in those cadres as the authority competent to order promotion may decide.In the present case, the appellant held a lien on the additional post in which he was confirmed; therefore, his transfer on foreign service was admissible under Fundamental Rule 111. He did not, however, belong to a cadre immediately before his transfer, and Fundamental Rule 113 had no application in his caseThe case of the appellant, who had not passed the qualifying examination held previously by the staff Selection Board whose place the Public Service Commission took in 1926, was presumably referred to the Public Service Commission under the aforesaid paragraphWe think that it is unnecessary to examine the validity of these contentions on the present occasion. Assuming but without deciding that it was not necessary to refer the case of the appellant to the Public Service Commission or that the Public Service Commission could not impose any condition on the appointment of the appellant, the fact still remains that the appropriate authority which sanctioned the additional post made it quite clear that the post was outside the regular cadre and the Director General, Indian Medical Service, said that the post had been treated in practice as being outside the regular establishment though attached to his office for purposes of administrative control. That being the position, it matters little what powers the Public Service Commission had with regard to the case of the appellant referred to it. We must make it clear, however, that we do not express dissent-it being unnecessary for us to do so-from the view expressed by the High Court that in giving concurrence to the appointment of the appellant, it was open to the Public Service Commission to give a conditional concurrenceThis brings us to a close of the case of the appellant in Civil Appeal 116. Only a few words are necessary to dispose of Civil Appeal 117.That appeal requires no serious exegesis of any recondite service rule or obscure departmental order. In view of the finding that the appellant was not a member of the regular establishment of the Director General, Indian Medical Service, he was not entitled to claim seniority in that office. It is true that the appellant obtained a decree from the learned Sub-ordinate Judge; it was, however, a declaratory decree only, as the appellant did not press for the other reliefs as to increment, promotion etc.Even the declaratory decree was put in jeopardy when respondent No. 1 appealed from it. In these circumstances, how could the appellant refuse to do the work given to him? We have referred to the circumstances in which the appellant refused to do work in the Public Health Section to which he was allotted; he did not work from October 13, 1952 and got no pay from November, 1952. The appellant has to thank himself for the predicament in which he is placed. All that we can say is that if he had shown patience, good sense and moderation, he could have avoided a great part of the trouble he brought on himself.