Case: N. Raghavendra Rao Vs. Deputy Commissioner, South Kanara,Mangalore

The petitioner was selected by the Madras Public Service Commission as Lower Division Clerk under the Madras Ministerial Service Rules in 1949, and was allotted to the Revenue Department and posted in South Kanara District. He was promoted as Upper Division Clerk on April 2, 1956. According to the petitioner, he should have been promoted much earlier as he has rendered outstanding and meritorious service. According to the State, the petitioner was considered for inclusion in the eligibility list from 1955 onwards, but was not selected as he was not considered fit. The State admits that he was promoted as Upper Division Clerk with effect from April 2, 1956, but alleges that this was on a temporary basis. He was later reverted and then again posted as a temporary Upper Division Clerk. In August, 1957, the petitioner was considered and included in the eligibility list at Serial No. 14. This list was regularised on December 11, 1957, in accordance with Rules 39 (e) and 35 of the Madras State and Subordinate Service Rules, with effect from October 19, 1957. According to the petitioner this resulted in the loss of benefit of service and increments.3. In the meantime, reorganisation of States took place under the States Reorganisation Act (XXXVII of 1956). South Kanara District, except Kasaragod Taluk, went to the new Mysore State and the petitioner was allotted to it, On May 11, 1957, the Government of India addressed a memorandum (No. S.O. SRDI - I APM 57) to all State Governments, Broadly speaking, the Central Government said that some conditions of service should be protected, e.g., substantive pay of permanent employees, certain type of special pay; leave rules unless the government servant opts for new leave rules, etc. But in respect of departmental promotion it said that "the question whether any protection should be given in respect of rules and conditions applicable to Government servants affected by reorganisation immediately before the date of reorganisation in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion was also considered. The Government of India agreed with the view expressed on behalf of the State representatives that it would not be appropriate to provide for any protection in the matter of these conditions." Therefore, it is evident from this memorandum that the Central Government had told the State Government that they might, if they so desire, change service rules as indicated in the memorandum.

Reasoning: In our opinion, the setting in which the proviso to Section l15 (7) is placed, the expression "previous approval" would include a general approval to the variation in the conditions of service within certain limits, indicated by the Union Government. It has to be remembered that Art. 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to S. 115 (7) limits that power, but trial limitation is removable by the Central Government by giving its previous approval. In this context, we think that could not have been the intention of Parliament that Service Rules made by States would be scrutinised in the minutest detail by the Central Government. Conditions vary from State to State and the details must be filled by each State according to its requirements. The broad purpose underlying the proviso to S. 115 (7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government. In other words, before embarking on varying the conditions of service, the State Governments should obtain, the concurrence of the Central Government. In the memorandum, mentioned above, the Central Government, after examining various aspects, came to the conclusion that it would not be appropriate to provide for any protection in the matter of travelling allowance, discipline, control classification, appeal, conduct, probation and departmental promotion. In our opinion, this amounted to previous approval within the proviso to Section 115 (7). It may be mentioned that by this memorandum the State Governments were required to send copies of all new rules to the Central Government for its information. Therefore, in our opinion there is no force in the first contention of the learned counsel for the petitioner, and we hold that the rules were validly made.There are two preliminary hurdles in the way of the petitioner regarding the second point taken on his behalf. Firstly, the State of Madras has not been made a party to this petition. Secondly, he never raised these points while he was serving under the State of Madras. It is difficult at this Stage to challenge orders, which if quashed, would affect the rights of other civil servants who are not parties to this petition. At any rate, the petitioner has not been able to show how Art. 16 was infringed before he was allotted to the new Mysore State. The State in its reply has asserted that all the orders complained against were passed by competent authorities, after considering the merits of the petitioner on each occasion. It was for the competent authorities to judge the merits of the petitioner. We find no force in this contention and hold that no infringement of Art. 16 has been established.