Case: K.Gopaul Vs. Union Of India And Others

1. The appellant, K. Gopaul, was appointed to the Madras Registration Service as a direct recruit and commenced his service on posting as a District Registrar in January 1939. Under the latest Rules governing the Madras Registration Service, the Service, consists of two Classes. Class I has only one post in it, viz., Inspector-General of Registration. In Class II, there are two categories, category 1 consists of posts of Inspectors of Registration Offices, and category 2 of posts of District Registrars. Under these Rules, the appellant was promoted as Inspector-General of Registration (hereinafter referred to as "I. G. R.") in the post in Class I on 8th June 1956, and was confirmed in that post by the Government Order, dated 9th November 1957, with effect from 9th June 1956. While he was still holding this post, the post of I. G. R. was included in the cadre of the Indian Administrative Service with effect from 11th November 1963. On 25th January 1964, a Government Order was issued posting one O. H. Dias of the Indian Administrative Service, who was holding a post of Deputy Secretary to Government, Revenue Department, as I. G. R., Madras, vice the appellant. That Government Order contained a note that orders regarding the posting of the appellant will be issued separately from the Home Department. Then, on 30th January 1964, a Government Order was issued posting the appellant to act temporarily as Accommodation Controller, Madras, vice one M. Sargunam. That Order further laid down that the appellant, as Accommodation Controller, will continue to draw his grade pay in the scale of Rs. 1,200-100 / 2-1,400 and, in addition, he will draw a special pay Rs. 100 per month and also a conveyance allowance of Rs. 75 per month if a car is maintained or Rupees 62/50 per month, if no car is maintained. On receiving this Order, the appellant moved a petition under Art. 226 of the Constitution in the High Court of Madras, seeking the quashing of the Order of the Government of India placing the post of I. G. R., Madras, in the Cadre of the Indian Administrative Service with effect from l1th November 1963, as well as the Order of the Madras Government, dated 30th January 1964, transferring the appellant to the post of Accommodation Controller, Madras. In pursuance of the Government Order made on the 5th January 1964, a notification was published in the Gazette, dated 5th February 1964. In this notification, the posting of O. H. Dias as I. G. R. Madras, in place of the appellant, was notified. In addition, it was laid down that the cadre post of Director of Fisheries, Madras, was to be kept temporarily in abeyance until further orders, and, instead, sanction was accorded to the creation of a temporary post of Director of Fisheries, Madras, in the grade of a Deputy Secretary to Government (non-I. A. S.) for a period of six months from the date of appointment or till the need for ceased, whichever was earlier. The notification proceeded to lay down that M. Sargunam is posted to act as Director of Fisheries, Madras, in the newly sanctioned post. Obviously, this posting was ordered, so that the post of Accommodation Controller, to which the appellant was transferred, should fall vacant and should be available for the appellant to take charge of it.2. While the petition before the High Court was still pending, another Order was issued by the Madras Government on the 6th June 1964, keeping the temporary post of Accommodation Controller, Madras, which earlier existed in the cadre of Deputy Secretary (non-I. A. S.), in abeyance with effect from 6th February 1964 afternoon, and with effect from the same date, sanction was accorded to the creation of a temporary post of Accommodation Controller, Madras, in the scale of Rs. 1,200-100/2-1,400 for the period from 6-2-1964 to 14-4-1964 afternoon both days inclusive. This scale of pay, it appears, was the scale in which the appellant was drawing his salary in the post of I. G. R. By this Order, dated 6th June 1964, it was further directed that the appellant, who was appointed as Accommodation Controller by the Order, dated 30th January 1984, should he deemed to have acted in the post sanctioned by this Order during the period from 6-2-1964 afternoon to the afternoon of 14-4-1964 (both days inclusive). It may be mentioned that after the Order of 6th June 1964 had been passed, the appellant moved another petition in the High Court challenging that Order also. Both the petitions were decided by a common judgment by a single Judge of the High Court on 2nd December 1964.3. The appellant then filed appeals before a Division Bench of the High Court. While these appeals were pending before the Division Bench, a letter was sent on behalf of the Government of Madras to the Counsel representing the Government in the appeals on 27th August 1965. In that letter it was stated that, when the post of I. G. R. was included in the Indian Administrative Service Cadre of the State, the Government had decided that, in order to protect the rights of the appellant, a supernumerary post of I. G. R. in the State Service should be created with effect from 11th November 1963, the date on which the above post was included in the Indian Administrative Service Cadre. It was added that, in the circumstances, there would not be any reduction in the pension and gratuity of the appellant consequent on the inclusion of the post of I. G. R. in the Indian Administrative Service. It appears that, by this time, it was realised by the Government that the effect of the earlier Orders made in the case of the appellant was that the appellant was not holding lien on any permanent post and was only working on the temporary post of Accommodation Controller with the result that the appellant was likely to suffer in the matter of earning pension and gratuity in his service. The Bench of the High Court hearing the appeals took notice of this letter and dismissed the appeals on the 14th October 1965, holding that all the rights of the appellant in respect of pension and gratuity had been protected and that there had been no removal from service or reduction in rank in the case of the appellant. Thereupon, the appellant sought leave to appeal to this Court under Art. 136 of the Constitution against the common order of the High Court dismissing the two appeals arising out of the two writ petitions. Special leave was granted and that is how these appeals have come up before us.4. During the pendency of these appeals, the Madras Government, on 6th October, 1966, issued a Government Order sanctioning the creation of a supernumerary post of Additional Inspector-General of Registration in the State Service in the scale of Rs. 1,200-100/2-1,400 with effect from 11th November 1963. Later still, on 10th February 1967, another Order was issued, in suppression of the orders issued on 6th October, 1966, conveying the Government sanction to the creation of a supernumerary post of I. G. R. in the State Service not borne on the Indian Civil Administration Cadre in the scale of Rs. 1,200-100/2-1,400 with effect from 11-11-1963 until such time as the appellant is confirmed in another post. It is on these facts, which have now been placed before us, that we have to decide these appeals in which the appellant challenges the Orders of the Government posting him as Accommodation Controller.

Reasoning: We cannot accept the submission that the mere fact that the post of Accommodation Controller, to which the appellant has been transferred, has not been designated as the post of a Head of the Department necessarily involves any reduction in rank. In fact, it is well known that in Government service, there may be senior posts, the holders of which are not declared as Heads of Department while persons holding comparatively Junior posts may be declared as such. The rank in Government service does not depend on the mere circumstance that the Government servant, in the discharge of his duties, is given certainsubmission made on behalf of the appellant that the post of I. G. R. is higher in rank than that of a Deputy Secretary is thus clearly wrong. In fact, the post is lower in rank than that of a Deputy Secretary and is equated with that of an Assistant Secretary. It has not even been suggested anywhere that the post of Accommodation Controller is lower in rank than that of an Assistant Secretary to Government or a Deputy Collector. On the other hand, the information given to us in the course of the arguments showed that, under the Rules, the Accommodation Controller works directly under the control of the Government, while the I. G. R. is subordinate to the Board of Revenue. We, consequently, find no force at all in the plea that the posting of the appellant as Accommodation Controller, when he was holding the post of I. G. R. amounted to reduction inpost has been created for an indefinite period and is to continue in existence as long as the appellant holds that post and is not confirmed in any other permanent post. This supernumerary post of I. G. R. is, thus, clearly covered by the definition of permanent post, so that the appellant now holds lien on a permanent post and, consequently, satisfies the second condition for qualifying for pension laid down in R. 361 of the Madras Pension Code, mentioned above. There is, therefore, no force in the submission that the Orders made by the Government have resulted in any punishment being inflicted on the appellant by prejudicing his rights to pension andR. 4 (1) of the Indian Administrative Service (Cadre) Rules, 1954, framed under the All India Services Act 61 of 1951, the strength and composition of the Cadre of the Indian Administrative Service constituted for a State are to be determined by regulations made by the Central Government in consultation with the State Government concerned. Rule 4 (2) lays down that the Central Government shall, at the interval of every three years, re-examine the strength and composition of each such cadre in consultation with the State Government concerned. It was as a result of re-examination in the year 1963 that the Central Government declared the post of I. G. R. as well as a number of other posts as cadre posts of the Indian Administrative Service in consultation with the Madras Government. When such re-examination takes place, the circumstances and conditions existing in a particular State have to be taken into account. It is not necessary that similar posts in all States in India must all be placed in the same cadre. Depending on the conditions brought to the notice of the Central Government, the Government may consider it desirable that a particular post in one State should be placed on the Cadre of the Indian Administrative Service, whereas, in another State, it may not be considered advisable to do so. On behalf of the appellant, Vol. II of the Hand Book of Rules and Regulations for the All India Services was brought to our notice. The edition corrected up to 1st September 1962 showed the posts in the various States placed on the Cadre of the Indian Administrative Service.These Rules certainly do not show that the post of I. G. R. in any State was in the cadre of the Indian Administrative Service in that year, but a comparison of the various lists shows that there are some posts which, in some of the States, are borne on the Cadre of the Indian Administrative Service, whereas they are not included in that Cadre in other States. Clearly, there can be no uniformity between different States in the matter of determining the strength and the composition of the Cadre of the Indian Administrative Service in all the States. The submission that we should hold the order of the Union Government as void on the ground of discrimination between different States has, therefore, no force and must be rejected.