GAJRAJ SINGH

THE STATE OF MADHYA PRADESH & ANR.

March 28, 1973

[J. M. SHELAT, ACTING C.J. AND Y. V. CHANDRACHUD, J.]

Constitution, art. 311-Madhya Bharat-Retrenchment Terms in respect of employees of former States merging to form new State-Employees of certain categories provisionally absorbed-Could be retrenched for certain specified reason~When employee is retrenched for one or more of such reasons Art. 311 Is not attracted-Tests ar< obiectlve orul retrenchn1e11t order can be 'defended on otner grounds even if one ground falls.

The appellant was in 1934 first appointed as a constable in the erstwhile State of Gwalior and was promoted in 1945 to the post of Sublnspector.

In May 1948 the rulers of Gwalior, Indore and certain other States formed und<lr a covenant executed by them, a new State, called the

United States of Madhya Bharat. The appellant was allowed to work as

a Sub-Inspector in the new State of Madhya Bharat but his name wa' e.1'!ered from the very beginning, that is from May 1948, in the list of D provisionally absorbed servants,' and remained so during all material times.

By n notification, dated December 15, 1948, the Madhya Bharat Government published rules, called the 'Retrenchment Terms' which were revised by another notification dated July 9, 1949. In the said notification principles were laid down for the selection of Government Servants for ro trenchment. The appellant was retrenched by an order signed by the Deputy Inspector-General, Central Range, on the ground that the appellant had a consistent bad record under re!renchment category 2 of the Re E trenment Terms.

In appeal the Inspector-General corillrmed the said order also under categories 4 and 7 of the said Terms, that is, besides the ground of a consistently bad record, also on the ground df the appellant not possessing the minimum qualification prescribed for the post, and on the ground that the appellant for reasons considered adequate by the Government, could not be absorbed in the Madhya Bharat service. The writ petition filed by the appellant challenging this order was dismissed by the High Court on the ground of delay, though Art. 311 of the Constitu- F tion was held to be attracted. In 1960 the appellant filed a suit relying on Art. 311. The trial court decreed the suit. The High Court however allowed the State'• appeal. By special leave the appellant appealed to this Court and contended: (i) that on the construction of the said Retrenchment Terms the impugned order amounted to one of dismissal, attracting the provisions of Art. 311; and (ii) that since the ground of consistent bad record amounted to a stigma, and could not therefore be C relied on in support of the order, the order fell and could not be sustain- -. cd on the ground of lack of minimum educational qualification.

Dismissing the appeal,

HELD: (i) The classification of persons in the seven categories was clearly made to select persons 'from out of those who were in excess of the requirements of the new State.

Since they were not to be absorbed, they could not be said to have been the employees of the new State and H Art. 311 therefore could not apply to their cases. The claim of the appellant that the impugned order amounted to punishment or that for that rc,1son Art. 311 was attracted was clearly misconceived.

[SOIB]

(ii) The respondent-State hild relied upon the cateaories 2, 4 and 7, as ground for the impugned order. So far as category 4 was concerned, there can be no doubt that the appellant did not have the minimum educa tional qualification required for the post of a Sub-Inspector. Since that was so, he would also fall in cateaory No, 7, that is, as a person who could not, for reasons considered adequate by 'the Government, be ab sorbed in the service of the new State. Eve" if therefore, category 2 could not for some reason or the other be taken into consideration, categories 4 and 7 were relevant and valid. ·; he mere fact that the Government could not avail of cateaory 2 did not mean that it could not rely on the other two grounds. The reason is that this was not a cnse of subjective satisfaction, where on failure of one of the grounds it would be impossible to predicate whether the relevant authority could have reached its satisfaction only on the basis of the rest of the grounds. The tests here were objective ones and if one of the several such test11 failed, but the others were sufficient, the order would still have to be susmined. [SOIE]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1259 of 1967.

Appeal by special leave from the judgment and order dated December 20, 1966 of the Madhya Pradesh High Court, Indor~

Bench in First Appeal No. 61 of 1962.

Rameshwar Nath, for the appellant.

Ram Panjwani, I. N, Shroff and fl. S. Parihar, for the rcspon dents.

The Judgment of the Court was delivered by

SHELAT, ACTING C.J.-The appellant was in 1934 first appointed as a police constable in the erstwhile State of Gwalior and was promoted in March 1945 to the post of a Sub-Inspector. In May 1948, the rulers of Gwalior, Indore and certain other States formed, µnder a covenant executed by them, a new State, called the United States of Madhya Bharat. The appellant was allowed to work as a Su~-Inspector in the new State of Madhya Bharat, but his name was entered from the very beginning, that is from May 1948, in the list of "provisionally absorbed servants", and remained so during all material times.

By a notification, dated December Hi, 1948, the Madhya Bharat Government published rules, called the "Retrenchment Terms". As revised by another notification, dated July 9, 1949, these Retrenchment Terms so far as they are relevant for the purposes of this appeal read as under :

"Government of the United State of Madhya Bharat:

• • • •

NOTIFICATION After a careful consideration of the Mohan Rau Committee's recommendations regarding the retrench-

SUPREME COURT REPORTS (1973] 3 S.C.ll.

ment ct surplus staff of the acceding States of the Madhya Bharat Union and compensation terms to be offered to such staff, the Government of Madhya Bharat have been pleased to sanction tile following principles which will govern the selection of Government servants for discharge from service and tile grant of compensation to them. Owing to wide diversity of rules relating to leave and pension in force in the various acceding Units of Madhya Bharat, the Government are constrained to frame a separate set of rules, modelled on the tenns sanctioned by the Government of India to their retrenchment personnel. . The Government are aware that cessation of employment is bound to cause distress and in order to soften the blow, as far as possible, they have kept in view the need for providing each retrenched servant with a reasonable subsistence which would enable him to tide over the period necessary for building up new associations :

I. Principles to govern the selection of Government Servants for retrenchment :

(a) The retrenchment should embrace 'the fol!owinir

categories :

(I) Those who have attained the age of superannuation.

Note:-The age of superannuation-shall be taken as 55 years for Government servants in superior service and 60 years for those in inferior service.

(2) Those whose record of service is consistently bad.

(3) Temporary and officiatin)!

Government servants.

( 4) Those who do no'l possess the minimum qualification prescribed for 1he post held by them.

"lote;-It will be the right of Government to retain an exceptionally good person even though be may not be possessed of the minimum qualification prescribed.

( 5) Those who have put in qualifying service for 30 years and more.

GAJRAJ V, M.P. STATE (Shela!, Acting C.J.) 797

( 6) Permanent Government servants who have less. than 3 years' service.

(7) Government servants who are treated as surplus to requirements either because the posts held by them have ceased to exist, or because they cannot, for reasons considered adequate by the Government, be absorbed in Madhya Bharat service .

* • • •

These orders shall have effect from the 1st of July, 1948."

While the appellant was working at Bhilsa as the sub-inspector, he received an order signed by the Deputy Inspector-General, Central Range, to the effect that the appellant was "retrenched .. for consistent bad record under retrenchment category 2" of the said Retrenchment Terms.

The order, however, informed the D appellant that he would be given all the benefits of leave, pension etc. due to him under the Rules.

Aggrieved by the said order, the appellant filed an appeal before the Inspector-General of Police.

The Inspector-General issued a notice to the appellant to show cause why the said order should not be made absolute under category 2, as also under categories 4 and 7 of the said E Retrenchment Terms.

The appellant submitted his explanation showing cause.

By his order, dated January 2, 1954, the Inspector-General rejected the appeal and confirmed the said order, also under categories 4 and 7 of the said Terms, that is, besides the ground of a consistently bad record, also on the ground of the appellant not possessing the minimum qualification prescribed for F the post, and the ground that the appellant, for reasons considered adequate by the Government, could not be absorbed in the Madhya Bharat service.

Resort to departmental authorities for redress against the said order having failed, the appellant filed a writ petition in the High Court of Madhya Pradesh, pleading inter-alia that the impugned order amounted to removal by way of punishment which attracted Art. 311 of the Constitution. On October 22, 1959, the High Court dismissed the writ petition on the ground of delay. Nevertheless, the Hi2h Comt weDt into the question whether the said order amounted to dismissal or removal and attracted Art. 311.

In doing so, the High Court observed that although the order was

soue:ht to be sunnorted both on •he !(f()und of the aooellant'~ consistent Iliad record, aS also on the ground of his not possessing the minimum. educational qualification. the State had relied on the first ground only, the second ground not having been pressed either

in its return or in the argument before the High Court. The High A Court observed :

"~ result is that the adminiStration having gone into the question •Of undersirability or consistent badness of the record, was, under the law obliged to follow the procedure prescribed in Article 311. Having admittedly failed to do so, the removal order, though ostensibly one of trenchment, would be bad."

The High Court also observed that had the appellant a approached it without delay, it would have been possible to grant him relief.

In 1960, the appellant filed the suit, from which this appeal arises, in the Court of the Additional District Judge, Indore for a C declaration that the said order was bad by reason of failure to hold an inquiry under Art. 311 and that he therefore continued to be i:n service and for a decree for the salary for the entire period.

The Trial Judge decreed the. suit relying upon the aforesaid observations of the High Court in the said writ petition. The State of Madhya Pradesh thereupon filed an appeal before the High Court

against the said judgment and decree.

The Division Bench of the High Court, which i)eard the appeal, had on it coincidently Krishnan, J., who also was one of the judges on the Bench which had earlier dismissed the appellant's said writ petition in 1959.

E The High Court allowed the State's appeal and set aside the decree passed by the Trial Judl!e. This was done on the. ground that in "retrenching" the appellant the State had two grounds; ( 1) a consistent bad record, and ( 2) the appellant not possessing the minimum educational qualification, There being thus two grounds,

although the impugned order co!J]d not be supported biy. the first ground by reason of the failure to comply with the provisions of Art. 311, the second ground was a good ground and being a F separate ground, the impugned order, on the baSis of that ground, was justified. This appeal, by special leave, challenges the judgment of the Higli Court.

Two contentions were pressed upon us by counsel . for the . appellant : · ( 1 ) that on the construction of the said retrenchment

Terms the impugned order amounted to one of dismissal attracting the provisions of Art. 311,

(Z)

an<l fliat since the ground of consistent .bad record' amounted to. a stigma, and could not theore be .. ielied on in support .of the prder, the order fell lllJd eould not. be sustlii!Jed on , the second, grouiicf · ·

The appellant, without doubt, was a permanent servant of the erstwhile Gwalior State and vi,-a-vis that State, was, therefore, entitled to all the rights obtainiible under the law ot that State wha<tever such rights there were thereunder. On the accession of Gwalior State to the United States of Madhya Bharat, his position, however, totally changed, in that, it was for the new State to absorb B him or not into its service. It may be that the covenant, by and under which Gwalior State acceded to the newly formed State, might have provided for the continuance in the service of the new

Stll'te of all the employees of the acceding States. The terms of the covenant were not placed before us, nor before the High Court.

Assuming, however, that the covenant did so 1?fOvide, it being one c between the high parties, no right accrued thereunder to an individual who was not a party to it. Obviously, the appellant could not claim any right to being absorbed or continued in the service of the new State, unless the new State had agreed to or absorbed or retained him in its service. In fact, the new State of Madhya Bharat had not done-50. It would appear, on the contrary, that while the question of how many and who amongst the ex-em- D ployees of the acceding States should be absorbed in the service of the new State was pending and under consideration, the appellant's name was entered in the list of "the provisionally absotbed" employees.

It would seem from the said Retrenchment Terms that the E problem before the new State was as to what to do. with the surplus personnel who were the ex-employees of the varioUs acceding

State~ and how many of them could and should be .absorbed in the service of the new State. To soften the blow which would fall on those who could not be absorbed, the new State framed the said Retrenchment Terms which provided two things, ( 1) F laying down principles for selection of those who were to be absorbed, and ( 2) to grant some benefit by way of a reasonable subsistence to those who would not be absorbed, which would enable them to tide over the period necessary for building up new associations. The rerenchment Terms were frruned on the basi& of the recommendations made biY the Mohan Rau Committee, appointed for goins!; into the question of the surplus personnel, G who until then were in the service of the erstwhile acceding States,

such as Gwalior. In order to fair and not to be arbitrary in the matter of selection Of ihotlO who were to be absorbed iri the service of the new State, the Retrenchment Tenils laid down seven categories of persons who were not to be absorbed.

u It is clear from the said Retrenchrileilt Terms themselves that thev dealt with a fold. problem, ( 1 ) of the surplus S'!aff of the

iicceding States, and (2) of payment of a rea9o~le. liubsistence to such of the sl!rplus personnel who could n()t be absorbed~

Though the said notification called its provisions "Retrenchment Terms", there was no question of any retrenchment in the sense in which that expression is ordinarily understood. '.The question of retrenchment could , arise duly in the case of person~ who had . already been absorbed and continued in the service of the new

State. As aforesaid, the process of absorption was pending and under consideration.

Until it was completed, the appellant's name figured in the list of the "provisionally ah'; orbed persons".

It was, therefore, not as if the surplus employees of the acceding States had already been absorbed or retained in the service of the new State and then were retrenched or removed from service.

The seven categories of persons classified i:n the, said Retrenchment Terms also indicate that those persons were not to be absorbed and not that they were to b~ removed or retrenched from the service of the new State. There is nothing on record to show that the new State was bound to absorb in its service all the employees of the acceding States even if they were surplus.

As aforesaid, even if tl!e covenant under which the acceding States joined the new State so provided, the individual employees of such States did not thereunder acquire any right to be absorbed or continued in service of the new State. The non-absorption of persons falling in the seven categories could not, therefore, amount in law to removal or dismissal from service. They were simply not absorbed. in the service of the new State and had, therefore, not yet become its employees. No question thus of removal or dismissal could possibly arise.

It is true that of the seven categories of persons, category 2 related to persons whose previous service record was consistently

bad, The decision not to absOrb such persons, however, could not amount to any punishment for the reason that they were not yet absorbed or continued in service of the new State and had, therefore, not become its . employees. It is true that these persons along with persons falling in the other categories continued to work in the new State after its formation. But that was only by way of a provisional arrangement, until the process of absorption was finalised.

No question of paying subsistence or comoensation also could have arisen if their non-absorption amounted to either removal or dismissal by way of punishment.

Category 1 consisted Of those who had reached the age of 55 years, if they were in superior service, or 60 years, if they were in inferior service. Their non-ablrorption, surely, could not constitute either removal or dismissal as and by way of. punishment. The same would hie the case of those in categories 3, 5 and 6, namely, temporary and officiating government servants, persons who had put in service for 30 years and more,. and permanent servants who had less than three yean service to their credit.

These

persons were placed in these categories preswnably for the reason that 'their non-absorption would not work as a hardship or be un, fair as against persons who were permanent i::overnment servants and who had a long period to be in service. The classification of persons in the seven categories was thus clearly made to select persons from out of those who were in excess of the requirements of the new State. Since they were not to be absorbed, they could not be said to have been the employees of the new State and Art. 311, 'therefore, could not apply to their cases. The claim of the appellant that the impugned order amounted to punishment or that for that reason Art. 311 was attracted was clearly misconceived.

The respondent-State had relied upon categories 2, 4 and 7, as grounds for the impugned order.

So far a~ category 4 was concerned, there can be no doubt that the appellant did not have the minimum educational qualification required for the post of a Sub-Inspector. Since thart was so, he would also fall in category No. 7, that is, as a person who could not, for reasons considered adequate by the Government, be absorbed in. the service of the new State. Even if, therefore, category (2) could not for some reason or the other be taken into consideration, categories 4 and 7 were relevant and valid. The mere fact that the Government could not avail of category (2) did not mean that it could not rely on the other two grounds. The reason is hat this was not a case of subjective satisfaction, where on failure of one of the grounds it would be impossible to predicate whether the relevant authority could have reached its satisfaction only on the basis of the rest of the grounds.

The tests here were ob.iectlve ones and if one of the several such tests failed, but the others were sufficient, the order would still have to be sustained.

We agree, in the circwn!ltances, with the judgment of the High Court, though for the reasons set out above. In the result, the appeal fails, but since the appellant is a person who was not absorbed in service, we make no order as to costs.

G.C.

Appeal dismissed.