Case ID: 1785

Judgment:
ion No. 211 of 1963. Petition under article 32 of the Constitution of India for the enforcement of the Fundamental Rights. R. K. Garg	 for the petitioner. C. K. Daphtary	 Attorney General	 B. R. L. Iyengar and B.R. G. K. Achar	 for the respondents. March 31	 1964. The Judgment of the Court was delivered by SIKRI	 J. This is a petition under article 32 of the Consti tution for enforcing the fundamental rights of the petitioner under articles 14	 16 and 19 of the Constitution. Although the petition raises various points	 before us only two points have been argued by Mr. Garg	 on behalf of the petitioner. We are grateful to Mr. Garg	 who has argued as amicus curiae	 for the assistance he has given. The two points may be formulated as follows: (1) That the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules	 1959	 were not made with the previous approval of the Central Government under section 115(7) of the State 551 Re organisation Act	 and	 therefore	 do not govern the petitioner insofar as the conditions of service have been varied to his disadvantage; (2) That the Madras Government had	 prior to	 November 1	 1956	 by various orders	 reduced the petitioner in rank in violation of article 311(2) of the Constitution and article 16. In order to appreciate the arguments addressed to us	 it is necessary to give a few facts. The petitioner was selected by the Madras Public Service Commission as a 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 had 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 12	 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. In the meantime	 reorganisation of States took place under the State 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 1. 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	 lave 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	 pro bation and departmental promotion was also considered. The Government of India agree with the view expressed on behalf of the State representatives that it would not be appropriate 552 to provide for any protection in the matter of these condi tions. " 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 indi cated in the memorandum. But Mr. Garg argues that even so this does not amount to previous approval within section 115(7) of the to the making of the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules	 1959. What then is the true meaning of the expression "previous approval" in the proviso to section 115(7). Sub section (7) of section II 5 provides that: Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter 1 of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State; Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section (1) of subsection (2) shall not be varied to his disadvantage except with the previous approval of the Central Government. " The effect of this sub section is	 inter alia	 to preserve the power of the State to make rules under article 309 of the Constitution	 but the proviso imposes a limitation on the exercise of this power	 and the limitation is that the State cannot vary the conditions of service applicable immediately before November 1	 1956	 to the disadvantage of persons mentioned in sub ss (1) and (2) of section 115. It is not disputed that the petitioner is one of those persons. Mr. Garg has submitted that the very fact that the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules	 1959	 as framed	 were not sent to the Central Government for approval before being promulgated shows that previous approval has not been obtained. The memorandum	 he says	 is not approval but an abdication of the powers of the Central Government. In this connection he relies on the decision of the Court of Appeal in the case of In re Bosworth and Corporation of Gravesend(1)	 but this	 decision has no bearing on the point under discussion. An Order in Council had been made under the provisions of the Burial Act	 1853	 whereby it was ordered that no new burial ground shall be opened in (amongst other places) Gravesend	 without the previous approval of one of Her Majesty 's Principal Secretaries of State. Permission was sought of the Secre tary of State to add additional land to an existing cemetery (1) [19051 2 K.B. 426. 553 The Secretary of State replied that his sanction to the pro posed addition was not required. It is this reply which was characterised by Collins	 M. R.	 as renouncing of jurisdiction. We cannot appreciate how this assists us in interpreting the proviso to section 115(7). He further relied on the unreported ' judgment of the High Court of Mysore in C. K. Appanna vs State of Mysore(1)	 but this proceeds on a concession made by the Government Pleader and does not advance petitioner 's case. In our opinion	 in the setting in which the proviso to section 115(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 article 309 of the Constitution gives	 subject to the provisions of the Constitution	 full powers to a State Government to make rules. The proviso to section 115(7) limits that power	 but that limitation is removable by the Central Government by giving its previous approval. In this context	 we think that it 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 re quirements. The broad purpose underlying the proviso to section 115(7) of the Act was to ensure that the conditions of ser vice 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 ruler	 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 (1) W.P. No 88 of 1962 ; judgement dated January 13	1964. 554 parties to this petition. At any rate	 the petitioner has not been able to show how article 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 article 16 has been established. Accordingly	 in the result	 the petition fails. In the circumstances of the case we order that the parties will bear their own costs in this Court. Petition dismissed.

Summary:
The petitioner was selected as a Lower Division Clerk under the Madras Ministerial Service Rules in 1949	 and was posted in South Kanara District. He was promoted as upper division clerk on April 2	 1956 and according to him	 he should have teen promoted much earlier. 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 admitted that he was promoted as Upper Division clerk with effect from April 2	 1956	 but alleged that this was on a temporary basis. He was later reverted and then again posted as 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 12	 1957	 in accordance with 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. In the meantime	 reorganisati;on of States took place under the and South Kanara District went to the new Mysore and the petitioner was allotted to it. On May 11	 1957	 the Government of India addressed a memorandum to all State Governments and 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 agree with the view expressed on behalf of the State res presentatives that it would not be appropriate to provide for any protection in the matter of these conditions. It was urged on behalf of the petitioner (i) that the Mysore General Services Recruitment Rules	 1959	 were not made with the previous approval of the Central Government under section 115(7) of the States Re organisation Act	 and	 therefore	 do not govern the petitioner in so far as the conditions of service have teen varied to his disadvantage and (ii) that the Madras Government had	 prior to November 1	 1956	 by varoius orders	 reduced the petitioner in rank in violation of article 311(2) of the Constitution and article 16. 550 Held: (i) In the setting in which the proviso to section 115(7) of the Act is placed	 the expression "previous approval" would in clude a general approval to the variation in the conditions of service within certain limits	 indicated by the Union Government. article 309 of the Constitution gives	 subject to the provisions of the Constitution	 full powers to a State Government to make rules. The proviso to section 115(7) of the Act limits that power	 but that limitation is removable by the Central Government by giving its previous approval. The broad purpose underlying the Proviso to section 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 the memorandum	 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. This amounted to previous approval within the proviso to section 115(7). By this memorandum the State Governments were required to send copies of all new rules to the Central Government for its information. Therefore	 it must be held that the rules were validly made. In re Bosworth and Corporation of Gravesend	 [1905] 2 K.B. 426 and C. K. Appamna vs State of Mysore	 W.P. No. 88 of 1962	 held inapplicable. (ii) The petitioner failed to show	 how article 16 was in fringed before he was allotted to the new Mysore State. The State in its reply had 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. Therefore	 it must be held that infringement of article 16 was not established.