Nohiria Ram v. Union of India (With Connected

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as withdrawn.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 below.

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 General's

office was to be decided. The appellant joined his Dew 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 30^th

April, 1930, 1 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 Comniission 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, 193 1, 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 had 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 Government of India, E.H. & L. Department,

affirmed that Mr. Nohiria Ram was governed by the orders

contained in their letters No. F. 9-22/39-H dated the 8^th

August, 1939, and No. F. 37-13/41-H, dated the 27^th

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 retires.

Mr. 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 office.

In 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 Subordinate 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 appellant's 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 1951.

Civil Appeal No. 117 of 1957 continues the story of the

appellant's 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 be was entitled for

the month of November, 1952. What happened was this. In

October, 1952, the appellant

was working in the Public Health Section 1, 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 the 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

1, he occupied the seat meant for the record sorter in the

General Section. In other words, since October 13, 1952,

the appellant did no 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 Court.

The 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

bad accepted the condition on which he was appointed; and

the grievance he made after a lapse of about 14 years was

unsubstantial and fanciful.

Learned counsel for the appellant has contested the

correctness of the aforesaid findings. It is not disputed

that the appellant did know the condition which the Public

Service Commission had imposed in approving of the

appointment of the appellant on May 16, 1930. The argument

before us is (1) that on a true construction of the relevant

rules and Government orders governing the conditions of the

appellant's service, the appellant on his confirmation with

effect from April 1, 1930, became a permanent member of the

regular establishment of the office of the Director General,

Indian Medical Service, and (2) that the Public Service

Commission had no authority to impose any condition in

derogation of those rules and orders.

Let us now examine the rules and orders on which the

appellant relies. Fundamental Rule 9 (4) explains what is

meant by a cadre; it means in effect the strength of an

establishment or service (later amended to include a part of

a service) sanctioned as a separate unit. The establishment

we are concerned with in the present case is the

establishment of the office of the Director General, Indian

Medical Service. The total ,sanctioned strength of that

establishment was 30. In their letter of February 26, 1930,

the Government of India conveyed sanction to the appointment

of an additional clerk to deal with the work of the Indian

Research Fund Association on the understanding that the

average cost of the post plus leave and pensionary

contributions would be recovered from the Association. The

question is if this additional post was a permanent increase

of the regular cadre or was a post outside the cadre. In

1934 the Accountant General, Central Revenues, raised the

question and enquired of the Director General, Indian

Medical Service, how the pay of 31 persons was shown in his

establishment as against the sanctioned strength of 30 only.

The Director General, Indian Medical Service, replied that

the number 31 included the post of the additional

clerk, though the post was not included in the sanctioned

strength of his office. In 1935 the Director General,

Indian Medical Service, wrote to Government and said : " In

practice the post has since been considered outside the

regular cadre of my office." The Director General, Indian

Medical Service, then added:

" I consider that F. R. 127 is the only rule under which

additions to a regular establishment can be made for the

performance of the work of private bodies. As this rule

does not seem to contemplate the, constitution of two

separate establishments in one and the same office I am of

opinion that the two posts in question should be regarded as

additions to the strength of my office and as such they must

remain under my administrative control."

To this letter the Government of India replied to the effect

that though the post was under the administrative control of

the Director General, Indian Medical Service, it was a post

outside the regular establishment and the incumbents of this

post as also of another similar post should be absorbed in

the regular establishment when vacancies occurred in future.

This order was partially modified in 1939 when it was said:

"The Government of India have decided that the post of clerk

attached to your office for the work of the Indian Research

Fund Association, which is outside the regular cadre of your

office, should not be absorbed in that cadre on the

occurrence of a vacancy. It should continue to be retained

outside the cadre as at present until Mr. Nohiria Ram

remains on deputation to a post under the Indian Research

Fund Association and the Association should continue to pay

the leave and pension contributions to Government on account

of the latter post. In the event of Mr. Nohiria Ram's

reversion to his substantive post the Association will, as

originally stipulated in this Department letter No. 467-H.

dated 26^th February, 1930, be required to pay the average

cost of the post plus leave and pension contributions. The

post will be abolished on retirement of Mr. Nohiria Ram from

service."

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."

The sheet anchor of the case of the appellant as presented

by his learned counsel is Fundamental Rule 127 in Section

111, Chapter XII, read with rules 24 and 44 of the Civil

Services (Classification, Control and Appeal) Rules, 1930.

The case so presented is this: it is argued that under the

Classification, Control and Appeal Rules the Governor

General in Council was alone competent to constitute a cadre

by declaring the sanctioned strength of the establishment of

the Director General, Indian Medical Service and Fundamental

Rule 127 lays down how the recovery of the cost is to be

made when an addition is made to a regular establishment for

the benefit of private persons or bodies, and the argument

proceeds to state that as the post in which the appellant

was permanently appointed in 1930 was not constituted into a

separate cadre, that post must be held to be an addition to

the regular establishment of the Director General, Indian

Medical Service and., therefore, an integral part of the

same cadre. We are unable to accept this argument as

correct. 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 control. F. R. 127 on which learned counsel

has placed so much reliance is in these terms:

F.R. 127. "When an addition is made to a regular

establishment on the condition that its cost, or a definite

portion of its cost, shall be recovered from the persons for

whose benefit the additional establishment is created

recoveries shall be made under the following rules :

(a) The amount to be recovered shall be the gross

sanctioned cost of the service, or of the portion of the

service, as the case may be and shall not vary with the

actual expenditure of any month.

(b) The cost of the service shall include contributions at

such rates as may be laid down under Rule 116 and the

contributions shall be calculated on the sanctioned rates of

pay of the members of the establishment.

(c) A local Government may reduce the amount of recoveries

or may entirely forego them."

The 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 bad decided from the very beginning

that the additional post which the appellant held was

outside the regular establishment of the Director General,

Indian Medical Service.

It has been next argued that under the relevant Rules

members of the regular establishment alone could be sent on

foreign service and as admittedly Government sanctioned the

transfer of the appellant to foreign service with effect

from April 10, 1931, the appellant must be held to be a

member of the regular establishment of the Director General,

Indian Medical Service. In our opinion, this argument is

also equally fallacious. The Rules relating to I Foreign

Service' are to be found in Section III, Chapter XII and the

particular Rules to which our attention has been drawn are

Fundamental Rules 111 and 113. Insofar as it is relevant

for our purpose, Fundamental Rule I 1 1 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 case.

Lastly, it has been argued that the Public Service

Commission had no authority to impose a condition that the

appellant would not have any claim to appointment as a

Routine Division Clerk in the Secretariat or its attached

Offices. In one of his representations the appellant said

that he signed the note which drew his attention to the

condition on " the understanding that it had no value

whatsoever, being contrary to the rules and Government

orders". The contention of the appellant is that the Public

Service Commission which was constituted in 1926 and

functioned under the rules published in the Home Department

notification No. F. 178/14/24 Ests. dated October 14, 1928,

dealt with the recruitment of class I and class 11 officers

of the Civil Services in India, and the rules then in force

did not provide for the discharge of any function by the

Public Service Commission in respect of the recruitment to

and control of the subordinate service to which the

appellant belonged. This contention was accepted by the

learned Subordinate Judge. The High Court, on appeal, held

that the appointment of the appellant was governed by the

instructions laid down in an office memorandum of the

Government of India in the Home Department dated December 8,

1928, paragraph VIII whereof stated-

Special cases.-To meet cases where a candidate,

though not possessing the prescribed educational

qualification, has acquitted himself satisfactorily in

examinations of a higher or equivalent standard, or has

acquired great experience of Government service outside the

ministerial staff or possesses special qualifications for a

particular class of work, the Public Service Commission are

empowered (a) to admit to the examination persons possessing

educational qualifications other than those prescribed, and

(b) to exempt from the examination or to admit to a

particular Division persons who by reason of their previous

record can in their opinion properly be exempted or admitted

as the case may be. In the case of persons already in

Government service such action will be taken only on the

recommendation of the Department concerned. In view of the

discretion vested in the Commission by this provision, it

will no longer be open to Departments to recruit

independently for their offices or subordinate offices men

with special or technical qualifications. Before making any

such appointment they will be required to secure the Public

Service Commission's concurrence."

The 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 paragraph. Learned counsel for the appellant

has contended that even the instructions contained therein

do not justify the imposition of a condition by the Public

Service Commission, and the only powers the Public Service

Commission could exercise were those mentioned in (a) and

(b) thereof.

We 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 concurrence.

This 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, lie was not

entitled to claim seniority in that office. It is true that

the appellant obtained a decree from the learned Subordinate

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.

In the result, both appeals fail and are dismissed with

costs; as the appeals were heard together there will be one

hearing fee to be shared by the respondents in the two

appeals.

Appeals dismissed,