# N RAGHA VENDRA RAO v. DEPUTY COMMISSIONER. SOUTH KANARA, MAN GALORE

- **Citation:** [1964] 7 S.C.R. 549
- **Court:** Supreme Court of India
- **Decided:** 1964-03-31
- **Case number:** Writ Petition No. 211 of 1963
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, J. c. SHAH, N. Rajagopala Ayyangar, S. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-ragha-vendra-rao-v-deputy-commissioner-south-kanara-man-galore-3163
- **Pages:** 6

## Headnote

Fundamental Rights-Conditions of se-rvice changed by
the State Government without the previous approval of the
Central Government-Loss of benefit of service and increments-"Previous
approval"-Meaning
of-Mysore Generat
Services Recruitment Rules, 1959----States Reorganisation Act
1956 (37 of 1956), s. 115(7)-Constitution of India, Arts. 16 and
311(2).
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 w>ith 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, reorganisation
of States took place under the States Reorganisation Act, 1956
and S-Outh Kanara District went to the new Myoore 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 tra'/elling 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 respresentatives that it would not be ap"ropriate 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 s. 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 Art. 311(2) of the Constitutii>n and Art. 16.
1964
Mareh31
550
SUPREME COURT REPORTS
[19C4]
1964
He!d: (i) In the setting in which the proviso to s. 115(7) of
N R h
d
R the Act is placed, the expression "previous approval" would in-
• ag a;en ra
ao elude a general approval to the variation in the conditions of
Deputy oo:nmisioner service ~Nithin certain limits, indicated by the Union GovernBouth Kanara Man'. ment. Art. 309 of the Constitution gives, subject to the provigalore '
sions of the Constitution, full powers to a State Government to
make rules. The proviso to s.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
:mderlying 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 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 s.115(7). By
this memorandum the State Governments were req

## Text

7 S.C.R.
SUPREME COURT REPORTS
549
N .. RAGHA VENDRA RAO
v.
DEPUTY COMMISSIONER. SOUTH KANARA,
MAN GALORE
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J. c. SHAH, N.
RAJAGOPALA AYYANGAR AND S. M. SIKRI, JJ.)
Fundamental Rights-Conditions of se-rvice changed by
the State Government without the previous approval of the
Central Government-Loss of benefit of service and increments-"Previous
approval"-Meaning
of-Mysore Generat
Services Recruitment Rules, 1959----States Reorganisation Act
1956 (37 of 1956), s. 115(7)-Constitution of India, Arts. 16 and
311(2).
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 w>ith 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, reorganisation
of States took place under the States Reorganisation Act, 1956
and S-Outh Kanara District went to the new Myoore 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 tra'/elling 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 respresentatives that it would not be ap"ropriate 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 s. 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 Art. 311(2) of the Constitutii>n and Art. 16.
1964
Mareh31
550
SUPREME COURT REPORTS
[19C4]
1964
He!d: (i) In the setting in which the proviso to s. 115(7) of
N R h
d
R the Act is placed, the expression "previous approval" would in-
• ag a;en ra
ao elude a general approval to the variation in the conditions of
Deputy oo:nmisioner service ~Nithin certain limits, indicated by the Union GovernBouth Kanara Man'. ment. Art. 309 of the Constitution gives, subject to the provigalore '
sions of the Constitution, full powers to a State Government to
make rules. The proviso to s.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
:mderlying 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 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 s.115(7). By
this memorandum the State Governments were required to
send copies of all new rules to the Central Government for it'
information. Therefore, it must be held that the rul.es were
validly made.
Bikri, J.
In re Bosworth and COTporation of Gravesend, [1905]
2 K.B. 426 and C. K. Appamna v. State of Mysore, W.P. No.
88 of 1962, held inapplicable.
(ii) The petitioner failed to show how Art. 16 was infringed before he was allotted to !he new Mysore State. The
State in its reply had asserted that all the orders complained
against were passed ty 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 Art. 16 was not
estal;>lished.
ORIGINAL JURISDICTION: Writ Petition No. 211 of 1963.
, Petition under Art.
32 of the Constitution of India for
the enforcement of the Fundamental Rights.
R. K. Garg, for the petitioner.
C. K. Daphtary, Attorney-Genera/, 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 Art. 32 of the Constitution for enforcing the fundamental rights of the petitioner
under Arts. 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:
(I) That the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules, 1959, were
not made with the previous approval of the
Central Government under s. 115(7) of the State
7 S.C.R.
SUPREME COURT REPORTS
551
Re-organisation Act, and, therefore, do not
1964
govern the petitioner insofar as the conditions of
--
service have been varied to his disadvantage·
N. Raghavendra Rao
•
v.
(2) That the Madras-Government had
prior to Deput11 Oommi8Sioner
'
SouthKanara,Man·
November 1, 1956, by various orders, reduced
galore
the petitioner in rank in violation of Art. 311(2)
of the Constitution and Art. 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 ba~is. 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 remlted 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 :ihould be protected, e.g., substantive
pay of permanent employees, certain type of special pay,
kave 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 servant;; 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 representatives that it would not be appropriate
Sikri, J.
552
SUPREME COURT REPORTS
(1964]
1964
to provide for any protection in the matter of these condi-
. N. Raghvenilra Rao tions." Therefore, it is evident from this memorandum that
v. . .
the Central Government had told the State Government that
DeputgComm18"oner th
· ht "f th
d ·
h
.
.
Somh Kanara, Maney m1g , I
ey so
esrre, c ange service rules as mdigalore
cated in the memorandum. But Mr. Garg argues that even
so this does not amount to previous approval within s.
115(7) of the States Reorganisation Act to the making of the
Bikri, J.
Mysore General Services (Revenue Subordinate Branch) Recruitment Rules, 1959. What then is the true meaning of the
expression "previous approval" in the proviso to s~ Il5(7).
Sub-section (7) of s. 115 provides that:
"(7) Nothing in this section shall be deemed to affect
after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation io 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 (]) of subsection (2) shall not be varied to his disadvantage
except with the previous approval bf the Central
Government."
The effect of this sub-section is, inter alia, to preserve the
power of the State to make rules under Art. 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 I, 1956, to the disadvantage of persons mentio'ned in sub-ss (1) and (2) of s. 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 a,pproval 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('), 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 Secretary of State to add additional land to an existing cemeter~
(') [1905] 2 K.B. 426.
7 S.C.R.
SUPREME COURT REPORTS
553
The Secretary of State replied that his sanction to the pro-
~
posed addition was not required. It is thi~ reply. w~c~ ~as N. Riigha•nl raRao
characterised by Collins, M. R., as renouncmg of 1unsd1cl!on.
0 •·
. .
.
th'
.
. .
t'
th Deputy omm•"'""''
We cannot appreciate how
1s assists us m mterpre mg
e SO'Uth Kanara Ma•·
proviso to s. 115(7). He further relied on the unreported
galore'
judgment of the High Court of Mysore in C. K. Appanna v.
Sikri, J.
State of Mysore('), 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 s.
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 Art. 309 of the
Constitution gives, subject to the provisions of the Constitu·
ti on, full powers to a State Government to make rules. The
proviso to s. 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 requirements.
The broad purpose underlying the proviso. to
s. 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 embark·
ing on varying the conditions of service, the State Govern·
ments 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 s. 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
(') W.P. No 88 of 1962; judgement dated January 13, 1964.
554
SUPREME COURT REPORTS
[1964]
parties to this petition. At any rate, the petitioner has not
1964
been able to show how Art. 16 was infringed before he Wall
N R h::°-d
R allotted to the new Mysore State. The State in its reply has
• ag :'." '" ao asserted that all the orders complained against were pa8sed
ll•puty Oommi88ioner by competent authorities, after considering the merits of the
South K;;:;"· Man· petitioner on each occasion. It was for the competent authorities to judge the merits of the petitioner. We find no force
llikri, J.
in this contention and hold that no infringement of Art. 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.
I