# NOHIRIA RAM v. THE UNION OF INDIA AND OTHERS

- **Citation:** [1958] 1 S.C.R. 923
- **Court:** Supreme Court of India
- **Decided:** 1955-10-03
- **Case number:** Civil Appeals Nos. 116 and 117 of 1957
- **Bench:** S. R. Das C. J, Venkatarama Aiyar, S. K. Das, A. K. Sarkar, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nohiria-ram-v-the-union-of-india-and-others-1443
- **Pages:** 16

## Headnote

Civil Servant-Cadre-Additional post to regular establishment-Whlether an integral part of regular CadreCreation of post outside ·Cadre-Competence-Transfer
of incumbent of such post on foreign · service-Effect-
.Fundamental Rules, Rr. 9 ( 4), 111, 113, 127-Civil ServiCies
(Classification, Control and Appeal) Rules, rr. 24, 44.
The appellant was -0riginally employed as a civilian
clerk in the Royal Air F:,orci:1 Quetta, but subsequently on
application made by him to tne Director General of Indian
Medical Service, he was appointed as an additional clerk
in the office of the Director General 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. The Public .Service
Commission approved of the appointment subject to the
condition that this would not give him any claim to
appointment in the Central Secretariat or its attached
offices. On June 12, 1930, the appellant was confirmed in
the additional post with effect from April 1, 1930, and on
April 10, 1931, he was transferred on "foreign service"
under the Indian Research Fund Association, where he
continued to serve till September 17, 1944. As a result
of certain representations made by him 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, Government decided that while
continuing to hold the extra-cadre post which was originally
sanctioned for the work of the Indian Research Fund Association, he would in future be employed on ordinary work
in the office of the Director General, but would continue to
be subject to the existing disqualifications, namely, that
he would have no claim to appointment in the regular
cadre of the ministerial establishment of the office. Ultimately on March 30, 1948, he instituted a suit against the
Union of India 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 contended, inter alia
(1) that as the post in which he was permanently appointed
19S7
November 8.
924
SUPREME COURT REPORTS
[1958]
1957
in 1930 was not constituted into a separate cadre, that post
must be held to be an addition to the regular establishment
Nohiria Ram
of the Director General, Indian Medical Service and, therev.
fore, an integral part of the same cadre, and (2) that, in
Tile Union of India any case, as under the rules relating to "foreign service"
in the Fundamental Rules, members of the regular establishment only could be sent on "foreign service" and as
admittedly Government had sanctioned the transfer of the
appellant on "foreign service," he must be held to he a
member of the regular establishment of the Director
General.
Held, (1) that it was within the competence of the
appropriate authority to create an additional post outside
the regular cadre of a particular office to which the post
may be attached for purposes of administrative control,
and Fundamental Rule 127 only lays down the principles in
accordance with which the cost of the additional post shall
be recovered;
(2) That Fundamental Rule 113 was not applicable to
the case as the appellant did not belong to a· cadre immediately before his transfer on "foreign service".
The question whether it was open to the Public Service
Commission to impose a condition on or give conditional
concurrence to, the appointment of the appellant, was left
open.

## Text

S.C.R.
SUPREME COURT REPORTS
NOHIRIA RAM
v.
THE UNION OF INDIA AND OTHERS
(with connected appeal)
923
(S. R. DAS C. J., VENKATARAMA AIYAR, S. K. DAS,
.A. K. SARKAR and VIVIAN BosE JJ.)
Civil Servant-Cadre-Additional post to regular establishment-Whlether an integral part of regular CadreCreation of post outside ·Cadre-Competence-Transfer
of incumbent of such post on foreign · service-Effect-
.Fundamental Rules, Rr. 9 ( 4), 111, 113, 127-Civil ServiCies
(Classification, Control and Appeal) Rules, rr. 24, 44.
The appellant was -0riginally employed as a civilian
clerk in the Royal Air F:,orci:1 Quetta, but subsequently on
application made by him to tne Director General of Indian
Medical Service, he was appointed as an additional clerk
in the office of the Director General 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. The Public .Service
Commission approved of the appointment subject to the
condition that this would not give him any claim to
appointment in the Central Secretariat or its attached
offices. On June 12, 1930, the appellant was confirmed in
the additional post with effect from April 1, 1930, and on
April 10, 1931, he was transferred on "foreign service"
under the Indian Research Fund Association, where he
continued to serve till September 17, 1944. As a result
of certain representations made by him 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, Government decided that while
continuing to hold the extra-cadre post which was originally
sanctioned for the work of the Indian Research Fund Association, he would in future be employed on ordinary work
in the office of the Director General, but would continue to
be subject to the existing disqualifications, namely, that
he would have no claim to appointment in the regular
cadre of the ministerial establishment of the office. Ultimately on March 30, 1948, he instituted a suit against the
Union of India 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 contended, inter alia
(1) that as the post in which he was permanently appointed
19S7
November 8.
924
SUPREME COURT REPORTS
[1958]
1957
in 1930 was not constituted into a separate cadre, that post
must be held to be an addition to the regular establishment
Nohiria Ram
of the Director General, Indian Medical Service and, therev.
fore, an integral part of the same cadre, and (2) that, in
Tile Union of India any case, as under the rules relating to "foreign service"
in the Fundamental Rules, members of the regular establishment only could be sent on "foreign service" and as
admittedly Government had sanctioned the transfer of the
appellant on "foreign service," he must be held to he a
member of the regular establishment of the Director
General.
Held, (1) that it was within the competence of the
appropriate authority to create an additional post outside
the regular cadre of a particular office to which the post
may be attached for purposes of administrative control,
and Fundamental Rule 127 only lays down the principles in
accordance with which the cost of the additional post shall
be recovered;
(2) That Fundamental Rule 113 was not applicable to
the case as the appellant did not belong to a· cadre immediately before his transfer on "foreign service".
The question whether it was open to the Public Service
Commission to impose a condition on or give conditional
concurrence to, the appointment of the appellant, was left
open.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos.
116 and 117 of 1957.
Appeals by special leave from the judgment and
order dated October 30, 1953, of the Circuit Bench of
the Punjab High Court at Delhi in Civil Regular First
Appeal No. 190 of 1951 and Civil Writ No. 82-D of
1952.
D. R. Prem, T. S.
Venkataraman and K. R.
Chaudhry, for the appellant.
R. Ganapathy Iyer, Porus A. Mehta and R. H.
Dhebar, for the respondents.
1957. November 8.
The Judgment of the Court
was delivered by
s. K. Das!.
S. K. DAS J.-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
S.C.R.
SUPREME COURT REPORTS
925
General of Health Services, New Delhi, respondent
1957
2, directing them to forbear from giving effect to an
Nohiria Ram
order of dismissal passed by respondent 2 against the
v.
petitioner on October 3, 1955. That petition was, Tire Union of India
however, dismissed, as withdrawn. Therefore, the
s. K. Das 1.
present judgment is confined to the two appeals, and
the relevant facts relating thereto are stated pelow.
Formerly, the appellant held a permanent appointment as a civilian clerl,{ 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 appoinJment in the Director General's office was to be decided. .The appellant joined his new 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 tQ be recovered from the Association. On April 30, 1930, ihe
Director General, Indian Medical Service, wrote to
926
SUPREME COURT REPORTS
(1958]
1957
the Secretary, Public Service Commission, intimating
Nohiria Ram
that the appointment of an additional clerk had been
v.
sanctioned by the Government of India for work of
The Un~
India the Indian Research Fund Association; the Director
s. x. DasJ.
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 Com"
mission, gave the following reply :
"With reference to your letter No. 219/516 dated
the 30th April, 1930, I 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 Commi~sion 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 Commission 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, 1931,
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 tili September 17, 1944, with some breaks for
small periods during which he reverted to the office
S.C.R.
SUPREME COURT REPORTS
927
of the Director General to officiate as· assistant, first
1957
grade or special grade, on Rs. 200-12-440. On June
Nohiria Ram
10, 1932, the Governor General-in-Council sanctioned
v.
the transfer of the appellant to foreign service under The U11i011 of India
the Indian Research Fund Association with effect from
s. K. Das 1.
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 mis-
'
apprehensmns in the future." On September 11, 1944,
the Secretary, . Indian Research Fund Association,
WTote 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 11, 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, 1.R.F.A., the Government of India, E.H; &
L. Department, affirmed that Mr. Noh~ria Ram was
governed by the orders contained in their letters No.
F. 9-22/39-H dated the 8th August, 1939, and No. F.
37-13/4~-H. dated the 27th November, 1941. These
orders clearly state-
928
SUPREME COURT REPORTS
(1958]
1957
(1) that the substantive post of Mr. Nohiria Ram
Nohiria Ram is attached to this office for the work of the I.R.F.A.;
~' " . v. ,, l ,.
(2) that it is outside the regular cadre of this
1.11e vlllon OJ
llOlQOffice;
s. K. Dasi.
(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 !"etires.
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 leaye 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 empioyed on the ordinary work of this office. He will
S.C.R.
SUPREME COURT REPORTS
929
continue to be subject to the existing disqualifica1957
tions, namely, that he will have no claim to appointNohiria Ram
ment as a routine division clerk in the Secretariat or
v.
its attached Offices or to inclusion in the regular cadre The U11ion of I11dia
of the ministerial establishment of this office.
-
/
S. K. Das .
In accordance with the above decision, Mr. Nohi·
ria 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 ot 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 f<;lr 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
930
SUPREME COURT REPORTS
[1958]
1957
New Delhi, to disburse immediately the pay and
Nohiria Ram allowances to which the appellant said he was entitled
v.
. for the month of November, 1952. What happened
nie Uni'!!!_.!f l•dia was this. In October, 1952, the appellant was works. K. Dasi.
ing in the Public Health Section I, and on October 3,
1952, he proceeded on leave on average pay till October 11, 1952. On his return from leave on Octboer 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 in-
·stead of going to the Public Health Section I, 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
S.C.R.
SUPREME COURT REPORTS
931
post attached to the office of the Director General for
1957
the purpose of the work of the Indian Research Fund
Nohtrta Ram
Association, but it was a post outside the regular cadre Th u. t v. 1 Ind"
of the office of the Director General, and this was made e n ~
10
dear to the appellant from the very beginning. The s. K. Das J.
High Court found that the appellant knew and had.
accepted the condition on which he was appointed; and
the grieyance he made after a lapse of about 14 years
was unsubs.tantial and fanciful.
Learned counsel for the appellant has contested
tb~ 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
i6, 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 Governl!lent 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
932
SUPREME COURT REPORTS
(1958]
1957
General, Central Revenues, raised the question and enNohiria Ram quired of the Director General, Indian Medical Serv.
vice, how the pay of 31 persons was shown in his
The Union of India establishment as against the sanctioned strength of
s. K. Das J.
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 establish
ment and the incumbents of this post as also of another
similar post should be absorbed in the regular establishment when vacancies occurred in future. Tlfis
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
S.C.R.
SUPREME COURT REPORTS
933
Mr. Nohiria Ram's reversion to his substantive post
1957
the Association will, as originally stipulated in this
Nolziria Ram
Department letter No. 467-H. dated 26th February,
v.
1930, be required to pay the average cost of the post The U11io11 of lliaia
plus leave and pension contributions. The post will
s. K. DasJ.
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 III, 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 appoin~ed 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
934
SUPREME COURT REPORTS
. [1958}
1957
reason was that it was an additional post outside the
Nohiria Ram regular cadre. None of the rules to which learned
. v.
. counsel has drawn our attention prevents the approThe Umonof India priate authority from creating an additional post outs. K. Das J.
side 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 d.oes 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 had 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
S.C.R.
SUPREME COURT REPORTS
935
to foreign service with effect from April 10, 1~31, the
19S7
appellant must be held to be a member of the regular
Nohiria Ram
establishment of the Director General, Indian Medical
v.
Service. In our opinion, this argument is also equally77ie Union of Jnd;q,
fallacious. The Rules relating to 'Foreign Service' are s. K. Dar J.
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. In so far as it is
relevant for our purpose, Fundamental Rule lU 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 he. 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 clas8 I and
class II officers of the Civil Services in India, and the
rules then in force did not provide for the discharge-
936
SUPREME COURT REPORTS
[ 1958]
19s1
of any function by the Public Service Commission in
Nohiria Ram respect of the recruitment to and control of the subv.
ordinate service to which the appellant belonged.
The Union of India This contention was accepted by the learned Subordis. x-:DasJ.
nate Judge. The High Court, on appeal, held that
the appointment of the appellant was gol(erned 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-
"Spedal 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 proviJ;ion, it will no longer be
open to Departments to recruit independently for their
offices or subordinate offices men with special or
te"chnical 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 h.eld 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
S.C.R.
SUPREME COURT REPORTS
937
Service Commission, and the only powers the Public
1957
Service Commission could exercise were those· menNohirta Ram
tioned in (a) and (b) thereof.
v.
We think that it is unnecessary to examine the The Union o/Intlill
validity of these contentions on the present occasion.
s. x. Das 1.
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 appointmoot 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 tbe 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 sofrom 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, he was not entitled to claim seniority in that
office. It is ti:ue 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. Ill these
circumstances, how could the appellant refuse to do
LISup.Court/61-4
I
938
SUPREME COURT REPORTS
(1958]
1957
the work given to him? We have referred to the
Nohirta Ram circumstances in which the appellant refused to do
v.
work in the Public Health Section to which he was
The Ulfion. of India allotted; he did not work from October 13, 1952 and
s. K.Das1. 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.
1957
Novtmbtr, 11.
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.
THE AGGARWAL CHAMBER OF
COMMERCE, LTD.
'V.
M/s. GANPAT RAI HIRA LAL
(B. P. SrNHA and J. L. KAPUR JJ.)
Income-tax-Assessment of agent in respect of profits
held fO'r non-resident principal-Agent's right to claim
deduction for payment made-Ultimate liability of principal to income-tu on basis of his world income, if a relevant
consideraticn--Indian Income-tax Act, (XI of 1922), ss.
40 (2)' 42 (1).
.
The appellant company and the respondent firm were
carrying on business in the erstwhile Patiala State, and
were non-residents in British India. The appellant, ·acting
as commission agent for the respondent, entered into
several forward transactions with a Hapur firm of commis-
.sion agents. The profits accruing on these transactions
amounted to Rs. 29,275-2-6 on which the Hapur firm paid
.a swn of Rs. 9,314-13-4 as income-tax. In 1943 the appellant
was ordered to be wound up and the respondent was placed
·on the list of contributories. The Official Liquidator applied
to the Liquidation Judge for a payment order for a sum
which included the amount of income-tax paid by the
Hapur firm for and on behalf of the respondent. The main
-eontention raised on behalf of the respondent was that it
'had no taxable income in the year in dispute and was not
liable to pay any income-tax and that, consequently, it was
11ot liable for the income-tax paid by the Hapur firm.