# P. B. ROY v. UNION OF INDIA

- **Citation:** [1972] 3 S.C.R. 449
- **Court:** Supreme Court of India
- **Decided:** 1972
- **Case number:** Civil Appeal No. 2172 of 1968
- **Bench:** S. M. S1Kri, A. N. Grover, A. N. Ray, D. G. Palekar, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-b-roy-v-union-of-india-5559
- **Pages:** 13

## Headnote

. Civil Servant~llolding temporary post-Constitution of New service
-'Departmental candidate' holding temporary post appointed to pernza.
nent post but of a lower grade-If violative of Art, 311.
The appo:llant was holding a temporary post of Editor in the Publi·
cations DiVIsion of the Department of Information and Broadcasting. The
teml"!rary post was sanctioned upto 28-2-1957.
On 16-2-1959, tho
PreS1dent of India, in exercise of the powers conferred by the proviso to
Art. 309 of the Constitution, promulgated the Central Information Service Rules, 1959. These Rules were meant for the creation of a Cen·
tral Information Service with prescribed grades and strengths. and entry
into the service was open to departmental candidates according to r. S
for the initial constitution of the service. The appellant was chosen by
the Selection Col)lmittee and was posted as an Assistant Editor. He
challenged the order,
A single Judge of the High Court allowed the petition.
On uppeal,
in the course of arguments, the question arose whether the post of
Editor was abolished or had ceased to exist and the respondent was
allowed to file an affidavit stating that the post of Editor had ceased to
exist.
The Division Bench ·then held that there was no question of
demotion or reduction in rank and hence that Art. 311 ·was not appli ..
cable.
In appeal to this . Court, it was held :
(I) The additional affidavit filed by the respondent did not introduce
anything new but only clarified the po;ition. [455 E]
(a) There was nothing to show that the temporary post of Editor
in which the appellant was initially appointed had been continued beyond
28-2-1957 for any period. [455 CJ
(b) The question whether the constitution of the Central Information
Service involved fresh appointments to new posts or its effect was merely
to transfer existing employees to corresponding posts with new desig11ations was already before the court. [455 D-E]
.
( c) The appellant himself never ~sked for any opportunity to meet
any allegation in the additional affidavit. [454 F-G]
(2) ·There is nothing to indicate that on the face of the impu~ed .
order, that the appellant had been demoted as a measure of purushment. [455 F-GJ
(3) It could not be held that the order, which had the effect of
terminating an officiating appointme~t in which the. appellant. had i:io
·right to continue-and which gave him a fresh appomtment wit~ a different designation, -Out 11trmanent tenure and prospects, constituted a
450
SUPREME COURT REPORTS
[1972) 3 S.C.R.
violation of either Art. 14 or 16, simply because the process which
resulted in such an order did not have a similar effect upon the position
or rights of any other person in the Department; especially when, after
taking into account the appellant's individual case, the Selection Com·
mittee recommended the maximum pay in the class and grade of the post
given to him. [456 A·CJ
(4) (a) The new rules had the effect of constituting a 11ew service
with a fair and reasonable procedure for entry into it.
Such a procedure
could not be characterised as a device to defeat the provisions of Art. 311
or a fraud upon the Constitution simply because the result of. subjection
to the proeess of appraisement of the merits of each candidate may not
meet the expectations of some candidates. [457 F-G]
(b) Article 311 affords a reasonable opportunity to defend against
threatened punishment to those already in GQvernment service.
Rule 5
of tho Central Information Service Rules provides a method of recruit·
ro~nt or entry into a new service of persons who, even ,though they may
have been serving the Government had no right to enter the newly
constituted se\'Vice before going through tho procedure prescribed by the
rule. The fields of operation of Art. 311 and r. 5 are quite different and
'°istinct. [457 G·H; 458 A-Bl
(c) The definition of 'departmental candidates' in r. 2(b) was meant
only as an aid in interpreting r. 5 and was not intended to operate as
a fetter on the

## Text

A
B
c
D
E
F
G
H
P. B. ROY
v.
UNION OF INDIA
F~bruary 11, 1972
H9
[S. M. S1KRI, C.J., A. N. GROVER, A. N. RAY, D. G. PALEKAR
AND M. H. BEG, JJ.]
. Civil Servant~llolding temporary post-Constitution of New service
-'Departmental candidate' holding temporary post appointed to pernza.
nent post but of a lower grade-If violative of Art, 311.
The appo:llant was holding a temporary post of Editor in the Publi·
cations DiVIsion of the Department of Information and Broadcasting. The
teml"!rary post was sanctioned upto 28-2-1957.
On 16-2-1959, tho
PreS1dent of India, in exercise of the powers conferred by the proviso to
Art. 309 of the Constitution, promulgated the Central Information Service Rules, 1959. These Rules were meant for the creation of a Cen·
tral Information Service with prescribed grades and strengths. and entry
into the service was open to departmental candidates according to r. S
for the initial constitution of the service. The appellant was chosen by
the Selection Col)lmittee and was posted as an Assistant Editor. He
challenged the order,
A single Judge of the High Court allowed the petition.
On uppeal,
in the course of arguments, the question arose whether the post of
Editor was abolished or had ceased to exist and the respondent was
allowed to file an affidavit stating that the post of Editor had ceased to
exist.
The Division Bench ·then held that there was no question of
demotion or reduction in rank and hence that Art. 311 ·was not appli ..
cable.
In appeal to this . Court, it was held :
(I) The additional affidavit filed by the respondent did not introduce
anything new but only clarified the po;ition. [455 E]
(a) There was nothing to show that the temporary post of Editor
in which the appellant was initially appointed had been continued beyond
28-2-1957 for any period. [455 CJ
(b) The question whether the constitution of the Central Information
Service involved fresh appointments to new posts or its effect was merely
to transfer existing employees to corresponding posts with new desig11ations was already before the court. [455 D-E]
.
( c) The appellant himself never ~sked for any opportunity to meet
any allegation in the additional affidavit. [454 F-G]
(2) ·There is nothing to indicate that on the face of the impu~ed .
order, that the appellant had been demoted as a measure of purushment. [455 F-GJ
(3) It could not be held that the order, which had the effect of
terminating an officiating appointme~t in which the. appellant. had i:io
·right to continue-and which gave him a fresh appomtment wit~ a different designation, -Out 11trmanent tenure and prospects, constituted a
450
SUPREME COURT REPORTS
[1972) 3 S.C.R.
violation of either Art. 14 or 16, simply because the process which
resulted in such an order did not have a similar effect upon the position
or rights of any other person in the Department; especially when, after
taking into account the appellant's individual case, the Selection Com·
mittee recommended the maximum pay in the class and grade of the post
given to him. [456 A·CJ
(4) (a) The new rules had the effect of constituting a 11ew service
with a fair and reasonable procedure for entry into it.
Such a procedure
could not be characterised as a device to defeat the provisions of Art. 311
or a fraud upon the Constitution simply because the result of. subjection
to the proeess of appraisement of the merits of each candidate may not
meet the expectations of some candidates. [457 F-G]
(b) Article 311 affords a reasonable opportunity to defend against
threatened punishment to those already in GQvernment service.
Rule 5
of tho Central Information Service Rules provides a method of recruit·
ro~nt or entry into a new service of persons who, even ,though they may
have been serving the Government had no right to enter the newly
constituted se\'Vice before going through tho procedure prescribed by the
rule. The fields of operation of Art. 311 and r. 5 are quite different and
'°istinct. [457 G·H; 458 A-Bl
(c) The definition of 'departmental candidates' in r. 2(b) was meant
only as an aid in interpreting r. 5 and was not intended to operate as
a fetter on the functions and powers of the Selection Committee. It does
not require that all persons falling within the definition of 'departmental
candidate' should be placed in a single class. Under r. 5 the Selection
Committee could assign different grades to the departmental candidates.
The post actually held by the appellant before his selection for appointment to the newly constituted service did not automatically or wholly
determine the position of a departmental candidate . who offered himself
to the proeess of appraisement of his merits by the Selection Committee
to be made on the totality of relevant facts.
That Committee was presid·
ed over by the Chairman or a Member of the Union Public Service Com· .
mission and had officials Of the Department on it who were in a position
to correctly evaluate the appellant's merit's and the weight to be attached
to his confidential records. [459 B·Hl
(S) The appellant's allegations of mala {ides and tliat he was the
victim of the prejudice and machinations of an (unnamed) officer in the
Transport Ministry, could not properly be tried in writ proceedings and
"ithoot impleading that official. [460 F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2172 of
1968.
Appeal from the judgment and order dated August 10, 1967
of the Delhi High Court in Letters Patent Appeal No. 97-D of
1965.
Frank Anthony, K. B. Rohatgi and P. Parameswara Rao, for
the appellant.
Jagadish Swarup, Solicitor-General df India and S. P. Nayar,
for the respondent.
B
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F
G
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.A
P, B. ROY v. UNION (Beg, J,)
451
The Judgment of the Court was delivered by
Beg, J, 'Dtls is an appeal by grant of a Certificate of the Delhi
High Court under Article 132 read with Article 133(1)(b) and (c)
of the Constitution.
8
The Appellant had filed a petition under Article 226 of the
Constitution for quashing an order dated 10-3-1960 and had prayed for a consequential order also in the nature of a mandamus. Information of tl)e impugned order (Annexure 'C' to the petition),
given to the petitioner, reads as follows :
c
D
"The Union Public Service Commission have in pur·
suance of Rule 5 of the Central Information Ser\'.ice
Rules, 1959, recommended Shri P. B. Roy, at present
officiating as Editor in the Pul.ri.:ations Division, for
appointment, in a substantive capacity, to Grade III of
the service at its initial constitution. Shri Roy is informed that the President has been pleased to post him as an
Assistant Editor in the Publications Division with immediate effect".
Those relevant facts, preceding and following the impuJ!ned
order, which are admitted by both sides. may now be mentioned.
In 1955, the post of Editor, Publicatiions Division, in the
E _ Department of.Information and Broadcasting of the_Government of
-
India (hereinafter referred to as 'the Department'), was advertised.
The appellant, who had applied for the post, was selected by the
Union Public Service Commission, and, on its recommendation,
wl!S offered a temporary post of Editor in the Publications Division
of the Department on an initial salary .of Rs. 720 per month in the
F scale of Rs. 720-40-1000 together with the usual allowances. The
material terms and conditions of this employment were :
G
(i) The post is to be gazetted Class I;
(ii) The temporary post was sanctioned upto 28-2-1957
but was likely to continue;
(iii) Shri Roy (the Appellant) will be governed by the
Central Civil Services (Temporary Service Rules) and
other Rules applicable to temporary Govt. servants of
·his category;
·
(iv) He was to be on probation for 6 months which may
be extended at the discretion of the appointing authoH
rity.
The Appellan~ had reported for duty on 1st August, 1956, as
directed. On 27-3-1957, the Appellant's probation was extended
452
SUPREME COURT REPORTS
[ 1972] 3 S.C.R.
by three months. Immediately thereafter, on 28-3-57, the AppelA
lant's services were terminated under Rule 5 of the Central Civil
Services (Temporary Service) Rules 1949, (Annexure 'D' to the
Rejoinder Affidavit of 20th February, 1964). On 5-3-1957, the
Appellant made a representation against this termination of his
service (Annexure 'B' to the Rejoinder Affidavit). On 27-4-1957,
in response to this representation., the above-mentioned termination
B
tio the Appellant's service was rescinded (Annexure 'F to the Re•
joinder Affidavit).
On 28-4-1958, the President was pleased to
terminate the probationary period of the. Appellant and permitted
him to continue in his post in a temporary capacity (Annexure 'B'
to the Affidavit supporting the Petition)
On 16-2-1959, the Presidentoflndia, in exercise of powers conC
ferred by the Proviso to Article 309 of the Constitution of India,
promulgated the Central Information Service Rules, 1959 (hereinafter referred to as the Rules), whicl) came into force on 21-2-1959.
These rules were mean~ for the creation of a Central Information
Service with prescribed grades and their strengths. Entry into this
service was open to "departmental candidates" by a procedure laid D
down in Rule 5 for the initial constitution of the service. In accordance with this procedure, 1ihe Appellant was required to appear before a Selection Committee on a given date, and, after selection, he
was posted by the impugned order as indicated above. On 11-3·
1960, the Appellant assumed charge of the. post thus assigned to
him on the recommendation of the Union Pnblic Service CommisE
sion. The Appellant then made a representation, dated 11-3-1960
(Annexure 'E' to the Rejoinder Affidavit), against his appointment
in Class II grade III post. He made other similar representations
after that. His last representation was made. on 25-8-1962. The/
Appellant received a communication dated 10-12-1962 forwarding extract of an order dated 26-11-1962 which said :
"The representation from Shri P. B. Roy has been
carefully considered in the Ministry. All relevant facts
were fully ~en into account, by the Departmental Promotion Committee, before drawipg up the recent panel of
Grade III officers considered suitable for promotion to
F
Grade II. Shri Roy may be informed accordingly".
G
The Appellant, treating this as the rejection of his last representation, filed his petition on 11-1-1963 which was allowed by a
learned Judge of the Punjab High Court, sitting on the Circuit
Bench at Delhi. A Letters' Patent Appeal against this decision had
been allowed by a Division Bench of the Delhi High Court which
then granted a c~cate on 12-8-1968 for leave to Appeal pri- ,H
marily because it held that the required test relating to valuation of
. the subject matter had been satisfied.
P. B. ROY v. UNION (Beg, J.)
453
A
The learned Judge who had initially heard the petition had
pointed out that the representation of the Appellant was first rejected on 29-7-1960 and that it did not matter that the petitioner had
continued making subsequent representations. The learned Judge
had noticed the explana(,ion that the petitioner could not approach
the Court as he was admitted to a Tuberclulosis Clinic in June,
B
1961. The learned Judge, having found that this was not sufficient
to explain the dell!)' between 29-7-1960 and June 1961 was disposed to reject the petition on the ground of !aches. But, in view of
the decision of the majority of the Full Bench of the Punjab High
Court in S. Gurmej Singh v. Election Tribunal, Gurdaspur('), the
delay in filing the petition was overlooked on the ground that, after
c the admission of a Writ Petition and hearing of arguments, the rule
that delay may defeat the rights of a party is relaxed and need not
be applied if his case is "positively good".
The learned Single Judge had come 1io the conclusion, on the
facts stated above, that the petitioner's case would b~ governed by
the decision of this Court in Moti Ram Deka & Ors. v. Generlil
D Manager, North East Frontier Railway('), as the petitioner's prospects and emoluments were adversely affected by the impugned
order. The learned Judge thought that the mere fact that the
Department was reorganised and that the petitioner was to be fitted
into an appropriate category by the procedure laid down in Rule
5 did not take away the effect, that is 1!0 say, the loss of his emoluE
ments, of the procedure to which the petitioner had been subjected.
This view implied that Art. 311 of the Constitution was attracted
by· the case despite the above mentioned creation of the Central
Information. Service by the rules.
The Division Bench which heard the Appeal of the Union of
F
India was not inclined to interfere with the discretion of the learned
Single Judge in rejecting the objection to the petition on the ground
of delay. We too will not enter into this question which was not
argued before us.
The Division Bench, after reviewing facts leading to the
absorption of the Appellant into a newly constituted Central InG
forniation Service, in accordance with the procedure laid down in
Rule 5 mentioned above, held that the "News and Information
Cadre" of the Department, in which the Appellant was initially
appointed, had been superseded by the cadres and grades constituted by the rules of the ne.w service. It overruled the contention of
the Petitioner that the effect of the rules was merely to transfer employees in existing posts to corresponding posts with new designaH
tions. It held that the Rules did create an altoge~er new service.
It pointed out that the process of entry into the new service was of
(I) [1964] P.L.R. p. 589.
(2) A.I.R. 1964 S.C, p. 600.
454
SUPREME COURT REPORTS
[1972] 3 S.C.R.
selection of each individual candidate after an examination of his
A
individual record and qualifications by a Selection Committee before which he appeared so !halt there could be no automatic fitting
into some corresQ011ding appropriate post of a pre-determined class
and grade. The rules and process for the constitution of the new
service did not guarantee the class or grade or emoluments enjoyed
by any candidate in a cadre in which he served prior to the setting
B
up of the new service. It, therefore, held that no question of demotion or reduction in rank, without observing the procedure laid
down in Art. 311 of the Constitutio11.. arose at all in the instant case.
Mr Anthony, appearing on behalf of the Appellant, has assailed
the correctness of the decision of the Division Bench of the Delhi C
High Court on five grol!nds. We will take up and consider each
of these seriatim.
Firstly, it is contended that !he Division Bench had erred in
allowing an affidavit to be filed on 26-6-1967 before it, without
affording an opportunity to the Appellant to repel its contents by
filing a counter-affidavit. It was urged that the result was that an D
altogether new case, neither argued before nor referred to by the
learned Single Judge, had been allowed to be raised. This ground
is no doubt mentioned among the grounds on which a certificate of
the fitness for an appeal to this Court was sought. The Judgment
of the Division Bench mentions that, in the course of arguments,
the question arose whet.her the post of Editor in the Publications
E
Division was abolished or had ceased to exist. It appears that an
affidavit was then allowed to be filed before the Division Bench on
behalf of the Union of India in which it was stated that two 'posts
of Editors in the scale of Rs. 720-40-1000 in the Publications
Division had ceased to exist as a consequence of the inclusion of
two posts in the revised grade of Rs. 700-40-1100-50/2-1250 withF
effect from 1-7-1959 in the Central Information Service constituted
from 1-3-1960. There is nothing in the Judgment or anywhere else
to show that the petitioner had asked for any opportunity to controvert any statement made in the affidavit dated 26-7-1967 and
had been denied that.
The case and the contention on behalf of the Appellant have G
been that the new posts in the services are really old posts in a
new garb. This raised what was primarily a question of law,
depending for decision upon an interpretation of the relevant
rules of which the Court takes iudlcial notice. The rules certainly
did not provide for the continuance of any ex-cadre posts outsitk
the new service introduced by the rules. Facts stated in the Aft!-
H
davit of 26-7-1967 could have some bearing on the question
wh«her there were two posts in the revised scale which could
be considered as corresponding posts. They could, if they had
•·
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P. B. ROY V. UNION (Beg,/.)
455
any ellect on the respective stands, perhaps help the Appellant's
case that there was nothing more than a re-designation of J>Osts
with same dll'lies and corresponding scales.
And, this seems to
explain why there is nothing to show that the Petitioner-Appellant
asked for an opportunity to meet any allegation made in the affidavit of 26-7-1967 filed on behalf of the Union.
Moreover, what the fresh affidavit contained about the disappearance of the remporary post given to the Petitioner in 1956
before the Rules came into force flowed logically from the order
of Petitioner's initial appointment in a temporary post which was
to continue only upto 28-2-1957, unless its life was shown to have
been extended for some definite or indefinite period.
The Petitioner had not averred anywhere that the post was continued
beyond 28-2-1957 for any period by any order or rule.. Indeed,
the very argument advanced on behalf of the Appel.Ian!, that bis
i,nitial post merged in another corresponding post, implied that
the post to which he was initially appointed at least rost its identity
or could not be deemed tO continue without a transmutation. The
question whether the constitution of the Central lnformation Service did or did not involve fresh appointments to new posts but
was simply an automatic process of transmutation It' the pooling
together of existing incumbents of certain posts to form a new
service, as the appellants allejled, was already the subject matter
of assertion made in the Rejoinder Affidavit of the PetitiQner and
counter-assertions in. a reply filed to the Rejoinder on 2-4-1964.
The affidavit of 24-6-1967 did not introduce anything new but
only clarified the position still more.
We find no force in the first
objection.
Secondly, it is contended thalt the impugned order constitutes.
on the face of it, a reduc~on in rank of the petitioner.
Lookin~
at the ~unication dated 10-3-1960; set out above, we find
nothing there to indicate that the petitioner bad been demoted as
a measure of punishment. To hold, as it was sugp;ested/that we
should, that the procedure laid down by Rule 5 was adopted as
a cloak to cover up an intended reduction in rank and emoluments
of an o:ffici~ting Editor, by appointing him in a permanent substantive capacity of a grade carrying lesser emoluments in the
new service, would necessitate
JP;Oing behind the order bf
10-3-1960. At any rate, on the face of it, the order discloses
no such devious action against the Appellant.
Thirdly, it was contended that the impugned order violates
ff Art. 14 and 16 of the Constitution inasmuch as it places an employee who was serving as an Editor in a post of lower ~ade
with less emolumen'ls whereas no such result bad followed in tbe
case of any other employee in the Information and Broadcasting
456
SUPREME COURT REPORTS
[1972] 3 S.C.R.
Departnwnt.
We are unable to see how an order which has the
effect of terminating an officiating appointment,. in which
the
petitioner had no right to continue, and which gives him a fresh
appointment,' with a different designation but permanent tenure
and prospects, constitutes a violation of either Art. 14 or 16 of
the Constitution simply because the process which resulted in such
an order did not have a similar effect upon the position or rights
of any other servant in the Department.
Incle¢, the Selection
Committee had, apparently after taking into account the special
features of the petitioner's individual case, recommended the
malt.imum pay, in the class and grade of the post given to him,
and the petitioner _got this exceptional pay.
Even his prospects
improved to the extent that from the precarious position of a
temporary servant he had moved into a permanent service.
It
could not be definitely stated that his position had worsened on
the whole.
He was at least no longer subject to the hazards of
temporary employment which could be terniinated by a month's
notice at any time.
The results of applying Rule 5 to the faots
of individual cases could not be expected to be identically similar
in all cases.
All candidates were subjected to the same process or procedure con~mplated by Rule 5. It is not the Appellant's case
that the Selection Committee did not function honestly or that
its proceedin>,~ were vitiated by any defect in its constitution or
c
D
of any bias on its part or any unifairness or inequality of the test
E
applied in judging the merits of the Appellant as against other
candidates·
The a:llel!,~ defect with the material said to have
been used by the Committee is another matter which we will
consider last.
Fourthly, it was ur_ged that Rule 5 mentioned above is itself
void for conflict with the provisions of Article 311 and 14 and 16
F
of the Constitution.
It was urged that Rule 5 permits violation of Art. 311 of the
Constitution inasmuch as it enables that to be done indirectly
Which could not be done directly.
The Rule reads as follows :-
5. INITIAL CONSTITUTION OF THE SERVICE:-
G
(1) The Commission shall
constitute a
Selection
Committee with the Chairman or a Member of
the Commission as President and not more itban
three representatives of the Ministry of Informa;
tion and Broadcasting as members, to determine
the suitability of departmental candidates for
H
appointment to the different grades and to prepare an order of preference for the initial constitution of the service;
A
(2)
B
(3)
c
P. B. ROY v. UNION (Beg, J.)
On receipt of the Committee's report the Commission shall forward its recommendations to the·
Government and such recommendations may in-·
·cludct a recommendation that a person considered silitable for appointment to a grade may, if
a sufficient number of vacancies are not available in that· grade, be appointed to a lower.
grade;
Vacancies in any grade which remain unfilled
after the appointment of departmell'lal candid11tes selected under sub-rules
(1) and (2)
above shall be filled by direct
recruitment.
through the Commission.
457
Rule 3 indicates that appointmen1s to the newly created· ser-·
vice could take place either by selection under Rule 5 or by direct
recruitment with which we are not concerned here.
The grades
and the fixation of an authorised sirength of each grade
D
'!l"e provided for by Rule 4.
Only posts in the first 3 grades are
classified as Class I (Gazetted) posts.
Rule 5(2) enables the
Selection C9mmittee to recommend :hat a "departmental candidate" consideI'~d suitable for appointment to a post of a particular
grade be actually appointed in even a lower grade if sufficient number of vacancies are not available in the grade for which he may be
found fit In other words, even between candidates found fit for
E
a particular grade, the recommendation may be for an appointment to a lower grade.
As between those found fit for a
particular grade, the preferences had to be and were, presumably,
determined by fair and honest appraisements of their merit. Such
preferences due 1o honest assessments, which are not above possi- .
bilities of error, have never been held to cast any reflection which
F
could be equated with punishment· If the view of the Division
Bench of the Delhi High Court is correct, as we think it is, that
the rules had the effect of constituting a new service, with a fair
and reasonable procedure for entry into it, the procedure could
not be characterised as a device to defeat the provisions of Art.
311 or a fraud upon the Constitution simply because the results
.G
of subiwtion to the process of appraisement of the merits of each
candidate may not meet the expectation of some candidates.
Article 311 affords reasonable opportunity to defend against
threatened PJ111ishment to those already in a Government service.
Rule 5 provides a !Mthod of recruitment o~ entry into a new
service of persons who, even thoull:h they may have been servinir
H
the Government, had no right to enter the newly
constituted
serviee before going through the procedure prescribed by
the
Rule. If the petitioner had already been appointed a permanent
Government servant; there may have been some justification for·
-458
SUPREME COURT REPORTS
[ 1972] 3 s.c.R.
.contendin11: that Rule 5 could not be so applied as to deprive
him of a permanent post without complying with Article 311 . as
such deprivation would have been per se a punishment. The
mere possibility of misuse of Rule 5 could not involve either its
confilct with or attract the application of Art. 311.
The fields
of operation of Rule 5 and Art. 311 of the Constitution are quite
different and distinct so_ that the two do not ·collide with each
. other.
The learned Counsel for the Appellant then contended that
each person placed in the category of Departmental candidat.es
by Rule 2 had to be treated alike, but Rule 5 enables the Selection Committee to treat them differently by assigning different
grades to them. In other words, the contention was that Rule 5
gives too wide a power of selection to the Selection Committee.
It was also submitted, though not quite so clearly, that Rule 5
must itself be so interpreted as to operate automatically and
place all persons falling within the definition of Departmental
candidate" in a single class if Rule 5 is to be upheld as valid.
It was urged that the interpretation placed on Rule 5 by the
Division Bench involved not merely its conflict with the definition
-of a "departmental candidate" in Rule 2 (b) but also with Articles
14 and 16 of the Constitution, as it meant that those treated equally
by Rule 2 (b) could be treated unequally by the Selection Com·
mittee. This argument rests on a misconstruction of Rule 2(b).
The definition of a Departmental candidate given by Rule
8 (b) is :
·
2(b) "departmental candidate" means--
( i) a person in the Ministry of Information &
Broadcasting or any of its attached and subordinate offices who was holding or would have
held, but for his absence on deputation, a duty
post, on the 1st November, 1957, and
who is holding, or has a lien on a duty post in a
substantive capacity at the commenc:em.ent of
these rules; or
who has been declared quasi-pennarient in a duty
post, on, or prior to, the 1st July 1957; or
who was eligible to be declared quasi-permanent fu
a duty post, on, or on any date prior to, the
1st July 1957; or
who was appointed to a duty post on the basis of
selection by the Commission or whose 11PPOintment thereto was approved by the Camitission,
before the commencem.mt of these rules;
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(ii) any other person in the Ministry of Infomation
and Broadcasting or any of its
attached and
subordinate offices whom the Government may
_d119lare as such on the basis of his qualification and experience"; .
It is clear that this definition of a "departmental candidate"
is meant only as an aid in interpreting Rule 5 and was not intended to operate as a fetter on the functions and powers of the
Selection Committee.
We may add that the validity of Rule 5
does not appear to us to have been assailed in arguments before
the High Court. And, in any case, the attack on it must fail on
merits.
Fifthly and lastly, it was urged that the action against the
Petitioner was visited by mala (ides. We find no such ground
taken either in the Writ Petition or argued at any stage in the
High Court or mentioned in the grounds of appeal taken in the
application for certifying the case as fit for appeal to this Court.
It was, however, a ground taken by the Petitioner Appellant in his
Rejoinder affidavit in attempting to reply to the affidavit filed in
opposition to the Writ Petition.
It had been stated in the affidavit filed on behalf of the Union
of India that the Appellant's work was not found to be up to the
mark even during the period of his probation which had to be
extended thrice by two months on each occasion before the probationary period was at last teminated. It had also been pointed
out that the Appellant had been given a warning that he should
improve his work. Furthemore, it was stated that all the facts
of the Appellant's case were C¥efully examined, from the point
of view of his merit, by the selection Committee. The case of
the Union of India was that the post actually held by the Appellant before his selection for appointment to the newly constituted
service did not automatically or wholly determine the position
of a departmental candidate who offered himself to the process
of appraisement of his merits by the Selection Committee to be
made on the totality of relevant facts.
That Committee had to
be presided over either by the Chairman or a Member of the
Union Public Service Commission and had officials of the Department on it who must have been in a position to correctly
evaluate the petitioner's merit and to know the weight to be
attached to such entries as the Appellant's confidential records
contained.
In reply to the case of the Union of India, that the· Appel·
lant's merits were duly considered by the Selection Committee,
the Appellant had characterised what had happened as an 'attempt to create prejudice against the Petitioner and to justify its
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SUPREME COURT REPORTS
[l 972) 3 S.C.R .
mala fide reduction of rank of the Petitioner".
He also said that
this amounted to "raking up the past" which had no relevance to
"the admitted case of the Appellant" that he was holding the
temporary substantive rr.nk of Editor when he was reduced to
the rank of an Assistant Editor.
Th.is assertion was incorrect if
it implied, as it seemed to, that it was admitted that the petitioner
was being punished.
The Appellant had also referred to assertions made by him, in his representation dated 5-4-57
(Annexure 'B' to the Rejoinder) to the Minister of Information
and Broadcasting against the termination of his service by notice
dated 23-3-57, and also to those contained in another representation dated 11-3-1960 (Annexure 'E' to the Rejoinder Affidavit)
against the impugned order. In these representations, the petitioner had complained that he was a victim of the prejudice and
machinations of an Officer in the Transport Ministry (not named
by him) whose mistakes, in the publications of the Transport
Ministry, had been pointed out by the Appellant. He had also
referred to a number of his own publications. Thus, the Appellant's case on ma/a fides rests on allegations which had been examined by the Department and may also have been considered
by the Selection Committee.
The petitioner had assumed that
there were some malicious reports "against him which, according
to him, he had no chance to meet. and on which he thinks that
the recommendations of the Selection Committee about him were
based. The reply of the Union of India to this case of ma/a /ides
was that it was an after thought and that the assessment of the
Selection Committee was based on the results of the interview
given to the Appellant and a total assessment of all the facts concerning the Appellant which were before the Selection Committee.
'
Even if we were to assume that the Appellant had thus taken
up a case of action vitiated by ma/a fi(ies at its foundations and
had supported it with necessary particulars and averments, it is
evident that such a case could not be properly tried upon the
materials on the record before us, without even impleading the
official who was alleged to be the architect of his misfortunes.
1t could not, as it has been, argued seriously for the first time
before us.
The fatal weakness in the Appellant's case arises from the
fact that he was holding only a temporary post so that he could
have no right to continue in it after it had ceased to exist.
We
think that the necessary effect of setting up of the Central In- .
formation Service, together with the determination of its classes
and grades and their strengths was that the temporary posts in
the Department which were not shown to have been continued,
automatically came to an end. The Appelant was offered a new
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Post altogether after going through the process of selection i11
ai:cordance with Rule 5 to which he subjected himself.
Indeed.
the Appellant had no option, if he wanted to continue in the
service of the Department, except to go through the procedure
provided by the rules. We are unable to hold that the procedure
contemplated by Rule· 5 either automatically fixed the Appellant
in any particular grade or post or could be held to be void for any
reason wha'!soever. Therefore, if the Appellant was selected fot·
a particular post, by a process which, for the purpos::s of lhc
case before us, must be assumed to have been fair, honest, and
legal, he cannot complain that he was entitled to a better one.
We, therefore, dismiss this appeal.
But, in the circumstances
of the case, ,;,e leave the parties to bear <their own costs throughout.
V.P.S.
Appeal dismissed.