# STATE OF ORISSA v. DURGA CHARAN DAS

- **Citation:** [1966] 2 S.C.R. 907
- **Court:** Supreme Court of India
- **Decided:** 1965-12-06
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-orissa-v-durga-charan-das-3765
- **Pages:** 11

## Headnote

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STATE OF ORISSA
v.
DURGA CHARAN DAS
December 6, 1965
[P.
B.
GAJENDRAGADKAR,
C.J., K. N.
WANCHOO,
M. HIDAYATULLAH, V. RAMASWAMI AND
P.
SATYANARAYANA
RAJU, JJ.J
Government of India
(Constructio~ of Orissa)
Order, 1936, s.
23 (2)-Protection Rules framed
thereunder to
protec! members of a
Provincial or subordinqte serv1
1ce required to serve in Orissa-Rule 6--
Whether protection of pension rights covers any rights of promotlon
fo
selection posts.
The respondent joined service as an Assistant in the old Bihar &
Orissa Secretariat and upon the formation of the Province of Orissa, was
transferred to the Orissa Secretariat.
In due course he secured certain
promotions and on the 24th April 1954, he was temporarily promoted to
officiate as Registrar for a short period.
He was again promoted temporarily in February 1956 and was confirmed as Registrar on the 4th October 1958. When he eventually retired from service
on 17th October
1959, his pension was calculated by reference to his date of confirmation
as Registrar and was fixed by the State Government at 190/ - p.m.
The respondent claimed that for the purpose of determining his pension he should be deemed to have been confirmed on 24th April 1954
and his pension fixed at Rs. 290/- p.m. Alternatively he claimed that by
virtue of the protection available to him under Rule 6 of the Protection
Rules framed under s. 23 (2) of the Government. of India (Construction
of Orissa) Order, 1936, \Vbereby the conditions of service including pay,
allowances, pension, etc. of employees transferred to Orissa could not be
less favourable than they were in the old Bihar
& Orissa
Secretariat
Service, he should be deemed to have been confirmed as Registrar at the
latest on the 23rd August 1956 and his pension fixed at Rs. 290/ - p.m.;
this latter date was the date on which an officer who was junior to him
in the cadre of the old Bihar & Orissa Secretariat had been confirmed as
Registrar in the Bihar Government.
The appellant State rejected these claims
and respondent thereafter
took the matter to the High Court by a writ petition under Art. 226. The
High Court rejected the respondent's first claim but found in his favour
on the alternative claim and directed the appellant to re-fix his pension
by treating the respondent as having been
confirmed on 23rd August
1956.
In the appeal to this Court, it was also contended, inte1· alia, that in
view of anoth·cr specific instance: where the entitlement to saiary of a
Registrar was determined by reference to the date when an officei- junior
to him in the Bihar service was promoted as Registrar, the treatment
meted out to the respondent was discriminatory.
HELD : The High Court's order must be set aside and the respondent's writ petition dismissed.
In coming to its conclusion, the High Court had incorrectly assumed
that the protection afforded by R. 6 to the public servants transferred to
Orissa took within its sweep· claims for promotion to higher posts
and
908
SUPREME COURT REPORTS
[1966] 2 S.C.R ..
that in determining whether R. 6 had been contravened it would be relevant and material to inquire when the officer in question would have
been promoted to a corresponding post if he had continued in service in
Bihar. [910 H-911 Bl
What R. 6 guarantees is that the public servants who were transferred
to Orissa will not suffer in regard to their pay., allowance, leave and pension; these respective conditions did not include a claim for promotion to
a higher selection post because for such promotion a number of factors
such as the existence of a vacancy, seniority, the record of the officer
concerned, the eligibility of other persons, etc., had to be taken into consideration. [911 E-G]
As promotion to a selection post was outside the terms of R. 6, a
claim for promotion could not be indirectly permitted on the ground that
it had a bearing on the :.in1ount of pension to which a transferred public
servant would be entitled. [912. G-913 B-D]
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## Text

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STATE OF ORISSA
v.
DURGA CHARAN DAS
December 6, 1965
[P.
B.
GAJENDRAGADKAR,
C.J., K. N.
WANCHOO,
M. HIDAYATULLAH, V. RAMASWAMI AND
P.
SATYANARAYANA
RAJU, JJ.J
Government of India
(Constructio~ of Orissa)
Order, 1936, s.
23 (2)-Protection Rules framed
thereunder to
protec! members of a
Provincial or subordinqte serv1
1ce required to serve in Orissa-Rule 6--
Whether protection of pension rights covers any rights of promotlon
fo
selection posts.
The respondent joined service as an Assistant in the old Bihar &
Orissa Secretariat and upon the formation of the Province of Orissa, was
transferred to the Orissa Secretariat.
In due course he secured certain
promotions and on the 24th April 1954, he was temporarily promoted to
officiate as Registrar for a short period.
He was again promoted temporarily in February 1956 and was confirmed as Registrar on the 4th October 1958. When he eventually retired from service
on 17th October
1959, his pension was calculated by reference to his date of confirmation
as Registrar and was fixed by the State Government at 190/ - p.m.
The respondent claimed that for the purpose of determining his pension he should be deemed to have been confirmed on 24th April 1954
and his pension fixed at Rs. 290/- p.m. Alternatively he claimed that by
virtue of the protection available to him under Rule 6 of the Protection
Rules framed under s. 23 (2) of the Government. of India (Construction
of Orissa) Order, 1936, \Vbereby the conditions of service including pay,
allowances, pension, etc. of employees transferred to Orissa could not be
less favourable than they were in the old Bihar
& Orissa
Secretariat
Service, he should be deemed to have been confirmed as Registrar at the
latest on the 23rd August 1956 and his pension fixed at Rs. 290/ - p.m.;
this latter date was the date on which an officer who was junior to him
in the cadre of the old Bihar & Orissa Secretariat had been confirmed as
Registrar in the Bihar Government.
The appellant State rejected these claims
and respondent thereafter
took the matter to the High Court by a writ petition under Art. 226. The
High Court rejected the respondent's first claim but found in his favour
on the alternative claim and directed the appellant to re-fix his pension
by treating the respondent as having been
confirmed on 23rd August
1956.
In the appeal to this Court, it was also contended, inte1· alia, that in
view of anoth·cr specific instance: where the entitlement to saiary of a
Registrar was determined by reference to the date when an officei- junior
to him in the Bihar service was promoted as Registrar, the treatment
meted out to the respondent was discriminatory.
HELD : The High Court's order must be set aside and the respondent's writ petition dismissed.
In coming to its conclusion, the High Court had incorrectly assumed
that the protection afforded by R. 6 to the public servants transferred to
Orissa took within its sweep· claims for promotion to higher posts
and
908
SUPREME COURT REPORTS
[1966] 2 S.C.R ..
that in determining whether R. 6 had been contravened it would be relevant and material to inquire when the officer in question would have
been promoted to a corresponding post if he had continued in service in
Bihar. [910 H-911 Bl
What R. 6 guarantees is that the public servants who were transferred
to Orissa will not suffer in regard to their pay., allowance, leave and pension; these respective conditions did not include a claim for promotion to
a higher selection post because for such promotion a number of factors
such as the existence of a vacancy, seniority, the record of the officer
concerned, the eligibility of other persons, etc., had to be taken into consideration. [911 E-G]
As promotion to a selection post was outside the terms of R. 6, a
claim for promotion could not be indirectly permitted on the ground that
it had a bearing on the :.in1ount of pension to which a transferred public
servant would be entitled. [912. G-913 B-D]
The instance cited to show discrimination
against the appellant was
also outside R. 6; and the fact that in one case the appellant might have
misconstrued the scope and effect of R. 6 would not justify a claim by the
respondent that the Rule should be similarly construed in all other cases
thereafter. [916 CJ
CIVIL APPELLATE JURISDICRION:
Civil Appeal No. 751 "of
1964.
Appeal from the judgment and order dated May 7, 1963 of
the Orissa High Court in O.J.C. No. 270 of 1962.
N. S. Bindra, 8. R. G. K. Achar and R. N. Sachthey, for the
appellant.
S. N. Andley, Rameshwar Nath and P. L. Vohra, for the respondent.
The Judgment of the Court was delivered by
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Gajendragadkar, C.J. This appeal which has been brought F
to this Court on a certificate granted by the Orissa High Court,
raises a short question about the construction of Rule 6 of the
Rules issued· by the Governor-General in Council on the 15th
September, 1936, for the protection of members of a Provincial
or Subordinate service required to serve in, or in connection with,
the affairs of Orissa (hereinafter called "the Protection Rules").
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These Rules were framed by the Governor-General in Council in
exercise of the powers conferred on him by section 23(2) of the
Government of India (Construction of Orissa) Order, 1936, in
view of the fact that a separate Province of Orissa had already
been formed on the 1st April, 1936. The said question arises in
this way:
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The respondent, Durga Charan Das, joined as an Assistant in
the old Bihar & Orissa Secretariat prior to the formation of the
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ORISSA v. D. c. DAS (Gajendragadkar, C.J.)
909
A Province of Orissa. When the said Province was formed, he was
transferred to the Orissa Secretariat, Home Department. In due
course, he was promoted to higher posts, such as Junior Head
Assistant and Senior Head Assistant.
On 24th April, 1954,
while holding the post of Senior Head Assistant, he was temporarily promoted as Registrar in the Supply Department of the
B Orissa Secretariat. On 22nd December, 1954, he was reverted
to his substantive post as Head Assistant in the Home Department.
Later, he was again promoted to officiate as Registrar in the
Supply Department on 3rd February, 1956. In June, 1957, he
was promoted to officiate as Assistant Secretary in the same
Department, and ultimately he was confirmed as Registrar in the
C Orissa Secretariat on the 14th October, 1958.
Eventually, he
retired from service on the 17th October, 1959.
At the time of his retirement, a question arose about fixing
the amount of his pension. For the purpose of determining this
amount, the relevant date was the date on which he was conD firmed as Registrar, because he held the post of the Assistant
Secretary to which he was promoted for some time, only on an
officiating basis.
The appellant, the State of Orissa, fixed the
pension of the respondent at Rs. 190 per month by reference to
14th October, 1958, which was the date on which he was conE
firmed as Registrar. The respondent then represented to the
appellant that he should be deemed to have been confirmed as
Registrar on the 24th April, 1954, and his pension calculated
on that basis at Rs. 290 p.m. In the alternative, he urged that he
should be deemed to have been confirmed as Registrar ,at the
latest on the 23rd August, 1956; he pleaded this date, because his
case was that on that date, Mr. J. N. Dutta, who was Junior to
F him in the cadre of the. old Bihar & Orissa Secretariat, had been
confirmed as Registrar in the Bihar Government. On this latter
basis, the respondent would be entitled to get Rs. 240 p.m. as
pension.
The appellant rejected both the prayers made by the
respondent, and that took the respondent to the High Court under
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Article 226 of the Constitution.
By this writ petition, the respondent claimed an appropriate writ calling upon the appellant
to fix his pension either on the footing that he had been confirmed
as Registrar on the 24th April, 1954, or, at any rate, on the 23rd
August, 1956.
This plea was resisted by the appellant and it was pleaded by
it that the claim made by the respondent was not justified by the
provisions of R. 6 of the Protection Rules. The High Court has
held that the respondent's claim to have his pension calculated on
910
SUPREME COURT REPORTS
[1966] 2 S.C.R.
the basis that he should be deemed to have been confirmed as
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Registrar on the 24th April, 1954, was not well-founded. It has,
however, found in favour of the respondent in regard to the alternative- claim made by him, and accordingly it has directed the
appellant to re-fix the pension payable to the respondent on the
footing that the respondent should be treated as having been confirmed as Registrar in the Orissa Secretariat with effect from 23rd
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August, 1956. It is this order which is challenged by the appellant
before us, and that raises the question about the construction of .
R. 6 of the Protection Rules.
Rule 6 of the Protectiou Rules reads thus :-
"The conditions of service as respects pay, allowances
leave and pension of any member of Provincial or
Subordinate service serving immediately before the 1st
day of April, 1936 in or in connection with the affairs
of the province of Bihar & Orissa, who is required to
serve in or in connection with the affairs of Orissa shall
not in the case of any such person while he is serving in
or in connection with the affairs of Orissa be less favourable than they were immediately before the 1st day of
April, 1936.
Provided that the Government of Orissa may make
such alterations in the conditions of service of any such
person as would have applied to him if he had passed
from the service of the Government of Bihar & Orissa
tct the service of the Government of Bihar.
Provided further that nothing in this rule shall apply
to conditions of service which prescribe rates of
travelling allowance".
The High Court has, no doubt, recognised the fact that the confirmation of an officer in a particular case would depend on several
factors, such as the existence of a permanent vacancy, the claim
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-0f officers senior to a given officer, the record of the officer concerned, and the opinion which the Public Service Commission
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may form about his merits in relation to confirmation. Even so,
the High Court has taken the view that since Mr. Dutta who was
junior to the respondent had in fact been promoted as Registrar
-0n the 23rd August, 1956, that can reasonably be taken to be
the date on which the respondent was entitled to be confirmed
by virtue of the provisions of R. 6. In coming to this conclusion,
the High Court has made two assumptions. The first assumption
is that the protection afforded to the public servants transferred
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ORISSA V. D. c. DAS (Gajendragadkar, C.J.)
911
to Orissa took within its sweep claims for promotion to higher
posts; and the other assumption is that in determining the question
as to whether the provision as to the said protection has been contravened, it would be relevant and material to enquire when the
officer in question would have been promoted to a corresponding
post if he had continued in service in Bihar. Proceeding to deal
with this problem on the basis of these two assumptions, the High
Court has thought it reasonable to draw the inference that the
respondent would certainly have been promoted as Registrar and
confirmed as such, at the latest, on the 23rd August, 1956, when
Mr. Dutta who was junior to him was in fact promoted and confirmed as Registrar. Mr. Bindra for the appellant contends that
the assumptions made by the High Court in reaching this conclusion are not well-founded. In our opinion, Mr. Bindra is right.
The Rule in question protects the conditions of service as
respects pay, allowances, leave and pension of the members falling
under its purview, and it guarantees that in no case shall the terms
in relation to the said conditions of service be less favourable than
they were immediately before the 1st of April, 193 6. The question is : do any of the conditions specified in R. 6 include a claim
for promotion to a higher selection post and confirmation in it.
It is well known that promotion to a ~election post is not a matter
of right which can be claimed merely by seniority. Normally, in
considering the question of a public servant's claim for promotion
to a selection post, his seniority and his merits have to be considered; and so, it seems to us ve.ry difficult to accept the view
taken by the High Court that in R. 6 of the Protection Rules,
a guarantee can be inferred in regard to promotion to a selection
post. What the Rule guarantees is that the public servants who
were transferred to Orissa will not suffer in regard to their pay,
allowances, leave and pension; and these respective conditions
do not seem to include a claim for promotion to a higher selection
post; and indeed, it seems very unlikely that any protection could
ever have been reasonably intended to be given in regard to promotion to a selection post.
It is true that in 1939, a question arose whether the prospects
of promotion of transferred ,•fficers were protected by the Protection Rules, and the Joint Public Service Commission for Bihar,
Orissa, and the Central Provinces, which was functioning in 1939,
took the view that the said Rules must be interpreted to require
that an officer transferred from Bihar and Orissa to Orissa shall
have prospects of promotion as good as he would have had in
Bihar and Orissa, and when promoted shall draw pay not less than
912
SUPREME COURT
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[1966] 2 S.C.R.
that which he would have drawn if so promoted in Bihar and
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Orissa.
Similarly, the Governor of Orissa, after consulting the
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Governor-General in Council, issued some instructions on the 28th
January, 1942, clarifying R. 6 of the Protection Rules. One of
these instructions provided that the object underlying the
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Governor-General in Council's Protection Rules, 1936, was to
ensure the transferred officers a fair deal under the new Government. The instruction, therefore, added that the Provincial Rules
should in all cases be so applied as to secure this result. Jn other
words, the essential requirement is that the spirit of the Protection
Rules should be fully observed and hard cases, should they occur, c
should be given special treatment. ·
This instruction is general in terms, and does not support the
view taken by the High Court that a claim for promotion to a
selection post is included within the term of R. 6. In our opinion,
there can be no doubt that the interpretation placed by the Joint
Public Service Commission on the Protection Rules, or the opinion
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expressed by the Governor of Orissa, though perhaps relevant,
cannot have a material bearing on the construction of the Rule
in question when the matter reaches the Court. It is for the Court
to consider the Rule fairly, taking into account the spirit underlying the Rule and the object intended to be achieved by it. Even
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the High Court has observed that "though, ordinarily, the right
of promoti<;m and confirmation in particular posts may not be said
to have been expressly protected by the Protection Rules, nevertheless, where these have a direct bearing either on the pay or
the pension of a transferred officer, the protection must be deemed
to cover these aspects also, having regard to the letter and spirit F
of the Protection Rules". In other words, the High Court seems
to have taken the view that though promotion and confirmation
in particular posts cannot be claimed directly under R. 6, a claim
in that behalf can be indirectly permitted if it has a bearing on
the amount of pension to which a transferred public servant would
be entitled on retirement.
It is, therefore, necessary to consider
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this aspect of the matter.
It is common ground that the amount of pension payable to
the respondent has to be calculated by reference to the date on
which he was confirmed as a Registrar; and the argument which
found favour with the High Court was that in determining this
amount, it would be relevant to enquire when the respondent would
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have been promoted to the post of a. Registrar if he had continued to serve in Bihar. If it is shown that he would have been '
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ORISSA V. D. c. DAS (Gajendragadkar, C.J.)
9131
promoted to the post of a Registrar, for instance, on the 23rd
August, 1956, his pension should be calculated by reference to,
that date. That is how the date of promotion and confirmation
are alleged to have a bearing on the determination of the amount
of pension payable to the respondent. In our opinion, if promotion to a selection post is outside the terms of R. 6, it would be
difficult to entertain the claim made by the respondent on the
basis that his junior Mr. Dutta had been promoted to the post of
Registrar and confirmed as such on the 23rd August, 1956. As
we have already indicated, promotion to a selection post depends
upon several relevant factors; the number of vacancies in the posts
of Registrars is one factor; the number of persons eligible for the
said promotions is another factor; and the seniority of the said
competitors along with their past record and their merits as judged
by the Public Service Commission, is yet another factor.
Now,
it seems to us unreasonable and impracticable to determine this
question by reference to another enquiry as to when officers
junior to the respondent were promoted in Bihar. An attempt to
correlate the question about the promotions of officers transferred
to Orissa with promotions secured by officers in Bihar, seems to
us to be outside the contemplation of R. 6.
The difficulties in
making such an assessment or estimate are too plain to need any
detailed enumeration.
Mr. Andley for the respondent attempted to argue that the
respondent had received unfair treatment inasmuch as the Rules
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of promotion which would have governed his case if he had continued in Bihar, are radically different from the Rules of promotion which were introduced in Orissa after his services were
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transferred to Orissa, and that, he contends, is a contravention of
R. 6 of the Protection Rules.
The relevant rule in Bihar for
promotion is R. 2(1); it reads thus:-
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"Rule 2(1)-Registrar,-
The post of Registrar (Pay B & 0 Old ScaleRs. 500-20-600)-(B & 0 Revised Scale-Rs. 450-20550) in the Secretariat is a Gazetted and belongs to the
General Provincial service.
The appointment is made
by Government in consultation with the State Public
Service Commission. Selection is ordinarily made from
among the Section Heads of the Department concerned,
failing which from among the Section Heads of other
Departments of the Secretariat".
914
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This Rule is contrasted by Mr. Andley with the relevant Service
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Rules which were in force in Orissa; they are Rules 6 to 9. R. 6
of these Rules reads thus :-
"Ordinarily by the 1st April each Calendar year,
the departments of the Secretariat and the Secretary to
Chief Minister shall notify to the Home Department the
number of vacancies in the rank of Registrar and
Assistant Secretary which have occurred or are likely
to occur during the twelve months commencing from
the following July. They shall also report to the Home
Department in order of seniority in the form appended
to the rules (Appendix I) the names and other particulars of service of Head· Assistants both Senior and
Junior who have not officiated as Registrar or Assistant
Secretary on the recommendation of the Commission by
the time the reference is made, and other Ministerial
Officers, whose pay and status are at least equivalent to
those of a Junior Head Assistant and also of such
Accountants and Record Keepers, who draw pay in the
scales of pay of Junior Head Assistant or in higher scale.
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The Service Book and Character Rolls of all such
officers with latest appreciation of their work by the
Secretary of the Department concerned with particular
reference to their suitability for promotion to the rank
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of Assistant Secretary or Registrar shall also be forwarded to the Horne Department".
R. 7 provides that the Government in Home Department on
receipt of the requisite information from all departments shall
report to the Commission within the time specified by it and
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intimate to it the relevant details indicated in it.
R. 8 then
requires the Commission to proceed to assess the suitability of
candidate for promotion; and R. 9 provides that the Commission
shall prepare two separate lists, viz., (a) a list of those candidates
who are fit for promotion to the ranks of both Registrar and
Assistant Secretary, and (b) a list of those fit for promotion to
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the rank of Registrar only, but not to that of Assistant Secretary,
and shall arrange the names in order of merit. The lists so prepared by the Commission have to be forwarded to the Government in the Home Department within the time specified.
Mr. Andley's argument is that whereas under R. 2(1) of the
Bihar ;Rules, selection is ordinarily made from among the Section
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li:ads of the Department concerned, the selection under the
relevant Orissa Rule is made from a larger class of public servants
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ORISSA v. D. c. DAS ( Gajendragadkar, c .J.)
915
indicated therein.
We are not satisfied that this contention is
well-founded.
In the present proceedings, besides quoting the
relevant Rules in. the petition, the respondent has led no further
evidence to show what exactly is meant by the Section Heads of
the Department concerned mentioned in R. 2(1) of the Bihar
Rules; and in the absence of any material, it would be difficult for
\IS to accept Mr. Andley's argument that the conditions for promotion prescribed by R. 2(1) of the Bihar Rules are substantially
pr radically different from the conditions prescribed by the relevant
Orissa Rules, and thereby caused prejudice to the respondent
within the meaning of R. 6 of the Protection Rules.
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Mr. Andley also suggested that under the relevant Bihar Rule,
promotion would go entirely by seniority, whereas under the Orissa
Rule, it is on considerations of seniority coupled with merit. We
do not think Mr. Andley is right in assuming that selection under
R. 2(1) of the Bihar Rules could have been intended to be made
omly by reference to seniority.
The very concept of selection
involves the consideration of seniority coupled with merit, which
is generally described as the seniority-cum-merit test.
Besides,
this aspect of the matter does not appear to have been argued
before the High Court and in the absence of any material on the
point and in the absence of any decision by the High Court on
it, we cannot entertain this contention.
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We may incidentally point out that though in his petition, the
respondent has made some vague allegations suggesting that the
appellant did not deliberately appoint him in a permanent vacancy
of the Registrar's post, he has produced no satisfactory evidence
to support the said plea.
On the other hand, it appears that in
1954, when the case of the respondent was examined by the Public
Service Commission, it made a definite recommendation that he
was fit to be Registrar for stop-gap arrangements only, and it specifically added that he should not be given preference over those
whose positions are higher np in the list even for vacancies exceeding a period of four months. This recommendation clearly indicates that the Character Roll of the respondent was not as satisfactory as it should have been; and so, the argument that his
appointment to the post of Registrar and confirmation in it were
unduly delayed, loses all significance.
Mr. Andley also attempted to argue that the decision of the
High Court could be jnstified because, in law, the treatment meted
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out to the respondent can be properly characterised as discriminatory. In support of this plea, Mr. Andley referred us to the case
of Mr. Beuria. It appears .that Mr. Beuria w.Jiio was also tram-
916
SUPREME
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[1966] 2 S.C.R.
ferred from Biba~ to Orissa as a Head Assistant, w~s held entitled
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to get the pay of Registrar from 1st December, 1948, and this
-Order which was passed on the 12th October, 1960, was given
retrospective effect from 1-12-1948.
It does appear that this
order was passed on the basis that Mr. Beuria was entitled to
the salary of a Registrar, because Mr. Prasad who was junior to
him in Bihar was promoted to the rank of Registrar on 1-12-1948.
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We do not see bow this single case can be pressed into service
by Mr. Andley in support of his argument that there has been
illegal discrimination against the respondent.
On the view we
have taken about the scope and effect of R. 6 of the Protection
Rules, what the appellant has done iu regard to Mr. Beuria must,
prima facie, be held to be outside the Rule; but the fact that in
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one case the appellant might have misconsfrued the scope and
effect of R. 6 of the Protection Rules, would not justify a claim
by the respondent that the Rule should be similarly misconstrued
in all cases thereafter. Whether or not the respondent is entitled
to claim bis pension on the footing that he should be deemed to
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have been promoted and confirmed as Registrar on the 23rd
August,.1956, must be determined in the light of what we regard
to be the true scope and effect of R. 6 of the Protection Rules.
What the appellant did in Mr. Beuria's case has no relevance in
that behalf.
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Besides, if the respondent was serious about bis plea about
discrimination, be should have adduced more satisfactory evidence in support of such a plea. No evidence has been led in the
present proceedings and no other case like the case of Mr. Beuria
has been cited. If the respondent's plea of discrimination was
accepted on the strength of the single case of Mr. Beuria, it would
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follow that because the appellant placed a misconstruction on the
relevant Ruie, it is bound to give effect to the said misconstruction
for all times; that, plainly, cannot be said to be sound.
When we heard this appeal, we enquired from Mr. Bindra
whether the appellant was justified in pressing the present appeal
G
against a single public servant like the respondent, particularly in
view of the fact that it had treated Mr. Beuria's case on the basis
of the interpretation of R. 6 of the Protection Rules on which
the respondent relies.
We were told that the appellant was
anxious to have a decision from this Court on this point, because
the present case would serve as a test case and may be relied upon
H
as a precedent by several public servants in Orissa who belong to
the category of the respondent. Jn fact, in granting the certificate,
t
•
ORISSA v. D. c. DAS ( Gajendragadkar, C.J.)
91 7
A
the High Court has observed that the question raised is undoubtedly of public importance, because it will affect many other
Government servants of the old Province of Bihar & Orissa who
were permanently transferred to Orissa when that Province was
separated from Bihar on the I st April,.1936.
B
The result is, the appeal is allowed, the order passed by the
High Court is set aside, and the writ petition filed by the respondent is dismissed.
In the circumstances of this case, we direct
that parties should bear their own costs throughout.
•
Appeal allowed.