AY\'ANGARJ.-The State of Rajasthan is v. Ratn-Sartlll

In the petition there was a vague reference to the maintenance of such regional lists as violative of the equality guaranteed by Art. 14, (2) It was further contended by .the respondent that the rever sion from the officiating post of Sub-Inspector to the substantive one of Head Constable was "an altera tion in the conditions of his service" which the State Government was not competent to effect without the sanction of the Central Government under s. l 15 (7) of the Act, and that, in any event, there had been a direction by the · Central Government under s. 117 of the Act which rendered the right to retain an ·officiating post without reversion as such a condition, (3) Even ifs. 115 were insufficient by itself to consti tute the right to retain an . officiating post without Stal1 of Roja.shfan 1963 .. Ram S1rorz Ayy41lgnr J. 988 SUPREME COURT REPORTS (1964] VOL. being reverted to a substantive post as "a condition of serviCe," still there was a guaranteed right not to be reverted except in the strict order of juniority under the provisions of the Standing Orders of the Police Force which were part of his conditbns of service a11d that by reason of these.

Standing Orders the reversion was in violation of s. ll 5 ( i) of the Act. We consider it would be convenient to deal with these in the reverse order, and takt up first the interpretation and effect of the Standing Order on which reliance has been placed both by the learned <is well as by learned judges of' the High Court Counsel for the respondent before us. In regard to them there arc two di; tinct questions: (I) proper interpretation, .(2) whether they would in law constitute a condition of service and these have to be considered separately. The Standirig Order relied on is one numbered 46 issued by the Inspector General of Police, Ajmer and is dated October 20, 1!149. The relevant portion of it paragraph numbered 4 (b) whi~h reads : relied on is • - , the basis of his place on "An officer who has secured officiating pro motion on approved list should normally be considered for promotion earlier provided that he main If he fails to tains an appropriate standard. do so he may be reverted or his confirmation postponed.

He should not, however, be denied his claim to confirmation merely because although he has maintained his standard someone c lse promoted later is· considered to have done even better. " It is clear from this provision that it de~ls not with the order in which holders of officiating posts may be reverted but with that in which they could be in strictness on considered for confirmation, so that its language the clause would not constitute ·~, 1 - ,)'t,tlJ aj Rajaj//ln. 1953 •.. Ram StJra1 2 s:c.R. SUPREME COURT REPORTS 989 that authority impugned reversion as one in breach of its terms. But ass•.iming that what might be called the spirit of the rule or the reason behind it be taken into consideration and it be held that it laid down also the order in which reversions should take place, still we have next to consider whether it has any· legal efficacy as a service condition. This would depend upon the Standing Orders having been issued by a competent authority under the provisions of a statute prescribe which empowered "conditions of service.

" For undoubtedly if it were not so it would be merely an administrative instru· ction issued by the Iuspector General of Police for the guidance of his officers but could not determine service conditions fixed by statute or statutory rules by competent auth9rities or confer any legal fights which in the event of non-observance could be the subject of complaint in a Court. Learned Counsel for the respondent was, therefore, at pains to make out that these Standing Orders had a statutory basis. For this purpose reliance was placed upon ss. 12 and 2 of the Police Act (V of 1861) as empowering the Inspector-General of Police to issue these Standing Orders. Section 12 of the Police Act quote only the material words : reads, "12. The Inspector-General of Police may, from time to time, subject to the approval of the State Government, frame such orders and rules as he shall deem expedieqt relative to the and distribution organisation, classification the place at "1Yhich the of the police-force, members of the force shall reside, and particular services to be performed by them ... ". - "' It is clear that the orders and rules referred to in this section have nothing to do with the determin ation of the service conditions of the officers recruited to the police force.

The expression "organisation" its fold· the cannot, in our opinion, in dude within Stilt ~f Roj1tthan •• RtJm Sflfan 990 SUPREME COURT REPORTS [1964] VOL. conditions of service of those in the police force. Turning next to s. 2 to which our attention was drawn, the material portion 1s its second paragraph which reads : "Subject to the prov1S1ons of this Act the pay and all other conditions of service of members of the subordinate ranks of an>' police force shall be such as may be determined by the State Government. " • Under this section, however, it is not the Inspector General of Police but the State Government that is the conditions empowered to frame rules regulating It was of service of members of the police force. not suggested that• the Standing Orders on which reliance was placed were those made by the State Government as they purport to · be only under the authority of the Inspector General of Police.

A feeble argument was attempted to suggest that the State Government might have delegated their power m the Inspector General, but nothing j5 better settled than that ·a power to make could not be delegated without statutory provision express therefor. Some point was sought to be made of the fact that these Standing Orders were issued in October, 1949, when not the Constitution but s. 243 of the Government of India Act, l!l35 was in force. But the respondent gets no advantage out of this circum stance, because s. 243 referred to, enacts that the conditions of service of the subordinate ranks of various police forces in India "would be such as may be determined by or under the Acts relating to those forces" and we arc again thrown back on the provisions of s. 2 of the Police Act by which it is the State Government, not the Inspector General of Police, that is VL-sted with authority to frame condi tions of service.

We therefore consider, with great .. !< ~ - 2 s.c.R. SUPREME COURT REPORTS 991 respect to the learned. Judges of the High Court, that they were ii) error in treating Standing Order 46 as a condition of service which was violated by the , · order of reversion impugned by the respondent in ·J.9fjJ St•u •f ~fastk•• •• R1Jm S.«n his Writ Petition. Standing Order 46 being put aside, we next turn to ss. 115 to 117 of the Act. The respondent was in the service of the Ajmer State as an officiating Sub-Inspector of Police on the appointed day i. e., November 1, 1956 and by virtueofs.115(l)ofthe Act he would be deemed to have been allotted to serve in connection with the affairs of the Rajasthan State, and, in fact, as noticed earlier, there was a formal order of appointment dated November 1, 1956, by which he was appointed as an officiating Sub Inspector of Police. We do not consider it necessary to deal with sub·s.

( 5) of s. 115 as, in our opinion, nothing turns on it, though it was referred to by learned Counsel for the respondent. What is really crucial for the determination of this appeal is the proviso to sub-s. (7) by which there was a guarantee that the conditions of service applicable before the appointed day would not be varied to the dis advantage of persons in the position of the respondent except with the previous approval of the Central Government. The question arising under this proviso would be whether it is any condition of service applicable to the holder of an officiating post that he shall not be reverted to his substantive post. But before dealing with it, the effect of two other provisions viz., s. 117 ands. 116 (2) may be noticed. We first refer to s. 117 because if there is a direction of the Central Government in relation to a class of officers and such direction ·is necessary for giving effect to the provisions of this part, it is the duty of the State Government to give effect to it and in such a case the question whether such a direction is strictly a condition of service or not might not . fall for determination.

The learned Judges of the High Court 992 SUPREME COURT REPORTS [1964] VOL. 1963 ~)011 &j R•jasClran v. R.,,. Sar 111 AJ.)'"l"' J. considered there was such a direction by the Central Government and that was part of the they granted relief 10 the reasoning on which respondent. Learned Counsel for the re, pondent strenuously argument before us. support sought 411 The direction was claimed to be contained in a letter from the Deputy !'ltcretary to the Govern- ment of India Ministry of Home Affairs to the Chief Secretary to the Government of Rajasthan, Jaipur dated March ~i. 1957 and headed 'protection of service conditions to be afforded to state service personnel.' proviso to mb·s. (i I of s. 11 ;i of the Act which laid down that conditions of service applicable to persons referred to in sub-s. (I) shall not bt: varied to their disadvantaizc except with the previous approval of the Central Government, thrre was a paragraph reading as under: In this letter, after referring to "2.

(ii) 011.'ciatinq Pay: When an officer had o!iiciated continuously on a particular scale of pay or would have offciated on that scale but for his officiating appointment to a post on a higher scale or proceeding on for a minimum peried of three years. immediately before November I, 1956, the pay on which he had so officiated should be protected as if it were pay and scale drawn in a substantive capacity. " leave or deputation The letter divides the subject· matter dealt with in parts and the ·above paragraph it into several It was not occurs under the part headed 'Pay'. suggested on behalf of that the clause had as such any relevance to the questio~ of reversion, to a substantive post of an. officer in an the respondent S1a11 of Raj"''""'° ~-Ram Soran Ayy .. gar J. 2 S.C.R. SUPREME COURT REPORTS 9!13 officiat;n~ post, or that even otherwise the respondent had qu,,ldied for the benefit of the provision con tained iu it-as regar.:ls pay since he had not officiated as a Sub Inspector for a· period of three years prior to the appointed date i.e., November l, 1936.

The argu nent, however, was that since officers holding merelv officiatillg posts had been mentioned in this directive, the rigut to continue in that post brcame a service condition and that no reversion could be ordered without the sanction of the Central Govern ment. We do not find it pos>ible to read the direc- extr.1cted earlier as having any such effect. No doubt, to the extent the pay of to which it protects certain officers it might have effect under s. 117 of the Act but beyond It, subject to the proviso to sub s. (7) of s. 115, the powers of the State Qovernment are not intended to be curtailed an-!, in fact, they are expressly saved by sub-s. (2) of s. ll6 which permits a competent authority to pass in relation to such persons "any order affecting his continuance iQ such post or office. " contained clause ' In our opinion, 'T'he contention that survives is merely whether. the right to hold an officiating post is a legal right and whether it could be stated to be a condition of reverted service' that such an officer shall not be except for proper reasons. matter is concluded by the decision of this Court in Parshotam Lal Dhingra. v.

Union of India ('). There, as here, an officer who was appointed to officiate in Class Il Service as an Assistant Super intendent, Railway Telegraphs was reverted to his substantive Class III appointment. No doubt, the question there comidered was whether on the facts of that case, this order of reversion was passed a~ a punishment so as to attract the constitutional protection guaranteed by Art. 311 (2) but this Court had also to consider whether an officer appointed to an officiating post had any legal right to continue (IJ [1958~ S. C.R. 828. St.U of RajastA.. •• &.- "-'· 994 SUPREME COURT REPORTS [1!164] VOL: in that post. As to that Das, C. J. speaking· for the majority observed : ' "The petitioner hefore m was appointed to a higher post on an officiating basis .............. . He had no right to continue in that post and under the general law the implied term of such terminable appointment was at any time on reasonable notice by Govern· mrnt and therefore his reduction did not operate as a furfeiture of any right and cannot be described as reduction io rank by way of punishment.

" it was (Vide also the judgrr.ent of this Court in State of Brm1bay v.1'. A. ALra/,am (1 ), If he had no legal right to continue in that post it would rather appear that it was one of the cond11ions administrative of his service that he could, for rea~ons, be rr.vertfd to his substantive appoir1tment. It therefore appears to u~ that there is no basis for argumeut that mere reversion to a substantive post is a bri-ach of the conduions of service. That is why. we said that the proviso to sub·s. (7) of s. 115 on which stress is laid by the High Coun really affords no assistance to the respondent. The above was, learned in general, the reasoning upon which the Judges of the High Court allowed the petition. We consirler that "icy were in error in 50 doing and the appeal has accordingly to be allowed. It is necessary, now, to mention the first of the points we have set out earlier which learned Counsel for the respondent strcnuomly prcs~cd upon us.

He submitted that the respondent had all< ged in his petition a violation of Art. 14 of the Constitution, in that the selection of officers for promotion was determined not on the basis of the seniority of the (2) Ci'il Appeal 59 or t96J (Not ytt repor«d) d<cidcd on Ikf; cmbc:r 12, 1961. .. ! S.C.R. SUPREME COURT REPORTS 995 officers considering the State as a whole but region· wise and this was the gravamen of the <.;har5c in this respect made in the petition. In this conn~ction he drew our attention to the term; of s. 2 of the Police Act 5 of 1!161 which reads .: . ·\ 1g61 . St~t~ ~--R~~itlt-,. •• kamia..,. "2. The entire police·establishmerit under a State Government shall, for the purposes of this Act, be deemed to be one police-force, and shall be formally enrolled; .and shall consist of suca number of officers and men, and shall be constituted in such manner as shall from time to time be ordered by th~. State Government. ,, ' ............................. ~ ....... _ .................... . He also pointed out that in the. counter-affidavit' filed by the State this splitting up of the State regions and the determination of seniority and. promotiln on a regionwise, as distinguished from a.· Statewise basis, was defended as dictated by adminis-. frative considerations.

The learned Judges, in their.' judgment have made a passing reference. to thili feature of the case and seem to express the opinion that the system of regionwiie promotion wa' produc· tive of inequality and hardship. The difficulty in the way of the respondent, however, .is that the plea raised i 1 regard to . this matter .is of the vaguest character and appears to be designed as affording some support for the main allegat, ions and contentions we have dealt with, and not ·as an independent and distinct ground for the · constitutional i'mpugriing In consequence validity of the scheme of promotion. of this siate ofthe pleadings the facts and detaib . necessary for sustaining or repelling this contentio11 were not brought into the record, so that admittedly the point could not be decided on the record as it stands. Realising this learned Counsel respondent urged that the matter should be remitted to the High Court for a consideration of this issue 996 SUPREME COURT REPORTS [1964] VOL. ~ Stdlc oj Raj<1Jtlwi •• R.m Sara• about the breach of Art.