DEBESH CHANDRA DAS v. UNION OF INDIA AND ORS. April 8, 1969 (M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.) Constitution of India, Art. 311(2)-S.ecrttvy to Central Government ruk,J to accept lower post at centre or revert ro parent state or retir~ WherJrer amounted to reduction In rank-If pr.>cedure under Ari. 311 (2) required to be followed.
The appellant joined the Indian Civil Service in 1933 and was there- after allotted to the Slate of Assam. On July 29, 1964, he was appointed aa Secretary to the Government of India "until further orders". On Juoe, · 20, 1966 he received a letter from the Cabinet Secretary advising him that in relation to the question of building up a hjgher level of administrative efficiency it had been decided by the Government that the appellant should revert to his parent State, or proceed On leave preparatory to retirement, o~ he should agree to accept some post lower than that of Secretary to the Central Government.
After the appellant had made reprellentations to the Cabinet Secretary and the Prime Minister, he received another letter from the Cabinet Secretary in September, 1966, affirming the Government's decision that the appellant's .ervlces M>uld be placed at the disposal of his parent State of Assam or he could proceed on leave prcpnratory to
retirement. The appellant challenged th.,.e orders by a writ petition under Art. 226 of the Constitution on the around that the orders were violative of An. 311(2). The High Court
dismi!Sed the petition and a Leners Patent appeal was also rejected. It was contended on behalf of the appellant that the reversion of the appellant to the Assam Service amoun~d II> a reductioo in his rank on the ground that he held a higher post in the Government of India and there WU no p<XI equal to it under the Assam Government; the post of the Chief Secretary in the Assam Government was equal to fhe post of a Joint Secre- tary in the Government of India and his reversion would therefore Indirectly mean a reduction in his rank and also in his emolu~u becauae the hiJhest poat in Allam did not carry a 1alary equal to that of a Secretarv In the Government of India. Ho allo contended that the letters from the Cabinet Secretary spoke of his unlltisfactory work and cut a stigma on him; hit reversion muat. therefore, be treated u a penalty and •• the pro- cedure laid down under Art. 311 (2) was not followed, the orders of the Government of India could not ha suttained.
On the other hand it wu contended on behalf of the Government that the appellant was on depulJ- tlon and the deputation could be' terminated at any time; that his orders of appointment clearly showed tltat the appointment wu '\mtil tunher orders" and he had no riRht to continue in the Government of India if his ~nices were not required; his revenion to his parent State did not amount eithror to ttny reduction in rank or a penalty and the orden "·ere therefore quite legal.
HELD : ailowin~ the appeal. It was clear on the fact• that the appellant was bein1 reduced in rank with a stigma upon his work without following the procedure laid down in Art. 31 I (2) of the Constitution. [229 0-Hl
c D. c. DAS v. UNION (Hidayatul/ah, C.l.) As a Secretary to the Central Government the appellant held a tenure post, which was normally fur a period of five years ~nd he could expect to continue in that post until 29th July, 1969. Nothing turned upon the words of the notification "until further orders" because all appointments to tenure. ·posts had the same kind of order.
He was not therefore on a deputation wLich could be terminated at any time. The fact that it was found necessary to break into the, appellants's tenure period close to its end must be read in conjunction with the three alternatives offered to him and these clearly demonstrated that the intention was to reduce him in rank by sheer pressure of denying him a Secretaryship. [229 B-D] The: letter addressed to the appellant in June, 1966, containing the offer of a lower post in O.Ihi was a clear pointer to the fact of his demo- tion. It clearly !Gld him that his reversion was not due, to any exigency of service but because he was found \Vanting.
This was not a case of reverting the appellant to Assam at the end of a deputation or tenure and the final alternative that he could retire clearly sho\ved that the Government was bent upon removing him from his present post.
As there was no post in the Assam State: Service carrying the same emoluments as those of a Secretary to the Central Government, on the facts of the present case the appellant's reversion to Assam meant a reduction in rank within the meaning of Art. 311 (2). [228 A-B; 229 F]
C1v1L APPl!LLATE JuR1sD1CTION: Civil Appeal No. 2065 of 1968. Appeal from the judgment and order dated September 18, 1968 of the. Calcutta High Court in F.M.A. No. 381 of 1967. B. Sen, B. P. Maheshwari, A. N. Parikh and S. M. Jain, for the appellant.
D. Narsaraju, R. H. Dhebar and S. P. Nayar, for respondents Nos. 1 and 2. The Judgment of the Court was delivered by Hidayatullab, C.J. This is an appeal against the judgment of the High Coun of Calcutta dismissing a writ petition filed by the appellant Debesh Chandra Das.
This appeal is by certificate against the judgment dated September 18, 1968. The appellant is a member of the Indian Civil Service. He qualifjed in 1933 and arrived in India in 1934 and was allotted to Assam.
In 1940 he came to the Government of India and became in turn Under-Secretary and Deputy-Secretary, Home Ministry. In 194 7 he went back to Assam where he held the post of Development Commissioner and Chief Secretary.
In 1951 he again came to !he Government of India as Secretary, Public Servic_e Commission. Tn 1955 he became Joint Secretary to the Government of India and continued to hold that post till 1961. From 1961 to 1964 he was Managing Director of Central Ware- housi!).g Corporation. On July 29,
196~, he was appointed Sec- retary, Department of Social Security with effect from JUiy 30, 19'64 and until further orders, On March 6, 1965 the c D. C. DAS v. UNION (Hidayatul/ah, C.J.)
is Rs. 3,500. There being no equal post in the Government of Assam his reversion to the Assam Service meant a reduction not only in his emoluments but also in his rank. He also contended that he held a 5 years' tenure post and the tenure was to end on July 29, 1969 but was wrongly terminated bef?re the expiry of five years.
He also alleged that there was a stigma atta~hed to his reversion as was clear from the three alternatives which the letter of the Cabinet Secretary gave him. The highest post in the Government of Assam being equivalent to the Joint Secretary of Government of India, his reversion to the highest post, i.e. Chief Secretary to the Government of Assam, amounted to a reduction in rank. He contended, if this was the case, the procedure under Art. 311(2) of the Constitution ought to have been fellowed and without following that prncedure the order was not sustain- able.
When the appellant filed the writ petition he was appointed as a Special Secretary on October 15, 1966 but under one of his junior>. It may be mentioned here that the appellant is next only to the Cabinet Secretary in the matter of seniority. He also received a letter from the Government of India dated October 20, 1966 in which it was sai.d that Government was considering giving hin1 a post equal to that of a Secretary. The writ petition was dismissed by Justice A. N. Ray on May 19, 1967.
The following day the appellant was again reposted to Assam but he filed an appeal and obtained a stay. On March 21, 1968 he was appointed Secretary in the Department of Statistics in the Central Government.
The appeal was heard by Justice P. B. Mukharji and Justice A. N. Sen who differed, the former was in favour of dismissing the appeal while the fatter was in favour of allowing it. The appeal was then laid before Sankar Prosad Mitra, J. who agreed with Justice Mukherji and the appeal was dismissed on September 18, 1968. On September 20, 1968 the appellant was reposted to Assam. He, however, filed the present appeal and has proceeded on leave although no orders on leave applica- tion seemed to have been passed when we heard the appeal.
In this appeal also, it is contended that the reversion of the appellant to the Assam Service amounts to a reduction in rank. This is on the ground that he held a higher post in the Government of India and there is no post equal to it under the Assam Gov- ernment.
The post of the Chief Secretary in the Assam Gov- ernment is equal to the post of a Joint Secretary in the Govern- ment of India and his reversion would therefore indirectly mean a reduction in his rank and also in his emoluments because the highest post in Assam does not carry a salary equal to that of a Secretary in the Government of India.
He also contends that under Art. 311 (2) an enquiry had to be mad~ and he had to be SUPRcMf COURT REPORTS [1970] ls.CR. given a chance of explaining his case in the reduction in rank amounted to a penalty.
He contends thal the letters of the Cabi- net Secretary 'peak tor themselves and dearly show that he was being offered a lower post even in the Government of India if he was to continue here denoting thereby a desire lo reduce him in rank.
The lellcrs ~lso speak oi his unsatisfaclory 1. urk and, therefore, cast a stigma on him and therefore his reversion O)Ust be treated as a penalty and if the procedure laid down under Art. 311(2) is not followed, the order of the Government of India could not be sustained.
This, in short, is the case which he had put up before the High Court and has now put up before us. The Government of India contends that he was on deputation and the dcpu:ution could be terminated at any time; that his orders of appc .. 1tmcnt clearly show that the appointments were "until further orders°' '"'d that he hod no right to continue in the Gov- ernment of Indio if hi, services were not required and that his reversion to hi:; parent State did not atnount either to any reduc- tion in rank or a penally, and, therefore, the order was quite legal.
Prior to 1946 the members of the Indian Civil Service were in a Civil Service of the Secretary of Stale. As a result of a cunference between Chic: \1inisters and the Government uf India an All India Administrative Service wa~ constituted in October 1946.
Thi' agreement was entered into under s. 263 of the Government of India Act, 1935. The Indian Administrative Service was common to the Centre and the Provinces. On Ja•!u- ary 25, 1950 rules were framed under ss. 241(2) and 247 of the Governmcm of India Ac~. i 935. These rule; were known as the Indian Civil Administrative (Cadre) Rules, 1950.
Under these rules cadres were constitutc<l. A 'cadre' is defined in Funda- mental Rule 9(4) as the strength o( a service or a part of a service sanctioned as a separate unit. In these rules 'cadre officer' meant
an otlicer belonging to any of these categories specified in rule 4 and 'cadre post" meant any duty post included in the Schedule to the Rules. In rule 4, it was provided that every cadre post shall
be filled imer a/ia by an officer who i' a member of the Indian Civil Service. In the Schedule Assam was to have 20 senior posts under the Provincial Goverrunent, 6 senior posts under the Central Government and 37 posts for direct recruitment, and junior post< and certain services. After 1954 a number of Rules were framed and we arc concerned in this case with the Indian Administrative Service (Cadre) Rules 1954, Indian Administrative Service (Fixa- tion of Cadre Strength) Regulations 1955 and Indian Administra- tive Service (Payl Rules 1954. l'nder the Pay Rules were shown the posts carrying pay above the time-scale pay in the Administra- rtve Service under the State Government<.
In Assam there were c c D. c. DAS v. UNION (Hidayatullah, C.1.) four such posts. Chief Secretary (Rs. 3,000), Member, Board of Revenue, Commissioners and Development Commissioners (Rs.
2500-125/2-2750). These four were the only posts above the time-scale and the highest pay possible was that of a Chief Secre- tary carrying Rs. 3,000/- p.m. [vide All India Service Manual
(1967) p. 248]. The lower.posts :in Assam were; Secretaries, Additional Secretaries, Joint Secretaries etc. who were on a time- scale with ceiling of Rs. 2,250 p.m. (ibid p. 263). As against this the posts carrying pay above the time-scale or special pay in addition to pay in the time-scale under the Central Government when held by Indian Administrative Service men were Secretaries to the Government of India with a pay of Rs. 3,500/- (Rs. 4,000 for Indian Civil Service men) and so on in a downward position There was no separate cadre in the Government of India as defined in the Fundamental Rule mentioned above. There were only
cadres in the States. Posts beyond the State cadre limit were only to be found in the Government of India. The Indian Administra- tive Service (Cadre) Rules 1954 provided as elaborate machinery for getting persons to fill the posts in the Government of India. Similarly, the Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955 provided for these matters. Rule 3 of the Indian Administrative Service (Cadre) Rules provided a.a follows;
"3. "Constitution of Cadres.- ( 1) There shall be constituted for each State or group of States . an Indian Administrative Service Cadre. (2) The cadre so constituted for a State or a group
of States is hereinafter referred to as a 'State Cadre' or, as the case may be, a 'Joint Cadre'. Rule 4 next provided : "Strength of Cadres.- (1) The strength. and composition of each of the
cadres constituted under rule 3 shall be as determined by regulations made by the Central Government in con- sultation with the State Goverrtments in this behalf and until such regulations are made, shall be as in force
immediately before the commencement of these rules. (2) The Ontral Government shall, at the· interval of every three years, re-examine the strength and .QOm- position of each such cadre in consultation with tile State Government or the State Governments concem~and
may make such alterations therein as it deems fit : Provided that nothing in this sub-rule shall be. dee!l- ed to affect the power of the Central dovermrlent tb alter t~e strength and composition of any cadre at any
other tlllle; -~-.-~?-1 '.,,–:, '": SUPlll!MB CO!a.T 11.BPOJl.TS . . -___ . __ (!970] l &C.R.. \ · Provided further that the State Government con- cerned may add for: a period not exceeding one year
_ and with the approval of the Central Government for a further period not exceeding two years, to a State or Joint Cadre one or more posts carrying duties or res~ ponsibiljties of a like nature to cadre posts."
Rule 6 then provided for deputation of cadre officers. It reads as follows : "6. Deputation of cadre officers.- (1) A cadre officer may, with the concurrence of the State Government or the State Governments concerned
and the Central Government, be deputed for service under the Central Government, or another State Gov- ernment or under a company, association or body of individuals, whether incorporated or not, which is wholly
or substantial!y owned or controlled by the Governc. -.ment. (2) A cadre officer may iilso be deputed for service under:- (i) a Municipal Corporation or a Local Body, by the State Government on whose cadre he is borne, or
by the Central Government with the concUn:ence of the State Government on whose cadre he is borne, as the case may be and (ii) aD. international organisation, an autonomous – body not controlled by the Government, or !! private ·
body, by the Central _Government in consultation with the State Government on whose cadre he is borne : . Provided that no cadre officer shall be deputed to any organisation or body of the type referred to in item
(ii) of this sub-rule except with his consent." It may be pointed out here that 'permanent post' is defined by c the Fundamental Rules as a post carrying a definite rate -of pay and sanctioned without limit of time and a 'temporary post' is defined- as a post carrying definite rate of pay sanctioned for a · G limited time and a 'tenure post' means a permanent post which an . individual· Government servant may not hold for more than a limited period. All cadre posts were to be filled by cadre officers (rule 8), ·but temporary appointments of non-cadre officers to cadre posts were possible under certain circumstances (rule 9). Under the Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955 Assam was to have a total of 117 cadre posis.
Of these, 55 were under the Government of Assam. fl c D. c. DAS v. UNION (HidaYatullah, C.J.) ~ ~. and 22 senior posts were to be under the _Central Government. 1 !I were promotion posts and 5 8 were to be filled by drrect recrwt- ment. 1nere were certam reserved posts for leave reserves, depu- tauon reserves, tramrng reserves and finaliy there were juwor posts. By the agreement wn1cn to.ini::u. an annexure to the tnu1an Civil Adllllnistrative (Cadre) Rules '~50, Assam was to have 20 sen10r posis under the Provincial Goverwnent and .6 senior !>OStS under the Central Goverwnent with some prov!Slon for duect recruitment posts, junior posts and reserves. These posts denot- ed combined Service between the Central Goverwnent and the Assam Goverwnent. The arrangement allowed an officer to go from one post to another whether under the Centre or the State but not a lower post unless the exigency of the case so demand- ed.
The posts in the Government of India were held in the ordinary course and were not deputation posts. They were not as a part of the deputation reserves: · Under Art. 312, these services must be considered common
to the Union and the State: Under s. 4 of the All lndia Services Act 1951 all rules in force immediately before the commence- ment Clf the Act and app1icable JO an All India Service were con- tinued, thus the lnd1ain Civil Administrative (Cadre) Rules 1950 continued to remain in force.
The position that emerges is that the cad).'CS for the Indian Administrative Services are to be found in the States only. There is no cadre in the Goverwnent of India. A few of these persons are, however, intended to serve at the Centre.
When they do.- so they enjoy better emoluments and status. They rank higher in the service and even in the Wanant of Prec,edence of the President. In the States they cannot get the same salary in any post as Secre.aries a e entitled to in the Centre.
The appoint- ments to the . Centre are not in any sense a deputation. They mean promotion to a higher post. The only safeguard is that many of the posts at the Centre are tenure po~s. Those of Sec- retaries and equivalent posts are for Jive years alld for lower posts the duration of tenure is four years.
Now Das held one of the tenure posts. His tenure ordinarily was Jive years in the post. He got his secretaryship on July 30, 1964, and was expected to continue in that post for five years, that is, till 29th July, 1969. The short question in this case is whether his reversion to the Assam State before the expiry of the period of his tenure to a post carrying a smaller salary amounts to reduction in ronk and involves a stigma upon him.
Reversion to a lower post does not per se amount to a stigma. But we have here evidence that the reversion is accompanied by a stigma. In the. first Jette~ issued to him on June 20, 1969 by Mr. Dharma . V1ra
(Cabmet Secretary) it was said that SUPllBME CO'UllT llBPOll.TS Government was considering whether the. persons at top level admi- nistrative posts were capable of meeting the new chalienges or must make room for younger men. The letter goes on to say that he may choose one of three alternatives : accept a lower post at the Centre, go back to a post carrying lower salary in Assatn or take leave preparatory to retirement.
The offer of a lower post in Delhi is a clear pointer to the fact of his demotion. It clearly tells him that his reversion is not due to any exigency of service but because he is found wanting.
The three alternatives speak volumes. This was not a case of reverting him to Assain at the end of a deputation o. tenure. He can be retained in the Central Services provided he accepts a lower post, and the final alterna- tive that he may retire clearly shows that the Government is bent upon removing him from his present post. In the n·ext letter this fact is recognised because on September 7, 1966 he is offered only two alternatives. The alternative of a lower post is advised- ly dropped because it discloses too dearly a stigma. If any doubt remained it is cleared by the affidavit which is now filed. Paragraphs 7 and 10 of the affidavit read as follows :
"7. With reference to the allegations made in para- graphs 13 to 23 of the said application, I mate no adll!ission in respect thereof except what appears from relevant records. I further say that the performance of
the petitioner did not come to the standard expected of a Secretary to the Government of India." "10. The allegations made in paragraph 26 of the said application are correct. I further say that the said
representation was rejected by the Prime Minister in view of the standard of performance of the petitioner." II c Now it has been ruled again and again in this Court that re- duction in rank accompanied by a stigma must follow the proce- dure of Art. 311(2) of the Constitution.
It is manifest that if this was a reduction in rank, it was accompanied by a stigma. We are satisfied that there was a stigma attaching to the reversion and that it was not a pure accident of service.
It remains to see whether there was a reduction in rank. There is no definition of reduction in rank in the Constitution. But we get some assistance from rule 3 of the All India Services (Discipline and Appeal) Rules, which provides :
"3. Penalties.-The following penalties may, for good and sufficient reasons, and as hercmaf1er provid- ed, be imposed on a member of 1hc Service, namc- fy ~ D. c. DAS v. UNION (Hidayatullah, C.l.)
(iii) reduction in rank including reduction to a lower post or time-scale, or to a lower stage in a time- scale. c II We have shown above that he was holding a tenure post. Noth- ing turns upon the words of the notification 'until further <?rders' because all appointments to tenure posts have the same kind of order.
By an amendment of P.R. 9(30) in 1967, a form. was prescribed and that form was u.•ed in his case .. These. notifica- tions also do not indicate that this was a deputation which could be terminated at any time. The notifications involving deputation always clearly so state the fact. Many notifications w~re brought to our notice during the argument whfoh bear out this fact and none to the contrary was shown.
Das thus held a tenure post which was to last till July 29, 1969. A few mo,nths alone re- mained and he was not so desperately required in Assam that he could not' continue here for the full duration. The fact that it was found necessary to break into his tenure period close to its end must be read in conjunction with the three alternatives and they clearly demonstrate that the intention was to reduce him in rank by sheer pressure of denying him a secretaryship. No Secretary, we were told, has so far been sent back in this manner and this emphasises the element of penalty. His retention in Government of India on a lower post thus was a reduction in fank.
Finally we have to consider whether his reversion to Assam means a reduction in rank. It has been noticed above that no State Service (the highest bein!( Chief Secretary's) carries the emo- luments which Das was drawing as a Secretary for years.
His reversion would have meant a big drop in his emoluments. Das was prepared to go to Assam orovided he got a salary of Rs. 4,000 per month but it was stated before us that that was not possible. Das was prepared to serve the Centre in any capacity which brOU!(ht him the same salary. This too was said to be not possible. This case was adjourned several times to enable Government to consi- der the proposal but ultimately it was turned down. All that was said was that he could only be kept in a lower post. If th:> is not reduction in rank we do not see what else it is.
To give him a Robson's choice of choosing between reversion to a post carrying a lower salary or staying here on a lower ·safaried post, is to indirectly reduce him in rank. Therefore. we are satisfied that Das was being reduced in
rank with a stigma upon his work without following the proce- dure laid down in Art. 311 (2). We say nothing about a genuine case of accident of service in which a person drafted from a State has to go back for any reason not connected With his work or conduct. Cases must obviously arise when a person taken from uo
[1970] l S.C.R. the State may have to go back for reason unconnected with his work or conduct. Those cases are different and we are not ex- pressing any opinion about them. But this case is clearly one
of reduction in rank with a distinct stigma upon the man. This requires action in accordance with Art. 311(2) of •he Constitution and since none was taken, the order of reversion cannot be sus- tained.
We quash it and order the retention of Das in a post comparable to the post of a Secretary in emoluments till such time as his present tenure lasts or there is an inquiry against him as contemplated by the Constitution.
Before we leave this case we are constrained to ~ay that the attitude in respect of this case was not very hannv. D•s offered to take leave preparatory to retirement on tlte 29th July, 1969 if he was retained in Delhi on this or otli•- nost. This coincided ~th hL~ present tenure.
But vast as the Delhi Secretariat is, no job was found for him. This confirms us in our view of the matter that he was being sent away not because of exigency of service but definitely because he was not required for reasons connected with his work and conduct.
The appeal is thus allowed with costs here and in the High Court. R.K.P.S. A ppea/ allowed. c