1954 Supreme(SC) 84

SUPREME COURT OF INDIA
4th May, 1954.
M.C. MAHAJAN, C.J.I., B.K. MUKHERJEA, BOSE, BHAGWATI AND VENKATARAMA AYYAR, JJ.
Bholanath J. Thaker, Appellant
Versus
State of Saurashtra, Respondent.
Civil appeal No. 170 of 1954.
Advocates appeared
Mr. N.C. Chatterjee, Senior Advocate, (Messrs. V.S. Sawhney, J.B. Dadachanji and Rajindar Narain, Advocates, with him), for Appellant; Mr. C.K. Daphtary, Solicitor-General for India, (Messrs. A.R. Baxi, N.P. Nathwani and Porus A. Mehta, Advocates, with him), instructed by Mr. R.H. Dhebar, Agent, for Respondent.

Headnote:Master and servant-Constitution of India, Arts. 311, 312(1) and 363-Service in former Wadhwan State-Covenant entered into after formation of Saurashtra State.

       A, who officiated as Sarnyayadhish, continued to serve the Wadhwan State till the administration of the State was made over to the Saurashtra Government on the 16th March, 1948. section 5 of the Dhara (Act) No. 29 of St. 2004 promulgated by the Ruler of Wadhwan State fixed the superannuation age for the State civil servants at 60 and A thus became entitled toremain in service till he completed his age of 60 years. The Ruler of the Wadhwan State entered into a covenant for the formation of the United States of Khatiawar on the 24th Jatiuary 1948. Under Art. 16(1) of the Covenant the United States of Kathiawar had guaranteed either the continuance in service of the permanent members of the public services of each of the Covenanting States on conditions which would not be less advantageous than those on which they were serving before the date on which the administration of the state was made over to the Raj Pramukh or the payment of reasonable compensation. The Ruler of the Wadhwan State made over the administration of the State to the Saurashtra Government. By an order dated the 29th June 1948 A was retired by the Saurashtra State on the ground that he had passed the age of superannuation which was taken at 55 years, on payment of three months leave salary and a monthly pension. Upon this A filed a suit against the Saurashtra State claiming a sum as compensation by reason of his premature compulsory retirement. It was contended on behalf of the State that the guarantee contained in Art. 16 of the Covenant which was sought to be enforced

       1.For facts of this case see p. 282 ante.

       2.A.I.R. 1951 S,C., p, 63.

       by A could not be enforced in the Municipal courts and the suit was therefore inc9mpetent and that the services of A with the Wadhwan State were during the pleasure of the Ruler of the State and that Ruler of the State could have compulsorily retired him without being liable to pay him any compensation whatever and that therefore the position of A was no better so far as the Saurashtra State also was concerned.

       Held: (1) The ruler of Wadhwan State was competent to enact Dhara No.9 of St. 2004.

       (2) When the Wadhwan State merged with the Saurashtra State all the existing laws continued until repealed. It followed that As rights under Dhara No. 29 of St. 2004 were still good and could have been enforced in the Municipal Courts until either repealed or repudiated as an act of State. These rights were carried over after the Constitution, when the Indian Republic was formed with this important difference, viz. that

       ( as A then became an Indian citizen the repudiation as an act of State was not any longer possible. The only way, therefore, to defeat his right was by legislation if that could be done under the Constitution. There was in fact no such legislation and, therefore, his rights remained and the Municipal Courts would be entitled to examine the contract and apply the Dhara No. 29 of St. 2004 and enforce whatever rights A had under that Dhara and his contract of service;

       (3) that the convenant could be looked at to see whether the new sovereign had waived his rights to ignore rights given under the laws of the former sovereign;

       (4) that there was no dispute arising out of the Covenant and what A was doing merely to enforce his rights under the existing laws which continued in force until they were repealed by appropriate legislation and hence bar under Art. 363 could not be invoked;

       . (5) that even though the tenure of As service with the Ruler of the Wadhwan State was initially during the pleasure of the Ruler, the Ruler put a fetter upon his powers to dispense with the services of A when the Dhara No. 29 of St. 2004 was enacted by him. The obligation of the Ruler passed to the Saurashtra State and the Saurashtra State also could not dispense with the services or compulsorily retire A before he attained 60 years of age. If the Saurashtra State chose to compulsorily retire A it could only do so on payment of reasonable compensation.