1. Dispute regarding whether appointment to an additional post, funded by a private association and subject to specific conditions, constitutes membership in a regular ministerial establishment. (Para 2 , 4 )
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1957 Supreme(SC) 125
SUPREME COURT OF INDIA
8th November, 1957.
S.R. DAS, C.J.I., VENKATARAMA AYYAR, S.K. DAS, SARKAR AND BOSE, JJ.
Nohiria Ram, Appellant
Versus
Union of India, Respondent.
Civil Appeals Nos. 116 and 117 of 1957.
Civil Appeal No. 116 of 1957.
Civil Appeal No. 117 of 1957.
Advocates appeared
Mr. D. R. Prem, Senior Advocate (M/s. T. S. Venkataraman and K. R. Choudhry, Advocates, with him), for Appellant; M/s. R. Ganapathy Iyer, Porus A. Mehta and R. H. Dhebar, Advocates, for Respondents.
Advocates:
D.R.Prem, K.R.CHAUDHARY, PORUS A.MEHTA, R.Ganapathy Iyer, R.H.Dhebar, T.S.VENKATA RAMANA
D.R.Prem, K.R.CHAUDHARY, PORUS A.MEHTA, R.Ganapathy Iyer, R.H.Dhebar, T.S.VENKATA RAMANA
Important Points
A post created for a private body with cost recovery does not automatically become part of the regular cadre; cadre status is determined by the appointing authority. Holding a lien on a permanent post for foreign service does not imply membership in the regular cadre.
Subject
Service Law - Government Employment
Act Referred
CIVIL PROCEDURE CODE: S.96
CIVIL SERVICES CLASSIFICATION, CONTROL AND APPEAL RULES: R.24, R.44
CONSTITUTION OF INDIA: Art.310, Art.309
FUNDAMENTAL RULES: R.9, R.113, R.111, R.127
CIVIL SERVICES CLASSIFICATION, CONTROL AND APPEAL RULES: R.24, R.44
CONSTITUTION OF INDIA: Art.310, Art.309
FUNDAMENTAL RULES: R.9, R.113, R.111, R.127
Headnote
(A) Service Law - Fundamental Rules 9(4), 111, 113, 127 - Civil Services (Classification, Control and Appeal) Rules, 1930 - Cadre and Permanent Establishment - Whether a post created for the work of a private body, where costs are recovered from such body, constitutes part of the regular cadre of the government establishment - If the appropriate authority decides from the inception that an additional post is outside the regular cadre, the incumbent cannot claim to be a member of the regular establishment regardless of the cost recovery mechanism under Fundamental Rule 127 (Paras 6, 7, 8).
(B) Foreign Service - Requirement of holding a lien on a permanent post for transfer to foreign service under Fundamental Rule 111 does not imply that the post held must be part of the regular cadre of the establishment (Para 9).
(C) Conditional Appointment - Concurrence of the recruitment authority to an appointment may be conditional, and such conditions, if accepted, are binding (Para 11).
Facts of the case:
An employee was appointed to an additional post created to handle work for a private association, with the understanding that the cost of the post would be recovered from the association. The appointment was confirmed subject to the specific condition that the employee would have no claim to a post in the regular establishment. The employee later sought a declaration that he was a member of the permanent regular ministerial establishment and claimed seniority and promotions associated with the regular cadre.
Findings of Court:
The post was explicitly sanctioned as being outside the regular cadre. The recovery of costs under service rules does not automatically integrate a post into the regular cadre. The employee's transfer to foreign service was based on holding a lien on a permanent post, which is a distinct requirement from being part of the regular cadre of the establishment.
Issues: Whether the employee held a post in the permanent and regular ministerial establishment of the office and whether the conditions imposed at the time of appointment were valid and binding.
Ratio Decidendi: The determination of whether a post is part of a cadre depends on the decision of the appropriate authority. Fundamental Rule 127 governs the recovery of costs and does not determine cadre status. Holding a lien on a permanent post for foreign service purposes does not equate to membership in the regular cadre. The authority that sanctioned the post clearly intended it to remain outside the regular establishment.
Result: Appeals dismissed.
(B) Foreign Service - Requirement of holding a lien on a permanent post for transfer to foreign service under Fundamental Rule 111 does not imply that the post held must be part of the regular cadre of the establishment (Para 9).
(C) Conditional Appointment - Concurrence of the recruitment authority to an appointment may be conditional, and such conditions, if accepted, are binding (Para 11).
Facts of the case:
An employee was appointed to an additional post created to handle work for a private association, with the understanding that the cost of the post would be recovered from the association. The appointment was confirmed subject to the specific condition that the employee would have no claim to a post in the regular establishment. The employee later sought a declaration that he was a member of the permanent regular ministerial establishment and claimed seniority and promotions associated with the regular cadre.
Findings of Court:
The post was explicitly sanctioned as being outside the regular cadre. The recovery of costs under service rules does not automatically integrate a post into the regular cadre. The employee's transfer to foreign service was based on holding a lien on a permanent post, which is a distinct requirement from being part of the regular cadre of the establishment.
Issues: Whether the employee held a post in the permanent and regular ministerial establishment of the office and whether the conditions imposed at the time of appointment were valid and binding.
Ratio Decidendi: The determination of whether a post is part of a cadre depends on the decision of the appropriate authority. Fundamental Rule 127 governs the recovery of costs and does not determine cadre status. Holding a lien on a permanent post for foreign service purposes does not equate to membership in the regular cadre. The authority that sanctioned the post clearly intended it to remain outside the regular establishment.
Result: Appeals dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether the appointment was an addition to the regular cadre under service rules and whether the Public Service Commission could impose conditions restricting claims to regular establishment posts. (Para 5 )
3. The post was created outside the sanctioned strength of the office, and the sanctioning authority explicitly designated it as being outside the regular cadre. (Para 6 , 7 , 11 )
4. A post created for specific work with cost recovery from a private body is outside the regular cadre if the sanctioning authority so determines. (Para 7 , 8 )
5. Appeals dismissed with costs. (Para 13 )
6. Does the recovery of costs for an additional post from a private body automatically make that post part of the regular establishment?
No. Fundamental Rule 127, which governs the recovery of costs for additional establishments created for private benefit, only lays down principles for financial recovery and does not determine whether the post is part of the regular cadre. (Para 8 )
7. Is membership in a regular cadre a prerequisite for transfer to foreign service?
No. Under Fundamental Rule 111, a transfer to foreign service is admissible as long as the government servant holds a lien on a permanent post, regardless of whether they belong to a specific regular cadre. (Para 9 )
8. Can a post be attached to an office for administrative control while remaining outside the regular cadre?
Yes. The appropriate authority may create an additional post outside the regular cadre of a particular office while still attaching it to that office for purposes of administrative control. (Para 6 , 8 , 11 )
Judgment
S. K. DAS, J. : These are two appeals by special leave. Pt. Nohiria Ram is the appellant in both appeals. He had also filed a petition (petition No. 397, of 1955) under Art. 32 of the Constitution in which he had prayed for the issue of an appropriate writ to the Union of India, respondent 1, and the Director General of Health Services, New Delhi, respondent 2, directing them to forbear from giving effect to an order of dismissal passed by respondent 2 against the petitioner on October 3, 1955. That petition was, however, dismissed, as withdrawn. Therefore, the present judgment is confined to the two appeals, and the relevant facts relating thereto are stated below.
2. Formerly, the appellant held a permanent appointment as a civilian clerk in the office of the Royal Air force, No. 3 (Indian) Wing, Quetta. On March 17, 1928, he applied for the post of a clerk in the office of the Director General, Indian Medical Service, New Delhi (now known as the Director. General Health Services, New Delhi.) The appellant succeeded in his application and on March 28, 1928, he was told that there was a vacancy in the office of the Director General in the grade of Rs. 75-4-155,. It was further stated that the appointment would be for one year in the first instance, though there was likelihood of its being made permanent; and if the appellant agreed to accept the post, he was directed to join in the office of the Director General at Simla on April 16, 1928. A request was also made to the authorities of the Royal Air Force to grant the appellant a lien on his permanent post in the Royal Air Force till February 28, 1929, by which date the question of the permanency of the appointment in the director General s office was to be decided. The appellant joined his new post on April 16, 1928. On February 26, 1930, the Government of India in the Department of Education, Health and Lands, which was the controlling Department so far as the office of the Director General, Indian Medical Service, was concerned, conveyed sanction to the appointment, with effect from April 1, 1930, of an additional clerk in the office of the Director General in the grade of Rs. 75-4-155 to deal with the work of the Indian Research Fund Association on the understanding that the average cost of the appointment together with leave and pensionary contributions thereon was to be recovered from the Association. On April 30, 1930, the Director General, Indian Medical Service, wrote to the Secretary, Public Service Commission, intimating that the appointment of an additional clerk had been sanctioned by the Government of India for work of the Indian Research Fund Association; the Director General then stated that the incumbent of the additional post was the appellant, who formerly held a permanent post in the Royal Air Force, Quetta, and as he was not a candidate who had passed through the Public Service Commission the Commission was asked to give approval to his permanent appointment in the said post. To this the Secretary, Public Service Commission, gave the following reply :
"With reference to your letter No. 219/516 dated the 30th April, 1930, I am directed to say that the Public Service Commission have no objection to the confirmation of the temporary clerk who is at present employed on the work of the Indian Research Fund Association subject to the condition that this will not give him any claim to appointment as a Routine Division clerk in the Secretariat and its attached offices."
This reply of the Public Service Commission was shown to the appellant and he was specifically asked to note the condition that he would have no claim to an appointment as a routine division clerk in the Secretariat or attached offices, the office of the Director General, Indian Medical Service, being an office attached to the Secretariat. On May 26, 1930, the appellant saw the letter of the Public Service Commission and noted- "Seen. Thanks". On June 12, 1930, the appellant was confirmed in t
