1. Dispute over pension calculation based on the date of confirmation as Registrar under Rule 6 of the Protection Rules for transferred public servants. (Para 1 , 2 , 3 )
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1965 Supreme(SC) 338
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH, V. RAMASWAMI AND P. SATYANARAYANA RAJU, JJ.
State of Orissa, Appellant
Versus
Durga Charan Das, Respondent.
Civil Appeal No. 751 of 1964.
Advocates appeared
Mr. N. S. Bindra, Senior Advocate, (M/s. B. R. G. K. Achar and R. N. Sachthey, Advocates, with him), for Appellant; M/s. S. N. Andley, Rameshwar Nath and P. L. Vohra, Advocates of M/s. Rajinder Narain and Co., for Respondent.
Advocates:
B.R.G.K.Achar, CO., N.S.BINDRA, P.L.VOHRA, R.N.SACH, RAJINDAR NARAIN, RAMESHWAR NATH ROY, S.N.ANDLEY
B.R.G.K.Achar, CO., N.S.BINDRA, P.L.VOHRA, R.N.SACH, RAJINDAR NARAIN, RAMESHWAR NATH ROY, S.N.ANDLEY
Legal Category Hierarchy
Table of Contents
2. Whether Rule 6 protects claims for promotion to selection posts and if differences in provincial promotion rules constitute a violation of protected service conditions. (Para 4 , 11 , 13 , 15 )
3. Promotion to selection posts depends on merit and vacancies, not just seniority, and cannot be determined by comparing promotion dates of officers in different provinces. (Para 5 , 6 , 10 , 14 )
4. Protection of service conditions regarding pay, allowances, leave, and pension does not include a guarantee of promotion to a higher selection post. (Para 6 )
5. Appeal allowed, High Court order set aside, and writ petition dismissed. (Para 18 )
6. Does the protection of service conditions regarding pay, allowances, leave, and pension include a right to promotion to a selection post?
No. Promotion to a selection post is not a matter of right based on seniority alone but depends on merit, vacancies, and the Public Service Commission's opinion. Such claims are not included within the guarantee of non-less-favourable service conditions. (Para 6 )
7. Can a transferred officer claim promotion based on the promotion date of a junior officer in a different province?
No. It is unreasonable and impractical to determine promotion eligibility by reference to when junior officers were promoted in another province, as factors like vacancies and merit vary. Such correlations are outside the contemplation of the Protection Rules. (Para 10 )
8. Does a previous misconstruction of a rule by the government in a single case entitle other employees to the same misconstruction?
No. A single instance where the government may have misconstrued the scope of a rule does not justify a claim that the rule should be similarly misconstrued in all subsequent cases. (Para 15 , 16 )
Judgement
GAJENDRAGADKAR, C.J.I. : This appeal which has been brought to this Court on a certificate granted by the Orissa High Court, raises a short question about the construction of R.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"). These Rules were framed by the Governor-General in Council in exercise of the powers conferred on him by S. 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.
2. The respondent, Durga Charan Das, joined as an Assistant in the old Bihar and Orissa Secretariat prior to the formation of the 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 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 Orissa Secretariat on the 14th October, 1958. Eventually, he retired from Service on the 17th October, 1959.
3. 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 he was confirmed 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 confirmed 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 the rate of 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 him in the cadre of the old Bihar and 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 Art. 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.
4. 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 the basis that he should be deemed to have been confirmed as 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 August, 1
