1. Transfer of a state service officer to another post following the inclusion of the original post in the Indian Administrative Service cadre. (Para 1 , 2 , 3 , 4 )
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1967 Supreme(SC) 135
SUPREME COURT OF INDIA
K.N. WANCHOO, C.J.I., V. BHARGAVA AND G.K. MITTER, JJ.
K. Gopal (In both the Appeals), Appellant
Versus
The Union of India and others (In both the Appeals), Respondents.
Civil Appeals Nos. 2426 and 2430 of 1966,
D/- 12-4-1967.
Advocates appeared
Mr. N. S. Somasundaram, Senior Advocate, (M/s. E. C. Agarwal, Champat Rai and P. C. Agrawala, Advocates, with him), for Appellant (In both the Appeals); Mr. R. H. Dhebar, Advocate, for Mr. S. P. Nayyar, Advocate, for Respondent No. 1 (In both the Appeals); Mr. G. Ramanujam, Govt. Pleader, Madras and Mr. A. V. Rangam, Advocate, for Respondents Nos. 2 and 3 (In both the Appeals).
Advocates:
A.V.RANGAM, CHAMPAT RAI, E.C.AGARWAL, G.RAMANUJAM, N.S.SOMASUNDARAM, P.C.AGRAWAL, R.H.Dhebar, S.P.NAIR
A.V.RANGAM, CHAMPAT RAI, E.C.AGARWAL, G.RAMANUJAM, N.S.SOMASUNDARAM, P.C.AGRAWAL, R.H.Dhebar, S.P.NAIR
Transfer to a post without "Head of Department" status is not a reduction in rank if pay is maintained. A supernumerary post without a time limit is a permanent post for lien and pension purposes. Cadre composition of All India Services may vary by state.
Headnote:(A) Constitution of India - Article 311 - Reduction in rank - Transfer to a post not designated as Head of Department does not necessarily involve reduction in rank, especially when the pay scale remains the same and the relative hierarchy is maintained. (Para 5)
(B) Service Law - Lien and Pension - A supernumerary post created without a time limit, continuing until the officer is confirmed in another permanent post, falls within the definition of a permanent post and protects the officer's lien and rights to pension and gratuity. (Para 6)
(C) All India Services (Cadre) Rules - Strength and composition of cadre - Central Government may determine cadre posts in consultation with State Governments; lack of uniformity across different States in the inclusion of similar posts in the cadre does not amount to discrimination. (Para 7)
Facts of the case:
An officer holding a high-ranking post in a state registration service was transferred to another post after the original post was included in the cadre of an All India Service. The officer challenged the transfer on the grounds of reduction in rank, loss of lien on a permanent post affecting pensionary benefits, and discrimination as the post was included in the cadre only in one state.
Findings of Court:
The transfer did not result in a reduction in rank as the pay scale was maintained and the post was not hierarchically superior to the new assignment. The creation of a supernumerary post in the state service ensured the officer held a lien on a permanent post, satisfying pension requirements. The variation in cadre composition between states is permissible under the rules.
Issues: Whether the transfer to a non-Head of Department post constituted a reduction in rank under Article 311; whether the loss of a substantive permanent post prejudiced pension rights; and whether the state-specific inclusion of a post in the cadre was discriminatory.
Ratio Decidendi: Rank in government service is not determined by the designation of "Head of Department" but by pay and hierarchy. A supernumerary post without a time limit is a permanent post for lien purposes. Cadre composition of All India Services can vary by state based on local conditions.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether transfer constituted reduction in rank under Article 311, loss of lien affecting pension rights, or discriminatory cadre inclusion by the Union Government. (Para 5 , 6 , 7 )
3. Rank depends on pay scale and recruitment equivalence; supernumerary posts without time limits are permanent; cadre composition may vary by state based on local conditions. (Para 5 , 6 , 7 )
4. Transfer without reduction in pay or rank, and provision of a permanent supernumerary post to maintain lien, does not violate service protections or pension rights. (Para 5 , 6 )
5. Appeal dismissed; parties to bear their own costs. (Para 8 )
6. Does the designation of a post as Head of Department determine the rank of a government servant?
No. Rank in government service does not depend on whether a post is designated as Head of Department or the specific powers granted. It is determined by the pay scale and the equivalence of the post based on recruitment sources. (Para 5 )
7. Does a supernumerary post created for an indefinite period satisfy the requirement of permanent employment for pension purposes?
Yes. A permanent post is defined as one carrying a definite rate of pay sanctioned without limit of time. A supernumerary post created for an indefinite period, continuing until the officer is confirmed in another post, meets this definition. (Para 6 )
8. Must the inclusion of posts in the Indian Administrative Service cadre be uniform across all states to avoid discrimination?
No. Under the IAS (Cadre) Rules 1954, the Central Government determines cadre strength and composition in consultation with State Governments, considering specific state conditions; uniformity across all states is not required. (Para 7 )
Judgment
BHARGAVA, J. : The appellant, K. Gopaul, was appointed to the Madras Registration Service as a direct recruit and commenced his service on posting as a District Registrar in January 1939. Under the latest Rules governing the Madras Registration Service, the Service, consists of two Classes. Class I has only one post in it, viz., Inspector-General of Registration. In Class II, there are two categories, category 1 consists of posts of Inspectors of Registration Offices, and category 2 of posts of District Registrars. Under these Rules, the appellant was promoted as Inspector-General of Registration (hereinafter referred to as "I. G. R.") in the post in Class I on 8th June 1956, and was confirmed in that post by the Government Order, dated 9th November 1957, with effect from 9th June 1956. While he was still holding this post, the post of I. G. R. was included in the cadre of the Indian Administrative Service with effect from 11th November 1963. On 25th January 1964, a Government Order was issued posting one O. H. Dias of the Indian Administrative Service, who was holding a post of Deputy Secretary to Government, Revenue Department, as I. G. R., Madras, vice the appellant. That Government Order contained a note that orders regarding the posting of the appellant will be issued separately from the Home Department. Then, on 30th January 1964, a Government Order was issued posting the appellant to act temporarily as Accommodation Controller, Madras, vice one M. Sargunam. That Order further laid down that the appellant, as Accommodation Controller, will continue to draw his grade pay in the scale of Rs. 1,200-100 / 2-1,400 and, in addition, he will draw a special pay Rs. 100 per month and also a conveyance allowance of Rs. 75 per month if a car is maintained or Rupees 62/50 per month, if no car is maintained. On receiving this Order, the appellant moved a petition under Art. 226 of the Constitution in the High Court of Madras, seeking the quashing of the Order of the Government of India placing the post of I. G. R., Madras, in the Cadre of the Indian Administrative Service with effect from l1th November 1963, as well as the Order of the Madras Government, dated 30th January 1964, transferring the appellant to the post of Accommodation Controller, Madras. In pursuance of the Government Order made on the 5th January 1964, a notification was published in the Gazette, dated 5th February 1964. In this notification, the posting of O. H. Dias as I. G. R. Madras, in place of the appellant, was notified. In addition, it was laid down that the cadre post of Director of Fisheries, Madras, was to be kept temporarily in abeyance until further orders, and, instead, sanction was accorded to the creation of a temporary post of Director of Fisheries, Madras, in the grade of a Deputy Secretary to Government (non-I. A. S.) for a period of six months from the date of appointment or till the need for ceased, whichever was earlier. The notification proceeded to lay down that M. Sargunam is posted to act as Director of Fisheries, Madras, in the newly sanctioned post. Obviously, this posting was ordered, so that the post of Accommodation Controller, to which the appellant was transferred, should fall vacant and should be available for the appellant to take charge of it.
2. While the petition before the High Court was still pending, another Order was issued by the Madras Government on the 6th June 1964, keeping the temporary post of Accommodation Controller, Madras, which earlier existed in the cadre of Deputy Secretary (non-I. A. S.), in abeyance with effect from 6th February 1964 afternoon, and with effect from the same date, sanction was accorded to the creation of a temporary post of Accommodation Controller, Madras, in the scale of Rs. 1,200-100/2-1,400 for the period from 6-2-1964 to 14-4-1964 afternoon both days inclusive. This scale of pay, it appears, was the scale in which the appellant was drawing his salary in the post of I. G. R. By this O
