Rajvi Amar Singh vs The State Of Rajasthan

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 330 of 1956

Decision Date: 28 November 1957

Coram: S.K. Das, A.K. Sarkar, Bose J.

Rajvi Amar Singh filed a petition against the State of Rajasthan, and the case was decided on 28 November 1957. The judgment was delivered by a Bench comprising S K Das, A K Sarkar, and Chief Justice Sudhi Ranjan, with other judges named Bose, Vivian, Ayyar, T L Venkatarama Das, and S K Sarkar. The citation for the decision is reported in 1958 AIR 228 and 1958 SCR 1015. The matter concerned the provisions of the State Service Act relating to the formation of a new State by integration of existing States, the effect of such integration on employees, and whether an employee’s rank and emoluments could be reduced without an opportunity to be heard under Article 311 of the Constitution.

In the factual background, the appellant had been a District and Sessions Judge in the former State of Bikaner. After the merger of Bikaner into the newly created State of Rajasthan on 7 August 1949, the covenant of integration stipulated, among other things, that the conditions of service for such judges would be no less advantageous than those applicable on 1 November 1948. By way of a Gazette Notification, the appellant was initially appointed as an ad hoc Civil and Additional Sessions Judge. Subsequent reorganisation of the services led to his substantive appointment as a Civil Judge, placing him in Grade C (the grade for Civil Judges and Munsiffs) and assigning him the number 18 position in the list of junior judges, while his earlier pay and emoluments were retained as guaranteed. Nevertheless, in several orders concerning his transfer and pay increments, he continued to be described as a District and Sessions Judge. The appellant approached the Rajasthan High Court under Article 226 of the Constitution, arguing that he had been reduced in rank without being given a chance to show cause, thereby violating Article 311. The High Court held that his appointment should be regarded as an ad hoc appointment until it was regularised under the Constitution, and after the High Court’s decision the Government regularised his position, again appointing him as a Civil Judge.

The Supreme Court affirmed that when a State is merged to form a new State, all existing contracts of service between the former government and its servants automatically terminate, and anyone who elects to serve the new State does so under the terms and conditions that the new State may impose. This principle was supported by the earlier decision of State of Madras v K M Rajagopalan, 1955 2 SCR 541, and by Virendra Singh & Others v State of Uttar Pradesh, 1955 1 SCR 415. The Court observed that the appellant’s postings in the new State prior to his substantive appointment were purely transitional and temporary, and that the guarantee of no less advantageous conditions, as provided by the covenant, had been fulfilled. Consequently, no question of a reduction in rank arose that would attract the safeguards of Article 311. The Court further noted that no inference could be drawn from the descriptions in the transfer and increment orders that the new Government intended to appoint the appellant to his former post, since appointments are not made in a casual manner based solely on such descriptions.

In this case, the Court observed that the notion of appointing the appellant to his former position could not be inferred merely from the wording found in the orders of transfer and the increments of pay, because appointments are not made in a casual manner. The judgment was delivered in the civil appellate jurisdiction under Civil Appeal No 330 of 1956, which was taken on special leave from the judgment and decree dated 5 September 1955 of the Rajasthan High Court in Writ Petition No 76 of 1954. Counsel for the appellant consisted of a senior advocate and an additional government advocate, while the respondent was represented by three advocates. The judgment, pronounced on 28 November 1957 by Justice Bose, arose out of a writ petition seeking a mandamus under Article 226 of the Constitution.

The factual matrix disclosed that the appellant had been appointed as a District and Sessions Judge in the former Bikaner State on 29 January 1948, holding a grade of Rs 500-40-700, and had continued in that capacity until 7 April 1949. On that date the State of Rajasthan was created through the integration of a number of princely states, including Bikaner, by virtue of a Covenant signed by the high contracting parties. Article XVI(1) of the Covenant provided that “the United State hereby guarantees either the continuance in service of the permanent members of the public services of the former Rajasthan State and of each of the new Covenanting States on conditions which will not be less advantageous than those on which they were serving on the 1st November 1948 or the payment of reasonable compensation or retirement on proportionate pension.” The integration necessarily required a re-organisation of the various services in the constituent states. In the judicial sector it was found that there were twenty-eight Courts of District and Sessions Judges in total, but the integrated State intended to retain only fifteen. Because the re-organisation required time, interim measures were adopted and were set out in a Rajasthan Gazette Notification dated 25 May 1950. The notification explained that provisional postings on an ad-hoc basis were indicated in Appendix F, that all appointments listed in the various Appendices were provisional, that the emoluments of the officers appointed would not be affected and that they would continue to draw their existing salaries until further orders, and that the appointments were made without prejudice to the creation of a Judicial Service in Rajasthan to be constituted in accordance with rules to be made therefor. Appendix F was headed “Ad hoc postings of Judicial Officers to Civil and Sessions Courts.” Under this arrangement the appellant was appointed as a Civil and Additional Sessions Judge in the Jaipur Division. However, prior to the issuance of the Gazette Notification, the appellant had received, on 9 December 1949, an order from the new Rajasthan Government stating: “Shri Amar Singh, District and …” (the remainder of the order being set out in the subsequent portion of the record).

The Government issued an order transferring the appellant, who was then serving as Sessions Judge at Churu, to the position of District and Sessions Judge at Ganganagar. The appellant argued that this order represented a decision by the newly formed Government to retain him in his original judicial posting and that the Government therefore could not later alter his status by rendering his service provisional, as was later claimed in the notification referred to earlier. Two months after that transfer order, on 31 July 1950, the appellant’s statutory salary increment became due. The Government approved the increment by issuing a sanction that read: “Sanction is accorded to the grant of a stipulated increment of Rs. 40 per month in the scale of Rs. 500-40-700 to Shri Rajvi Amarsingh, District and Sessions Judge in Bikaner Division, with effect from 23 March 1950, thereby raising his salary from Rs. 540 to Rs. 580 per month.” Subsequently, when the final re-organisation of the courts was implemented and the number of District and Sessions Courts was reduced from twenty-eight to fifteen, the appellant was placed on an ad hoc basis as Civil and Additional Sessions Judge on 25 May 1950. Dissatisfied with this ad hoc posting, the appellant submitted a representation to the Government of Rajasthan on 11 September 1950, challenging the May 25 posting. In his writ petition before the High Court, the appellant asserted that he had been led to understand that such ad hoc postings were made “without prejudice to the claims of the Government servants for a suitable position in the integrated set-up on permanent basis.” This claim was acknowledged by the opposing party.

Later, on 23 April 1951, the appellant received a substantive appointment as Civil Judge. He was assigned to Group C, which comprised Civil Judges and Munsiffs, and was listed at number 18 among the junior posts. Although his designation changed, his remuneration and grade remained the same, continuing in the scale of Rs. 500-40-700. The increments he had already earned were not altered, and apart from the change in title, his service conditions were not inferior to those he enjoyed while serving under the Bikaner State. These two latter facts were conveyed to the Court by the appellant’s counsel, although they were not recorded in the official paper book, which only contained references to the relevant orders without reproducing the orders themselves. Feeling aggrieved by the series of postings and the substantive appointment that, in his view, reduced his rank, the appellant filed the writ petition that gave rise to the present appeal on 3 April 1954. He contended that, based on the guarantee offered by the United State of Rajasthan and other assurances, he was entitled to retain his position as District and Sessions Judge in the newly reorganised judiciary, and that the April 23, 1951 appointment, which effectively demoted him, had been made without providing an opportunity to show cause, thereby breaching Article 311 of the Constitution.

In this case, the Court observed that the Constitution of India required the creation of a new Rajasthan Judicial Service, and that a clear declaration had been made that the existing officers of the various covenanting States would not automatically become part of that new service. Consequently, the Court held that every appointment to the Rajasthan Judicial Service had to be effected through fresh recruitment, and that such recruitments had to comply with the provisions of the Constitution that were in force on the relevant date. The Court also noted that, after the Constitution came into operation, only the Raj pramukh possessed the authority to make rules governing the recruitment and conditions of service for persons appointed to public services and posts connected with the affairs of the State, until an Act of the Legislature provided otherwise. It was further admitted before the Court that the State Public Service Commission was required to be consulted in this process. Because this consultation had not been carried out, the Court directed that the petition be allowed, that the postings made by the notification dated 23 April 1951—including the petitioner’s posting as Civil Judge—be declared to have been made on an ad hoc basis, and that the Government be ordered to establish a recruitment machinery in accordance with the constitutional provisions for the first recruitment to the Rajasthan Judicial Service.

The Court’s judgment was delivered on 5 September 1955, after which the appellant obtained special leave to appeal on 16 April 1956. During the intervening period, the Rajasthan Government, relying on the respondent’s statement of facts, complied with the High Court’s orders, revised its service rules, and made fresh appointments in conformity with those revised rules. These appointments were duly published in the Rajasthan Gazette, and the appellant was subsequently selected for the Rajasthan Judicial Service and appointed as a Civil Judge. The appellant contended that the original order of 23 April 1951 had reduced his rank and that, because he had not been given an opportunity to show cause, Article 311 of the Constitution had been violated. The appellant argued that, if this contention were correct, his later appointment as Civil Judge following the High Court’s order would also be invalid for the same reason. The Court explained that established principle dictates that when one State is absorbed into another—whether by accession, conquest, merger or integration—all contracts of service between the predecessor Government and its servants automatically terminate. Those servants who choose to continue in service under the new State serve under such terms and conditions as the new State may impose, reflecting the master-servant law principle applicable upon a change of master. The Court further referred to the settled law articulated in State of Madras v K M Rajagopalan, which follows earlier decisions of the Privy Council and the House of Lords, confirming the applicability of this principle to the present dispute.

The Court referred to the authorities of the Privy Council and the House of Lords in the cases Reilly v. The King (1934 A.C. 176) and Nokes v. Doncaster Amalgamated Collieries Ltd. (1940 A.C. 1014). It noted that the distinction between rights to property and contractual rights whenever sovereignty changes had been explained in Virendra Singh & others v. The State of Uttar Pradesh ([1955] 1 S.C.R. 415, 427). The appellant relied on Article XVI(1) of the Covenant, arguing that he could not invoke it because he was not a party to the Covenant. The Court observed that it need not resolve that preliminary point because, even assuming that Article XVI(1) set the law of the new State regarding conditions of service for those who continued, the provision merely required that the new conditions not be less advantageous than those in force on 1 November 1948. The Court had already demonstrated that this condition was satisfied. Moreover, Article XVI(1) confirmed that the old contracts terminated, as held in The State of Madras v. K. M. Rajagopalan ([1955] 2 S.C.R. 541, 562). The Court explained that the termination gave rise to three possible outcomes for the affected servants: (1) continued service, (2) receipt of reasonable compensation, or (3) retirement with a proportionate pension. This framework indicated that the previous contracts ended and that those who remained entered into fresh contracts whose terms were yet to be defined. The only guarantee, assuming the appellant could avail himself of it, was that the new terms would not be less favorable than those applicable on 1 November 1948; there was no assurance that the terms would be identical or superior. The Court highlighted that this principle was reiterated in the Rajasthan Gazette Extraordinary dated 4 June 1949. That Gazette first restated the broad outlines of the integration programme previously published and then specified the procedure and principles for its implementation. Paragraph 6 of the Gazette stated that after the Government issued final orders on departmental re-organisation schemes and fixed cadres and strength for various establishments, heads of departments would prepare gradation lists in accordance with prescribed rules and submit proposals for fixing each government servant in a permanent, officiating or deputation post, and would also determine the revised rates of pay for Gazetted and non-Gazetted officers under the new scales. Paragraph 15 clarified that the Government did not intend to dismiss any government servant where practicable; if necessary, efficient and deserving staff would be retained temporarily on a supernumerary basis pending placement in new development schemes. The Court noted that the appellant relied on an order dated 9 December 1949 transferring him as District and Sessions Judge to the District Court at Ganganagar, but that order must be read in light of the foregoing discussion and, if Article XVI(1) of the Covenant applied, subject to its provisions.

The order that transferred the petitioner to the District Court at Ganganagar was required to be read together with the material previously discussed and, where Article XVI (1) of the Covenant was relevant, also in accordance with that provision. The Court observed that an order of transfer could not be treated as an order of appointment, and further noted that at the time of the transfer the new cadres had not yet been established and the new courts that were contemplated under the proposed scheme of re-organisation had not been constituted. Consequently, any action taken at that stage could only form part of the temporary transitional arrangements that were intended to remain in force until the new State finalized the schemes and the conditions of service. The next set of orders published in the Gazette on 25 May 1950 made this point clear; the Court had already reproduced the terms of those orders in the earlier part of the judgment. The orders dated 25 March 1950 and 31 July 1950, which sanctioned an increment, did not assist the petitioner’s claim. In those orders the petitioner was described merely as “Shri Rajvi Amarsingh, District and Sessions Judge in Bikaner Division.” The Court explained that this description was purely factual, as shown by the endorsement on the accompanying letter, which read “Copy forwarded to – (1) Shri Amarsingh, Civil and Additional Sessions Judge, Jhunjhunu.” No determination to place the petitioner permanently in any particular cadre or post could be inferred from such incidental descriptions that appeared in orders dealing with entirely different matters. The Court stressed that postings to a cadre and the engagement of service are not made through such incidental references. The substantive appointment that had been gazetted on 23 April 1951, after the new cadres and courts had been finalized, was subsequently set aside by the High Court, and the Government of Rajasthan was directed to treat that appointment as an ad hoc one. According to the respondent’s statement of the case, after the High Court’s decision the matter was regularised and the petitioner was again appointed as a Civil Judge. If that description was correct, the Court held, the later appointment would constitute his first substantive appointment in the new State. Whether this appointment was his first substantive posting after integration, or the one dated 23 April 1951, the Court found that no question of reduction in rank could arise, and therefore Article 311 was not attracted. All of the petitioner’s earlier postings in the new State were purely transitional and temporary, and with respect to Article XVI (1) of the Covenant the Court concluded that its guarantee had been fulfilled. Accordingly, the appeal was dismissed with costs, and the order of dismissal was affirmed.