http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

PETITIONER:

RAJVI AMAR SINGH

Vs.

RESPONDENT:

THE STATE OF RAJASTHAN

DATE OF JUDGMENT:

28/11/1957

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

DAS, SUDHI RANJAN (CJ)

AIYYAR, T.L. VENKATARAMA

DAS, S.K.

SARKAR, A.K.

CITATION:

1958 AIR 228 1958 SCR 1015

ACT:

State Service-Formation of new State by intergration of

States -Effect-Employee under intergrating State continuing

in service of new State-Status-If can be inferred from

description in orders of transfer and increment of Pay-

Substantive appointment to a lower grade on guaranteed

emoluments-If amounts to reduction in rankConstitution of

India, Art. 3II.

HEADNOTE:

The appellant was a District and Session judge in the State

of Bikaner and after its merger in the new State of

Rajasthan, on August 7, 1949, continued to serve in the new

State. The covenant of intergration provided, inter alia,

that the conditions of such service were to be no less

advantageous than those under which he was working on

November 1, 1948. By a Gazette Notification the appellant

was appointed as an ad hoc Civil and Additional Sessions

judge. After the reorganisation of the Services he was

substantively appointed as a Civil judge and placed in grade

C (Civil judges and Munsiffs) and placed at No. 18 in the

list of juniors, but his old pay and emoluments remained as

guaranteed. Before such appointment he was, however,

described in certain orders of transfer and increments of

pay as District and Sessions judge. The appellant moved the

High Court under Art. 226 of the Constitution and contended

that he had been reduced in rank without being afforded an

opportunity to show cause under Art. 311 of the

Constitution. The High Court held that the appointment must

be treated as an ad hoc appointment till it was regularised

under the Constitution. This was done by the Government

after the decision of the High Court and the appellant was

again appointed as a Civil Judge

1014

Held, that it is well settled that when a State is by merger

integrated to form a new State, all contracts of service

between the prior Government and its servants automatically

came to an end and those who elect to serve in the new

State, or are taken in by it, serve on such terms and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

conditions as the new State may choose to impose.

The State of Madras v. K. M. Rajagopalan, [1955] 2 S.C.R.

541, relied on.

Virendra Singh & Others v. The State of Uttar Pradesh,

[1955] 1 S.C.R. 415, referred to.

As the appellant's postings in the new State previous to his

substantive appointment were all transitional and temporary

in character and the guarantee given by the covenant was

fulfilled, no question of reduction in rank arose so as to

attract Art- 311 Of the Constitution.

No inference of any determination by the new Government to

appoint the appellant in his old post could follow from the

descriptions made in the orders of transfer and increments

of pay as appointments are not made in that casual way.

JUDGMENT:

CIVIL APPFLLATE JURISDICTION: Civil Appeal No. 330 of 1956.

Appeal by special leave from the Judgment and decree dated

September 5, 1955, of the Rajasthan High Court in Writ

Petition No. 76 of 1954.

A. V. Viswanatha Sastri and Ratnaparkhi A. G., for the

appellant.

R. Ganapathy Iyer, Ram Avtar Gupta and T. M. Sen, for the

respondent.

1957. November 28. The following Judgment of the Court was

delivered by

BOSE J.-This appeal arises out of a writ petition for

mandamus under Art. 226 of the Constitution.

The appellant was a District and Sessions Judge in the

former Bikaner State. He was appointed on January 29, 1948,

in the grade of Rs. 500-40-700 and worked as such till April

7, 1949.

On that date a new State of Rajasthan was formed by the

integration of a number of States (including the former

State of Bikaner) by means of a Covenant signed by the High

Contracting Parties.

Article XVI (1) of the Covenant ran thus:

" The United State hereby guarantees either the continuance

in service of the permanent members of

1015

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 involved a reorganisation of the

various services in the several integrating States. On the

judicial side it was found that there were as many as twenty

eight Courts of District and Sessions Judges in the

aggregate. In the integrated State it was proposed to have

only fifteen. The reorganisation took time and in the

interval certain interim arrangements had to be made. These

arrangements are set out in a Rajasthan Gazette Notification

dated May 25, 1950. We append the relevant extracts:

" 4. In Appendix F...... have been indicated the provisional

postings on an ad hoc basis of the posts specified in

Appendices A to E.

....................................................... ...

6. All the appointments mentioned in the different

Appendices, attached to this Order, are provisional. The

emoluments of none of these officers appointed are being

affected and they will continue to draw their existing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

salaries until further orders. All the appointments are

without prejudice to the creation of a Judicial Service in

Rajasthan to be formed in accordance with the rules which

may be made therefor."

Appendix F is headed-

"Ad hoc postings of Judicial Officers to Civil and Sessions

Courts."

The appellant was appointed under this beading in Part 11 as

a Civil and Additional Sessions Judge in the Jaipur

Division.

But before this Notification was made, namely, on December

9, 1949, the appellant received the following order from the

new Rajasthan Government:

" Shri Amar Singh, District and Sessions Judge, Churu, is

transferred to Ganganagar as District and Sessions Judge,

Ganganagar."

129

1016

Among other contentions, the appellant relies on this as an

election by the new Government to continue 'him in his

original post and contends that it could not later change

its mind and make his service provisional as it purported to

do in the notification just cited.

Two months after the notification, namely on July 31, 1950,

the appellant's increment became due and Government

sanctioned it in the following terms:

" Sanction is accorded to the grant of a stipulated

increment of Rs. 40 p.m. in the scale of Rs. 500-40-700 to

Shri Rajvi Amarsingh, District and Sessions Judge in Bikaner

Division, with effect from the 23rd March, 1950, thereby

raising his salary from Rs. 540 to Rs. 580 p.m."

When the final re-organisation was brought into force and

the twenty eight Courts of District and Sessions Judges

reduced to fifteen, the appellant was posted as Civil and

Additional Sessions Judge on an ad hoc basis on May 25,

1950.

On September 11, 1950, the appellant made a representation

to the Government of Rajasthan against his posting of May

25, 1950, as an ad, hoc Civil and Additional Sessions Judge.

He says in his writ petition to the High Court that

" he was given to understand that these ad hoc postings were

without prejudice to the claims of the Government servants

for a suitable position in the integrated set up on

permanent basis." This allegation was admitted by the

opposite party.

Later, he was appointed substantively as Civil Judge on

April 23, 1951. He was placed in Group C (Civil Judges and

Munsiffs) and placed at No. 18 in the list of junior posts.

His pay and emoluments were as before and he retained the

same grading, namely Rs. 500-40-700. His earned increments

were not affected and, except for the change in name, his

conditions of service were not worse than when he was in the

service of the Bikaner State. We were given the last two

facts by his counsel. They do not appear in the paper book.

All that is to be found there are

1017

references to these orders but the orders themselves have

not been included.

Being aggrieved by this, the appellant filed the writ

petition out of which this appeal arises on April 3, 1954.

His contention was that under the guarantee given by 'the

United State of Rajasthan, and also otherwise, he was

entitled to be posted as a District and Sessions Judge in

the new set up and that the posting of April 23, 1951,

reduced him in rank. As that was done without affording him

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

an opportunity to show cause, Art. 311 of the Constitution

was violated.

The High Court held that the posting of April 23, 1951,

which purports to appoint the appellant substantively as a

Civil Judge, is wrong and that it must be treated as an ad

hoc appointment till proper appointments are made to the

Judicial Service of Rajasthan according to the Constitution

of India.

The learned Judges held that as there had been a clear

declaration that a new Judicial Service was to be created in

Rajasthan and that the existing officers from the various

covenanting States were not to be taken into it as a matter

of course, it followed that all appointments to it would be

by way of fresh recruitment, and, as the Constitution of

India was in force at that date, these recruitments must

conform to its provisions. It was admitted before the

learned Judges that after the Constitution only the

Rajpramukh had power to make rules regulating the

recruitment and conditions of service of those appointed to

public services and posts in connection with the affairs of

the State until provision in that behalf is made by an Act

of the Legislature, and it was also admitted that the State

Public Service Commission must be consulted. As this was

not done, the learned Judges directed as follows:

" The petition is allowed, the postings made by notification

dated the 23rd April, 1951, including that of the petitioner

as Civil Judge, are declared to be on an ad hoc basis, and a

direction is made to the Government to provide a machinery

according to the

1018

provisions of the Constitution for the first recruitment to

the Rajasthan Judicial Service."

The judgment was delivered on September 5, 1955, and the

appellant thereupon came here and was granted special leave

to appeal on April 16, 1956.

In the meanwhile, according to the facts set out in the

respondent's statement of the case, the Rajasthan Government

complied with the orders of the High Court, reframed their

rules and made fresh appointments in accordance with them.

These were duly published in the Rajasthan Gazette and the

appellant was finally selected to the Rajasthan Judicial

Service. He was appointed a Civil Judge.

The Appellant's contention is that the order of April 23,

1951, reduced him in rank and as he was not afforded an

opportunity of showing cause, Art. 311 of the Constitution

was violated. If this contention is sound, it will follow

that the fresh appointment as Civil Judge after the High

Court's order will also be bad for the same reasons.

Now it is well established that when one State is absorbed

in another, whether by accession, conquest, merger or

integration, all contracts of service between the prior

Government and its servants automatically terminate and

thereafter those who elect to serve in the new State, and

are taken on by it, serve on such terms and conditions as

the new State may choose to impose. This is nothing more,

(though on a more exalted scale), than an application of the

principle that underlies the law of Master and Servant when

there is a change of masters. So far as this Court is

concerned, the law is settled by the decision in The, State

of Madras v. K. M. Rajagopalan (1), which follows the

decisions of the Privy Council and the House of Lords in

Reilly v. The King (2), and Nokes v. Doncaster Amalgamated

Collieries Ltd. (3). The distinction between rights to

property and contractual rights when there is a change of

sovereignty was pointed out in Virendra Singh & others v.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

The State of

Uttar Pradesh (4).

(1) [1955] 2 S.C.R. 541, 562.

(2) (1934) A.C. 176.

(3) (1940) A.C. 1014.

(4) [1955] 1 S.C.R. 415, 427.

1019

The appellant founds on Art. XVI(1) of the Covenant. It

was contended that he cannot rely on this because he was not

a party to it but we need not decide this because, even if

this be assumed to be the law of the new State settling the

conditions of service of those who continue in service, all

that it says is that the conditions of their service will

not be less advantageous than those on which they were

serving on November 1, 1948. We have shown above that this

condition is fulfilled.

But that apart, Article XVI(1) indicates that the old

contracts terminate just as they did in The State Of Madras

v. K. M. Rajagopalan (1). In the first place, there were

three options:

(1) continuance in service,

(2) payment of reasonable compensation, and

(3) retirement on proportionate pension.

That shows that the old contracts terminated and that those

who continued in service did so on the basis of fresh

contracts, the conditions of which had yet to be determined.

The only guarantee (assuming that the appellant can avail

himself of it) was that the new conditions were not to be

less advantageous than those on which the appellant was

serving on November 1, 1948. There was no guarantee that

they would be the same or better.

This was emphasised in the Rajasthan Gazette Extraordinary

dated June 4, 1949. It first referred to the broad outlines

of the programme of integration that had already been

published and then outlined the procedure and principles to

be observed in carrying it out. Paragraph 6 is as follows:

"After final orders have been passed by the Government on

the Departmental re-organisation schemes and cadres and

strength for different kinds of establishments in each

department are fixed, the heads of departments will prepare

gradation lists according to prescribed rules and put up

proposals for fixation of each individual Government servant

in the posts on permanent, officiating or deputation basis.

(1) [1955] 2 S.C.R. 541, 562.

1020

They will also determine the revised rates of pay admissible

to each, Gazetted and non-Gazetted officer under the new

scales etc."

and then paragraph 15-

" It is not the intention of Government to throw any

Government servant out of employ as far as .practicable. If

necessary, services of efficient and deserving staff will be

retained temporarily on supernumerary basis in the prospect

of finding work for them in connection with new development

schemes."

The order of December 9,1949, on which the appellant relies,

transferring him as District and Sessions Judge to the

District Court at Ganganagar, must be read subject to the

above and, if Article XVI(1) of the Covenant applies, then

subject to that as well. An order of transfer cannot be

equated to an order of appointment; and in any case, the new

cadres had not been established and the new Courts under the

proposed scheme of re-organisation had not been constituted,

so, anything done at that stage could only have been part

and parcel of the temporary transitional arrangements

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

pending the final settlement by the new State of the schemes

and conditions of service.

The next set of orders published in the Gazette of May 25,

1950, brings this out clearly. We have already set out its

terms.

The orders of March 25, 1950, and July 31, 1950, sanctioning

the increment do not help the appellant. He is described

there as

" Shri Rajvi Amarsingh, District and Sessions Judge in

Bikaner Division."

This is merely descriptive as the endorsement on the letter

indicates. It runs-

" Copy forwarded to-

(1) Shri Amarsingh, Civil and Addl. Sessions Judge,

Jhunjhunu."

No determination to post the appellant permanently in a

particular cadre and post can be spelled out of these

accidental descriptions in orders dealing with a different

matter. Postings to a cadre and engagements of service are

not made in this incidental way.

1021

The substantive appointment gazetted on April 23, 1951,

after the new cadres and Courts had been fixed, was struck

down by the High Court, and the Government of Rajasthan was

directed to treat that as an ad hoc appointment. According

to the respondent in its statement of the case, the matter

was regularised after the High Court's decision and the

appellant was again appointed a Civil Judge. If that is so,

then this must be regarded as his first substantive

appointment in the new State. But whether this is his first

substantive appointment after the integration, or the one of

April 23, 1951, no question of reduction in rank can arise

and so Art. 311 is not attracted. All his previous postings

in the new State were purely transitional and temporary; and

so far as Art. XVI(1) of the Covenant is concerned, its

guarantee has been fulfilled.

The appeal is dismissed with costs.

Appeal dismissed.