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PETITIONER:

R.P. KAPUR

Vs.

RESPONDENT:

UNION OF INDIA AND ANR.

DATE OF JUDGMENT:

19/11/1963

BENCH:

WANCHOO, K.N.

BENCH:

WANCHOO, K.N.

GAJENDRAGADKAR, P.B.

SUBBARAO, K.

SHAH, J.C.

DAYAL, RAGHUBAR

CITATION:

1964 AIR 787 1964 SCR (5) 431

CITATOR INFO :

F 1968 SC 800 (3,5)

R 1968 SC1372 (4)

D 1970 SC 140 (5)

R 1970 SC1494 (8)

R 1971 SC 823 (10)

MV 1972 SC 544 (64)

ACT:

Civil Service-Member of former Secretary of State's Service

suspended by Governor pending criminal proceeding-Validity

of order-Rule, if ultra vires-All India Services (Discipline

and Appeal) Rules, 1955, r.7--Constitution of India, Art.

314-Government of India Act, 1935, ss.241, 247-Civil

Services (Classification, Control and Appeal) Rules, rr. 49,

56 Fundamental Rules, r.53-Indian Administrative Service

(Recruitment) Rules. 1954, r.3-India, (Provisional

Constitution) Order, 1947, Art.7(1).-Indian Independence

Act, 1947, s. 10

HEADNOTE:

The appellant joined the Indian Civil Service in 1939 and

was posted in the province of Madras. After the transfer of

power under the Indian independence Act on August 15,1947,

he was

432

transferred to the Punjab and later when the Indian

Administrative Service was constituted he became its member.

On July 18, 1959, he was suspended by the Governor of the

State of Punjab under r. 7(3) of the Indian Services

(Discipline and Appeal) Rules, 1955, on the ground that a

criminal case was pending against him. He challenged the

order of suspension by a writ petition in the Punjab High

Court as being violative of the guarantee contained in Art.

314 of the Constitution and contrary to r. 49 of the Civil

Services (Classification, Control and Appeal) Rules which

provided only for suspension as a penalty. His case was

that there was no provision immediately before January 26,

1950, that provided for suspension otherwise than as

penalty. The High Court dismissed the petition.

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Held:-(per Gajendragadkar, Subba Rao, Wanchoo and Shah, JJ).

The general law of master and servant and s. 247 of the

Government of India Act, r. 53 of the Fundamental Rules and

rr. 49, 56 of the Civil Services (Classification, Control

and Appeal) Rules, read together clearly show that members

of the former Secretary of State's Services were on August

14, 1947, liable to suspension either as an interim measure

or as a punishment. Interim suspension could be imposed

either by the Secretary of State as the appointing authority

or the Governor-General or the Governor, as the case might

be, as the statutory authority.

Management of Hotel Imperial, New Delhi v Hotel Workers'

Union, [19601 1 S.C.R. 476 and T. Cajee v. U. Jormanik Siem,

[1961] 1 S.C.R. 750, referred to.

It was not therefore correct to say that there could be no

suspension except by way of punishment under r.49 of the

Appeal Rules before 1947. In a case of interim suspension

before 1947 there was however no right of appeal.

Article 314 of the Constitution, properly construed, affords

such protection to the members of the Secretary of State's

Services as they were entitled to immediately before the

commencement of the Constitution. There can be no doubt

that suspension pending a departmental enquiry or a criminal

proceeding falls within the word 'disciplinary matters' used

in that Article.

It was not correct to say that as independence was conferred

on India and the Services automatically terminated, there

was in law reappointment of all the former Secretary of

State's Services, and those serving in a province must be

deemed to have been reappointed by the Governor and that,

consequently, the Governor as the appointing authority had

the power to order suspension.

Article 7(1) of India (Provisional Constitution) Order,

1947, G.G.O. 14, read with s. 10 of the Independence Act,

1947, in the light of other relevant circumstances shows

that the final decision whether or not the former members of

the Secretary of State's Services should continue was of the

Government of India and that Government, therefore, must be

deemed to have appointed

433

them to posts either under itself or in the Provinces.

Section 241(b) of the Government of India Act, as it then

stood, and s.240(2) of the said Act, as amended by G.G.O.

14, could not alter this position.

State of Madras v. K.M. Rajagopalan, [1955] 2 S.C.R. 541,

referred to.

On the eve of the commencement of the Constitution i.e.

January 25, 1950, a former member of the Secretary of

State's Services could be suspended under the general law by

the Government of India alone as the appointing authority as

an interim measure pending departmental enquiry or criminal

proceeding and by no other authority. He was liable to

suspension as punishment under s. 49 of the Civil Services

(Classification, Control and Appeal) Rules. Rule 53 of the

Fundamental Rules governed pay during interim suspension or

suspension as penalty. While there was no appeal from an

order of interim suspension, r. 56 of the Appeal Rules

provided for an appeal from an order of suspension as

penalty. It was this position which Art. 314 of the

Constitution sought to protect.

Rule 7 of the All India Services (Discipline and Appeal)

Rules, 1955, violated the guarantee contained in Art. 314 in

respect to interim suspension and was to that extent ultra

vires in so far as it applied to the members of the Indian

Administrative Services who fell within cls. (a) and (b) of

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r.3 of the Indian Administrative Services (Recruitment)

Rules, 1954. The Governor's Order under r.7(3) directing

interim suspension of the appellant must, therefore, be set

aside. The proper procedure would be to approach Government

of India for such interim suspension.

The Accountant General, Bihar v. N. Bakshi, [1962] Supp. 1

S.C.R. 505, referred to.

Per Dayal, J.-In view of the provisions of s. 241 of the

Government of India Act as modified by the India

(Provisional Constitution) Order, 1947, G.G.O. 14 of 1947,

members of the Secretary of State's Services who were

holding posts under a provincial Government immediately

before the appointed day, i.e., August 15, 1947, and

continued in service thereafter must be deemed in view of

art. 7(1) of the said Order to have been appointed to the

corresponding posts by the appropriate authority, the

Governor of the Province. That article generally applied to

all appointments on and after the appointed day. The

appellant cannot be deemed to have been appointed by the

Governor-General or the Government of India. It was not

intended that merely because that Order was made by the

Governor-General, the deemed appointments must be taken to

have been made by him.

It would be anomalous to hold that the Governor, who was in

administrative control of the services, could not pass an

interim order of suspension against a person appointed by

the Secretary of State, though he could impose a penalty of

suspension under

1/SCI/64-28

434

rr. 49 and 52 of the Civil Services (Classification, Control

and Appeal) Rules, which continued in force till the All

India Services (Discipline and Appeal) Rules came into force

in 1955.

The Indian Civil Services ceased to exist from August

15,1947, and the services of its members automatically

terminated on August 14, 1947. The appellant's service,

therefore, came to an end on August 14, 1947, but since he

was serving under the Madras Government immediately before

August 15, 1947, and continued to do so thereafter he must

be deemed to have been appointed by the Governor of Madras

to the post he was holding on the appointed day.

Rule 7 of the All India Services (Discipline and Appeal)

Rules, 1955, does not violate the provision of Art. 314 of

the Constitution, nor can the absence of a right of appeal

against interim suspension do so since the appellant had

none before the Constitution. His suspension by the

Governor of Punjab under r.7(3) was, therefore valid.

State of Madras v. K.M. Rajagopalan, [1955] 2 S.C.R. 541,

considered.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 647 of 1963.

Appeal from the judgment and order dated September 21, 1962,

of the Punjab High Court in Civil Writ No. 280 of 1962.

the appellant appeared in person.

S.V. Gupte, Additional Solicitor-General, N.S. Bindra and

R.H. Dhebar, for the respondent (Union of India).

S.M. Sikri, Advocate-General, Punjab, N.S. Bindra and R.H.

Dhebar, for the respondent (State of Punjab).

November 19, 1963. The Judgment of P.B. Gajendragadkar, K.

Subba Rao, K.N. Wanchoo and J.C. Shah, JJ. was delivered by

Wanchoo, J. Raghubar Dyal, J. delivered a dissenting

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Opinion.

WANCHOO J.-This is an appeal on a certificate granted by the

Punjab High Court. The appellant joined the Indian Civil

Service in 1939 and was governed in matters relating to

discipline by the Civil Services (Classification, Control

and Appeal) Rules, (hereinafter referred to as the Appeal

Rules) made by

435

the Secretary of State for India in Council. He continued

in service till the transfer of power under the Indian

Independence Act, 1947. Under s.10 of that Act he continued

to serve under the Government of India and was entitled to

receive from the Government of India or of the Province

which he might from time to time be serving the same

conditions of service as respects remuneration, leave and

pension, and the same rights as respects disciplinary

matters or, as the case may be, as respects the tenure of

his office, or rights as similar thereto as changed cir-

cumstances may permit as he was entitled to immediately

before the transfer of power, which took place on August 15,

1947. The same guarantee was extended to the appellant and

all members of what were the Secretary of State's Services

before August 15, 1947 by Art. 314 of the Constitution. As

the appellant's case is based on 'that Article we may set it

out:

"Except as otherwise expressly provided by

this Constitution, every person who having

been appointed by the Secretary. of State or

Secretary of State in Council to a civil.

service of the Crown in India continues on and

after the commencement of this Constitution to

serve under the Government of India or of a

State shall be entitled to receive from the

Government of India and the Government of the

State, which he is from time to time serving,

the same conditions of service as respects

remuneration, leave and pension, and the same

rights as respects disciplinary matters or

rights as similar thereto as changed

circumstances may permit as that person was

entitled to immediately before such

commencement."

We shall hereafter refer to such a person as a member of the

(former) Secretary of State's Services. It appears that the

appellant was in the Indian Civil Service cadre in the State

of Madras at the time of transfer of power, though later he

was transferred to the Punjab. After the transfer of power

the Indian

436

Civil Service as a Secretary of State's Service came to an

end and thereafter a new Service was constituted known as

the Indian Administrative Service. Formal legal shape was

given to the new Service after the enactment of the All

India Services Act, No. LXI of 1951, and the Indian

Administrative Service (Recruitment) Rules, 1954,

(hereinafter referred to as the Recruitment Rules) were

framed under Act LXI of 1951. By r. 3 of these Rules, the

Indian Administrative Service was to consist of--

(a) members of the Indian Civil Service, not

permanently allotted to the judiciary;

(b) members of the Indian Civil Service per-

manently allotted to the judiciary who have

been holding executive posts from the date of

the commencement of the Constitution and who

may be declared by the Central Government to

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be members of the Service in consultation with

the State Government;

(c) persons who, at the commencement of

these rules, are holding substantively listed

posts, other than posts in the judiciary,

(d) persons recruited to the Service before

the commencement of these rules: and

(e) persons recruited to the Service in

accordance with the provisions of these rules.

The appellant thus became a member of the new Indian

Administrative Service by virtue of these rules and

continued to serve in the Punjab. In 1955, the Central

Government framed the All India Services (Discipline and

Appeal) Rules, 1955 (hereinafter referred to as the

Discipline Rules) which were applicable to all members of

the Indian Administrative Service and the Indian Police

Service.

On July 18, 1959, the appellant was suspended with immediate

effect by the Governor of the Punjab on the ground that a

criminal case was pending against him. The order also

provided that for the period of suspension the appellant

shall be paid subsistence

437

allowance which shall be equal to leave salary which he

would have drawn under the leave rules applicable to him if

he bad been on leave on half average pay with a further

provision that in case the suspension lasted for more than

twelve months a further order fixing the rate of subsistence

allowance shall be passed. This order appears to have been

passed under r. 7(3) of the Discipline Rules and in

consequence thereof the appellant remained under suspension.

The appellant filed a writ petition -in the Punjab High

Court on February 16, 1962, challenging this order of

suspension. His contention was that he was entitled to. the

guarantee contained in Art. 314 of the Constitution and the

order of suspension passed against him violated that

guarantee and was therefore ineffective and invalid. He

relied for this purpose on r. 49 of the Appeal Rules, which

provided for suspension as a penalty. He contended that the

Appeal Rules which governed him and which must be held to

have continued to govern him in view of the guarantee

contained in Art. 314 provided for suspension as a penalty

only and that there was no provision anywhere in any rule or

statute immediately before January 26, 1950 on which date

the Constitution came into force, providing for suspension

otherwise than as a penalty. Therefore it was not open to

the Governor to suspend him in the manner in which he did so

in the present case, though it was not denied that he could

be suspended pending criminal proceedings provided the

suspension was as a penalty under r. 49 of the Appeal Rules;

on the other hand mere suspension pending a criminal case

not inflicted as a penalty was not provided at all by the

Rules or the statute governing the appellant immediately

before January 26, 1950. Therefore when the Governor

proceeded to suspend him under r. 7(3) of the Discipline

Rules, he violated the guarantee contained in Art. 314. The

appellant also contends that as it was not open to any

authority to suspend him except as a punishment immediately

before January 26, 1950, r.7 of the Discipline Rules

438

which provides for suspension during disciplinary

proceedings or during the pendency of a criminal charge

insofar as it applies to him was ultra vires Art. 314 of the

Constitution. He also attacked rr.3 and 10 of the

Discipline Rules as violative of Art. 314 of the

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Constitution, r.3 being concerned with penalties to be

imposed on members of the Indian Administrative Service and

r.10 with the right of appeal. The contention in this

connection was that r.3 omitted the penalty of suspension

which was to be found in r.49 of the Appeal Rules with the

result that suspension under r.7 was not open to appeal

under r.10 which provided for appeals against penalties

mentioned in r.3. Therefore the guarantee under Art.314 was

violated inasmuch as previously whenever the penalty of

suspension was inflicted on a member of the Secretary of

State's Services it was open to him to appeal under r. 5 6

of the Appeal Rules. Therefore the scheme of the Discipline

Rules was such as to take away the protection to a member of

the Secretary of State's Service which was available to him

immediately before the Constitution came into force and in

consequence rr.3 and 10 also violated the guarantee

contained in Art. 314 and were ultra vires. The appellant

therefore prayed for an appropriate writ, order or direction

in the nature of mandamus striking down rr.3,7 and 10 of the

Discipline Rules being violative of Art. 314 of the Con-

stitution and also for an order striking down the order of

the Governor dated July 18, 1959, by which he suspended the

appellant and such other appropriate relief as was just and

proper.

The petition was opposed by the State of Punjab and its main

contention was that rr. 3,7 and 10 of the Discipline Rules

were perfectly valid and did not violate the guarantee

contained in Art.314. It was urged that Art. 314 only gave

restricted protection to the members of what were formerly

the Secretary of State's Services in respect of disciplinary

matters and stress was laid on the words "or rights as

similar thereto as changed circumstances may permit" appear-

439

ing therein. It was also urged that suspension pending

departmental enquiry or pending a criminal case was not the

same thing as suspension by way of punishment and that

previous to January 26, 1950, there could be suspension

pending departmental enquiry or pending a criminal case and

that no appeal lay from such suspension even then. It was

also urged that suspension pending a departmental enquiry or

pending a criminal case was not a disciplinary matter at all

and was therefore not included within the sweep of Art. 314

and in any case the rule relating to suspension even if it

is connected with disciplinary matters was liable to

variation as changed circumstances might demand and r.7 was

framed in view of the changeed circumstances. It was also

urged that removal of suspension as a penalty under r. 3

could not affect the guarantee contained in Art. 314, for

the effect of such removal was that there could be in future

no penalty of suspension. against a member of the Indian

Administrative Service. Therefore as the penalty had gone

r. 10 did not naturally provide for an appeal against a

penalty which did not exist. Rule 7 which provides for

suspension does not provide for any penalty and therefore

there was no necessity of providing for any appeal against

it. It was urged that a difference must be made between

suspension as a penalty and suspension as an interim measure

only pending a departmental enquiry or pending a criminal

case and if that difference was borne in mind there was no

reason for holding that rr.3 and 10 were ultra vires Art.

314. The respondent State finally contended that the order

of the Governor passed under r. 7(3) was perfectly valid and

did not violate the guarantee contained in Art. 314.

The High Court dismissed the petition. It was of the view

that it was inconceivable that under the old rules

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prevailing 'before January 26, 1950, a civil servant could

never be suspended while an enquiry into his conduct was

pending. It was further of the view that suspension during

the pendency of an enquiry was a power inherent in an

employer like the

440

Government and the power to suspend was always implied in

the authority making the appointment. The High Court

therefore rejected the contention of the appellant that

under the old rules no member of the Secretary of State's

Services could have been suspended except by way of

punishment. The High Court further held that even if the

contention of the appellant be accepted that a member of the

Secretary of State's Services had a right of appeal even

where he was suspended during a departmental enquiry there

was a provision in the Discipline Rules for a memorial to

the President (see r.20) and that in the opinion of the High

Court gave a right as similar to the right existing before

January 26, 1950, as the changed circumstances permitted.

The High Court therefore dismissed the petition. The

appellant then applied for a certificate which was granted;

and that is how the matter has come up before us.

The only question that has been debated before us is with

respect to suspension whether as a punishment or otherwise

of a member of one of the Secretary of State's Services, in

this case the Indian Civil Service, members of which have

become members of the Indian Administrative Service under

the Recruitment Rules; and it is only this question that

falls to be determined in the present appeal. But the

appellant has also challenged rr.3 and 10 of the Discipline

Rules which do not deal with suspension at all. In these

circumstances we do not propose to consider the vires of rr.

3 and IO, for that does not fall for decision as the order

which is challenged has not been made under r. 3 and relates

only to suspension. It is therefore unnecessary to decide

whether rr. 3 and 10 can in the changed circumstances apply

to those members of the Indian Administrative Service who

were at one time members of the Indian Civil Service. We

shall therefore express no view one way or the other on the

vires of r. 3 and r. 10 and consider only r. 7 which deals

with suspension. We should also like to make it clear that

what we say during the course of' this judgment

441

with respect to suspenion refers only to those members of

the Indian Administrative Service who became members thereof

under r. 3 (a) and (b) of the Recruitment Rules and not to

other members of the Indian Administrative Service who were

not members before 1947 of the Indian Civil Service, for it

is only the former kind of members of the Indian Ad-

ministrative Service who are entitled to the protection of

Art. 314 and the whole case of the appellant is based on

that protection.

Let us therefore turn to Art. 314 which we have already set

out above. This Article came to be considered by this Court

in the Accountant General Bihar v. N. Bakshi(1). In that

case, however, that part of it was considered which related

to "conditions of service as respects remuneration, leave

and pension", and it was held that r. 3 of the All India

Services (Overseas Pay, passage and leave salary) Rules,

1957, was ultra vires having regard to the guarantee

contained in Art. 314 of the Constitution. That case is an

authority for the proposition that where any rule is framed,

which is inconsistent with the guarantee contained in Art.

314 with respect to remuneration, leave and pension, that

rule would be bad. In the present case we are concerned

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with another part of Art. 314, namely, "the same rights as

respects disciplinary matters or rights as similar thereto

as changed circumstances may permit as that -person was

entitled to immediately before such commencement". The same

principle will apply to this part of Art. 314 also and if

any rule is framed which goes against the guarantee

contained in this part of Art. 31.4 with respect to members

of what were former Secretary of State's Services, it will

be bad. What Art. 314 provides with respect to disciplinary

matters is that the members of the former Secretary of State

s Services who continue to serve under the Government of

India or of a State would be entitled to the same rights as

respects disciplinary matters or rights as similar thereto

as changed circumstances

(1) [1962] Supp. 1. S.C.R. 505.

442

may permit. Stress has been laid on behalf of the

respondent on the words "rights as similar thereto as

changed circumstances may permit", and it is urged that in

view of these words it was open in the " changed

circumstances" to frame rules in particular with respect to

suspension pending departmental enquiry or pending criminal

proceedings. These words in our opinion cannot bear this

interpretation. What the words "changed circumstances" mean

is the change in circumstances due to transfer of power in

August, 1947, and the coming into force of the Constitution

in January, 1950, and no more. Therefore when Art. 314

speaks of "rights as similar thereto as changed

circumstances may permit", it only means that a member of

the former Secretary of State's Services would have rights

similar to his pre-existing rights as the changed

circumstances resulting from constitutional changes may

allow. As an illustration take a case where a member of a

Secretary of State's Service could before August, 1947, be

dismissed only by the Secretary of State; but after the

transfer of power and the coming into force of the

Constitution, circumstances have changed and there is no

Secretary of State, therefore we have to look to the changed

circumstances and find out which would be the authority to

dismiss such a member in the changed circumstances. If we

do so, we find that the Government of India can be the only

authority which now in the changed circumstances will have

the power to dismiss such a member in the absence of a

specific provision of law in force before January 26 , 1950.

These words do not mean that as time passes circumstances

change and therefore new rules may be framed to meet the new

circumstances due to passage of time. The words "changed

circumstances" in Art. 314 only refer to the constitutional

changes which occurred after the transfer of power in

August, 1947, and the coming into force of the Constitution

in January 1950. Further, Art. 314 provides that the

protection is limited only to those rights as to

disciplinary matters which a member of the former Secretary

of State's

443

Services was entitled to immediately before the commencement

of the Constitution i.e. on January 25, 1950. It is only

those rights which are protected and no more.

Another argument that is urged on behalf of the respondent

is that suspension pending a departmental enquiry or pending

a criminal proceeding cannot be said to be a disciplinary

matter at all and therefore the protection of Art. 314 does

not extend to such suspension. We cannot accept this argu-

ment. The words "disciplinary matters" with which we are

concerned appear in a constitutional provision and must be

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given their widest meaning consistent with what disciplinary

matters may reasonably include. Suspension is of two kinds,

namely, as a punishment, or as an interim measure pending a

departmental enquiry or pending a criminal proceeding. We

shall deal with these aspect's of suspension in detail

later. So far as suspension as a punishment is concerned,

it is conceded that it is a disciplinary matter. The

dispute is only as to suspension pending a departmental

enquiry or pending a criminal proceeding. There can in our

opinion be no doubt that suspension of this kind also must

be comprised within the words "disciplinary matters" as used

in Art. 314. Take the case of suspension pending a

departmental enquiry. The purpose of such suspension is

generally to facilitate a departmental enquiry and to ensure

that while such enquiry is going on-it may relate to serious

lapses on the part of a public servant-, he is not in a

position to misuse his authority in the same way in which he

might have been charged to have done so in the enquiry. In

such a case suspension pending a departmental enquiry cannot

be but a matter intimately related to disciplinary matters.

Take again the case where suspension is pending criminal

proceedings. The usual ground for suspension pending a

criminal proceeding is that the charge is connected with his

position as a government servant or is likely to embarass

him in the discharge of his duties or involves moral

turpitude.

444

In such a case a public servant may be suspended pending

investigation, enquiry or trial relating to a criminal

charge. Such suspension also in our opinion is clearly

related to disciplinary matters. If the trial of the

criminal charge results in conviction, disciplinary

proceedings are bound to follow against the public servant

so convicted. Even in case of acquittal proceedings may

follow where the acquittal is other than honourable. The

usual practice is that where a public servant is being tried

on a criminal charge, the Government postpones holding a

departmental enquiry and awaits the result of the criminal

trial and departmental proceedings follow on the result of

the criminal trial. Therefore, suspension during

investigation, enquiry or trial relating to a criminal

charge is also in our opinion intimately related to

disciplinary matters. We cannot therefore accept the

argument on behalf of the respondent that suspension pending

a departmental enquiry or pending investigation, enquiry or

trial relating to a criminal charge is not a disciplinary

matter within the meaning of those words in Art. 314.

Before we investigate what rights a member of the former

Secretary of State's Services had with respect to

suspension, whether as a punishment or pending a

departmental enquiry or pending criminal proceedings, we

must consider what rights the Government has in the matter

of suspension of one kind or the other. The general law on

the subject of suspension has been laid down by this Court

in two cases, namely, The Management of Hotel Imperial New

Delhi v. Hotel Workers' Union(", and T. Cajee v. U. Jormanik

Siem(2). These two cases lay down that it is well settled

that under the ordinary law of master and servant the power

to suspend the servant without pay could not be implied as a

term in an ordinary contract of service between the master

and the servant but must arise either from an express term

in the contract itself or a statutory provision governing

such contract. It was further held that an order

(1) [1960] 1. S.C.R. 476

(2) [1961] 1. S.C.R. 750.

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445

of interim suspension could be passed against an employee

while inquiry was pending into his conduct even though there

was no specific provision to that effect in his terms of

appointment or in the rules. But in such a case he would be

entitled to his remuneration for the period of his interim

suspension if there is no statute or rule existing under

which it could be withheld.

The general principle therefore is that an employer can

suspend an employee pending an enquiry into his conduct and

the only question that can arise on such suspension will

relate to the payment during the period of such suspension.

If there is no express term in the contract relating to

suspension and payment during such suspension or if there is

no statutory provision in any law or rule, the employee is

entitled to his full remuneration for the period of his

interim suspension; on the other hand if there is a term in

this respect in the contract or there is a provision in the

statute or the rules framed thereunder providing for the

scale of payment during suspension, the payment would be in

accordance therewith. These general principles in our

opinion apply with equal force in a case where the

government is the employer and a public servant is the

employee with this modification that in view of the peculiar

structural hierarchy of government, the employer in the case

of government, must be held to be the authority which has

the power to appoint a public servant. On general

principles therefore the authority entitled to appoint a

public servant would be entitled to suspend him pending a

departmental enquiry into his conduct or pending a criminal

proceeding, which may eventually result in a departmental

enquiry against him. This general principle is illustrated

by the provision in s. 16 of the General Clauses Act, No. X

of 1897, which lays down that where any Central Act or

Regulation gives power of appointment that includes the

power to suspend or dismiss unless a different intention

appears. Though this provision does not directly apply in

the present case,

446

it is in consonance with the general law of master and

servant. But what amount should be paid to the public

servant during such suspension will depend upon the

provisions of the statute or rule in that connection. If

there is such a provision the payment during suspension will

be in accordance therewith. But if there is no such

provision, the public servant will be entitled to his full

emoluments during the period of suspension. This suspension

must be distinguished from suspension as a punishment which

is a different matter altogether depending upon the rules in

that behalf. On general principles therefore the govern-

ment, like any other employer, would have a right to suspend

a public servant in one of two ways. It may suspend any

public servant pending departmental enquiry or pending

criminal proceedings; this may be called interim suspension.

Or the Government may proceed to hold a departmental enquiry

and after his being found guilty order suspension as a

punishment if the rules so permit. This will be suspension

as a penalty. These general principles will apply to all

public servants but they will naturally be subject to the

provisions of Art. 314 and this brings us to an in-

vestigation of what was the right of a member of the former

Secretary of State's Services in the matter of suspension,

whether as a penalty or otherwise.

As Art. 314 only guarantees protection to those rights which

were in existence immediately before the Constitution came

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into force, all that is necessary is to find out the

position before August 14, 1947, when the transfer of power

took place and on January 25, 1950, just before the

Constitution came into force. Members of the Secretary of

State's Services who are protected under Art. 314 were

appointed either by the Secretary of State or by the

Secretary of State in Council. Therefore on general

principles it would have been open to the Secretary of State

or the Secretary of State in Council, as the case may be, to

suspend a member of such Services as the appointing

authority as an interim measure pending a departmental

enquiry or pending a criminal proceeding if it thought fit

to do so. What

447

remuneration such a public servant would get during such

interim suspension would depend upon the rules if any, and

if there were no rules he would be entitled to his full

emoluments during such interim suspension. But it appears

that as the Secretary of State or the Secretary of State in

Council was in London it was thought proper for the sake of

administrative convenience to provide for suspension by

authorities other than the appointing authority. Reference

in this connection may be made to s. 247 (2) of the

Government of India Act. 1935, as in force upto August 13,

1947. That subsection provided that "any order suspending

any such person (meaning thereby a member of the former

Secretary of State's Services) from office shall, if he is

serving in connection with the affairs of the Federation, be

made by the Governor-General exercising his individual judg-

ment and, if he is serving in connection with the affairs of

a Province, be made by the Governor exercising his

individual judgment". This sub-section therefore made a

specific provision for suspension by authorities other than

the appointing authority; this was in addition to the

general right of the employer (namely, the Secretary of

State who was the appointing authority) to suspend an

employee (namely, a member of one of the former Secretary of

State's Services). Suspension in s. 247 (2) cannot in our

opinion be confined only to suspension as a penalty. The

words are general and must be given their full meaning and

would include any kind of suspension, whether as a penalty

or otherwise; and this power vested firstly in the Secretary

of State or the Secretary of State in Council, as the case

may be, under the general law of master and servant and also

in the Governor-General and the Governor, as the case may

be, by virtue of this provision of the statute.

Further s. 247 (3) also provided for remuneration of a

suspended member of one of the former Secretary of State's

Services and laid down that "if any such person as aforesaid

is suspended from office, his remuneration shall not during

the period of his suspension be reduced except to such

extent, if any, as may be directed by the Governor-General

exercising his in-

448

dividual judgment or, as the case may be, by the Governor

exercising his individual judgment". Besides this statutory

provision relating to former Secretary of State's Services,

there was a general provision as to payment to a government

servant under suspension in Fundamental Rule 53. That

general provision is that a suspended governmentservant is

at least entitled to one-fourth of his pay. This general

provision was subject ,to s. 247 (3) andin the case of

members of the former Secretary of State's Services, the

Governor-General or the Governor as the case may be, had to

specify the amount which could be even more than what was

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provided by F.R. 53. Here again when F.R. 53 speaks of

suspension, it speaks of it in general terms. It applies to

all kinds of suspension whether as a penalty or otherwise.

Further r. 49 of the Appeal Rules deals with penalties and

provides suspension as a penalty. It also provides for

appeals in r. 56 etc. where suspension is inflicted as a

penalty for good and sufficient reasons. Rule 49 applied to

the former Secretary of State's Services also and thus these

members were subject to the penalty of suspension.

A review therefore of the general law of master and servant,

the provisions of the Government of India Act, 1935, of the

Appeal Rules and the Fundamental Rules discloses that -the

position on August 13, 1947 with respect to members of the

former Secretary of State's Services with respect to

suspension whether as a punishment or otherwise was as

follows. Members of the former Secretary of State's

Services were liable to suspension either as an interim

measure or as a punishment. Where suspension was as an

interim measure and not as a punishment, it could be imposed

either by the Secretary of State or the Secretary of State

in Council as the appointing authority or by the Governor-

General or the Governor as the case may be as the statutory

authority. Suspension could also be imposed by the proper

authority as a punishment under the Appeal Rules and such

orders of suspension were subject to appeals as provided by

the Appeal Rules. There

449

was also provision for payment during suspension in the

shape of subsistence allowance which was governed generally

by F.R. 53 and in the case of members of the former

Secretary of State's Services, F.R. 53 was subject to s. 247

(3) of the Government of India Act, 1935. Therefore, the

contention of the appellant that there could be no

suspension except by way of punishment under r. 49 of the

Appeal Rules before 1947 is not correct. It is equally

clear that where suspension before 1947 was an interim

measure and not as a punishment under r. 49, there was

no question of any appeal from such an interim suspension

pending a departmental enquiry or pending a criminal

proceeding. If the position on January 25, 1950, stood

as it was on August 13,1947, the appellant could not

susbstantially challenge the order of the Governor passed on

July 18, 1959, for it would have been covered by s. 247(3)

of the Govemment of India Act, 1935, and the appellant could

not claim anything more under Art. 314 of the Constitution.

But Art. 314 does not speak of the protection which members

of the All India Services had on August 13, 1947; it speaks

of protection which they had immediately before the

commencement of the Constitution i.e. on January 25, 1950,

and that brings us to a consideration of the changes that

took place between 1947 and 1950 after the transfer of power

on August 15, 1947.

The effect of the transfer of power on the Secretary of

State's Services in particular came up for consideration be-

fore this Court in State of Madras -v. K.M. Rajagopalan(1)

and it was held that "the conferral of Independence on India

brought about an automatic and legal termination of service

on the date of Independence. But all persons previously

holding civil posts in India are deemed to have been

appointed and hence to continue in service, except those

governed by 'general or special orders or arrangements'

affecting their respective cases, The guarantee about prior

conditions of service and the previous statutory safeguards

relating to disciplinary

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 31

1 SCI/64-29

450

action continue to apply to those who are thus deemed to

continue in service but not to others". Section 10 of the

Indian Independence Act provides -or the Secretary of

State's Services and lays down that every person who having

been appointed by the Secretary of State, or Secretary of

State in Council, to a civil service of the Crown in India

continues on and after the appointed day to serve under the

Government of either of the new Dominions or of any Province

or part thereof, shall be entitled to receive the same

conditions of service as respects remuneration, leave and

pension and the same rights as respects disciplinary matters

or, as the case may be, as respects the tenure of his

office, or rights as similar thereto as changed

circumstances may permit as that person was entitled to

immediately before the appointed day, i.e. August 15, 1947

By virtue of this provision those members of the Secretary

of State's Services who continued to serve the Government of

India or the Government of any Province from August 15,

1947, were entitled to the protection of s. 10. What

Rajagopalan's case(" decided was that the Government of

India was not bound to continue in service every member of

the Secretary of State's Services because of s. 10 of the

Indian independence Act; but that the protection of that

section only applied to such members of the afore-said

services whose services the Government of India agreed to

continue after August 14, 1947. In Rajagopalan's case(" the

Government of India did not agree to continue Rajagopalan's

services and therefore, he could not claim the protection of

s. 10 of the Indian Independence Act. In the appellant's

case his service continued after the transfer of power and

therefore he was entitled to the protection of s. 10 of the

Indian Independence Act, which was almost in similar terms

as Art. 314 of the Constitution so far as disciplinary

matters were concerned.

On August 14, 1947, however, the India Provisional

Constitution) Order, 1947, was promulgated as G.G.O. 14. By

that Order, s. 247 of the Government of India was

substituted by a new section and sub-ss. (2) and (3)

(1) [1955] 2 S.CR. 541.

451

thereof to which we have already referred were repealed.

The substituted s. 247 read as under:-

"Conditions of service of persons orginally

recruited by Secretary of State-The conditions

of service of all persons who, having been

appointed by the Secretary of State or the

Secretary of State in Council to a civil

service of the Crown in India, continue on and

after the date of the establishment of the

Dominion to serve under the Government of the

Dominion or of any Province, shall-

(a) as respects persons serving in

connection with the affairs of the Dominion,

be such as may be prescribed by rules made by

the Governor-General;

(b) as respects persons serving in

connection with the affairs of a Province-

(i) in regard to their pay, leave, pensions,

general rights as medical attendance and any

other matter which immediately before the

establishment of the Dominion was regulated by

rules made by the Secretary of State, be such

as may be prescribed by rules made by the

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Governor-General; and

(ii) in regard to any other matter, be such

as may be prescribed by rules made by the

Governor of Province."

It will be clear from this that sub-ss. (2) and (3) of s.

247 disappeared on August 14, 1947. No rules framed by the

Governor-General under the new section with respect to what

we have called interim suspension have been brought to our

notice. Therefore no power was left in the Governor-General

or the Governor, as the case may be, to suspend a member of

the former Secretary of State's Services as an interim

measure and only the appointing authority could suspend such

a public servant, which in the changed circumstances would

be the Government of India. The explanation for this may be

that as the Secretary of State disappeared and his place was

taken by the Government of India,

452

it might not have been thought necessary to continue the

further powers conferred by s. 247 (2) in addition to the

general power of the appointing authority to suspend. Be

that as it may, the fact remains that on August 14, 1947, s.

247 (2) disappeared and therefore the Governor-General and

the Governor lost the power to suspend as an interim measure

a member of the former Secretary of State's Services and

such power could only be exercised by the appointing

authority which in the changed circumstances must be deemed

to be the Government of India. As for suspension as a

punishment that continued to be provided in the Appeal Rules

and no change was made therein.

It has however been urged that as the conferral of

Independence on India brought about an automatic and legal

termination of service on the date of Independence, there

must in law have been reappointment of all members of the

former Secretary of State's Services. This reappointment in

case of those serving in connection with the affairs of a

Province must be deemed to have 'been made by the Governor

of the Province concerned and consequently the Governor will

have the power to suspend as the appointing authority. We

are of opinion that there is no force in this argument. The

antecedent circumstances with respect to such Services have

been fully dealt with in Rajagopalan's case (1) and those

circumstances show that the question of the retention of

officers serving in these Services was dealt with between

the Government of India and His Majesty's Government and it

was the Government of India which decided ,that all such

officers should continue except those whom the Government of

India, was not prepared to invite to continue and in the

case of this limited class the Government of India agreed to

compensation. It was in consequence of this agreement

between the Government of India and His Majesty's Government

that s. 10 of the Independence Act provided that those

officers -who continued would have the same conditions of

service etc. as they were entitled to immediately before

August 14, 1947. The Governors of Provinces were nowhere in

the picture in this matter and we can see

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

453

no warrant for holding that the appointment must be deemed

to be by the Governors of Provinces where such officers were

serving in connection with the affairs of a Province.

It is true that the Indian Administrative Service as an all-

India Service was legally and formally constituted in 1951.

It is also true that under s. 10 of the Indian Independence

Act members of the former Secretary of State's Services

continued on and after August 14, 1947, to serve under the

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Government of either of the new Dominions or of any Province

or part thereof It is also true that there are some passages

in the correspondence between His Majesty's Government and

the Government of India which suggest that His Majesty's

Government was thinking on the lines that members of the

former Secretary of State's Services will become members of

the Provincial - Services. These however are not conclusive

of the matter and we have to find out what actually took

place after this exchange of correspondence between the

Government of India and His Majesty's Government in

connection with the former Secretary of State's Services.

We have already indicated that s. 10 was incorporated in the

Indian Independence Act in consequence of this

correspondence between the Government of India and His

Majesty's Government. Thereafter we find that the India

(Provisional Constitution) Order, 1947 (i.e. G.G.O. 14) was

passed on August 14,1947, under powers conferred on the

GovernorGeneral by virtue of s. 9 (1) (a) of the Indian

Independence Act. Article 7 (1) of that Order is in these

terms:

"(1) Subject to any general or special orders

or arrangements affecting his case, any person

who immediately before the appointed day is

holding any civil post under the Crown in

connection with the affairs of the Governor-

General or Governor-General in Council or of a

Province other than Bengal or the Punjab

shall, as from that day, be deemed to have

been duly appointed to the corresponding post

under the,Crownin connec-

454

tion with the affairs of the Dominion of India

or, as the case may be, of the Province."

Reading this provision along with the provision in s. 10 of

the Indian Independence Act, it would in our opinion be

right to say that so far as the. members of the former

Secretary of State's Services are concerned they must be

deemed to have been appointed to the posts on which they

were serving at the time of conferral of Independence, by

the Govemmentof India. The deemed appointment under Art. 7

(1) of G.G.O. 14 was "subject to any general or special

orders or arrangements affecting his case", and these

arrangements are clear from the correspondence which ensued

between the Government of India and His Majesty's

Government. That correspondence and the special orders or

arrangements contemplated by Art. 7 (1) of G.G.O. 14 show

that so far as the members of the former Secretary of

State's Services were concerned, it was the Government of

India which took the final decision whether to continue such

officers or not. It is true that in so doing it consulted

the various Provincial Governments and was to a large extent

guided by the views of the Provincial Governments,

particularly in connection with such officers who were

serving in connection with the affairs of the Provinces;

even so, as the facts in Rajagopalan's case(1) show, the

final decision whether to continue or not a member of the

former Secretary of State's Services was taken by the

Government of India. In these circumstances it would in our

opinion be reasonable to hold that in the case of the

members of the former Secretary of State's Services it was

the Government of India which must be deemed to have

appointed them after the conferral of Independence on India

to the respective posts which they were holding whether

under the Government of India or under the Governments of

Provinces. This conclusion is reinfored by the fact that

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the system in force before 1947 was that all members of the

Secretary of State's Services were assigned to one Province

or other and from them such members as were necessary used

to be on deputation to the Government of India for serving

it directly. It would be very anomalous

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

indeed that the accident whether an officer was serving on

August 13, 1947, on deputation under the Government of India

directly or in the Province to which he was assigned should

determine who the appointing authority must be deemed to be

on the date of the transfer of power. Such an anomaly could

in our opinion never have been intended and we have no doubt

therefore in view of the history dealt with in Rajagopalan's

case(1) that on the conferral of Independence, even if there

was legal termination of the services of members of the

former Secretary of State's Services, the reappointment must

be deemed to be by the Government of India and not by the

Governors of Provinces even in the case of officers who were

serving in connection with the affairs of Provinces.

In this connection our attention has been drawn to s. 241

(1) of the Government of India Act 1935 as it then stood,

which is in these terms:-

"(1)-Except as expressly provided by this Act,

appointments to the civil services of, and

civil posts under, the Crown in India, shall

be made--

(a) in the case of services of the Dominion,

and posts in connection with the affairs of

the Dominion, by the Governor-General or such

person as he may direct;

(b) in the case of services of a Province,

and posts in connection with the affairs of a

Province, by the Governor or such person as he

may direct."

This provision in our opinion does not apply in the peculiar

circumstances arising out of the transfer of power in August

1947. It is a general provision relating to appointments to

civil services and civil posts under the Dominion or under

the Provinces. It has in our opinion nothing to do with the

case of members of the civil services and holders of civil

posts who were deemed to have continued by virtue of Art. 7

of G.G.O. 14 of August 14, 1947. Clause (b) of s. 241 (1)

therefore cannot in our opinion lead to the inference that

in the case of those members of the former Secretary of

State's

(1) [1955] S.C.R 541.

456

Services who were deemed to have been appointed in

connection with the affairs of a Province under Art. 7 (1)

of G.G.O. 14, the appointments must be deemed to have been

made by the Governor. Such deemed appointments in our

opinion must depend for their validity on Art. 7 G.G.O 14

and not on s. 241 of the Government of India Act which is

not a deeming provision and therefore we have to look to

Art. 7 (1) to find out by whom the appointments must be

deemed to have been made in these of the members of the

former Secretary of State's Services. As Art. 7 opens with

the words "subject to any general or special orders or

arrangements affecting his case " (i.e. each individual

officer's case), it must be held in view of the history

which is elaborately set out in Rajagopalan's case(-) that

so far as members of the former Secretary of State's

Services were concerned, it was the Government of India who

must be deemed to have made the appointments in view of the

special orders and arrangements with respect to such

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officers.

Reliance in this connection was also placed on the amendment

of s. 240 (2) of the Government of India Act by the same

G.G.O. Section 240 (2) as it originally stood provided that

" no such person as aforesaid (meaning thereby a member of a

civil service of the Crown in India or a person holding any

civil post under the Crown in India) shall be dismissed from

the service of His Majesty by any authority subordinate to

that by which he was appointed". Amendment of this sub-

section became necessary as the Secretary of State for India

was disappearing and some authority had to be provided which

could dismiss members of the former Secretary of State's

Services. G.G.O. 14 therefore provided that no member of a

Secretary of State's Services who continued in service after

August 14, 1947, shall be dismissed by any authority

subordinate to the Governor-General or the Governor

according as that person was serving in connection with the

affairs of the Dominion or of a Province. This amendment

gave power to the Governor to dismiss even members of the

former Secretary of State's Services and stress has been

laid on behalf of

(1) [1955] 2 C.R. 541.

457

the respondent on this amendment and it is urged that this

shows that appointments of such members who were serving in

connection with the affairs of the Provinces must be deemed

to have been made by the Governor concerned. It appears

however that the amendment by which the Governor could

dismiss a member of the former Secretary of State's Services

may have crept in by inadvertence, for it would prima facie

be against the provisions of the guarantee contained in s.10

of the Indian Independence Act. In any case this sub-

section was further amended by G.G.O. 34 and the power of

dismissal was only vested in the Governor-General and was

taken away from the Governor. We are therefore of opinion

that no inference can be drawn from the fact that for a

short time s. 240 (2) provided that the Governor may dismiss

a member of the former Secretary of State's Services, that

the appointments of such members who were serving in

connection with the affairs of the Province was by the

Governor, and not by the Government of India. Such an

inference is in our opinion against the conclusion which can

be plainly drawn from the history relating to the

continuance and appointment of the members of the former

Secretary of State's Services at the time of conferral of

Independence and the provisions of Art. 7 (1) of G.G.O. 14

of August 14, 1947.

The final position therefore on January 25, 1950, with

respect to suspension of a member of the former Secretary of

State's Services whether as a punishment or as an interim

measure pending departmental enquiry or pending a criminal

proceeding was this. Such member could be suspended under

the general law by the appointing authority, which in the

changed circumstances was, the Government of India, as an

interim measure pending a departmental enquiry or pending a

criminal proceeding, but there was no power in any other

authority to pass such an order of interim suspension, for

as we have already indicated the power under s. 247 (2) was

repealed by G.G.O.14 of August 14. 1947. Besides this power

of interim suspension otherwise than as a punishment, the

power to suspend

458

as punishment continued under r. 49 of the Appeal Rules and

an order of suspension made in exercise of that power was

subject to appeal under r. 56 etc., thereof So far as

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payment during the period of interim suspension or during

the period of suspension as a penalty is concerned, s. 247

(3) had disappeared and therefore the general provision

contained in F.R. 53 applied. That general provision has

made some distinction between the members of the Indian

Civil Service and others; but that is a matter of detail, in

which it is unnecessary to go. So the position immediately

before the commencement of the Constitution was that members

of the former Secretary of State's Services could be

suspended either as an interim measure pending departmental

enquiry or pending criminal proceeding or as a punishment.

Where suspension was as an interim measure and not as a

punishment such suspension could only be by the appointing

authority, which in the changed circumstances should be

deemed to be the Government of India. Such interim

suspension was not subject to any appeal. So far as

suspension as a punishment was concerned, r. 49 of the

Appeal Rules applied and the authorities specified in these

Rules could pass an order of suspension as a punishment and

that order would be subject to appeal provided in r. 56 and

other rules therein. As to the payment during the period of

suspension that was governed by F.R. 53. It is this

position which was protected by Art. 314 of the.

Constitution so far as suspension of members of the former

Secretary of State's Services was concerned whether as an

interim measure or as a punishment.

Then we come to the Discipline Rules 1955. Rule 3 of these

Rules provides for penalties and omits suspension as a

penalty. Now if suspension had remained a penalty under r.

3 of the Discipline Rules, the appellant would have been

entitled to the same rights as respects suspension as a

punishment or rights as similar thereto as changed

circumstances would permit in view of Art. 314. But r. 3 of

the Discipline Rules has altogether done away with the

penalty of suspension for members of

459

the Indian Administrative Service, which includes the

members of the lndian Civil Service under r. 3 (a) and (b)

of the Recruitment Rules. Further rules corresponding to

the Discipline Rules was repealed by r. 23 of the Discipline

Rules-, so after the Discipline Rules came into force in

1955 suspension could no longer be inflicted as a penalty on

a member of the Indian Administrative Service (including

members of the Indian Civil Service who became members of

the Indian Administrative Service). It is therefore

unnecessary for us to consider whether the order of July 18,

1959, can be justified as a punishment and if so whether the

memorial provided by r. 20 of the Rules is a sufficient

protection for the purpose of Art. 314 which speaks of

"rights as similar thereto as changed circumstances may

permit". Nor is it the case of the respondent that the

appellant was suspended by way of punishment by the order of

July 18, 1959. The respondent justifies the said order

under r. 7 ( 3) of the Discipline Rules and thus the case of

the respondent is that the appellant was suspended not as a

-punishment but that the order of suspension was passed by

the Governor as an interim measure which he could do either

pending a departmental enquiry or pending a criminal charge.

The appellant has thus been suspended by the order of July

18, 1959, not as a punishment but as an interim measure

pending a criminal charge against him; and this is what

practically in terms the order says, for it places the

appellant immediately under suspension because a criminal

case was pending against him. But as we have already

pointed out the power to pass an order of interim suspension

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in the case of a member of the former Secretary of State's

Services on January 25, 1950, was only in the appointing

authority, (namely, the Government of India). The power to

suspend a member of the Indian Administrative Service which

the appellant became by virtue of r. 3 of the Recruitment

Rules as punishment has disappeared from r. 3 of the

Discipline Rules 1955. The appellant therefore could not be

suspended by the Governor as an interim measure and such

suspension could only be by the Government of India. The

proper procedure therefore in a case

460

where the State Government wants a member of the former

Secretary of State's Services to be suspended pending

departmental enquiry or pending investigation, inquiry or

trial of a criminal charge against him is to approach the

Government of India and ask it as the appointing authority

to suspend such officer as an interim measure. It is not

open to the Government of India by framing a rule like r. 7

of the Discipline Rules to take away the guarantee as to

Disciplinary matters contained in Art. 314. We have already

said that the guarantee in the case of a member of the

former Secretary of State's Services is that in disciplinary

matters his rights would be the same or as similar thereto

as changed circumstances would permit as they were

immediately before the commencement of the constitution.

The right in the matter of interim suspension As distinct

from suspension as a punishment was that a member of the

former Secretary of State's Services could not be suspended

by any authority other than the Government of India. That

was guaranteed by art. 314 and could not be taken away by

framing a, rule like r. 7 of the Discipline Rules. We have

already referred to Bakshi's case(" in which it has been

held that the rights guaranteed by Art. 314 of the Constitu-

tion could not be destroyed or taken away by the Central

Government in exercise of its rule-making power' In the

present case the right guaranteed to a member of the former

Secretary of State's Services with respect to interim

suspension (as distinct from suspension as a punishment is

that such a member cannot be so suspended except by the

appointing authority which in the changed circumstances is

the Government of India. That right has in our opinion been

violated by r. 7 of the Discipline Rules insofar as it

permits any authority other than the Government of India to

suspend pending a departmental enquiry or pending a criminal

charge a public servant who was a member of the, former

Secretary of State's Services. Rule 7 therefore insofar as

it permits this violation of the guarantee contained in Art.

314 with respect to interim suspension (other than

suspension

(1) [1962] Supp. I S.C.R. 505.

461

as a punishment) is to that extent ultra vires Art. 314 i.e.

insofar as it applies to the members of the Indian

Adminstrative Service who fall within cls. (a) and (b) of

r. 3 of the Recruitment Rules. it follows therefore that the

order of the Governor dated July 18, 1959, purporting to be

passed under r. 7 (3) of the Discipline Rules is without

authority and must be set aside.

This brings us to the question of relief to be granted to

the appellant. it appears that on September 11, 1963, the

Governor passed an order by which he reinstated the

appellant for the period from July 18, 1959, to April 4,

1963, and granted him his full emoluments for that period.

The writ petition in the present case was filed in February

1962. So the appellant is apparently not entitled to any

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further relief in the matter of his emoluments besides what

has been granted to him by the Governor. The order of

reinstatement contained therein is unnecessary in view of

our decision and the order granting full emoluments may be

taken to be in pursuance of our judgment.

We therefore allow the appeal and declare r. 7 of the

Discipline Rules insofar as it applies to members of the

Indian Administrative Service who are members thereof by

virtue of r. 3 (a) and (b) of the Recruitment Rules to be

bad to the extent to which it permits an authority other

than the Government of India to suspend as an interim

measure (and not as a punishment) such members of the

Services. In consequence we set aside the order of the

Governor dated July 18, 1959. As however the order of

September, 1963, has granted all such monetary reliefs to

the appellant as we could grant him on setting aside the

order of July 18, 1959, no further relief can be granted to

the appellant. We order the respondent the State of Punjab

to pay the costs of the appellant in this Court as well as

in the High Court.

RAGHUBAR DAYAL J.-I am of opinion that this appeal should be

dismissed.

The appellant a member of the Indian Civil Service, was

serving under the Government of Madras immediately before

the appointed day', i.e. August 15

462

1947, as laid down in sub-s. (2) of s. I of the Indian

Independence Act, 1947 (10 & 11 Geo. 6, Ch. 30) hereinafter

referred to as the Independence Act. He continued to serve

under the Government of Madras on and after the appointed

day. Subsequently, he was transferred to the State of

Punjab where he was serving on ,,July 18, 1959, when he was

suspended by the Governor of Punjab as a criminal case was

pending against him. 'the appellant was a member of the-

Indian Administrative Service in 1959 and the order of

suspension appears to have been made by the Governor in

exercise of the power conferred by r. 7 of the All India

Services (Discipline and Appeal) Rules, 1955, hereinafter

referred to as the Discipline Rules. The appellant

challenges the validity of this order on the ground that

this rule violates the provisions of art. 314 of the

Constitution. His contention is that prior to August 15,

1947, a member of the Indian Civil Service could be

suspended by way of punishment in view of r. 49 of the Civil

Services (Classification, Control and Appeal) Rules,

hereinafter referred to as the Classification Rules and that

there was no provision for his suspension otherwise than as

a penalty and that his suspension, as a disciplinary

measure, though permissible, would have been then treated as

suspension by way of penalty and therefore as subject to an

apeal under r. 56 of the Classification Rules. No appeal is

provided under the Discipline Rules against an order of

suspension under r. 7 which therefore violates art. 314 of

the Constitution as, according to that article, he was

entitled to receive from the Government the same rights as

respects disciplinary matters or rights as similar thereto

as changed circumstances, permitted as he was entitled to

immediately before 'the commencement of the Constitution.

He further contends that sub-s. (2) of s. 10 of the

Independence Act guaranteed to him the same rights as

respects disciplinary matters or rights as similar thereto

as changed circumstances permitted, as he was entitled to

immediately before the appointed day.

It was further contended, during the course of the

submissions in Court, that though prior to the appoin-

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463

ted day an order of suspension during the pendency of a

departmental enquiry or of a criminal charge could have been

made only by the Governor-General or the Governor, such an

order thereafter and till January 26, 1950 could be made

only by the Governor-General, and that therefore such a

suspension order subsequent to the commencement of the

Constitution could be made by the Union Government and not

by the Government of Punjab and that for this reason too, r.

7 of the Discipline Rules empowering the State Government to

make an order of such suspension violates art. 314.

I need not discuss the various points on which I agree with

my learned brother Wanchoo, J. I agree that the expression

'changed circumstances' in art. 314 only refer to the

constitutional changes which occurred after the transfer of

power in August, 1947, and the coming into force of the

Constitution in January, 1950, that suspension during the

pendency of disciplinary proceedings or of a criminal charge

is related to disciplinary matters within the meaning of

those words in art. 314, that from the appointed day there

was no express provision in the Government of India Act or

in the rules framed thereunder empowering the Governor-

General or the Governor to suspend, otherwise as penalty,

officers appointed by the Secretary of State for India and

that any order of suspension pending enquiry against a

person appointed by the Secretary of State on a day

immediately before the coming into force of the Constitution

had to be made by the Government in the exercise of the

general power of suspension which an employer has with

respect to his employee, that this general power an employer

has to suspend an employee pending an enquiry into his

conduct vests in the appropriate authority where the

Government is the employer and a public servant is the

employee and that such an authority in the case of

Government, in view of the -peculiar structure of the

hierarchy of Government, be taken to be the, authority which

has the power to appoint the public servant concerned. I am

however. further of opinion that the appropriate authority

in this connection can also include officers superior to

464

the appointing authority and that in the case of members of

All India Services serving under any state includes the

Governor who, as the executive head of State, has

administrative control cover all officers serving under the

State Government. It would be anomalous to hold that the

Governor could not suspend a person, appointed by the

Secretary of State, during the pendency of departmental

proceedings or a criminal charge against him, though he

could have imposed a penalty of suspension on such a person

in view of rr. 49 and 62 of the Classification Rules which

were in force between the appointed day and January 25,

1950, and continued in force subsequently, up to the coming

into force of the Discipline rules. 1, however, do not rest

my decision on this view as, in my view, the appellant is to

lie deemed to have been appointed by the Governor of Madras,

on the appointed day, to the post corresponding to ,the post

he was holding immediately before the appointed day under

the Madras Government.

I now deal with the question of the authority which should

be taken to be the appointing authority for persons who had

been appointed by the Secretary of State to the Civil

Services or to any post under the Crown and who continued to

serve the Government after the appointed day. To determine

this question it is necessary to consider the following

matters: (1) Did the Service known as the Indian Civil

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Service, whose members were to be recruited by the Secretary

of State for India in view of s. 244 (1) of the Government

of India Act, cease to exist on and from the appointed day

and, if so, whether any other AR India Service took its

place immediately after it had ceased to exist? (2) If it

ceased to exist, were the services of the members of the

Indian Civil Service terminated immediately before -the

appointed day? (3) Which members of the Service continued in

service of the Government on or after the appointed day. (4

) Whether those who so continued did so on account of their

becoming servants of the new Government under the provisions

of any Act, or their continuance in service was on account

of their fresh appointment. (5) If it was due to fresh

465

appointment, which authority appointed them and to which

post or service

Before I deal with the above questions, I may set out the

relevant provisions which have a bearing in this connection.

The Independence Act was enacted by the British Parliament

on July 18, 1947, for setting up in India two independent

Dominions and to provide for necessary consequential

matters. By sub-s. (1) of s. 1, two independent Dominions

known as India and Pakistan were to be set up from August

15, 1947. Subsection ( 2) of that section provided for

their being referred to as the new Dominions and August 15,

1947, being referred to as the appointed day. One of the

consequences of the setting up of the new Dominions was

stated in sub-s. (1) of s. 7 to be that His Majesty's

Government in the United Kingdom was to have no

responsibility as respects the government of any of the

territories which, immediately before the appointed day,

were included in British India. Section 9 empowered the

Governor-General to make such provisions by order as

appeared to him to be necessary or expedient for certain

purposes mentioned therein. Subsections (1) and (2) of s.

10 of the Act read:

"(1) The provisions of this Act keeping in

force provisions of the Government of India

Act, 1935, shall not continue in force the

provisions of that Act relating to

appointments to the civil services of, and

civil posts under, the Crown in India by the

Secretary of State, or the provisions of that

Act relating to the reservation of posts.

(2) Every person who-

(a) having been appointed by the Secretary

of State, or Secretary of State in Council, to

a civil service of the Crown in India

continues on and after the appointed day to

serve under the Government of either of the

new Dominions or of any Province or part

thereof; or

(b) having been appointed by His Majesty

before the appointed day to be a judge of the

Federal

SCI/64-30

466

Court or of any court which is a High Court

within the meaning of the Government of India

Act, 1935, continues on and after the

appointed day to serve as a judge in either of

the new Dominions, shall be entitled to

receive from the Governments of the Dominions

and Provinces or parts which he is from time

to time serving or, as the case may be, which

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are served by the courts in which he is from

time to time a judge, the same conditions of

service as respects remuneration, leave and

pension, and the same rights as respects

disciplinary matters or, as the case may be,

as respects the tenure of his office, or

rights as similar thereto as changed

circumstances may permit, as that person was

entitled to immediately before the appointed

day

The Governor-General, in the exercise of the powers

conferred on him by s. 9 made the India (Provisional

Constitution) Order, 1947 (G.G.O. 14 of 1947), hereinafter

called the Provisional Constitution Order. Article 7(1) of

this Order is:

"Subject to any general or special orders or

arrangements affecting his case, any person

who immediately before the appointed day is

holding any civil post under the Crown in

connection with the affairs of the Governor-

General or GovernorGeneral in Council or of a

province other than Bengal or the Punjab

shall, as from that day, be deemed to have

been duly appointed to the corresponding post

under the Crown in connection with the affairs

of the Dominion of India or, as the case may

be, of the Province."

Sub-section (1) of s. 241 of the Government of

India Act, as modified by this Order, reads:

"Except as expressly provided by this Act,

appointments to the civil services of, and

civil posts under, the Crown in India, shall

be made-

(a) in the case of services of the Dominion,

and posts in connection with the affairs of

the

467

Dominion, by the Governor-General or such

person as he may direct;

(b) in the case of services of a Province,

and posts in connection with the affairs of a

Province, by the Governor or such person as he

may direct."

Section 247 of the Government of India Act as

modified

reads:

"The conditions of service of all persons who,

having been appointed by the Secretary of

State or the Secretary of State in Council to

a civil service of the Crown in India,

continue on and after the date of the

establishment of the Dominion to serve under

the Government of the Dominion or of any

Province shall,-

(a) as respects persons serving in

connection with the affairs of the Dominion be

such as may be prescribed by rules made by the

GovernorGeneral;

(b) as respects persons serving in

connection

with the affairs of a Province-

(i) in regard to their pay, leave, pensions,

general rights as to medical attendance and

any other matter which immediately before the

establishment of the Dominion was regulated by

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rules made by the Secretary of State, be such

as may be prescribed by rules made by the

GovernorGeneral; and

(ii) in regard to any other matter be such as

may be prescribed by rules made by the

Governor

of the Province."

Sections 244 to 246 of the Government of India Act, 1935,

which dealt with Services recruited by the Secretary of

State was omitted from the Act by this Order.

Reference may also be made to the announcement by His

Excellency the Viceroy on April 30, 1947. It purported to

relate to grant of compensation for premature termination of

their service in India to members of the Civil Services

appointed by the Secre-

468

tary of State and to regular officers and British Warrant

Officers of the Indian Naval and Military Forces. Its first

7 paragraphs are set out at pp. 548 to 550 in State of

Madras v. K.M. Rajagopalan(1). Its para 8 stated inter

alia:

"In pursuance of their wish to give all

possible help to the Government of India in

building up the new services, His Majesty's

Government agree 'that their obligation covers

the claim to ultimate compensation of those

British members

of the Services who are asked to serve on in

India and decide to do so."

It may also be mentioned that subsequent to June 3, 1947,

the Government of India made enquiries through the

Provincial Governments from the members of the Secretary of

State's Services, including the Indian Civil Service. about

their desire to continue in service of the Government after

the transfer of power and also made enquiries from the

Provincial Governments themselves about their readiness to

retain those officers in service who expressed their desire

to continue in service.

This Court had occasion to discuss the effect of the steps

taken by the Government of India prior to the appointed day

and of the provisions of the Independence Act and the

Provisional Constitution Order in Rajagopalan's case(1)

Rajagopalan was a member of the Indian Civil Service and was

serving in the Province of Madras till August 14, 1947, when

his services were terminated, though he had expressed his

willingness to continue in the service of the, Govern.ment

of Madras on and after the appointed day. What this Court

directly held and observed in connection with the points

urged before it in that case would be mentioned at

appropriate places in discussing the five points I have

formulated earlier.

This first two points were directly decided in that case.

This Court held that the Secretary of State and his Services

disappeared as from the appoin-

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

469

ted day and that, s. 10(2) of the Independence Act and art.

7(1) of the Provisional Constitution Order proceeded on a

clear and unequivocal recognition of the validity of the

various special orders and the individual arrangements made

and amounted to an implicit statutory recognition of the

principle of automatic termination of the Services brought

about by the political change. It is clear therefore that

the Indian Civil Service, one of the Secretary of State's

Services, ceased to exist from the appointed day and that

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the services of its members automatically terminated on

August 14, 1947.

This Court had not to consider whether any All India Service

was set up to take the place of the Indian Civil Service on

and from the appointed day, as the termination of

Rajagopalan's services was held to be valid. There is

nothing on the record to show that any such new Service took

the place of the Indian Civil Service at the changeover,

though, subsequently, the Indian Administrative Service was

set up as an All India Service. When it was actually set up

is not known. Article 312 of the Constitution states in cl.

(2) that the Services known at the commencement of the

Constitution as the Indian Administrative Service and the

Indian Police Service shall be deemed to be services created

by Parliament under that article. The All India Services

Act, 1951 (Act LXI of 1951) defined an All India Service to

mean the service known as the Indian Administrative Service

or the service known as the Indian Police Service. The

Indian Administrative Service Recruitment Rules, 1954, came

into force in 1954 and its r. 3 dealing with the

constitution of the service provides inter alia that the

Service shall consist of (a) members of the Indian Civil

Service, not permanently allotted to the judiciary; (b)

members of the Indian Civil Service permanently allotted to

the judiciary who have been holding executive posts from the

date of commencement of the Constitution; (d) persons

recruited to the Service before the commencement of those

Rules. It appears therefore that all the

470

members of the Indian Civil Service who continued to serve

the Government on and after the appointed day were not made

members of the Indian Administrative Service and that those

who were made members of the Service became members of such

Service in 1954. If the Indian Administrative Service had

been set up to replace the Indian Civil Service immediately

on the appointed day and the erstwhile members of the Indian

Civil Service had become its members, the provisions of r. 3

(a) and (b) would have been different from what they are.

This indicates that the Indian Administrative Service did

not take the place of the Indian Civil Service automatically

after the changeover on the appointed day and that therefore

the members of the Indian Civil Service who continued in

service did not continue so as members of any All India

Service. The Viceroy's announcement dated April 30, 1947,

makes no mention of any All India Service replacing the

Indian Civil Service immediately on the transfer of power

though it specifically mentioned in para 8 about the giving

of all possible help to the Government of India in building

up the new Services and to the members of the Secretary of

State's Services continuing to serve under the Government in

India after the transfer of power. The provisions of art.

7(1) of the Provisional Constitution Order also do not refer

to the persons in the Secretary of State's Services to

continue in service as members of any All India Service

though it specifically deals with the appointment of such

other employees of Government to the posts they had held on

the day immediately preceding the appointed day.

I am therefore of opinion that the service of the appellant

as a member of the Indian Civil Service came to an end on

August 14, 1947, and that thereafter he did not

automatically-or otherwise become member of any All India

Service on August 15, 1947.

In connection with point no. 3 formulated by me. this Court

said in Rajagopalan's case(1) at P. 552

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

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471

that the continuance of service was contemplated only in

respect of such of the previous servants who intimated their

desire for the continuance of their services and whose offer

in that respect was accepted, and at p. 563 that sub-s. (2)

of s. 10 of the Independence Act had nothing to say as to

who were the persons who would continue in service and

receive the benefit that being obviously left to be provided

by delegated 'legislation in the shape of Orders of the

Governor-General and at p. 565 that in view of the

provisions of art. 7(1) of the Provisional Constitution

Order, all persons who were previously holding civil posts

were deemed to have been appointed and hence to continue in

service excepting those whose case was governed by general

or special orders or arrangements affecting their cases. It

is clear therefore that only those members of the Secretary

of State's Services continued in service who had been

holding civil posts immediately before the appointed day and

were deemed to have been appointed to the corresponding post

in view of the provisions of art. 7 (1) of the Provisional

Constitution Order.

The persons who had been holding civil posts immediately

before the appointed day did not automatically become

servants of the new Government on the appointed day.

Article 7(1) of the Provisional Constitution Order

contemplates 'deemed appointment' of such persons to their

respective posts on that day. The language of this article

is not consistent with any suggestion that they

automatically, by the force of the Independence Act or the

Provisional Constitution Order, became holders of the

respective posts on the appointed day. The language is very

much different from the language used in Arts. 374, 376, 377

and 378 of the Constitution which provide for certain

persons holding office immediately before the commencement

of the Constitution becoming, on such commencement, holders

of corresponding posts on such commencement. The language

is also different from that of Art. 375 of the Constitution

which deals with the continuance of courts, authorities

472

and officers after the commencement of the Constitution and

reads:

"All courts of civil, criminal and revenue

jurisdiction, all authorities and all

officers, judicial, executive and ministerial,

throughout the territory of India, shall

continue to exercise their respective

functions subject to the provisions of this

Constitution."

There is no such expression in this article which would

indicate that any of these officers had to be freshly

appointed or would be deemed to have been appointed to their

respective posts on the commencement of the Constitution.

The language of art. 7(1) of the Provisional Constitution

Order correspond to some extent to that of s. 58 of 21 & 22

Vic. Cap. CVI, 1858, an Act for the better Government of

India, which was passed when the .,Government of India was

transferred to Her Majesty from the East India Company.

Section 58 reads:

"All persons who at the time of the commence-

ment of this Act shall hold any offices,

employments, or commissions whatever under the

said Company in India shall thenceforth be

deemed to hold such offices, employments, and

commissions under Her Majesty as if they had

been appointed under this Act.............. "

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The language of art. 7(1) of the Provisional Constitution

Order, for purposes of comparison, may be just noted, and is

"....any person who immediately before the

appointed day is holding any civil post under

the Crown .... shall, as from that day, be

deemed to have been duly appointed to the

corresponding post under the Crown...."

The language of s. 58 of the 1858 Act contemplated a fresh

appointment, though deemed appointment, as is abundantly

clear from the words 'shall.... be deemed to hold such

offices, employments, and corn-

473

missions. .as if they had been appointed under this

Act......'

I am therefore of opinion that the Provisional Constitution

Order, by its art. 7(1), provided for deemed fresh

appointment of the members of the Secretary of State's

Services whose services had terminated automatically on the

day immediately preceding the appointed day.

I will now deal with the last point as to which authority

would be deemed to have appointed the persons who had been

in the Secretary of State's Services, to their corresponding

posts on the appointed day.

The Government of India Act, 1935, hereinafter called the

Act, as modified by the Orders of the Governor-General, was

in force on that day and the authorities competent to make

appointments on that day would be deemed to have made the

appointments of the erstwhile servants in the Secretary of

State's Services. No other authority could have made those

appointments and therefore no other authorities could be

deemed to have made those appointments which were deemed to

be made in view of the provisions of art. 7(1) of the

Provisional Constitution Order.

Section 241 of the Act provided that the GovernorGeneral, or

such person as he may direct, would make appointments to the

civil services of the Dominion and civil posts in connection

with the affairs of the Dominion and that the Governor would

make appointments to the services of a Province and posts in

connection with the affairs of a Province. Such persons of

the Secretary of State's Services who were holding posts in

connection with the affairs of a Province would therefore be

appointed to the corresponding posts, on the appointed day,

by the Governor of that Province, as only he could have made

appointments to those posts. It is to be noticed that art.

7(1) of the Provisional Constitution Order refers to

appointments to posts and not to appointments to Services

and that even prior to the appointed day the appoint-

474

ments, to the various posts in the Provinces, of members of

All India Services allotted to the cadre of the Provinces

were also made by the Governor and not by the Governor-

General. In this respect, with regard to all appointments

to posts in connection with the affairs of the Provinces

there had been really no ,change.

It is contended for the appellant that his deemed

appointment to the post corresponding to the post he had

held on August 14, 1947, was by the GovernorGeneral or the

Government of India. Article 7(1) of the Provisional

Constitution Order does not expressly provide so. Section

241 of the Act did not authorize the Governor-General to

make appointments to posts in connection with the affairs of

the Provinces. The provisions of art. 7(1) of the

Provisional Constitution Order refer to all the persons

employed in the civil services and holding civil posts under

the Crown and are not restricted to those persons only who

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held posts and had been appointed by the Secretary of State.

The mere fact that the Provisional Constitution Order was

made by the Governor-General would not lead to the result

that the deemed appointments of all the persons serving

under the Crown, whether as members of civil services or as

holders of posts, had been made by the Governor-General.

That could not have been intended. All such employees would

be deemed to be appointed by the appropriate authority on

the appointed day and the appropriate authority for the

appointment of a particular employee is to be found in s.

241 of the Act.

It is also true that the erstwhile members of the Secretary

of State's Services were not actually reappointed by the

appropriate appointing authority and that they were merely

deemed to be so appointed in view of the provisions of art.

7(1) of the Provisional Constitution Order whose purpose was

to validate the continuity of the service of such persons

even though they had not been actually appointed.

I see no reason why the provisions of s. 241 of the Act be

not applicable to the deemed appoint-

475

ments of such persons who had been in the Secretary of

State's Services. Undoubtedly, it was not a special

provision for the deemed appointments at the particular

occasion, but was of general application to appointments on

and after the appointed day. Appointments, whether actual

or deemed to be made by the new Governments immediately on

the changeover of the Government, must be governed by its

provisions.

This Court did not make any reference to s. 241 of the Act

in Rajagopalan's Case.(1) This is not because that section

did not govern all the erstwhile members of the Secretary of

State's Services, but because the Court was not concerned in

that case with the question of such fresh deemed

appointments as Rajagopalan did not continue in service as

his services were held to be validly terminated on August

14, 1947.

It has been urged in support of the appellant's case that

the retention of persons of the Secretary of State's

Services was dealt with between the Government of India and

His Majesty's Government as would appear from the various

documents in connection with the steps taken for the setting

up of the two Dominions and that only those officers

continued in service whom the Government of India invited to

continue and that those who were not so invited were to be

paid compensation.

It is not clear from the antecedent circumstances that it

was the Government of India which decided about the

continuance in service of such officers of the Secretary of

State's Services who had been prior to the changeover

serving under the Government of a Province. Even if it was

the Government of India which was to decide and invite the

officers to continue, such a decision and invitation cannot

amount to its appointing those officers to the various posts

in connection with the affairs of a Province, in view of s.

241 of the Act.

of course, negotiations with respect to the services took

place between the Government of India

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

476

and His Majesty's Government. A Provincial Government could

not have continued such negotiations. I do not find any

specific mention in any of the documents referred to in

Rajagopalan's Case'') to the effect that it was the

Government of India which decided which officers were to

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continue in service. The Viceroy's announcement dated April

30, 1947, practically sums up the result of the negotiations

between the Government of India and His Majesty's

Government. It is clear from what was stated in paragraphs

3 and 6 of this announcement that the undertakings and

assurances 'with respect to persons appointed by the

Secretary of State and who were to continue in service were

given by the Government of India with respect to those who

were to continue under its service and by the Provincial

Governments with respect to those who would join the

Provincial Services. It is said in para 3, which dealt with

the terms of pay etc., that the Government of India would

then propose to Provincial Governments that they should give

similar assurances to members of the Secretary of State's

Services who agreed to join Provincial Services.

It was said in para 6 :

"His Majesty's Government have been reviewing

the whole position. They have noted the

undertaking which the Government of India have

given in regard, to officers whom they desire

should continue to serve under the Government

of India .... Many Indian members of the

Secretary of State's services will however

become members of provincial services and in

their cases His Majesty's Government's

agreement that the need not be compensated is

conditional upon the Provincial Governments

guaranteeing the existing terms of service.

If they are not prepared to do so His,

Majesty's Government reserve the right to

reconsider the matter.

It is therefore clear that the Provincial Governments were

also concerned in the negotiations though they Were

-actually made by the Government

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

477

of India and had to agree to--guarantee the existing terms

of service and safeguards in matters of discipline And had

also to agree to pay compensation.

It may look anomalous that some persons who had been members

of the Secretary of State's Services may be deemed to have

been appointed to their respective posts, on the appointed

day, by the Governor of a Province if they had been holding

Posts under the Provincial Government and others be deemed

to have been appointed by the Governor-General if they

happened to be then serving posts in connection with the

affairs of the Government of India or the Dominion. Such an

anomaly was bound to come into existence and had been

contemplated during the negotiations between the Government

of India and His Majesty's Government. There was no other

choice open to the members of the Secretary of State's

Services who were serving under the Government -of a:

Province when their services automatically came to an end

and when they desired to continue' in Government service.

Their wishes were ascertained in the context of what was

taking place. They knew of the; announcement by the Viceroy

dated April 30, 1947. It was only with their consent that

their services were continued after the changeover. They

can therefore have no grievance for being appointed to

provincial services or posts under the Provincial

Governments and naturally, under its administrative control.

In fact, even prior to the changeover, such persons had been

under the administrative control

of the Provincial Government.

This Court, in Rajagopalan's Case(1), refers at p. 551 to

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the Government of India asking the Provincial Govemments, by

its letter dated June 18, 1947, to state, when forwarding

the replies from the individual officers, about their

willingness or otherwise to continue in service, whether for

any reason they Would prefer such officer not to continue in

service notwithstanding his desire to remain in service, and

pointing out to the Provincial Government that in case it

did not

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

478

desire to retain the services of such persons, the Pro-

vincial Government would be incurring the liability to pay

compensation. Such an enquiry indicates, to my mind, that

the decision to continue such persons in service after the

changeover rested with the Provincial Government and It was

on this account that .it had to bear the liability to the

compensation payable to such persons. Such a decision had

to be taken by the Provincial Government because it was

contemplated that officers serving under the Provincial

Government would be appointed to their respective posts

after the changeover by that Government itself and that the

Government of India will have nothing to do with their

appointments. In the circumstances, it follows that it was

the Provincial Government which invited such officers to

continue in service and not the Government of India.

It is true that the Madras Government informed Rajagopalan

of the Government's decision not to retain him in service

after August 15, 1947, and stated that a formal

communication in that respect would issue from the

Government of India. The Government of India in a way

approved of the decision of the Madras Government not to

continue Rajagopalan in service. But it does not follow

that the Government of India's approval was necessary for

the Government of Madras to continue under its service

officers whom it was prepared to keep in service. The ter-

mination of service of such officers was prior to the coming

into force of the Act as modified by the Provisional

Constitution Order and therefore the termination order had

to be formally made by the Government of India. The order

had to be passed prior to the changeover and at that time it

was proper that any order about the termination of the

services be with the approval of the Government of India.

The fresh deemed appointment was to be made on August 15,

1947, immediately after the changeover and, in view of the

practical difficulties, such a fresh appointment was not

actually made but was deemed to have been made, as provided

by art. 7(1) of the Provisional

479

Constitution Order. When the appointment was to be made of

persons serving under the Provincial Governments, there was

no necessity of obtaining prior approval of the Government

of India to retain such officers in service.

I am therefore of opinion that such members of the Secretary

of State's Services who were holdingposts under a Provincial

Government immediately before the appointed day and

continued in service on and after the appointed day are to

be deemed to be appointed to the corresponding posts by the

Governor of the Province, in view of the provisions of s.

241 of the Act.

The appellant was serving under the Madras Government

immediately before the appointed day. He will therefore be

deemed to be appointed by the Governor of the Province of

Madras to the post he was holding on the appointed day. The

Governor of the Province was his appointing authority and

therefore he could be suspended on the day immediately

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before the commencement of the Dominion by the Governor of

the Province where he might have been then serving. He can

at best claim protection of his right of not being suspended

pending departmental enquiry or of a criminal charge by any

authority of a lower rank. Rule 7 of the Discipline Rules

does not provide for such suspension of a person who had

been a member of the Secretary of State's Services by an

authority lower than the Governor.. The appellant was

suspended by the Governor of Punjab on July 18, 1959. He

had no right of appeal against such an order of suspension.

The Discipline Rules did not provide for an appeal against

such an order of suspension and, in not so providing, cannot

be said to violate the provisions of art. 314 of the

Constitution as the appellant had no right of appeal against

such an order before the commencement of the Constitution.

It follows that r. 7 of the Discipline Rules does not

violate the provisions of that Article and that the impugned

order of suspension was therefore valid.

480

1 would therefore dismiss the appeal.

ORDER

in accordance with the opinion of the majority the appeal is

allowed with costs in this Court and in the' High Court.