Sankari Bhusan Sen vs Union of India (UOI)

Chakravartti, C.J.—This two points involved in this appeal, when they are ultimately reached, appear to be simple, but in order to reach them one has to make one''s way through a maze of political and other decrees which is not altogether an easy task. In trying to ascertain what the real position is we have been greatly assisted by Mr. Dutta who appears to have made extensive researches into the rather confused body of legislation by which the transfer of Chandernagore to the Union of India and its ultimate merger with the State of West Bengal were effected. In the present appeal we are, however, concerned only with certain orders made with regard to an employee of a rather humble grade by certain officers and it is only in that connection that an investigation as to their powers became necessary.

By an order of the Governor of French India, the Appellant, Sankari Bhusan Sen, was appointed a temporary peon in the Collectorate Department, Chandernagore, on September 9, 1942 and he was subsequently confirmed with effect from November 19, 1946. In 1947, after the French possession of Chandernagore bad become the free town of Chandernagore, the Appellant was placed in grade 14 by an order of the President of the Council of Administration on a pay of Rs. 35 per month in the scale of Rs. 35--1-45-1-55. He continued to serve in that post and on June 13, 1952, which was after the de jure transfer of Chandernagore to the Union of India, an order was made by the President of the Council of Administration whereby he was promoted to the post of an Assistant Clerk in grade 10 with a monthly salary of Rs. 52 plus the usual allowances. His case is that in spite of that order of the President, he was never given the rank of Assistant Clerk, nor given the salary of the post but was kept in the grade of a peon on the old salary, although actually he was made to do the duty of an Office Clerk. It appears that the de jura transfer of Chandergore to the Union of India, there was a great deal of uncertainty during a great length of time as to what the exact position of the old employees under the French Government would be. Once or twice during that time, the Appellant was recommended by his immediate superior for promotion to the rank of an Assistant Clerk and, on one occasion, a representation made by him and three other persons in the same position was forwarded with a note that his case deserved to be favourably considered. Nothing, however, resulted from either the recommendation or the representation. On the other hand, by an order made on October 2, 1954, he was posted as a peon and assigned to the Subdivisional Munsif''s Court. This was done simultaneously with the merger of Chandernagore with the State of West Bengal. About that time, the Appellant went on leave and he remained on leave by having it extended from time to time till February 1, 1955. Upon the expiry of his leave, he was asked to join bis post as a peon, but without doing so, he moved an application in this Court on February 22, 1955, under Article 226 of the Constitution against the Union of India, the Under Secretary to the Government of India, Ministry of External Affairs, the President of the Council of Administration of the Free City of Chandernagore, the State of West Bengal and Shri U.C. Boy, the then Administrator. His application proceeded on the basic that he had already been promoted to the rank of an Assistant Clerk by the order made by the President of the Council of Administration on June 13, 1952 and the direction given to him to join a particular post as a peon amounted to reduction in rank. Accordingly, he asked for a writ in the nature of mandamus on the Respondents to the application, directing them to rescind the order posting him as a peon and a writ in the nature of prohibition, restraining them from giving effect to the order. The same relief was asked for in various other forms, including a writ in the nature of certiorari, quashing the order. The application succeeded in the first instance and a Rule was issued, but at the final hearing, it was discharged by Sinha, J.

The ground upon which Sinha, J., discharged the Rule was that a de jure transfer of Chandernagore to the Union of India having taken place on June 9, 1952, the President of the Council of Administration, set up by the French Government, when the sovereignty lay with them, could have no jurisdiction whatever to make on June 13, 1952, the order on which the Appellant was relying. The counter-affidavit filed on behalf of the Respondents had taken that point, but it had raised another objection as well. It was said that the first Indian Administrator, appointed after the de jure transfer, found that the President''s order of the 13th of June had been most perfunctorily made without due regard to the claims of other employees and that for that reason he had declined to give effect to the order. As a matter of fact, the whole question of the grading of the old employees including the Appellant''s case had been referred to the Government of India and the Government of India had ruled that they would take the final decision after considering all relevant circumstances as also what the future constitution of Chandernagore was going to be. In fact, they took no decision and had no occasion to take any, because in 1954, when the matter still remained undecided, Chandernagore came to be attached to and became a part of the State of West Bengal. Thereupon, the counter-affidavit proceeded to say, the posts as existing on October 2, 1954, the date of the merger, had been redistributed on a subdivisional basis and the employees had been posted in different departments in accordance with their original status. So far as the Appellant was concerned, since he was drawing a salary of a peon in grade 14 at the relevant time, he had been posted as a peon to the Subdivisional Munsif''s Court. The counter-affidavit thus raised two points, namely, that the order of the President of the Council of Administration was without jurisdiction and as such wholly void and, secondly, that, in any event, the order was one irregularly made and, therefore, effect had not been given to it by the succeeding Government. Sinha, J., dealt with the first objection alone and probably because it was sufficient for the disposal of the Rule, he did not advert to the second. Before us both were elaborately discussed.

The first question is whether on June 13, 1952, the President of the Council of Administration in Chandernagore had any jurisdiction to make the order he made for the promotion of the Appellant. For a decision of this question, a brief reference to the sequence of political events between 1947 and 1952 is necessary.

It appears that immediately after India had became a Dominion, the French Government began to feel that to have a small pocket of ft French possession, with the virtually independent State of India on all sides of it, would be patently incongruous. Accordingly, the first step they took was to pass a decree on November 7, 1947, by which Chandernagore was set up as a free town, vested with financial and administrative autonomy and to place it under the direction of a Council of Administration with a President at its head. Subject perhaps to some overall control of the French Government, the President appears to have been for all practical purposes the political head of the place. While Chandernagore was being administered as a free town, a referendum as to whether it would join the Union of India or remain a French possession was taken in 1949 and the decision of the people went in favour of joining the Indian Union. Thereafter, on May 2, 1950, happened what has been called a de facto transfer of Chandernagore to the Government of India. What actually happened was that the Indian Government took over the administration of Chandernagore in exercise of the power conferred upon them by Section 4 of the Foreign Jurisdiction Act, but the only administrative change they made appears to have been to appoint an Indian Administrator who was to take orders directly from the President of India. Apart from the introduction of that one officer placed at the head of the administration, no other change was made and the Council of Administration continued to function for the internal administration of the town. What exactly the powers of the Indian Administrator were vis-a-vis the Council of Administration, is obscure. Be that as it may, a further step was taken on February 2, 1951, when a Treaty of Cession relating to the free town of Chandernagore was signed between the Governments of India and France in Paris. Instruments of ratification regarding this treaty were exchanged about a year and a half later. On June 9, 1952, the treaty was finalised, again by an exchange of Instruments in Paries and, thereby Chandernagore passed in law to the Union of India as it already had passed in fact. The French sovereignty over the place ceased to exist and the sovereignty of the Union of India took its place.

This time, the effect of the political change was not left vague and obscure, but was made the subject-matter of legislation. On June 30, 1952, the President promulgated the Chandernagore (Administration) Regulation, 1952, to make a provision for the administration of the place ''''and for matters connected therewith" Section 7 of the Regulation declared that all rights, liabilities and obligations of the Government of the French Republic or the Municipal Assembly or the Administrative Council in relation to Chandernagore would, as from the appointed date, be the rights, liabilities and obligations of the Central Governments The "appointed day" was defined as the 9th day of June, 1952, the date on which the free town of Chandernagore was transferred, in full sovereignty, to India under the Treaty of Cession of Chandernagore.

Sinha, J., has held that since the Council of Administration was a body set up by the French Government and since the French sovereignty disappeared from Chandernagore on June 9, 1952, when Chandernagore passed to the Indian Union, the Council of Administration must be taken to have ceased to exist simultaneously unless it could be shown that it was expressly continued by the new Sovereign. In the learned Judge''s view, the new Sovereign did not continue the Council, but, on the other hand, promulgated a law by which they said that on and from June 9, 1952, the Council would cease to have any rights. If that was what the Indian Government did, the Council of Administration could not obviously exercise any power or make any order with regard to Chandernagore after the "appointed day" and, consequently, the purported order of the 13th of June was altogether void.

With respect, I am unable to agree with the learned Judge in the view he took. He seems to have been under some misapprehension as to the date when the Chandernagore (Administration) Regulation, 1952, came into force. He took it as having come into force on June 9, 1952 and to have declared that, with effect from that date, the Council of Administration would cease to have any rights and, indeed, stand dissolved. Actually, however, the Regulation was published in the Gazette of India on June 30, 1952 and came into force only on that date. It appears from the affidavits that the Indian Administrator, appointed under the Regulation, assumed office only on the 1st of July, so that the period between the 9th of June, 1952 and the 30th of June, following, was a transitional period, not covered, till the 30th of June came by any legislation of the Indian Government, nor administered by any Indian Officers save and except the old Indian Administrator. The learned Judge has based his view mainly on Section 7 of the Regulation. It is perfectly true that, u/s 7, all rights, liabilities and obligations of the old French Republic and of the institutions set up by them became the rights, liabilities and obligations of the Central Government, but that only means that whatever rights and liabilities the predecessor Sovereign had would be rights and liabilities of the succeeding Sovereign. The section by itself does not effect the abolition of either the Municipal Assembly or the Administrative Council and therefore, whether or not they stood automatically abolished as a result of the change of sovereignty, Would depend upon whether or not they were kept alive by some other provision in the Regulation. This the learned Judge has himself pointed out, because he has said that on and from June 9, 1952, the Council of Administration could have no power to exercise any right unless it could be shown that it had been kept in existence by the Government of India. It appears to me that the Regulation itself makes it clear that the Government of India treated the Council of Administration as having remained in existence and in valid existence till the date when the Regulation was promulgated. At one time in the course of the argument. I was inclined to think that Section 5 of the Regulation indicated such view or intention of the Central Government, but on a closer scrutiny it appears that the section is limited only to the Administrator and "all judges, magistrates and other officers of the free town of Chandernagore." By Section 5 it is provided that the officers who were exercising lawful functions in Chandernagore immediately before the appointed day are to continue to exercise their respective powers and jurisdictions in the same manner and to the same extent until other provision is made by the Central Government. The effect of the section undoubtedly is that even after June 9, 1952, all the officers of the free town of Chandernagore would continue to be in possession of their old rights and powers, but the section does not deal with the administrative bodies. Those are dealt with by Section 15 to which the learned Judge did refer, but unfortunately his attention does not seem to have been drawn to a vital word in the section or probably he read Section 15 as he did, because he was under the impression that the Regulation had come into force on June 9, 1952, as he said at more than one place in his judgment. Section 15 provides that the decree creating Chandernagore a free town and the subsequent modifications of it "are hereby repealed" and it further provides that "the Municipal Assembly and the Administrative Council set up under that decree are hereby dissolved." If the Indian Government was saying that on June 30, 1952, as it must betaken to have been saying, because the Regulation was promulgated and came into force only on that day, the conclusion is inescapable that the Council was treated as having remained in valid existence till the date of the Regulation. Because he thought that the Regulation was promulgated on June 9, 1992, Sinha, J., did not consider the effect of the interval between that date when the de jure transfer took place and Juno 30, 1952, when the Regulation was promulgated. If the two had been simultaneous, there could be no question that the Council would stand dissolved from the date of the de jure transfer, because, in that event, the Regulation, by saying on June 9, 1952, that the Council was "hereby dissolved", would be saying that it was being dissolved with effect from that very day. In fact, however, the Regulation was promulgated on the 30th of June and by Section 15 it dissolved the Council on that date If the Council had been treated as having automatically come to an end as a result of the change of sovereignty the Regulation could not have said on the 30th of June that it was dissolving it by one of its provisions, because something which has ceased to exist or has vanished, cannot be dissolved. The clear effect of Section 15, to my mind, s that the Government of India was, by the Regulation, recognising the continued existence of the Council till June 30, 1952, and treating it as having had a valid and an effective existence till that date.

Returning now to the first point in the case, it seems to me that if the Council of Administration was treated by the Government of India as having continued in valid existence till June 30, 1952, and order made by the President on June 13, 1952, cannot be said to have been passed without jurisdiction. It appears from the materials in the paper-book that between June 9, 1952, and the 30th of June following, the old Administrator under the Government of India was constantly attending the meeting of the Council and taking note of its deliberations as the deliberations of a body entrusted with the internal administration of the city. The order of June 13, 1952, was passed by the President himself, acting alone. It appears from the "Internal Rules of the Municipal Assembly" that the President is to exercise his powers "in Council". The order does not suffer from the defect that the President, while required by the Rules to act in Council, acted individually, because it appears and this is admitted in para. 5 of the counter-affidavit, that on May 14, 1952, the Council passed a resolution for placing the Appellant in the grade of an Assistant Clerk and that what the President did on the 13th of June following was only to make a formal order in accordance with the resolution of the Council. I am accordingly of opinion that the order of the 13th of June cannot be said to suffer either from lack of jurisdiction or from any procedural defect.

The Appellant, however, cannot succeed, unless he can meet the second objection of the Respondents that even if the order of June 13, 1952, was made by an authority competent to make it, it could still be disregarded and not given effect to by the Indian Government, if they thought that the order was bad on the merits. On the materials on record, it is perfectly clear that when, on assuming his new office of Administration on July 1, 1952, Mr. S.B. Roy came across the order, he declined to give effect to it, not on the ground that it had been passed without jurisdiction, but on the ground that the order had been perfunctorily made without considering the legitimate claims of all deserving employees. He did not allow the matter to be disposed of by his own decision, but he made a reference to the Government of India for necessary directions and the Government of India, in the Ministry of External Affairs, directed that the question of the upgrading and confirmation of the old staff should be kept in abeyance till a thorough review of the cadres and a revision of the political set-up of Chandernagore were made. It was thus the Government of India themselves who thought that effect should not be given to the order for the time being. Subsequently, the Government of India disappeared from the scene upon the merger of Chandernagore with the State of West Bengal and then the State of West Bengal took their own decision. Th first question that arises in this part of the case is whether the Administrator had any right to disregard an order made by the President of the Administrative Council, if, as I have held, the Council was validly functioning on the 13th of June. In that connection, information about the powers of the Administrator vis-a-vis the Council would be relevant and Mr. Dutta drew our attention to a letter, namely, letter No. D.6071-Eur-I/54, dated August 9, 1954, from the Government of India, Ministry of External Affairs, to the, Administrator of Chandernagore. It appears that the Administrator had made an enquiry about his powers in the matter of assessment and remission of house-tax, trade licence and allied matters and in reply the Government of India told him that "in the absence of any clear-cut orders from the Government of India defining the powers of the Administrator, Chandernagore, on the abovementioned points, the position is rather vague and uncertain". This does not help Mr. Dutta very much, because he has to prove not that the administrative powers are not ascertainable, but that the Administrator had no power to interfere with the order, of the President of the Council. It appears to me, however, that the real matter for enquiry is not even what the powers of the Administrator, vis-a-vis the Council, were, but it is whether the Government of India had any power to disregard an order made by the President of the Council and direct their Administrator not to give effect to it. With regard to that matter, I have no doubt in my mind that they had that power. If upon the de jure transfer of Chandernagore to India, India became the Sovereign power over the place and if all rights and liabilities of the French Republic became the lights and liabilities of the Indian Government and yet the Municipal Assembly and the Administrative Council were not dissolved till a later date and if the persons, holding offices during the French regime were kept in possession of their respective powers and functions until other provision was made, it is clear that till such provision was made, such persons, and till they were dissolved, the Municipal Assembly and the Administrative Council, would be acting hence forward as agents of the Government of India instead of as agents of the French Republic. The position of the Council of Administration on June 18, 1952, therefore, was that although it had ceased to be an institution under the French Government, it had not ceased to be an institution, but it was functioning as an agent of and on behalf of the Indian Government. If such was the position of the Council and necessarily of its President, it seems clear to my mind that the Government of India, in any event, had power to override the decision of the President and the Council, irrespective of whether the Administrator, acting by himself, had or had not. The Appellant, therefore, cannot base any claim of legal right on the order of June 13, 1952, in the face of the fact that the Government of India declined to give effect to it, on the ground that the Government of India had no power or right to decline to do so. The same is the position as regards the Government of West Bengal. The result, therefore, is that although the order of June 13, 1952, Was passed with jurisdiction, the refusal of the Government of India, and subsequently the Government of West Bengal, to give effect to it has also been with jurisdiction and, therefore, there is no legal right which can be enforced by an application under Article 226 or otherwise. Indeed, on June 9, 1952, the Appellant was admittedly still a peon and the order for his promotion had not yet been made. Even assuming that the Appellant could be called an. "officer" it was only his powers and functions as on June 9, 1952, the appointed day, that were preserved by Section 5 of the Regulation, until other provision was made, but not any power, status or function, purported to have been conferred on him subsequently. The new Sovereign could have terminated even his status of a peon by making "other provision", which it has not done, but in no event could he make against the Indian Government a claim of right to his status of an Assistant Clerk, purportedly acquired after the appointed day, if the order for his promotion to that post, taken as an order made by an agent of the French authorities, was not recognised by the Government of India or taken as an order made by an agent of themselves, was not proved of and accepted by them.

This appeal, accordingly, fails and is dismissed, although not on the ground on which the learned Judge dismissed the Appellant''s application.

There will be no order as to costs.

Lahiri, J.

I agree.