Shri Madan Gopal Singh vs The Union of India (UOI) and Another

R.S. Pathak, C.J.—This and the connected Letters Patent Appeal are directed against the judgment and order of T.V.R. Tatachari, J. disposing of a writ petition by quashing two orders of the Central Government and declining to quash another. The connected writ petition challenges an order which is a sequel to the judgment and order of Tatachari, J.

Shri Madan Gopal Singh filed a writ petition on the following allegations. After serving initially as a Police Officer in the State of Kapurthala and thereafter in the Patiala and the East Punjab States Union he was appointed to the Indian Police Service on October 11, 1955, and was assigned "1948" as the year of allotment for the purposes of seniority under Rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954. On the re-organisation of the States in 1956 he was absorbed in the Indian Police Service cadre of the new State of Punjab. In May, 1962 he was selected by the Government of India, Ministry of Home Affairs, for the post of Assistant Inspector General of Police, C.I.D. and Headquarters, in Himachal Pradesh, and the Petitioner joined the post on May 23, 1962. In May 1965 the post of Inspector General of Police, Himachal Pradesh, fell vacant, and he was appointed to that post on deputation for three years in the first instance with effect from May 17, 1965. At that time the pay scale attaching to that post was Rs. 1600-100-1800. It was a post in the joint cadre of Delhi-Himachal Pradesh. Subsequently, by an order dated October 31, 1966, the Government of India divided the cadre into two parts for the purpose of specifying its strength and composition, one part relating to the Delhi Administration and the other to the Government of Himachal Pradesh. In the part relating to Himachal Pradesh, 21 posts were sanctioned in all, two of them being the posts of Inspector General of Police and Deputy Inspector General of Police. The pay scales of these two posts were fixed asunder:

Inspector General of Police Rs. 2500-125/2-2750 Deputy Inspector General of Police Rs. 1600-100-1800.

Consequent upon the re-organisation of the State of Punjab Shri M.G. Singh who was hitherto on deputation to Himachal Pradesh, was allotted to the Indian Police Service cadre of Delhi-Himachal Pradesh with effect from November 1, 1966. Of all the Police officers so allotted Kan war Shamsher Singh alone was senior to him. Kanwar Shamsher Singh had opted for the State of Punjab and he remained in that State as Inspector General of Police, and was finally allotted to that State. In the result Shri M.G. Singh remained the senior most officer in the Indian Police Service Cadre of Delhi-Himachal Pradesh. As he was holding the post of Inspector General of Police and performing its duties and functions he claims to be entitled to salary in the new scale of Rs. 2500-125/2-2750 with effect from November I, 1966. In February 1968 he wrote to the Accountant General, Punjab, for issuing a revised pay slip and it was then, on April 16, 1968, that the Government of India issued an order holding the post of Inspector Genera] of Police, Himachal Pradesh, in abeyance with effect from November 1, 1966. This order was challenged by Shri M.G. Singh in the writ petition. Thereafter, on May 28, 1968, the Government of India notified an order made under Rule 4(1) of the Indian Police Service (Cadre) Rules, 1954, amending the cadre-strength of Himachal Pradesh and abolishing the post of Deputy Inspector General of Police On the same date by a notification issued under Rule 11 of the Indian Police Service (Pay) Rules, 1954, the pay scale of the post of Inspector General of Police, Himachal Pradesh, was reduced from Rs. 2500-125/2-2750 to Rs. 1600-100-1800. This order has also been assailed. Some time later, on August 8, 1968 the Chief Secretary to the Government of Himachal Pradesh sent a communication to Shri M.G. Singh intimating that he had been selected for appointment as Deputy Inspector General in the Central Reserve Police, and that he should report immediately for duty to the Inspector General, Central Reserve Police at Delhi. This is the third order challenged in the writ petition.

The writ petition was opposed by the Union of India and the Chief Secretary to the Government of Himachal Pradesh.

The case of the Respondents was that Shri M.G. Singh was appointed in 1965 to a post of Inspector General of Police, Himachal Pradesh, carrying a pay scale of Rs. 1600-100-1800, but that post was not the cadre post of Inspector General of Police. It was the former post, it was said, which Shri M.G. Singh continued to occupy after November 1, 1966 on his allotment to Himachal Pradesh. It was pleaded that from November 1, 1966, the cadre post of Inspector General of Police, Himachal Pradesh, was reserved for Kanwar Shamsher Singh, who was on deputation as Inspector General of Police in Punjab, that when it was finally known that he was allotted to Punjab and would not come to Himachal Pradesh it was decided to hold the post in abeyance with effect from November 1, 1966 and to reduce the pay scale attaching to that post from Rs. 2500-125/2-2750 to Rs. 1600-100-1800. It was maintained that the Government had the power to do so. It was also urged that Shri M.G. Singh did not hold the post of Inspector General of Police, Himachal Pradesh, as of right and therefore no question arose of his rank being reduced by his subsequent transfer to the Central Reserve Police. The allegations that the Government has acted with mala fide, that it had been guilty of discrimination and of contravening Article 311(2) of the Constitution were denied.

The learned single Judge held that Shri M.G. Singh was appointed on deputation to the cadre post of Inspector General of Police, Himachal Pradesh, that he held that post in a substantive capacity from November 1, 1966, as a member of the Delhi-Himachal Pradesh cadre of the Indian Police Service, and that the order dated April 16, 1968, holding the post in abeyance from November 1, 1966, was invalid. But he found that the notification of the Government dated May 28, 1968, reducing the pay scale of the post of Inspector General of Police, Himachal Pradesh, from Rs. 2500-125/2-2750 to Rs. 1600-100-1800 was valid. He held that the appointment and transfer of the Petitioner to the post of Deputy Inspector General, Central Reserve Police, was invalid. Accordingly, allowing the writ petition he quashed the order dated April 16, 1968, and the order of appointment and transfer of Shri M.G. Singh as Deputy Inspector General, Central Reserve Police.

Two Letters Patent Appeals have been filed. Letters Patent Appeal No. 7 of 1969 has been filed by Shri M.G. Singh and Letters Patent Appeal No. 9 of 1969 has been filed by the Union of India. Shri M.G. Singh is aggrieved by the refusal of the learned single Judge to grant relief against the order dated May 28, 1968, reducing the scale of pay. The Union is aggrieved by the order of the learned single Judge in so far as it allows the writ petition at all. The questions which arise between the parties in the appeals are the same questions which were raised before the learned single Judge, and it will be convenient to consider both the appeals together.

The first question is whether the learned single Judge is right in holding that Shri M.G. Singh was appointed to the cadre post of Inspector General of Police, Himachal Pradesh. It is appropriate that the facts be considered from the point when Shri M.G. Singh entered service in Himachal Pradesh. At that time Shri M.G. Singh was a member of the Punjab cadre of the Indian Police Service. He was appointed on deputation as Assistant Inspector General of Police, Himachal Pradesh, in May 1962. Shri Indar Singh, the then incumbent of the post of Inspector General of Police, Himachal Pradesh, proceeded on leave from May 13, 1965 to May 12, 1966, and in that leave vacancy Shri M.G. Singh was appointed until further orders. On April 28, 1965, the Government of India had already written to the Punjab Government that it had been decided to promote Shri M.G. Singh as Inspector General of Police, Himachal Pradesh, with effect from the date the then incumbent relinquished charge of the post. The deputation of Shri M.G. Singh as Assistant Inspector General of Police was extended until he was promoted as Inspector General of Police, Himachal Pradesh, and he was to continue on deputation as Inspector General of Police, Himachal Pradesh, on a pay scale of Rs. 1600-100-1800 for a period of three years. The post of Inspector General of Police, Himachal Pradesh, was a post in the joint cadre of Delhi-Himachal Pradesh. It was the only such post in Himachal Pradesh. When the joint cadre of Delhi-Himachal Pradesh was reconstituted with effect from November 1, 1966, the cadre post continued. Shri M.G. Singh was allotted to the cadre with effect from November 1, 1966. The result was that he ceased to be on deputation in Himachal Pradesh. He became a member of the cadre and continued to hold the cadre post of Inspector General of Police.

The contention of the Respondents is that Shri M.G. Singh was never appointed to the cadre post of Inspector General of Police, Himachal Pradesh, but was appointed to another "post" of Inspector General of Police, Himachal Pradesh, in the pay scale of Rs. 1600-100-1800 with effect from May 17, 1965, on probation for a period of three years, and that he continued to hold the post even after the re-organisation of Punjab and his allotment to the joint cadre of Delhi and Himachal Pradesh. This contention is not acceptable. Admittedly, by virtue of the notification dated August 6, 1964, revising the strength and composition of the Indian Police Service joint cadre of Delhi-Himachal Pradesh, there was a post of Inspector General of Police, Himachal Pradesh, in that cadre, and Shri Indar Singh held that cadre post. He was intending to proceed on leave. On April 28, 1965, the Government of India wrote to the Government of Punjab that it had been decided to promote Shri M.G. Singh as Inspector General of Police, Himachal Pradesh, with effect from the date the existing incumbent relinquished charge of the post, and therefore approval of the State Government should be accorded to (a) the continuance on deputation of Shri M.G. Singh as Assistant Inspector General of Police until he was promoted as Inspector General of Police, Himachal Pradesh, and (b) his continuance on deputation as Inspector General of Police, Himachal Pradesh, in the pay scale of Rs. 1600-100-1800, the period of deputation being three years in the first instance with effect from the date he took over the post. On June 11, 1965, the Government of India made an order granting leave to Shri Indar Singh from May 18, 1965 to May 12, 1966. By a connected notification Shri M.G. Singh was appointed Inspector General of Police, Himachal Pradesh, from the afternoon of May 17, 1965, until further orders. It is apparent that Shri M.G. Singh was appointed on deputation to the same post of Inspector General of Police, Himachal Pradesh as was relinquished by the then incumbent, Shri Indar Singh. The post relinquished by Shri Indar Singh was the cadre post, and it must follow that Shri M.G. Singh was appointed to that cadre post. No other post was in contemplation, and there is no material to show that in fact there was any other post of that rank.

Now, by an order dated October 31, 1966, made u/s 81(3) of the Punjab Re-organisation Act the Central Government fixed the strength and composition of the Delhi-Himachal Pradesh cadre of the Indian Police Service as from November 1, 1966. The strength and composition alone were altered. The identity of the cadre was not changed. It remained the Indian Police Service cadre for Delhi-Himachal Pradesh. The cadre post of Inspector General of Police, Himachal Pradesh ''continued as before. And Shri M.G. Singh continued to hold that post. It was held by him before November 1, 1966, and it continued to be held by him thereafter. There was no break in the continuity of his holding the post. It is true that there was no written order of the Central Government appointing Shri M.G. Singh to that post with effect from November 1, 1966. But regard must be had to the fact that the post had been held by him all along, and continued to be held on October 31, 1966. It must also not be forgotten that the duties and functions pertaining to the post and discharged by him up to that date continued to be discharged by him even thereafter. The only change lay in the status in which he held the post. Upto October 31, 1966, he held the post on deputation, and from November 1,1966, he held it as a member of the cadre itself. He had already been appointed to the post in May, 1965 and it was not necessary that a fresh appointment should be made with reference to November 1, 1966, merely because the status in which he held the post had undergone a change. As already pointed out, the post remained the same. It appears from the facts that although Kanwar Shamsher Singh was allotted to the joint cadre of Delhi-Himachal Pradesh with effect from November 1,1966, he remained on deputation in Punjab and did not join in Himachal Pradesh. He was never appointed to the cadre post of Inspector General of Police, Himachal Pradesh.

I find that Shri M.G. Singh, was appointed to the cadre post of Inspector General of Police, Himachal Pradesh, from May 17, 1965, and he continued in that post through November 1, 1966, and beyond.

The next question is whether Shri M.G. Singh held the cadre post from November 1, 1966 in a substantive capacity or in some other capacity. Admittedly there is no written order appointing Shri M.G. Singh to the post with effect from November 1, 1966. The capacity in which he held the post from that date cannot be determined from any such order. We are left to determine that capacity from the surrounding facts and circumstances. Now, one fact stands out prominently. Kanwar Shamsher Singh was senior to him--his year of allotment was 1936 while that of Shri M.G. Singh was 1948. The facts disclose that the Central Government was waiting for Kanwar Shamsher Singh to return from deputation in Punjab and take over the post of Inspector General of Police in Himachal Pradesh. Apparently, the Government expected that Kanwar Shamsher Singh would be available soon, and for that reason it raised the pay scale to Rs. 2500-125/2-2750 with effect from November 1, 1966, by the notification dated December 24, 1966. It must be remembered that Kanwar Shamsher Singh belonged to the old Indian Police. The circumstances show that Shri M.G. Singh was never intended to hold the cadre post of Inspector General of Police, Himachal Pradesh, in a substantive capacity. It was intended that he should hold it only so long as Kanwar Shamsher Singh was not available to fill that post. In my opinion the only reasonable inference is that Shri M.G. Singh, held the cadre post of Inspector General of Police, Himachal Pradesh, from November 1, 1966, temporarily and not substantively. Before proceeding further, it is relevant to point out that by a notification dated December 29, 1967, made under Rule 4(1) of the Indian Police Service (Cadre) Rules, 1954, the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955, were amended and a new cadre known as the Union Territories Cadre was brought into being. The post of Inspector General of Police, Himachal Pradesh, was now borne on that cadre, and Shri M.G. Singh continued in that post.

In the aforesaid context it becomes necessary to determine what is the legal status of the order of the Central Government dated April 16, 1968, holding the post of Inspector General of Police, Himachal Pradesh, in abeyance from November 1, 1966. The order reads:

The post of I.G. of Police, Himachal Pradesh, included in the I.P.S. Cadre of Delhi and Himachal Pradesh is held in abeyance with effect from 1-11-1966 until further orders.

Now, it seems to me that a post can be held in abeyance for a period only when it remains vacant. If a post is occupied by an officer, it is incomprehensible how it can be held in abeyance. A retrospective order holding a post in abeyance which post has already been occupied by an officer cannot be contemplated. Our attention has been invited to Rule 10 of the Indian Police Service (Cadre) Rules, 1954, but it is apparent on the plain terms of that provision that it does not envisage an order with retrospective effect. Indeed, when Clause (c) of the Rule refers to provision being made for the existing incumbent of the post in the event of the post being kept vacant, what is necessarily contemplated is a future situation. Here, in the present case, Shri M.G. Singh continued in fact to hold the post all along. He occupied that post on November 1, 1966, and continued to occupy it. To my mind, the order dated April 16, 1968, holding the post in abeyance with effect from November 1, 1966, cannot be sustained in law in its retrospective operation. Reliance has been placed on R.P. Khanna v. S.A.F. Abbas 1972 S.L.R. 373, where the Supreme Court held that a retrospective declaration could be made in respect of a post. In that case what was laid down was that a retrospective declaration that a post is equivalent to a senior post really amounts to a declaration of an existing fact. I am unable to hold that the observations in that case are of assistance to the Respondents.

The question then is whether the order dated April, 16, 1968, in its prospective operation is valid. There was considerable debate before us on the point, and several authorities have been cited by learned Counsel for the parties. It is not necessary to refer to those authorities. The consideration always is whether the impugned order is severable. That is a matter to be determined by reference to what was intended to be achieved by the order, the policy underlying it and whether the retrospective portion is so inextricably linked with its prospective portion that the order cannot be severed. It appears that the Government proceeded on the assumption that from November 1, 1966, Shri M.G. Singh held some post of Inspector General of Police, Himachal Pradesh, other than the cadre post of that name, that the cadre post had remained vacant all along from November 1, 1966, and Kanwar Shamsher Singh had not reverted from deputation in Punjab to Himachal Pradesh for filling the cadre post. On the assumption that the post had remained vacant the order dated April 16, 1968, was passed. It is difficult to conceive that an order made in such circumstances could have been contemplated as consisting of two distinct severable parts, one retrospective and the other prospective. In my opinion, the order is not severable.

Accordingly, I hold that the order dated April 16, 1968, purporting to hold the post of Inspector General of Police, Himachal Pradesh, in abeyance is invalid. The remaining grounds raised for challenging the order need not be considered.

The next question to consider is whether the order dated May 28, 1968, substituting the pay scale of Rs. 1600-100-1800 for the pay scale of Rs. 2500-125/2-2750 is valid. Upto October 31, 1966, the cadre post carried the pay scale of Rs. 1600-100-1800. Subsequently, by an order dated December 24, 1966, Schedule III appended to the Indian Police Service (Pay) Rules, 1954, was amended with effect from November 1, 1966, so that the pay scale of Rs. 2500-125/2-2750 in respect of the cadre post of Inspector General of Police, Himachal Pradesh, was substituted. This position remained until the Order dated May 28, 1968, brought in again the pay scale of Rs. 1600-100-1800. The order has been challenged on the ground that it contravenes Article 14 and Article 311 of the Constitution, that it is malafide and violates the principles of natural justice.

So far as the challenge on the basis of Article 14 is concerned, the submission is that the pay scale would not have been reduced if Kanwar Shamsher Singh had been appointed to the post, and therefore an invidious discrimination has been effected. In my opinion, the question of invoking Article 14 does notaries. It is not a case where two identical posts carrying equal responsibilities have been held by two officers of identical qualifications, and while one officer has been maintained at a higher grade of pay the other has been reduced to a lower pay scale. In the present case, there is considerable material in the return filed by the Union of India to show that Kanwar Shamsher Singh and Shri M.G. Singh cannot be classed together. The former belonged to the old Indian Police and had put in considerably more years of service than the later. In anticipation of Kanwar Shamsher Singh joining the post of Inspector General of Police, Himachal Pradesh, the Central Government raised the pay scale attaching to the post to Rs. 2500-125/2-2750 with effect from November 1, 1966. It is open to the Government to have regard to the superior ability, experience and long period of service of an officer, and as an exceptional case raised the pay scale for that particular officer. That is what the Central Government did in this case. The original pay scale was Rs. 1600-100-1800. When it became apparent that Kanwar Shamsher Singh would not be available for filling the post, the pay scale was restored to its original level. I am unable to see how on the facts and circumstances of the case Shri M.G. Singh can enforce the fundamental right guaranteed by Article 14 of the Constitution.

Nor do I see how Article 311 of the Constitution has been contravened. There is no question here of Shri M.G. Singh being dismissed or removed or reduced in rank.

It has also not been shown that Shri M.G. Singh was entitled to be heard before the pay scale was reduced. He was entitled to payment in accordance with the prevailing pay scale, but there was no right that a particular pay scale should be maintained or granted. Sanctioning a pay scale for a particular post is a matter turning on administrative policy, and in the formulation of such policy I cannot see how a Government servant is entitled to be heard. The only exception lies in a case where the pay scale is reduced malafide. On the question of malafides, I am not convinced that there is adequate material on the record.

In my opinion, the Central Government was entitled to reduce the pay scale.

Payment of salary on the basis of a certain pay scale is a condition of service, and there can be no dispute that the conditions of service can be altered by the Government. It was held in Roshan Lal Tandon Vs. Union of India (UOI), , that the position of a Government servant is more one of status than of contract and his terms of service are governed by the Constitution, statutes and statutory rules. Subsequently, in Bachan Singh and Another Vs. Union of India (UOI) and Others, , the Supreme Court laid down that a Government servant is bound by any change in the service rules after his appointment.

It may be added that on the terms of the amendment effected by the notification it cannot be said that the pay scale has been reduced with retrospective effect. The amendment operates prospectively only.

Accordingly, I am of opinion that while Shri M.G. Singh was entitled to salary on the basis of the pay scale Rs. 2500-125/2-2750 from November 1, 1966, the salary payable to him from the date on which the notification dated May 28, 1968, came into force accrued on the basis of the pay scale Rs. 1600-100-1800.

The third order challenged by Shri M.G. Singh is the order communicated by the Chief Secretary, Himachal Pradesh Government by his letter dated August 8, 1968, informing him that he had been selected for appointment as Deputy Inspector General in the Central Reserve Police and that he was required to report immediately for duty at Delhi. The learned single Judge has analysed the status of the post of Inspector General of Police, Himachal Pradesh, held by Shri M.G. Singh and that of the Deputy Inspector General, Central Reserve Police, to which he was being assigned. He has come to the conclusion that the post of Inspector General of Police in a State is equivalent in status and responsibilities to that of Inspector General, Central Reserve Police, and has accordingly held that the post of Deputy Inspector General, Central Reserve Police, is a lower post than the one held in Himachal Pradesh by Shri M.G. Singh. The learned single Judge has referred to all the rights and advantages, present and future, which Shri M.G. Singh loses as a result of his transfer as Deputy Inspector General, Central Reserve Police. It appears that the view taken by the learned single Judge proceeds on the basis that Shri M.G. Singh held the post of Inspector General of Police, Himachal Pradesh, in a substantive capacity. On the view taken by me Shri M.G. Singh held that post temporarily only and not substantively. That being so, the very basis for the finding of the learned single Judge that the assignment in the Central Reserve Police involved the reduction in rank of Shri M.G. Singh, is displaced. In any event, it will be noticed that effect was never given to the order. Shri M.G. Singh was appointed and transferred as Inspector General of Police, Manipur, consequent upon the judgment and order of the learned single Judge and now, it is not denied, he has attained the age of superannuation and is no longer in service. In the circumstances, relief must be refused against the action of the Central Government transferring Shri M.G. Singh as Deputy Inspector General, Central Reserve Police.

In my judgment Letters Patent Appeal No. 7 of 1969 is liable to be dismissed and Letters Patent Appeal No. 9 of 1969 can be allowed only in so far that the relief sought by Shri M.G. Singh against the order transferring him as Deputy Inspector General, Central Reserve Police, is refused.

There now remains Civil Writ Petition No. 26 of 1969. This writ petition is a sequel to the events mentioned above. After the writ petition filed by Shri M.G. Singh, out of which the aforesaid Letters Patent Appeals arise, was disposed of by T.V.R. Tatachari, J., and the order transferring him to the Central Reserve Police was quashed, a fresh order was made posting him as Inspector General of Police, Manipur. On March 24, 1969, the Chief Secretary to the Government of Himachal Pradesh informed him of that decision and requested him to hand over charge of the office of Inspector General of Police, Himachal Pradesh. That order has been challenged by this writ petition.

One of the grounds on which the validity of the order has been assailed is that it was motivated by mala fides, and the circumstances preceding the making of the order, including the facts mentioned above in the decision of the aforesaid Letters Patent Appeals as well as the circumstances in which Shri M.G. Singh was compelled to hand over charge, are relied upon. After careful consideration, I am not satisfied that the material on the record suffices to make out the allegation of mala fides.

The other ground is that inasmuch as Shri M.G. Singh was holding the post of Inspector General of Police, Himachal Pradesh, on the pay scale Rs. 2500-125/2-2750 he could not be transferred to the post of Inspector General of Police, Manipur, which carries a pay scale of Rs. 1600-100-1800 only. The basis of the submission is erroneous. On the date when Shri M.G. Singh was transferred to Manipur, his pay scale as Inspector General of Police, Himachal Pradesh, was Rs. 1600-100-1800. This ground must fail.

During the pendency of the writ petition an application (C.M.P. No. 116 of 1971) was made on behalf of Shri M.G. Singh for permission to refer to the documents annexed to that application. Notice of that application, however, was not issued and no opportunity was available to the Respondents for filing a reply on issue of notice. It was stated on behalf of Shri M.G. Singh that the writ petition itself be heard forthwith and the aforesaid application be regarded as abandoned. In the circumstances the application is dismissed as withdrawn.

In the result, Letters Patent Appeal No. 7 of 1969 is dismissed. Letters Patent Appeal No. 9 of 1969 is allowed in so far only that relief is refused to Shri M.G. Singh against the order transferring him to the post of Deputy Inspector General, Central Reserve Police. The judgment and order of the learned single Judge are modified accordingly. Civil Writ Petition No. 26 of 1969 is dismissed. In the circumstances there is no order as to costs.

C.R. Thakur, J:

I agree.