Case Note & Summary
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 transferred to Punjab and later became a member of the newly constituted Indian Administrative Service. On July 18, 1959, the Governor of Punjab suspended him under Rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955, on the ground that a criminal case was pending against him. The appellant challenged the suspension order by way of a writ petition in the Punjab High Court, contending that it violated the guarantee under Article 314 of the Constitution, which protected the same rights as respects disciplinary matters as he enjoyed immediately before the commencement of the Constitution. He relied on Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, which provided for suspension only as a penalty, and argued that no provision for interim suspension existed before January 26, 1950. The High Court dismissed the petition, and the appellant appealed to the Supreme Court by certificate. The Supreme Court, by a majority of four judges, held that Rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955, was ultra vires Article 314 to the extent it applied to members of the Indian Administrative Service covered by clauses (a) and (b) of Rule 3 of the Indian Administrative Service (Recruitment) Rules, 1954. The Court reasoned that under the general law of master and servant, read with Section 247 of the Government of India Act, 1935, Rule 53 of the Fundamental Rules, and Rules 49 and 56 of the Civil Services (Classification, Control and Appeal) Rules, 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 by the Secretary of State as the appointing authority, or by the Governor-General or Governor as statutory authority, but there was no right of appeal against interim suspension. Article 314 protected those rights as they stood immediately before the commencement of the Constitution. The Court further held that after the transfer of power, the former Secretary of State's Services automatically terminated, and the members were deemed to have been re-appointed. The final decision whether they should continue was of the Government of India, and therefore the Government of India alone was the appointing authority for the purpose of interim suspension. Consequently, the Governor of Punjab had no power to order interim suspension of the appellant, and the order dated July 18, 1959 was set aside. The proper procedure was to approach the Government of India for such interim suspension. Justice Raghubar Dayal dissented, holding that under Section 241 of the Government of India Act as modified by the India (Provisional Constitution) Order, 1947, the appellant must be deemed to have been appointed by the Governor of the Province, and therefore the Governor had the power to order interim suspension. He concluded that Rule 7 did not violate Article 314 and the suspension was valid. Despite the dissent, the majority decision prevailed, and the appeal was allowed.
Headnote
A) Constitutional Law - Protection of Service Conditions - Article 314 of Constitution of India - Former Secretary of State's Services - Article 314 guarantees same conditions of service and same rights as respects disciplinary matters as existed immediately before commencement of Constitution; suspension pending departmental enquiry or criminal proceeding falls within 'disciplinary matters'; Held that interim suspension is a disciplinary matter protected by Article 314. B) Service Law - Suspension - Interim Suspension Distinguished from Penalty - Civil Services (Classification, Control and Appeal) Rules, Rules 49, 56; Fundamental Rules, Rule 53; Government of India Act, 1935, Section 247 - Before August 15, 1947, members of former Secretary of State's Services were liable to suspension either as interim measure or as punishment; interim suspension could be imposed by Secretary of State or Governor-General or Governor as statutory authority; absence of right of appeal against interim suspension did not negate the position; Held that there was provision for interim suspension apart from penalty. C) Constitutional Law - Appointing Authority After Independence - India (Provisional Constitution) Order, 1947, Article 7(1) read with Indian Independence Act, 1947, Section 10 - Former Secretary of State's Services automatically terminated on August 14, 1947 and deemed re-appointed; final decision whether to continue was of Government of India; deemed appointment was by Government of India, not Governor; Held Governor was not appointing authority and lacked power to order interim suspension. D) Administrative Law - Ultra Vires Rule - All India Services (Discipline and Appeal) Rules, 1955, Rule 7 - Rule 7(3) insofar as it empowers Governor to order interim suspension of members covered by Article 314 violates constitutional guarantee; Held rule ultra vires to that extent and order set aside; proper procedure is to approach Central Government.
Issue of Consideration
Whether Rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955, which permits interim suspension, violates Article 314 of the Constitution for members of the former Secretary of State's Services; who is the competent authority to order interim suspension; whether the Governor's order dated July 18, 1959 was valid
Final Decision
Majority of the Court (Wanchoo, Gajendragadkar, Subba Rao, Shah JJ) held that Rule 7(3) of All India Services (Discipline and Appeal) Rules, 1955 violated Article 314 of Constitution insofar as it applied to members of Indian Administrative Service covered by clauses (a) and (b) of Rule 3 of Indian Administrative Service (Recruitment) Rules, 1954; the order of suspension passed by Governor of Punjab on July 18, 1959 was set aside; the proper authority to order interim suspension was Government of India. Dayal J dissented and upheld the Governor's power. Appeal allowed.
Law Points
- Article 314 protects same rights as respects disciplinary matters as existed immediately before commencement of Constitution for former Secretary of State's Services
- interim suspension pending departmental enquiry or criminal proceeding falls within disciplinary matters
- before Constitution
- interim suspension could be ordered only by Government of India as appointing authority
- not by Governor
- Rule 7(3) of All India Services (Discipline and Appeal) Rules
- 1955 ultra vires for members covered by Article 314
- proper authority to suspend is Government of India
- absence of appeal against interim suspension did not affect Article 314 guarantee
