Case Note & Summary
The appellant, formerly a civilian clerk in the Royal Air Force at Quetta, applied for and obtained appointment as a clerk in the office of the Director General, Indian Medical Service, in 1928. The Government of India sanctioned an additional clerk post in that office with effect from April 1, 1930, to deal with the work of the Indian Research Fund Association, the cost to be recovered from the Association. The appellant was confirmed in that post on June 12, 1930, subject to a condition imposed by the Public Service Commission that the appointment would not give him any claim to appointment as a Routine Division clerk in the Secretariat or its attached offices. In 1931, he was transferred on foreign service to the Indian Research Fund Association, where he served until September 1944, with short periods of reversion to the Director General's office. Upon reversion, the appellant claimed that he was a member of the permanent regular ministerial establishment of the Director General's office and sought senior assistant status and promotions. The government maintained that his substantive post was extra-cadre, attached to the office only for administrative purposes, and that he was not entitled to absorption in the regular cadre. After disciplinary proceedings and a modified order in September 1946 directing him to work on ordinary office work while continuing in the extra-cadre post, the appellant filed a suit on March 30, 1948, seeking a declaration that he was a member of the permanent regular ministerial establishment. The Punjab High Court at Delhi dismissed his first appeal and writ petition on October 30, 1953. The Supreme Court, by special leave, heard the appeals. The main legal issues were whether the additional post was an integral part of the regular cadre, whether transfer on foreign service conferred regular establishment membership, and whether Fundamental Rule 113 applied. The appellant argued that since the post was not constituted into a separate cadre, it must be an addition to the regular establishment, and that foreign service transfer implied regular establishment membership. The respondents contended that the post was extra-cadre and conditional, and that foreign service transfer did not alter its status. The Supreme Court held that the appropriate authority had competence to create an additional post outside the regular cadre, and Fundamental Rule 127 only governed cost recovery principles. It further held that Fundamental Rule 113 was not applicable because the appellant did not belong to a cadre immediately before his transfer on foreign service. The question whether the Public Service Commission could impose a condition or give conditional concurrence was left open. The appeals were dismissed, and the appellant's claim for declaration as a member of the regular establishment was rejected.
Headnote
A) Service Law - Cadre and Additional Posts - Creation of extra-cadre post outside regular cadre - Fundamental Rules, Rule 127 - The dispute concerned whether an additional clerk post sanctioned for Indian Research Fund Association work and confirmed in the appellant's name became an integral part of the regular ministerial establishment of the Director General, Indian Medical Service. The court reasoned that the appropriate authority had competence to create an additional post outside the regular cadre of a particular office for administrative control, and Fundamental Rule 127 only lays down principles for cost recovery. Held that the appellant did not become a member of the regular cadre by virtue of holding that extra-cadre post. B) Service Law - Foreign Service - Applicability of Fundamental Rule 113 - Fundamental Rules, Rule 113 - The appellant argued that because government sanctioned his transfer on foreign service under the Indian Research Fund Association, and only members of regular establishment can be sent on foreign service, he must be deemed a member of the regular establishment. The court held that Fundamental Rule 113 was not applicable because the appellant did not belong to a cadre immediately before his transfer on foreign service, so the transfer did not confer regular cadre membership. C) Service Law - Public Service Commission - Conditional concurrence to appointment - Civil Services (Classification, Control and Appeal) Rules, rr. 24, 44 - The question whether the Public Service Commission could impose a condition or give conditional concurrence to the appellant's appointment was left open by the court and not decided.
Issue of Consideration
Whether the additional post held by the appellant was an integral part of the regular cadre of the office of Director General, Indian Medical Service; whether transfer on foreign service under Fundamental Rules conferred membership of the regular establishment; whether Fundamental Rule 113 was applicable; whether Public Service Commission could impose a condition on appointment
Final Decision
Supreme Court held that the appropriate authority had competence to create an additional post outside the regular cadre; Fundamental Rule 127 only governed cost recovery. It further held that Fundamental Rule 113 was not applicable because appellant did not belong to a cadre immediately before transfer on foreign service. The question of Public Service Commission's power to impose condition was left open. Consequently, appeals were dismissed and appellant's claim for declaration as member of regular establishment was rejected.
Law Points
- Legal points not extracted
- Additional post can be created outside regular cadre
- Fundamental Rule 127 only lays down cost recovery principles
- Fundamental Rule 113 requires cadre membership before foreign service transfer
- conditional concurrence issue left open
