Salil Kumar Datta, J.@mdashThis is an appeal against the judgment and order of Anil Kumar Sen, J. dated March 20, 1972 discharging the Rule obtained by the petitioners appellants. The relevant facts are as follows: As a result of studies carried on by the Department of Administrative Reforms, as also studies carried oat periodically by the Staff Inspection Unit of the Ministry of Finance for the purpose of streamlining and securing economy in the administration, a reduction of workload was involved in the organisations leading in turn, to a reduction in number of posts and thus in surplus in personnel. By an order of the Ministry of Home Affairs dated February 25, 1966 the Government of India adopted a high priority scheme for placement of such surplus personnel. Under the scheme all surplus personnel was transferred to a Special Central Cell of the said Ministry and the cell was charged with the responsibility of arranging the placement of such staff against fresh needs through training programmes in fresh skills. Such staff as would not opt for voluntary retirement on attractive terms or to undergo training would be retrenched. It was, inter alia, provided that the personnel in the central pool should be placed in other Government organisations including public sector undertakings as early as possible and within six months. There would be a total ban on direct recruitments to all Government Organisations. It was further provided that junior most temporary person should be surrendered against reduced (sic) strength, following if necessary by junior most quasi permanent and then permanent personnel. The scheme further provided that attempts should be made to match the pay scale of the individual with the pay scale of the recipient post as far as possible but if the pay scale of the recipient post was lower, the individual should be allowed the facility of carrying his previous pay scale along with him even if he was only officiating in it and decision of the central cell would be binding in this regard. The petitioners appellants at the material time were Upper Division Clerks (officiating) in Seamens Employment Office under the Ministry of Transport and Aviation now Ministry of Transport and Shipping, Government of India, in ''Marine House'' Hastings, Calcutta. The Upper Division Clerks were declared surplus as per recommendation of the Inspection Units of the Ministry of Finance. By letter dated June, 23, 1966 the petitioners were directed to state specifically if, in the event of their not being absorbed elsewhere as Upper Division Clerk, they would be willing to revert as permanent Lower Division Clerk to which posts they held lien. The petitioners in their reply stated that they were willing to revert as L.D. Clerks in event of failure by the appropriate authority to absorb them as U.D. clerk but they sought protection of the pay drawn by them as U.D. Clerk in their substantive post and also that their respective seniority should be ensured.
2. By office order dated September 13, 1966 the petitioners were reverted to their substantive post as L.D. Clerk with effect from the said date. The petitioners made several representations thereafter stating that contrary to the provisions of the scheme, they were neither given pay protection nor their names were considered for various appointments in the office of the Accountant General, West Bengal or to public sector undertaking the Shipping Corporation of India Ltd., while two junior most Upper Division Clerks were absorbed.
3. The petitioners were informed that the question of pay protection was under consideration while the department assured them that their applications for employment elsewhere would be forwarded to appropriate authorities who were to make the recruitment as per Government instructions and it was not possible for the Government to give no objection certificate for registration in the Employment Exchange for seeking employment as Upper Division Clerk in other offices.
4. The petitioners thereafter filed an application in this Court under Article 226(i) of the Constitution contending inter alia, that the scheme of February 25, 1966 was not followed equally in all cases and no pay protection was extended to them which was in violation of the provisions of the scheme. The petitioners took a specific ground (g) contending that the constitution of the Department of Administrative Reforms was not warranted by the Constitution, Fundamental Rules or Civil Service Regulations, and the reduction in number of posts causing the termination of service of the petitioners based on the recommendations of the said department was unconstitutional and contrary to law. For these reasons petitioners prayed for appropriate writs quashing the order of reversion and demotion in rank made on the petitioners and calling upon the Union of India'' and its officers to cancel and withdraw the aforesaid order of reversion of the petitioners.
5. On this application, a Rule (sic) limited to ground (g) aforesaid was issued by this Court on January 6, 1969 calling upon the respondents to show cause why a writ in the nature of Mandamus should not be issued directing them to forbear and or withdraw and or cancel the order of reversion and demotion in rank to Lower Division Clerk passed against the petitioners and also why a writ in the nature of certiorari should not issue quashing the impugned orders. The respondents contested the Rule after filing an affidavit-in-opposition affirmed by J.P. Mullick, Director Seamen''s Employment Office, Calcutta affirmed on August 5, 1970. The Rule came up for hearing on September 19, 1970 and after it was heard in part by the learned Judge, the case went out of the list to enable the petitioner to file an application for amendment of the petition of motion. An amendment petition was filed thereafter praying firstly for enlarging the Rule on all grounds already taken and secondly for additional grounds in view of the subsequent events. This application was opposed and by order dated the December 11, 1970 the court rejected the first prayer while allowing the second prayer. The additional grounds which were made available to the petitioner related to the challenge to the Memorandum of February 25, 1966 as being invalid and ultra vires not being framed by the President under Article 309 of the Constitution, and as such it was inoperative and of no effect and further there could be no declaration in law of surplus of staff in any department and consequently there could be no change by reduction a variation of cadre strength on basis thereof.
6. The respondents were thereafter given opportunity to produce the original order sanctioning the re-organisation. The original file it appears, was produced before the Court while the respondents claimed privilege in respect thereof, the learned Judge on January 20, 1972 passed the following order after discussing the contentions of the parties.
"On the conclusion as above I allow the claim of privilege put forward by the Joint Secretary, Government of India Cabinet Secretariat and recall my order directing production of the original records relating to adoption of the said scheme. The respondents, however, are directed to file an affidavit by the competent authority disclosing how the scheme was adopted in lawful exercise of executive powers by the Union of India."
7. In pursuance thereof, M.K. Vasudevan, Under Secretary to the Government of India Cabinet Secretariat, Department of Personnel, New Delhi affirmed an affidavit on February 4, 1972. It was stated therein that the Scheme of Re-employment of surplus staff detailed in the Ministry of Home Affairs Office Memorandum dated February 25, 1966 (annexure ''A'' the petition) issued over the signature of Mr. C.P. Gupta then Joint Secretary to the said Ministry, was in implementation of the decision on the subject taken by the Central Cabinet at its meeting held on November 25, 1965.
8. An affidavit-in-opposition affirmed by S.K. Basu, Director of Seamen''s Employment Office on January 29, 1971 was filed to the amended petition. It was stated therein the petitioners were appointed substantively as lower Division Clerks in the said office and they were promoted as temporary Upper Division Clerk purely on officiating basis. Under the "Allocation of Business Rules" (hereinafter referred as Rules of Business) framed under Article 77(3), the Ministry of Finance has been allocated functions of "Review of the staffing of Government Establishment with a view of securing economy". Similarly the Ministry of Home Affairs have been allocated certain functions of Administrative Reforms. In discharge of their functions the scheme referred to in Annexure ''A'' to the petition was effected which was wholly within the jurisdiction of the Ministry of Home Affairs and the Ministry of Finance.
9. The Staff Inspection Unit set up by rules under Article 77 of the Constitution, carried out works study and found posts of six Upper Division Clerks along with some other posts of the said office as surplus. Accordingly six junior most Upper Division Clerks including the petitioners were rendered surplus. The cadre strength accordingly was not reduced as a result of the impugned office Memorandam which also provided for finding alternative employment to these Government servants rendered surplus as aforesaid. Reduction of surplus strength was to be made in accordance with the Central Civil Services (Temporary Service) Rules, 1965. The names of the petitioners in the requisite particulars were forwarded to the Ministry of Transport for their employment as also to the Heads of big offices at Calcutta with request to absorb them in their offices. Their names were also registered with Employment Exchange at Calcutta for suitable alternative appointment. Two of the six surplus staff on interview of all six surplus staff were absorbed in a department of the Ministry of Transport Other Central Government offices failed to absorb them in absence of vacancy.
10. The petitioners in the circumstances were directed to state specifically if in event of their non-absorption elsewhere as Upper Division Clerk, they would be willing to revert as permanent Lower Division Clerk in which they held lien. On their willingness to the proposed reversion, by order dated September 13, 1966 they were reverted to their substantive post and such reversion was not by way of punishment. It was further stated that prayer for protection of salary of the petitioners in the officiating post made by them was forwarded to the Director General of Shipping, Bombay but the same was rejected. It further appears that by Presidential Order of August 1, 1970 in amendment of the Government of India (Allocation of Business) Rules 1961, reemployment of staff under surplus in Central Government office inter alia as a result of (i) Administrative Reforms (ii) Studies made by S.I.U. was transferred to the Department of Personnel of the Cabinet Secretariat.
11. In their affidavit-in-reply of February 12, 1971 the petitioners reiterated that the scheme was unconstitutional and illegal and the reversion was in the nature of a penalty. It was further said that in any event they were entitled to pay protection which was denied to them.
12. The rule come up hearing before the learned Judge on grounds (g), (h) and (i) of the amended petition wherein it was contended'' that reduction in the number of posts leading to the termination of service was on" the recommendation of the Department of Administrative Reforms which was neither recognised nor warranted by the Constitution or Fundamental Rules or Civil Service Regulations. Further the impugned Memorandum of February 25, 1966 was not framed by the President Under Article 309 and cadre strength could not be varied by such Memorandum.
13. The learned Judge by the impugned judgment dated March 20, 1972 came to the finding, on materials on record, that the office Memorandum dated February 25, 1966 was the one approved by the Central Cabinet at its meeting held on November 25, 1965 and this fact was not disputed by the petitioners. The scheme of Administrative Reforms requiring reduction of strength of carder was adopted in exercise of the appropriate powers by the entire Cabinet acting on powers delegated by the President. The court also overruled, on merits though beyond the ambit of the rule, the contention that delegation of powers to the Department of Administrative Reform or Staff Inspection Unit authorising them to introduce administrative reform resulting surrender of posts was in any way unguided and the rule accordingly was discharged. This appeal is against this decision.
14. At the hearing of the appeal, the respondents were directed to produce the records which were produced before the trial court. Some records namely two files were produced, before us but it was discovered that the files did not contain the original minutes of the proceedings of the Central Cabinet on the controversy at issue. Subsequently an affidavit affirmed on July 21, 1976 by K.B. Nair, Under Secretary of the Department of Personnel and Administrative Reforms has been filed stating that the file containing the decision of the Cabinet at its meeting of November 25, 1965 resulting in the scheme in implementation thereof which was produced before the Trial Judge, was not then available. It has neither been disputed that the relevant file was produced before the trial Court nor that the scheme of re-deployment of surplus staff as contained the Memorandum of February 26, 1966 had the approval of the Cabinet, as held by the learned Judge.
15. Mr. Noni Coomar Chakraborty has challenged the order of reversion as also the scheme on all grounds taken in the original as also in the amendment petition. As we have already seen, the connected Rule nisi limited to ground (g) was issued by this Court on January 6, 1969 and by order dated December 11, 1970 the Court, on the application of the petitioners, granted their leave to urge grounds (h) and (i) only in addition to ground (g) and rejected the prayer for enlarging the Rule on other grounds. No appeal was taken against the orders aforesaid and ultimately the Rule was discharged. The point for consideration now is whether the appellants are entitled to challenge also the interim orders passed in the Rule in an appeal against the judgment and order disposing the Rule itself.
16. There is and can be no dispute that the court in appropriate case may give permission to the petitioner to urge additional grounds not taken in the petition. The only restriction being that the respondents are to be given adequate opportunity to meet such additional grounds as was also held in
17. It may be mentioned that the respondents filed an affidavit-in-opposition to the petition of motion as amended after rejection of their prayer for additional grounds and the appellants petitioner also filed their affidavit-in-reply thereto. Thereafter hearing of the Rule proceeded on the limited grounds. So long as the order of the trial Judge remains unassailed, the petitioners, in our opinion can not be heard in respect of the additional grounds. In the memorandum of appeal the petitioners have taken no ground assailing the order rejecting the prayer for additional grounds and they cannot accordingly permitted to urge additional grounds collaterally in course of argument.
18. Further it may be noticed that the order of trial Court refusing leave to challenge the impugned scheme of re-deployment to surplus staff, inter alia, on grounds of discrimination, unfair and in proper treatment was a decision substantively determining the rights of the petitioners to challenge the impugned order on aforesaid grounds. As such on the principle lastly enunciated in Shanti Kumar v. Home Insurance Co. AIR 1975 S.C. 1719 such decision was a judgment in the connected original Writ proceedings in this court and as such was appealable under clause 15 of the Letters Patent. As we have seen no appeal was taken against the order and further in absence of any attack against the order rejecting the petitioners petition for enlargement of the Rule on other grounds, the petitioners cannot permitted to support their case on those grounds in this appeal.
19. It appears that under the Government of India (Allocation of Business) Rules, 1961, framed under Article 77(3) of the Constitution the Ministry of Finance was assigned the subject of "Review of the Staff of the Government Establishment with a view to secure economy" while the Ministry of Home Affairs had been allocated certain functions with administrative reforms. As a result of studies carried on by the Department of Administrative Reforms of the Ministry of Home Affairs for streamlining the existing organisation and making it fitter for meeting the current need for the administration, some changes were effected involving a reduction in its workload, leading in turn to a reduction in number of posts. Similarly a certain surplus staff was identified in course of staff assessment studies carried out by the Staff Inspection Unit of the Ministry of Finance. The works done by the above department and unit were thus within the jurisdiction of the said Ministries in discharge of the functions allocated by the rules of business.
20. Thereafter a new scheme was evolved for the re-deployment of the surplus personnel through the central pool to be operated by a special cell in the Ministry of Home Affairs. The scheme incorporated in the office memorandum of February 25, 1966 as has been found by the learned Judge on inspection of the original records produced before him and there is no dispute as to its adoption by the Central Cabinet. It is thus clear that the scheme of Administrative Reform dealing also with the re-deployment of surplus personnel had the authority of the entire Cabinet in exercise of executive powers of the Government of India acting on the power delegated by the President.
21. In view of the undisputed position that the scheme contained the office memorandum of February 25, 1966 was adopted by the Central Cabinet as also established by affidavit evidence and production of original papers before the trial Judge, it is obvious that the scheme had the requisite sanction of the appropriate authority in Government. Further such action, as we have seen, was in accordance with rules of business framed by the President under Article 77(3) of the Constitution and when original records of the decision of the Government were produced, there was no necessity for production of authenticated orders as contended.
22. As to the contention that the impugned memorandum was not passed by the President under Article 309, it is to be noted that under proviso to the said Article the President in regard to posts in connection with the affairs of the Union may frame rules regulating the recruitment and the conditions of service of persons to such services and posts until provision in this respect is made by appropriate legislature. The memorandum impugned is not concerned with rules regulating the recruitment as the conditions of service of any Central Government employee but it is concerned with, as we have seen, with administrative reforms, accordingly operation of Article 309 is not attracted and if the petitioners were reverted from their officiating posts such reversion was to posts in which they held their lien in exigency of service and not by way of punishment.
23. As to pay protection in the recipient post, the question did not arise as the petitioners could not be offered any post in any other organisation. The petitioners on their consent and approval, were reverted to their substantive post and such reversion did not carry any protection for the pay they were receiving in their officiating post. The learned Judge has further found that no unguided delegation was given to the departments of Administrative Reform or the Staff Inspection Unit authority to introduce administrative reforms resulting in surplus of personnel. As noticed by the learned Judge the guiding principle was by change of old procedure for new and reducing work-load for securing administrative reform through efficiency and economy.
For all these reasons as all the contentions raised before us fail, the appeal is dismissed and all interim orders are vacated. There will be no order for costs.
Bankim Chandra Roy, J.
I agree
