J D KAPADIA Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition raises an interesting question as to the pension rights of a person belonging to the former Indian Civil Service who continued to serve under the Government of the Dominion or the Government of a Province after the Independence of India. Prior to 15th August 1947 when India became independent there was a Civil Service of the Crown in India known as the Indian Civil Service to which recruitment was made by the Secretary of State for India. The petitioner was appointed to the Indian Civil Service by the Secretary of State on 12th October 1931 and like all persons recruited to that Service he was required to enter into a covenant by means of an Indenture executed between himself and the Secretary of State. He was allotted to the Civil Service Cadre in the Province of Bombay and the continued to serve in connection with the affairs of the Province of Bombay upto the date when power was transferred under the Indian Independence Act 1947 The effect of the transfer was as we shall presently point out to bring about an automatic and legal termination of service on the date of independence and on such termination it was open to the servant concerned either to decline to continue in the service of the new Government or to offer to continue his service and in case the individual servant intimated his desire to continue in service the final option was with the Government of India whether to continue him or not. A communication dated 18th June 1947 was accordingly addressed by the Government of India to all members of the Secretary of States Services including the petitioner requesting them to intimate within ten days from the receipt of the communication whether they wished to continue in service of the Government or desired to retire from service. In response to this communication the petitioner by his letter dated 23rd June 1947 intimated to the Joint Secretary to the Government of India Home Department that he wished to continue in service of the Government and on receipt of this intimation the Government of India in consultation with the Provincial Government decided to continue the petitioner in service after 15th August 1947 on the Bombay Cadre and informed the petitioner accordingly by a letter bearing some date in August 1947. The petitioner accordingly continued on and after 15th August 1947 to serve under the Government of Bombay. Sec. 10(2) of the Indian Independence Act 1947 guaranteed to the petitioner and all other members of the forever Secretary of States services who continued on and after 15th August 1947 to serve under the Government of the Dominion or the Government of any Province certain conditions of service and rights by providing that such person shall be entitled to receive from the Government of the Dominion or the Government of the Province which he is from time to time serving or as the case may be which is served by the Courts in which he is from time to time a Judge:-

(2.) The question which therefore arises for determination is what is the pension to which the petitioner is entitled:- is it the sum of Rs. 13 333.33 under the amended Article 561 or is it the rupee equivalent of *. 1000 according to the official rate of exchange prevailing on the date of payment under the condition of service embodied in the un-amended Article 561 ? To answer this question it is necessary to go back a little into the history relating to the Indian Civil Service. The Indian Civil Service was a specially constituted service to which recruitment was made directly by the Secretary of State. Each person recruited to this service had to enter into a covenant with the Secretary of State and his conditions of service were to be found in the covenant and the rules made by the Secretary of State. Prior to the enactment of the Government of India Act 1919 which amended the Government of India Act 1915 by introducing sec. 96B with effect from 23rd December 1919 there were in force certain rules known as the Civil Service Regulations which applied generally to all civil services under the Crown. They also contained inter alia certain rules such as those set out in Chapters XXV and XLIX which were applicable specially to the Indian Civil Service. Article 561 to which we have referred earlier was one such rule in Chapter XXV. So also there was another rule namely Article 983 in Chapter XLIX to which we shall have occasion to refer a little later. It does not appear clearly when the Civil Service Regulations were made and by what authority but that is not material in view of sec.96B sub-sec. (4) of the Government of India Act 1919 As already stated sec. 96B was introduced in the Government of India Act 1915 by the Government of India Act 1919 and omitting portions immaterial it provided:-

(3.) Now on the midnight of 14/15th August 1947 certain political changes of far-reaching importance took place in the country and power was transferred from the British Government to the Dominion of India. This was brought about by the enactment of the Independence Act 1947 which came into force on 18th July 1947. The Indian Independence Act 1947 set up two independent Dominions to be known respectively as India and Pakistan with effect from 15th August 1947. Each was to be a completely independent Dominion with a wholly independent Legislature and with a completely independent Government free from any kind of fetters as regards their functioning either from the British Parliament or from the British Government. The Government of the Dominion however was shall to be carried on in the name of the Crown by the Governor General of India to be appointed by the Crown. Sec. 8 sub-sec. (2) of the Indian Independence Act 1947 provided that except in so far as other provision may be made by the Constituent Assembly of the Dominion each of the new Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in accordance with the provisions of the Government of India Act 1935 and the provisions of that Act shall so far as applicable have effect subject to such omissions additions adaptations and modifications as may be specified in orders of the Governor General. The Governor General was given power by sec. 9 of the Indian Independence Act 1947 to make such provision as might appear to him to be necessary or expedient inter alia for making omissions from additions to and adaptations and modifications of the Government of India Act 1935 in their application to the separate new Dominions. In exercise of this power conferred under sec. 9 the Governor General of the Dominion of India made the India (Provisional Constitution) Order 1947 which came into force on 15th August 1947. Article 7(1) of this Order provided that subject to any general or special orders or arrangement affecting his case any person who immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor General or Governor-General in Council or of a Province other than Bengal or the Punjab shall as from that day be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India or as the case may be of the Province. This Article was obviously designed to eliminate the necessity for making new orders of appointment with effect from 15th August 1947 to the enormous number of civil posts under the Dominion of India or of a Province. Vide paragraph 2 of the Note on Draft Provisional Constitution order July 30 1947 given in Volume II of Indian Constitutional Documents:- Munshi Papers at page 282. The members of the Secretary of States services thus continued in service and were deemed to be appointed to the corresponding posts except those governed by general or special orders or arrangements affecting their respective cases and by virtue of sec. 10(2) of the Indian Independence Act 1947 they were entitled to receive the same conditions of Service as respects remuneration leave and pension and the same rights as respects disciplinary matters or as the case may be as respects the tenure of their office or lights as similar thereto as changed circumstances may permit as they were entitled to immediately before the appointed day that is 15 August 1947. The petitioner was therefore entitled to receive from the Government of India and the Government of Bombay the same condition of service as respects pension to which he was entitled immediately prior to 15th August 1947.