LOKENATH BHATTACHARJEE Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an appeal from the dismissal of a writ petition under Article 226 of the Constitution asking for the issue of a Rule on the Union of India, the State of West Bengal and others to show cause why the respondents should not forbear from changing the conditions of service of the petitioner which prevailed during his employment in the State of Cooch Bihar in respect of pay and continuity.

(2.) The appellant's case is as follows: He was a permanent clerk in the Cooch Bihar Military Department from 1944. After the merger of the said State with the State of West Bengal in the year 1950 he was absorbed in the Rehabilitation Department of Cooch Bihar on May 9, 1950. In or about April 1952 he was chosen by a Selection Committee for absorption of surplus clerks in the Co-operative Department of the Government of West Bengal and has since then been functioning as such. He received a letter of appointment bearing date April 7, 1954 to the effect that his appointment would be treated as a new one and the Government of West Bengal would not have any pensionary liability for his past services. His complaint is that this was unauthorised and illegal.

(3.) The petitioner refers to the agreement between the Governor General of India and the Maharaja of Cooch Bihar dated August 28, 1949 according to Article VIII of which the Government of India guaranteed either the continuance in service of the permanent members of the Public Services of Cooch Bihar on conditions which would be not less advantageous than those on which they were serving before the date on which the administration of Cooch Bihar was made over to the Government of India or the payment of reasonable compensation. According to the petitioner in pursuance of the said agreement the Government of India had directed its Army Headquarters to make arrangements to absorb as many Officers and other ranks of the Cooch Bihar State Force as possible into the Indian Army and such persons as were not found suitable for or were not willing to join the Indian Army were either to be absorbed in the Police Force or given other suitable employment or dis- charged in accordance with the existing State Force Rules for mustering out. The petitioner refers to an order No. l-F of the Government of West Bengal, Finance Department dated January 1, 1950 which provided inter alia that (a) all posts existing in Cooch Bihar immediately before the merger with the State of West Bengal would continue after the merger until further orders, (b) all persons Who immediately before the merger were holding posts sanctioned by a competent authority in Cooch Bihar would continue to hold the same posts until further orders on the same pay and en the same terms and (c) all such persons would, subject to selection by a suitable agency appointed in that behalf and also subject to the requirements of the administration, be absorbed in the service of the Government of West Bengal on the terms and conditions prevailing under the said Government. The petitioner was not discharged in accordance with the existing State Force Rules for mustering out but was absorbed in the Rehabilitation Department of Cooch Bihar on May 9, 1950. The sheet anchor of the petitioner's case is a memorandum of the Government of West Bengal dated June 10, 1953, a copy whereof forms annexure 'F' to the petition. It is necessary to set out a portion of the same in order to examine the contention of the appellant that it contains a Rule framed by the Governor of West Bengal under Article 309 of the Constitution of India. The relevant portion is as follows: