SANKARI BHUSAN SEN Vs. UNION OF INDIA

JUDGEMENT

(1.) This two points involved in this appeal, when they are ultimately reached, appear to be simple, but in order to reach them one has to make one's way through a maze of political and other decrees which is not altogether an easy task. In trying to ascertain what the real position is we have been greatly assisted by Mr. Dutta who appears to have made extensive researches into the rather confused body of legislation by which the transfer of Chandernagore to the Union of India and its ultimate merger with the State of West Bengal were effected. In the present appeal we are, however, concerned only with certain orders made with regard to an employee of a rather humble grade by certain officers and it is only in that connection that an investigation as to their powers became necessary.

(2.) By an order of the Governor of French India, the Appellant, Sankari Bhusan Sen, was appointed a temporary peon in the Collectorate Department, Chandernagore, on September 9, 1942 and he was subsequently confirmed with effect from November 19, 1946. In 1947, after the French possession of Chandernagore bad become the free town of Chandernagore, the Appellant was placed in grade 14 by an order of the President of the Council of Administration on a pay of Rs. 35 per month in the scale of Rs. 35--1-45-1-55. He continued to serve in that post and on June 13, 1952, which was after the de jure transfer of Chandernagore to the Union of India, an order was made by the President of the Council of Administration whereby he was promoted to the post of an Assistant Clerk in grade 10 with a monthly salary of Rs. 52 plus the usual allowances. His case is that in spite of that order of the President, he was never given the rank of Assistant Clerk, nor given the salary of the post but was kept in the grade of a peon on the old salary, although actually he was made to do the duty of an Office Clerk. It appears that the de jura transfer of Chandergore to the Union of India, there was a great deal of uncertainty during a great length of time as to what the exact position of the old employees under the French Government would be. Once or twice during that time, the Appellant was recommended by his immediate superior for promotion to the rank of an Assistant Clerk and, on one occasion, a representation made by him and three other persons in the same position was forwarded with a note that his case deserved to be favourably considered. Nothing, however, resulted from either the recommendation or the representation. On the other hand, by an order made on October 2, 1954, he was posted as a peon and assigned to the Subdivisional Munsif's Court. This was done simultaneously with the merger of Chandernagore with the State of West Bengal. About that time, the Appellant went on leave and he remained on leave by having it extended from time to time till February 1, 1955. Upon the expiry of his leave, he was asked to join bis post as a peon, but without doing so, he moved an application in this Court on February 22, 1955, under Article 226 of the Constitution against the Union of India, the Under Secretary to the Government of India, Ministry of External Affairs, the President of the Council of Administration of the Free City of Chandernagore, the State of West Bengal and Shri U.C. Boy, the then Administrator. His application proceeded on the basic that he had already been promoted to the rank of an Assistant Clerk by the order made by the President of the Council of Administration on June 13, 1952 and the direction given to him to join a particular post as a peon amounted to reduction in rank. Accordingly, he asked for a writ in the nature of mandamus on the Respondents to the application, directing them to rescind the order posting him as a peon and a writ in the nature of prohibition, restraining them from giving effect to the order. The same relief was asked for in various other forms, including a writ in the nature of certiorari, quashing the order. The application succeeded in the first instance and a Rule was issued, but at the final hearing, it was discharged by Sinha, J.

(3.) The ground upon which Sinha, J., discharged the Rule was that a de jure transfer of Chandernagore to the Union of India having taken place on June 9, 1952, the President of the Council of Administration, set up by the French Government, when the sovereignty lay with them, could have no jurisdiction whatever to make on June 13, 1952, the order on which the Appellant was relying. The counter-affidavit filed on behalf of the Respondents had taken that point, but it had raised another objection as well. It was said that the first Indian Administrator, appointed after the de jure transfer, found that the President's order of the 13th of June had been most perfunctorily made without due regard to the claims of other employees and that for that reason he had declined to give effect to the order. As a matter of fact, the whole question of the grading of the old employees including the Appellant's case had been referred to the Government of India and the Government of India had ruled that they would take the final decision after considering all relevant circumstances as also what the future constitution of Chandernagore was going to be. In fact, they took no decision and had no occasion to take any, because in 1954, when the matter still remained undecided, Chandernagore came to be attached to and became a part of the State of West Bengal. Thereupon, the counter-affidavit proceeded to say, the posts as existing on October 2, 1954, the date of the merger, had been redistributed on a subdivisional basis and the employees had been posted in different departments in accordance with their original status. So far as the Appellant was concerned, since he was drawing a salary of a peon in grade 14 at the relevant time, he had been posted as a peon to the Subdivisional Munsif's Court. The counter-affidavit thus raised two points, namely, that the order of the President of the Council of Administration was without jurisdiction and as such wholly void and, secondly, that, in any event, the order was one irregularly made and, therefore, effect had not been given to it by the succeeding Government. Sinha, J., dealt with the first objection alone and probably because it was sufficient for the disposal of the Rule, he did not advert to the second. Before us both were elaborately discussed.