TMI Blog1972 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... t . Those relevant facts, preceding and following the impugned order, which are admitted by both sides may now be mentioned. In 1955, the post of Editor, Publications Division, in the Department of Information and Broadcasting of the Government of India (hereinafter referred to as ',the Department'), was advertised. The appellant, who had applied for the post, was selected by the Union Public Service Commission, and, on its recommendation, was offered a temporary post of Editor in the Publications Division of the Department on an initial salary of ₹ 720 per month in the scale of ₹ 720-40-1000 together with the usual allowances. The material terms and conditions of this employment were: (i) The post is to be gazetted Class I; (ii) The temporary post was sanctioned upto 28-2-1957 but was likely to continue; (iii) Shri Roy (the Appellant) will be governed by the Central Civil Services (Temporary Service Rules) and other Rules applicable to temporary Govt. servants of his category; (iv) He was to be on probation for 6 months which may be extended at the discretion of the appointing authority. The Appellant had reported for duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oy may be informed accordingly . The Appellant, treating this as the rejection of his last representation, filed his petition on 11-1-1963 which was allowed by a learned Judge of the Punjab High Court, sitting on the Circuit Bench at Delhi. A Letters' Patent Appeal against this decision had been allowed by a Division Bench of the Delhi High Court which then granted a certificate on 12-8-1968 for leave to Appeal primarily because it held that the required test relating to valuation of the subject matter had been satisfied. The learned Judge who had initially heard the petition had pointed out that the representation of the Appellant was first rejected on 29-7-1960 and that it did not matter that the petitioner had continued making subsequent representations. The learned Judge had noticed the explanation that the petitioner could not approach the Court as he was admitted to a Tuberculosis Clinic in June,. 1961. The learned Judge, having found that this was not sufficient to explain the delay between 29-7-1960 and June 1961 was disposed to reject the petition on the ground of laches. But, in view of the decision of the majority of the Full Bench of the Punjab High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e post of a predetermined class and grade. The rules and process for the constitution of the new service did not guarantee the class or grade or emoluments enjoyed by any candidate in a cadre in which he served prior to the setting up of the new service. It, therefore, held that no question of demotion or reduction in rank, without observing the procedure laid down in Art. 3 1 1 of the Constitution, arose at all in the instant case. Mr Anthony, appearing on behalf of the Appellant, has assailed the correctness of the decision of the Division Bench of the Delhi High Court on five grounds. We will take up and consider each of these seriatim. Firstly, it is contended that the Division Bench had erred in allowing an affidavit to be filed on 26-6-1967 before it, without affording an opportunity to the Appellant to repel its contents by filing a counter-affidavit. It was urged that the result was that an altogether new case, neither argued before nor referred to by the learned Single Judge, had been allowed to be raised. This ground is no doubt mentioned among the grounds on which a certificate of the fitness for an appeal to this Court was sought. The Judgment of the Division Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erged in another corresponding post, implied that the post to which he was initially appointed at least lost its identity or could not be deemed to continue without a transmutation. The question whether the constitution of the Central Information Service did or did not involve fresh appointments to new posts but was simply an automatic process of transmutation by the pooling together of existing incumbents of certain posts to form a new service, as the appellants alleged, was already the subject matter of assertion made in the Rejoinder Affidavit of the Petitioner and counter-assertions in a reply filed to the Rejoinder on 2-4-1964. The affidavit of 24-6-1967 did not introduce anything new but only clarified the position still more. We find no force in the first objection. Secondly , it is contended that the impugned order constitutes. on the face of it, a reduction in rank of the petitioner Looking at the communication dated 10-3-1960, set out above, we find nothing ,there to indicate that the petitioner had been demoted as a measure of punishment. To hold, as it was suggested that we should, that the procedure laid down by Rule 5 was adopted as a cloak to cover up an intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was urged that Rule 5 mentioned above is itself void for conflict with the provisions of Article 311 and 14 and 16 of the Constitution. It was urged that Rule 5 permits violation of Art. 311 of the Constitution inasmuch as it enables that to be done indirectly which could not be, done directly. The Rule reads as follows :- 5. INITIAL CONSTITUTION OF THE SERVICE:- (1) The Commission shall constitute a Selection Committee with the Chairman or a Member of the Commission as President and not more than three representatives of the Ministry of Information and Broadcasting as members, to determine the suitability of departmental candidates for appointment to the different grades and to prepare an order of preference for the initial constitution of the service: (2) On receipt of the Committee's report the Commission shall forward its recommendations to the Government and such recommendations may include a recommendation that a person considered suitable for appointment to a grade may, if a sufficient number of vacancies are not available in that grade, be appointed to a lower grade; (3) Vacancies in any grade which remain unfilled after the appointment of depa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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