TMI Blog1967 (4) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... Service with effect from 11th November, 1963. On 25th January, 1964, a Government Order was issued posting one O. H. Dias of the Indian Administrative Service, who was holding a post of Deputy Secretary to Government, Revenue Department, as I. G. R. Madras, vice the appellant. That Government Order contained a note that orders regarding the posing of the appellant will be issued separately from the Home Department. Them, on 30th January, 1964, a Government Order was issued posting the appellant to act temporarily as Accommodation Controller, Madras vice one M. Sargunam. That Order further laid down that the appellant, as Accommodation Controller, will continue to draw his grade pay in the scale of ₹ 1,200-100/2-1,400 and, in addition, he will draw a special pay ₹ 100 per month and also a conveyance allowance of ₹ 75 per month if a car is maintained or ₹ 62/50P per month, if no car is maintained. On receiving this Order, the appellant moved a petition under Art 226 of the Constitution in the High Court of Madras, seeking the quashing of the Order of the Government of India placing the post of I. G. R., Madras in the Cadre of the Indian Administrative Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided by a common judgment by a singly Judge of the High Court on 2nd December, 1964. 3. The appellant then filed appeals before a Division Bench of the High Court. While these appeals were pending before the Division Bench, a letter was sent on behalf of the Government of Madras to the Counsel representing the Government in the appeals on 27th August, 1965. In that letter, it was stated that, when the post of I. G. R. was included in the Indian Administrative Service Cadre of the State, the Government had decided that, in order to protect the rights of the appellant, a supernumerary post of I. G. R. in the State Service should be created with effect from 11th November, 1963, the date on which the above post was included in the Indian Administrative Service Cadre. It was added that, in the circumstances, there would not be any reduction in the pension and gratuity of the appellant consequent on the inclusion of the post of I. G. R. in the Indian Administrative service. It appears that, by this time, it was realised by the Government that the effect of the earlier Orders made in the case of the appellant was that the appellant was not holding lien on any permanent post and was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we can not accept the submission that the mere fact that the post of Accommodation Controller, to which the appellant has been transferred, has not been designated as the post of a Head of the Department necessarily involves any reduction in rank. In fact, it is well-known that in Government service, there may be senior posts, the holders of which are not declared as Heads of Department, while persons holding comparatively junior posts may be declared as such. The rank in Government service does not depend on the mere circumstance that the government servant, in the discharge of his duties, is given certain powers. In the case of the appellant, it is to be noticed that, from the very initial stage, it was laid down that, on being transferred to the post of the Accommodation Controller, he was still to continue to draw pay in the scale of ₹ 1,200-100/2-1,400 which was the scale in which he was drawing his pay while working in the post of I. G. R. The appellant was, thus, not sent to a post carrying a lower scale of pay. This point was further urged on the basis that the post of Accommodation Controller was held by an Officer who, on relief by the appellant, was promoted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Administrative Service, the appellant was left without a lien on any permanent post, and that would necessarily deprive the appellant of his rights to pension and gratuity, so that his transfer to the post of Accommodation Controller would amount to his removal from service as a punishment. The mere transfer to the post of Accommodation Controller did not bring into effect removal of the appellant from government service. It is, however, correct that, when the order of his transfer was initially passed on 30th January, 1964, no provision was made for his retaining lien on any permanent post and, if that position had been maintained, the appellant would, no doubt, have lost his rights to pension and gratuity. Under Rule 361 of the Madras Pension Code, the service of an officer does not qualify for pension unless it conforms to the following three conditions :- 7. First. - The service must be under Government. 8. Second. - The employment must be substantive and permanent. 9. Third. - The service must be paid by Government. 10. On transfer of the appellant to the post of Accommodation Controller, the first and the third conditions continued to be satisfied but the employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary post of I.G.R. is a permanent post and not a temporary post. In Rule 9(22) of the Fundamental Rules of the Madras Government, a permanent post is defined to mean a post carrying a definite rate of pay sanctioned without limit of time, while, under Rule 9(30), a temporary post is defined to mean a post carrying a definite rate of pay sanctioned for a limited time. The supernumerary post of I.G.R. created by the Order of the Government dated 10th February, 1967, is not for a limited time. The post has been created for an indefinite period and is to continue in existence as long as the appellant holds that post and is not confirmed in any other permanent post. This supernumerary post of I.G.R. is, thus, clearly covered by the definition of permanent post, so that the appellant now holds lien on a permanent post and, consequently, satisfies the second condition for qualifying for pension laid down in Rule 361 of the Madras Pension Code, mentioned above. There is, therefore , no force in the submission that the Orders made by the Government have resulted in any punishment being inflicted on the appellant by prejudicing his rights to pension and .gratuity. 11. The last point urged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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