P. B. ROY versus UNION OF INDIA

P. B. ROY

UNION OF INDIA

F~bruary 11, 1972 [S. M. S1KRI, C.J., A. N. GROVER, A. N. RAY, D. G. PALEKAR AND M. H. BEG, JJ.]

. Civil Servant~llolding temporary post-Constitution of New service -'Departmental candidate' holding temporary post appointed to pernza. nent post but of lower grade-If violative of Art, 311.

The appo:llant was holding temporary post of Editor in the Publi· cations DiVIsion of the Department of Information and Broadcasting. The teml"!rary post was sanctioned upto 28-2-1957. On 16-2-1959, tho PreS1dent of India, in exercise of the powers conferred by the proviso to Art. 309 of the Constitution, promulgated the Central Information Ser-vice Rules, 1959. These Rules were meant for the creation of Cen· tral Information Service with prescribed grades and strengths. and entry into the service was open to departmental candidates according to r. S for the initial constitution of the service. The appellant was chosen by the Selection Col)lmittee and was posted as an Assistant Editor. He challenged the order,

single Judge of the High Court allowed the petition. On uppeal, in the course of arguments, the question arose whether the post of Editor was abolished or had ceased to exist and the respondent was allowed to file an affidavit stating that the post of Editor had ceased to exist. The Division Bench ·then held that there was no question of demotion or reduction in rank and hence that Art. 311 ·was not appli .. cable.

In appeal to this . Court, it was held :

(I) The additional affidavit filed by the respondent did not introduce anything new but only clarified the po;ition. [455 E]

(a) There was nothing to show that the temporary post of Editor in which the appellant was initially appointed had been continued beyond 28-2-1957 for any period. [455 CJ

(b) The question whether the constitution of the Central Information Service involved fresh appointments to new posts or its effect was merely to transfer existing employees to corresponding posts with new desig11a-tions was already before the court. [455 D-E] .

( c) The appellant himself never ~sked for any opportunity to meet any allegation in the additional affidavit. [454 F-G]

(2) ·There is nothing to indicate that on the face of the impu~ed . order, that the appellant had been demoted as measure of purush-ment. [455 F-GJ

(3) It could not be held that the order, which had the effect of terminating an officiating appointme~t in which the. appellant. had i:io ·right to continue-and which gave him fresh appomtment wit~ dif-ferent designation, -Out 11trmanent tenure and prospects, constituted

violation of either Art. 14 or 16, simply because the process which resulted in such an order did not have similar effect upon the position or rights of any other person in the Department; especially when, after taking into account the appellant's individual case, the Selection Com· mittee recommended the maximum pay in the class and grade of the post given to him. [456 A·CJ

(4) (a) The new rules had the effect of constituting 11ew service with fair and reasonable procedure for entry into it. Such procedure could not be characterised as device to defeat the provisions of Art. 311 or fraud upon the Constitution simply because the result of. subjection to the proeess of appraisement of the merits of each candidate may not meet the expectations of some candidates. [457 F-G]

(b) Article 311 affords reasonable opportunity to defend against threatened punishment to those already in GQvernment service. Rule 5 of tho Central Information Service Rules provides method of recruit· ro~nt or entry into new service of persons who, even ,though they may have been serving the Government had no right to enter the newly constituted se\'Vice before going through tho procedure prescribed by the rule. The fields of operation of Art. 311 and r. 5 are quite different and '°istinct. [457 G·H; 458 A-Bl(c) The definition of 'departmental candidates' in r. 2(b) was meant only as an aid in interpreting r. 5 and was not intended to operate as fetter on the functions and powers of the Selection Committee. It does not require that all persons falling within the definition of 'departmental candidate' should be placed in single class. Under r. 5 the Selection Committee could assign different grades to the departmental candidates. The post actually held by the appellant before his selection for appoint-ment to the newly constituted service did not automatically or wholly determine the position of departmental candidate . who offered himself to the proeess of appraisement of his merits by the Selection Committee to be made on the totality of relevant facts. That Committee was presid· ed over by the Chairman or Member of the Union Public Service Com· . mission and had officials Of the Department on it who were in position to correctly evaluate the appellant's merit's and the weight to be attached to his confidential records. [459 B·Hl

(S) The appellant's allegations of mala {ides and tliat he was the victim of the prejudice and machinations of an (unnamed) officer in the Transport Ministry, could not properly be tried in writ proceedings and "ithoot impleading that official. [460 F-G]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2172 of 1968.

Appeal from the judgment and order dated August 10, 1967 of the Delhi High Court in Letters Patent Appeal No. 97-D of 1965.

Frank Anthony, K. B. Rohatgi and P. Parameswara Rao, for the appellant.

Jagadish Swarup, Solicitor-General df India and S. P. Nayar, for the respondent.

The Judgment of the Court was delivered by

Beg, J, 'Dtls is an appeal by grant of Certificate of the Delhi High Court under Article 132 read with Article 133(1)(b) and (c) of the Constitution.

8 The Appellant had filed petition under Article 226 of the Constitution for quashing an order dated 10-3-1960 and had pray-ed for consequential order also in the nature of mandamus. In-formation of tl)e impugned order (Annexure 'C' to the petition), given to the petitioner, reads as follows :

"The Union Public Service Commission have in pur· suance of Rule 5 of the Central Information Ser\'.ice Rules, 1959, recommended Shri P. B. Roy, at present officiating as Editor in the Pul.ri.:ations Division, for appointment, in substantive capacity, to Grade III of the service at its initial constitution. Shri Roy is inform-ed that the President has been pleased to post him as an Assistant Editor in the Publications Division with imme-D diate effect".

Those relevant facts, preceding and following the impuJ!ned order, which are admitted by both sides. may now be mentioned.

In 1955, the post of Editor, Publicatiions 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, wl!S offered temporary post of Editor in the Publications Division of the Department on an initial salary .of Rs. 720 per month in the scale of Rs. 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 autho-rity.

The Appellan~ had reported for duty on 1st August, 1956, as directed. On 27-3-1957, the Appellant's probation was extended

by three months. Immediately thereafter, on 28-3-57, the Appel-lant's services were terminated under Rule 5 of the Central Civil Services (Temporary Service) Rules 1949, (Annexure 'D' to the Rejoinder Affidavit of 20th February, 1964). On 5-3-1957, the Appellant made representation against this termination of his service (Annexure 'B' to the Rejoinder Affidavit). On 27-4-1957, in response to this representation., the above-mentioned termination tio the Appellant's service was rescinded (Annexure 'F to the Re• joinder Affidavit). On 28-4-1958, the President was pleased to terminate the probationary period of the. Appellant and permitted him to continue in his post in temporary capacity (Annexure 'B' to the Affidavit supporting the Petition)

On 16-2-1959, the Presidentoflndia, in exercise of powers con-C ferred by the Proviso to Article 309 of the Constitution of India, promulgated the Central Information Service Rules, 1959 (herein-after referred to as the Rules), whicl) came into force on 21-2-1959. These rules were mean~ for the creation of Central Information Service with prescribed grades and their strengths. Entry into this service was open to "departmental candidates" by procedure laid down in Rule 5 for the initial constitution of the service. In accord-ance with this procedure, 1ihe Appellant was required to appear be-fore Selection Committee on given date, and, after selection, he was posted by the impugned order as indicated above. On 11-3· 1960, the Appellant assumed charge of the. post thus assigned to him on the recommendation of the Union Pnblic Service Commis-E sion. The Appellant then made representation, dated 11-3-1960 (Annexure 'E' to the Rejoinder Affidavit), against his appointment in Class II grade III post. He made other similar representations after that. His last representation was made. on 25-8-1962. The/ Appellant received communication dated 10-12-1962 forward-ing extract of an order dated 26-11-1962 which said :

"The representation from Shri P. B. Roy has been carefully considered in the Ministry. All relevant facts were fully ~en into account, by the Departmental Pro-motion Committee, before drawipg up the recent panel of Grade III officers considered suitable for promotion to Grade II. Shri Roy may be informed accordingly".

The Appellant, treating this as the rejection of his last represen-tation, filed his petition on 11-1-1963 which was allowed by learned Judge of the Punjab High Court, sitting on the Circuit Bench at Delhi. Letters' Patent Appeal against this decision had been allowed by Division Bench of the Delhi High Court which then granted c~cate on 12-8-1968 for leave to Appeal pri- ,H marily 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 reject-ed on 29-7-1960 and that it did not matter that the petitioner had continued making subsequent representations. The learned Judge had noticed the explana(,ion that the petitioner could not approach the Court as he was admitted to Tuberclulosis Clinic in June, 1961. The learned Judge, having found that this was not sufficient to explain the dell!)' between 29-7-1960 and June 1961 was dispos-ed to reject the petition on the ground of !aches. But, in view of the decision of the majority of the Full Bench of the Punjab High Court in S. Gurmej Singh v. Election Tribunal, Gurdaspur('), the delay in filing the petition was overlooked on the ground that, after the admission of Writ Petition and hearing of arguments, the rule that delay may defeat the rights of party is relaxed and need not be applied if his case is "positively good".

The learned Single Judge had come 1io the conclusion, on the facts stated above, that the petitioner's case would b~ governed by the decision of this Court in Moti Ram Deka & Ors. v. Generlil Manager, North East Frontier Railway('), as the petitioner's pros-pects and emoluments were adversely affected by the impugned order. The learned Judge thought that the mere fact that the Department was reorganised and that the petitioner was to be fitted into an appropriate category by the procedure laid down in Rule 5 did not take away the effect, that is 1!0 say, the loss of his emolu-E ments, of the procedure to which the petitioner had been subjected. This view implied that Art. 311 of the Constitution was attracted by· the case despite the above mentioned creation of the Central Information. Service by the rules.

The Division Bench which heard the Appeal of the Union of India was not inclined to interfere with the discretion of the learned Single Judge in rejecting the objection to the petition on the ground of delay. We too will not enter into this question which was not argued before us.

The Division Bench, after reviewing facts leading to the absorption of the Appellant into newly constituted Central In-G forniation Service, in accordance with the procedure laid down in Rule 5 mentioned above, held that the "News and Information Cadre" of the Department, in which the Appellant was initially appointed, had been superseded by the cadres and grades constitut-ed by the rules of the ne.w service. It overruled the contention of the Petitioner that the effect of the rules was merely to transfer em-ployees in existing posts to corresponding posts with new designa-H tions. It held that the Rules did create an altoge~er new service. It pointed out that the process of entry into the new service was of

(2) A.I.R. 1964 S.C, p. 600.

(I) [1964] P.L.R. p. 589.

selection of each individual candidate after an examination of his individual record and qualifications by Selection Committee be-fore which he appeared so !halt there could be no automatic fitting into some corresQ011ding appropriate post of pre-determined 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 cadre in which he served prior to the setting up of the new service. It, therefore, held that no question of demo-tion or reduction in rank, without observing the procedure laid down in Art. 311 of the Constitutio11.. 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 grol!nds. We will take up and consider each of these seriatim.

Firstly, it is contended that !he 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 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 certificate of the fitness for an appeal to this Court was sought. The Judgment of the Division Bench mentions that, in the course of arguments, the question arose whet.her the post of Editor in the Publications Division was abolished or had ceased to exist. It appears that an affidavit was then allowed to be filed before the Division Bench on behalf of the Union of India in which it was stated that two 'posts of Editors in the scale of Rs. 720-40-1000 in the Publications Division had ceased to exist as consequence of the inclusion of two posts in the revised grade of Rs. 700-40-1100-50/2-1250 with-F effect from 1-7-1959 in the Central Information Service constituted from 1-3-1960. There is nothing in the Judgment or anywhere else to show that the petitioner had asked for any opportunity to con-trovert any statement made in the affidavit dated 26-7-1967 and had been denied that.

The case and the contention on behalf of the Appellant have been that the new posts in the services are really old posts in new garb. This raised what was primarily question of law, depending for decision upon an interpretation of the relevant rules of which the Court takes iudlcial notice. The rules certainly did not provide for the continuance of any ex-cadre posts outsitk the new service introduced by the rules. Facts stated in the Aft!-H davit of 26-7-1967 could have some bearing on the question wh«her there were two posts in the revised scale which could be considered as corresponding posts. They could, if they had

any ellect on the respective stands, perhaps help the Appellant's case that there was nothing more than re-designation of J>Osts with same dll'lies and corresponding scales. And, this seems to explain why there is nothing to show that the Petitioner-Appellant asked for an opportunity to meet any allegation made in the affi-davit of 26-7-1967 filed on behalf of the Union. Moreover, what the fresh affidavit contained about the dis-appearance of the remporary remporary post given to the Petitioner in 1956 before the Rules came into force flowed logically from the order of Petitioner's initial appointment in temporary post which was to continue only upto 28-2-1957, continue only upto 28-2-1957, only upto 28-2-1957, upto 28-2-1957, unless its life was shown to have its life was shown to have life was shown to have was shown to have shown to have to have have been extended for some definite or indefinite period. The Peti-

Moreover, what the fresh affidavit contained about the dis-appearance of the remporary remporary post given to the Petitioner in 1956 before the Rules came into force flowed logically from the order of Petitioner's initial appointment in temporary post which was to continue only upto 28-2-1957, continue only upto 28-2-1957, only upto 28-2-1957, upto 28-2-1957, unless its life was shown to have its life was shown to have life was shown to have was shown to have shown to have to have have been extended for some definite or indefinite period. The Peti-tioner had not averred anywhere that the post was continued beyond 28-2-1957 for any period by any order or rule.. Indeed, the very argument advanced on behalf of the Appel.Ian!, that bis i,nitial post merged in another corresponding post, implied that the post to which he was initially appointed at least rost its identity or could not be deemed tO continue without transmutation. The question whether the constitution of the Central lnformation Ser-vice did or did not involve fresh appointments to new posts but was simply an automatic process of transmutation It' the pooling together of existing incumbents of certain posts to form new service, as the appellants allejled, was already the subject matter of assertion made in the Rejoinder Affidavit of the PetitiQner and counter-assertions in. 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 thalt the impugned order constitutes. on the face of it, reduc~on in rank of the petitioner. Lookin~ at the ~unication dated 10-3-1960; set out above, we find nothing there to indicate that the petitioner bad been demoted as measure of punishment. To hold, as it was sugp;ested/that we should, that the procedure laid down by Rule 5 was adopted as cloak to cover up an intended reduction in rank and emoluments of an o:ffici~ting Editor, by appointing him in permanent sub-G stantive capacity of grade carrying lesser emoluments in the new service, would necessitate JP;Oing behind the order bf 10-3-1960. At any rate, on the face of it, the order discloses no such devious action against the Appellant.

Lookin~

Thirdly, it was contended that the impugned order violates ff Art. 14 and 16 of the Constitution inasmuch as it places an em-ployee who was serving as an Editor in post of lower ~ade • with less emolumen'ls whereas no such result bad followed in tbe case of any other employee in the Information and Broadcasting

Departnwnt. We are unable to see how an order which has the effect of terminating an officiating appointment,. in which the petitioner had no right to continue, and which gives him fresh appointment,' with different designation but permanent tenure and prospects, constitutes violation of either Art. 14 or 16 of the Constitution simply because the process which resulted in such an order did not have similar effect upon the position or rights of any other servant in the Department. Incle¢, the Selection Committee had, apparently after taking into account the special features of the petitioner's individual case, recommended the malt.imum pay, in the class and grade of the post given to him, and the petitioner _got this exceptional pay. Even his prospects improved to the extent that from the precarious position of temporary servant he had moved into permanent service. It could not be definitely stated that his position had worsened on the whole. He was at least no longer subject to the hazards of temporary employment which could be terniinated by month's notice at any time. The results of applying Rule 5 to the faots of individual cases could not be expected to be identically similar in all cases.

All candidates were subjected to the same process or pro-cedure con~mplated by Rule 5. It is not the Appellant's case that the Selection Committee did not function honestly or that its proceedin>,~ were vitiated by any defect in its constitution or of any bias on its part or any unifairness or inequality of the test applied in judging the merits of the Appellant as against other candidates· The a:llel!,~ defect with the material said to have been used by the Committee is another matter which we will consider last.

Fourthly, it was ur_ged 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:-G (1) The Commission shall constitute Selection Committee with the Chairman or Member of the Commission as President and not more itban three representatives of the Ministry of Informa; tion and Broadcasting as members, to determine the suitability of departmental candidates for appointment to the different grades and to pre-pare an order of preference for the initial consti-tution of the service;

(2) On receipt of the Committee's report the Com-mission shall forward its recommendations to the· Government and such recommendations may in-· ·cludct recommendation that person consider-ed silitable for appointment to grade may, if sufficient number of vacancies are not avail-B able in that· grade, be appointed to lower. grade;

(3) Vacancies in any grade which remain unfilled after the appointment of departmell'lal candi-d11tes selected under sub-rules (1) and (2) above shall be filled by direct recruitment. through the Commission.

Rule 3 indicates that appointmen1s to the newly created· ser-· vice could take place either by selection under Rule 5 or by direct recruitment with which we are not concerned here. The grades and the fixation of an authorised sirength of each grade '!l"e provided for by Rule 4. Only posts in the first 3 grades are classified as Class I (Gazetted) posts. Rule 5(2) enables the Selection C9mmittee to recommend :hat "departmental candi-date" consideI'~d suitable for appointment to post of particular grade be actually appointed in even lower grade if sufficient num-ber of vacancies are not available in the grade for which he may be found fit In other words, even between candidates found fit for particular grade, the recommendation may be for an ap-pointment to lower grade. As between those found fit for particular grade, the preferences had to be and were, presumably, determined by fair and honest appraisements of their merit. Such preferences due 1o honest assessments, which are not above possi- . bilities of error, have never been held to cast any reflection which could be equated with punishment· If the view of the Division Bench of the Delhi High Court is correct, as we think it is, that the rules had the effect of constituting new service, with fair and reasonable procedure for entry into it, the procedure could not be characterised as device to defeat the provisions of Art. 311 or fraud upon the Constitution simply because the results .G of subiwtion to the process of appraisement of the merits of each candidate may not meet the expectation of some candidates.

Article 311 affords reasonable opportunity to defend against threatened PJ111ishment to those already in Government service. Rule 5 provides !Mthod of recruitment o~ entry into new service of persons who, even thoull:h they may have been servinir the Government, had no right to enter the newly constituted serviee before going through the procedure prescribed by the Rule. If the petitioner had already been appointed permanent Government servant; there may have been some justification for·

.contendin11: that Rule 5 could not be so applied as to deprive him of permanent post without complying with Article 311 . as such deprivation would have been per se punishment. The mere possibility of misuse of Rule 5 could not involve either its confilct with or attract the application of Art. 311. The fields of operation of Rule 5 and Art. 311 of the Constitution are quite different and distinct so_ that the two do not ·collide with each . other.

The learned Counsel for the Appellant then contended that each person placed in the category of Departmental candidat.es by Rule 2 had to be treated alike, but Rule 5 enables the Selec-tion Committee to treat them differently by assigning different grades to them. In other words, the contention was that Rule 5 gives too wide power of selection to the Selection Committee. It was also submitted, though not quite so clearly, that Rule 5 must itself be so interpreted as to operate automatically and place all persons falling within the definition of Departmental candidate" in single class if Rule 5 is to be upheld as valid. It was urged that the interpretation placed on Rule 5 by the Division Bench involved not merely its conflict with the definition -of "departmental candidate" in Rule 2 (b) but also with Articles 14 and 16 of the Constitution, as it meant that those treated equally by Rule 2 (b) could be treated unequally by the Selection Com· mittee. This argument rests on misconstruction of Rule 2(b).

The definition of Departmental candidate given by Rule 8 (b) is : ·

2(b) "departmental candidate" means--

( i) person in the Ministry of Information & Broadcasting or any of its attached and subordi-nate offices who was holding or would have r held, but for his absence on deputation, duty post, on the 1st November, 1957, and who is holding, or has lien on duty post in substantive capacity at the commenc:em.ent of these rules; or

who has been declared quasi-pennarient in duty post, on, or prior to, the 1st July 1957; or

who was eligible to be declared quasi-permanent fu duty post, on, or on any date prior to, the 1st July 1957; or

who was appointed to duty post on the basis of selection by the Commission or whose 11PPOint-ment thereto was approved by the Camitission, before the commencem.mt of these rules;

P, B. ROY v. UNION (Beg, /.)

(ii) any other person in the Ministry of Infomation and Broadcasting or any of its attached and subordinate offices whom the Government may _d119lare as such on the basis of his qualifi-cation and experience"; .

It is clear that this definition of "departmental candidate" is meant only as an aid in interpreting Rule 5 and was not in-tended to operate as fetter on the functions and powers of the Selection Committee. We may add that the validity of Rule 5 does not appear to us to have been assailed in arguments before the High Court. And, in any case, the attack on it must fail on merits.

Fifthly and lastly, it was urged that the action against the Petitioner was visited by mala (ides. We find no such ground taken either in the Writ Petition or argued at any stage in the High Court or mentioned in the grounds of appeal taken in the application for certifying the case as fit for appeal to this Court. It was, however, ground taken by the Petitioner Appellant in his Rejoinder affidavit in attempting to reply to the affidavit filed in opposition to the Writ Petition.

It had been stated in the affidavit filed on behalf of the Union of India that the Appellant's work was not found to be up to the mark even during the period of his probation which had to be extended thrice by two months on each occasion before the pro-bationary period was at last teminated. It had also been pointed out that the Appellant had been given warning that he should improve his work. Furthemore, it was stated that all the facts of the Appellant's case were C¥efully examined, from the point of view of his merit, by the selection Committee. The case of the Union of India was that the post actually held by the Appel-lant before his selection for appointment to the newly constituted service did not automatically or wholly determine the position of departmental candidate who offered himself to the process of appraisement of his merits by the Selection Committee to be made on the totality of relevant facts. That Committee had to be presided over either by the Chairman or Member of the Union Public Service Commission and had officials of the De-partment on it who must have been in position to correctly evaluate the petitioner's merit and to know the weight to be attached to such entries as the Appellant's confidential records contained.

In reply to the case of the Union of India, that the· Appel· lant's merits were duly considered by the Selection Committee, the Appellant had characterised what had happened as an 'at-tempt to create prejudice against the Petitioner and to justify its

mala fide reduction of rank of the Petitioner". He also said that this amounted to "raking up the past" which had no relevance to "the admitted case of the Appellant" that he was holding the temporary substantive rr.nk of Editor when he was reduced to the rank of an Assistant Editor. Th.is assertion was incorrect if it implied, as it seemed to, that it was admitted that the petitioner was being punished. The Appellant had also referred to as-sertions made by him, in his representation dated 5-4-57 (Annexure 'B' to the Rejoinder) to the Minister of Information and Broadcasting against the termination of his service by notice dated 23-3-57, and also to those contained in another represen-tation dated 11-3-1960 (Annexure 'E' to the Rejoinder Affidavit) against the impugned order. In these representations, the peti-tioner had complained that he was victim of the prejudice and machinations of an Officer in the Transport Ministry (not named by him) whose mistakes, in the publications of the Transport Ministry, had been pointed out by the Appellant. He had also referred to number of his own publications. Thus, the Appel-lant's case on ma/a fides rests on allegations which had been ex-amined by the Department and may also have been considered by the Selection Committee. The petitioner had assumed that there were some malicious reports "against him which, according to him, he had no chance to meet. and on which he thinks that the recommendations of the Selection Committee about him were based. The reply of the Union of India to this case of ma/a /ides was that it was an after thought and that the assessment of the Selection Committee was based on the results of the interview given to the Appellant and total assessment of all the facts con-cerning the Appellant which were before the Selection Commit-tee.

Even if we were to assume that the Appellant had thus taken up case of action vitiated by ma/a fi(ies at its foundations and had supported it with necessary particulars and averments, it is evident that such case could not be properly tried upon the materials on the record before us, without even impleading the official who was alleged to be the architect of his misfortunes. 1t could not, as it has been, argued seriously for the first time before us.

The fatal weakness in the Appellant's case arises from the fact that he was holding only temporary post so that he could have no right to continue in it after it had ceased to exist. We think that the necessary effect of setting up of the Central In- . formation Service, together with the determination of its classes and grades and their strengths was that the temporary posts in the Department which were not shown to have been continued, automatically came to an end. The Appelant was offered new

C. B. RAO I'. UNION (Beg, J.)

Post altogether after going through the process of selection i11 ai:cordance with Rule 5 to which he subjected himself. Indeed. the Appellant had no option, if he wanted to continue in the service of the Department, except to go through the procedure provided by the rules. We are unable to hold that the procedure contemplated by Rule· 5 either automatically fixed the Appellant in any particular grade or post or could be held to be void for any reason wha'!soever. Therefore, if the Appellant was selected fot· particular post, by process which, for the purpos::s of lhc case before us, must be assumed to have been fair, honest, and legal, he cannot complain that he was entitled to better one.

We, therefore, dismiss this appeal. But, in the circumstances of the case, ,;,e leave the parties to bear <their own costs through-out.

Appeal dismissed.