- (1.) This is a petition under Art. 32 of the Constitution for enforcing the fundamental rights of the petitioner under Arts. 14, 16 and 19 of the Constitution. Although the petition raises various points, before us only two points have been argued by Mr. Garg, on behalf of the petitioner. We are grateful to Mr. Garg, who has argued as amicus curiae, for the assistance he has given. The two points may be formulated as follows : (1) That the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules, 1959, were not made with the previous approval of the Central Government under Section 115 (7) of the States Re-organisation Act, and, therefore do not govern the petitioner is so far as the conditions of service have been varied to his disadvantage; (2) That the Madras Government had prior to November 1, 1956, by various orders, reduced the petitioner in rank in violation of Art, 311 (2) of the Constitution and Art. 16.
(2.) In order to appreciate the arguments addressed to us, it is necessary to give a few facts. The petitioner was selected by the Madras Public Service Commission as Lower Division Clerk under the Madras Ministerial Service Rules in 1949, and was allotted to the Revenue Department and posted in South Kanara District. He was promoted as Upper Division Clerk on April 2, 1956. According to the petitioner, he should have been promoted much earlier as he has rendered outstanding and meritorious service. According to the State, the petitioner was considered for inclusion in the eligibility list from 1955 onwards, but was not selected as he was not considered fit. The State admits that he was promoted as Upper Division Clerk with effect from April 2, 1956, but alleges that this was on a temporary basis. He was later reverted and then again posted as a temporary Upper Division Clerk. In August, 1957, the petitioner was considered and included in the eligibility list at Serial No. 14. This list was regularised on December 11, 1957, in accordance with Rules 39 (e) and 35 of the Madras State and Subordinate Service Rules, with effect from October 19, 1957. According to the petitioner this resulted in the loss of benefit of service and increments.
(3.) In the meantime, reorganisation of States took place under the States Reorganisation Act (XXXVII of 1956). South Kanara District, except Kasaragod Taluk, went to the new Mysore State and the petitioner was allotted to it, On May 11, 1957, the Government of India addressed a memorandum (No. S.O. SRDI - I APM 57) to all State Governments, Broadly speaking, the Central Government said that some conditions of service should be protected, e.g., substantive pay of permanent employees, certain type of special pay; leave rules unless the government servant opts for new leave rules, etc. But in respect of departmental promotion it said that "the question whether any protection should be given in respect of rules and conditions applicable to Government servants affected by reorganisation immediately before the date of reorganisation in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion was also considered. The Government of India agreed with the view expressed on behalf of the State representatives that it would not be appropriate to provide for any protection in the matter of these conditions." Therefore, it is evident from this memorandum that the Central Government had told the State Government that they might, if they so desire, change service rules as indicated in the memorandum. But Mr. Garg argues that even so this does not amount to previous approval within S. 115 (7) of the States Reorganisation Act to the making of the Mysore General services (Revenue Subordinate Branch) Recruitment Rules, 1959. What then is the true meaning of the expression "previous approval" in the proviso to S. 115 (7) Sub-section (7) of S. 115 provides that ; 7. Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State ; Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-sec. (2) shall not be varied to his disadvantage except with the previous approval of the Central Government." The effect of this sub-section is, inter alia, to preserve the power of the State to make rules under Art. 309 of the Constitution, but the proviso imposes a limitation on the exercise of this power, and the limitation is that the State cannot vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of persons mentioned in subsecs. (1) and (2) of S. 115 It is not disputed that the petitioner is one of those persons.;