Citation Codes

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citation codes

Case Number

Writ Petn. No. 599 of 1967

Advocates

For the Appellant: B. Ramachandra Rao, S.K. Venkataranga Iyengar, Advocates.

Judges

A. Narayana Pai, C.J
V.S Malimath, J.

Acts

Article 226 of the Constitution by the Constitution (Fifteenth Amendment) Act, 1963
clause (c) of Section 20 of the Code of Civil Procedure.
ARTICLE 309 CONSTITUTION OF INDIA
ARTICLE 16 CONSTITUTION OF INDIA

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Smart Summary

Judgment Summary — Extracted from the provided opinion (Malimath, J.)

Factual and Procedural Background

The petitioner, Dr. P.S. Rao, is the Head of Utilisation Research at the Forest Research Laboratory, Bangalore (a post originally designated Chief Research Officer and later re‑designated and re‑graded). He joined the Forest Research Institute and Colleges (the Institute) in March 1945 as a Class II Officer and was appointed to the post at Bangalore with effect from 30 November 1960. The post was redesignated by the Government of India on 9 July 1963 and its pay scale subsequently revised; the petitioner continued to hold that post.

Respondent No. 2, A. Purushotham, previously held similar posts and was senior to the petitioner in the cadre of Senior Research Officer in the Selection Grade. On 15 July 1964 respondent No. 2 was appointed (by government order dated 7 September 1964) to the post of Director of Biological Research at the Institute, Dehra Dun, which carried an additional special pay of Rs. 100 per month.

The petitioner filed a writ petition seeking a direction to the Union Government (respondent No.1) to promote him to the post of Director of Biological Research effective from 15 July 1964 (the date from which respondent No.2's appointment took effect), and, if necessary, to amend the Forest Research Institute and Colleges (Class I and II non‑tenure posts) Recruitment Rules, 1966, under the President's power in the proviso to Article 309 of the Constitution.

The Union Government raised a preliminary objection to the court's jurisdiction. The Court considered jurisdictional issues under clause (1‑A) of Article 226 (as inserted by the Fifteenth Amendment, 1963) and proceeded to decide both the jurisdictional and substantive questions.

Legal Issues Presented

Whether this High Court has jurisdiction to entertain the writ petition under clause (1‑A) of Article 226 of the Constitution (i.e., whether the cause of action wholly or in part arose within the territorial jurisdiction of this High Court).
Whether the appointment of respondent No. 2 to the post of Director of Biological Research on 15 July 1964 was violative of Article 16 of the Constitution because the petitioner (who alleges he was senior) was not considered for the appointment.
Whether the Court can grant the petitioner a direction to the President to amend recruitment rules framed under the proviso to Article 309 (as part of the relief sought to secure promotion or consideration).

Arguments of the Parties

Petitioner's Arguments (as presented)

The petitioner's counsel (Sri S.K. Venkataranga Iyengar) argued that respondent No. 2's appointment as Director of Biological Research was a promotion from the cadre of Senior Research Officers and that the petitioner, being senior to respondent No. 2, should have been considered; non‑consideration violated Article 16 of the Constitution.
The petitioner sought, as alternative or consequential relief, a direction to amend the recruitment rules so that he could be considered for promotion.

Union Government's Arguments (as presented)

The Union Government's counsel (Sri B. Ramachandra Rao) raised a preliminary objection of maintainability: the High Court lacked jurisdiction because the cause of action did not arise wholly or in part within its territorial jurisdiction. He relied on Article 226 and its amendment (clause (1‑A)).
In its counter‑affidavit the Union Government asserted that only holders of the seven Senior Research Officer posts in the Selection Grade at the Institute, Dehra Dun, could be considered for appointment to the Director of Biological Research; since the petitioner did not hold one of those seven posts, he was not eligible to be considered for that appointment or for the special pay attached to it.
The Union Government relied on its executive re‑organisation order dated 9 July 1963 (made under Article 73) which: abolished seven Chief Research Officer posts and replaced them with seven Senior Research Officer (Selection Grade) posts; provided that two of these seven selection‑grade posts would be designated as Director of Forest Products Research and Director of Biological Research and that the holders of those designated posts would receive a special pay of Rs. 100 per month.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court addressed jurisdiction first. It observed that clause (1‑A) was added to Article 226 by the Fifteenth Amendment (1963), permitting High Courts to entertain petitions against the Union of India where the cause of action arises wholly or in part within the territorial jurisdiction of the High Court. Because the phrase "cause of action" is not defined in the Constitution, the Court referred to the established meaning (as in clause (c) of Section 20 of the Code of Civil Procedure): a cause of action is a bundle of essential facts which the plaintiff must prove to obtain relief.

Applying that test, the Court found that one essential fact in the petitioner's claim was that he held the post of Head of Utilisation Research at the Forest Research Laboratory, Bangalore — a fact that, if disputed, would have to be proved within the territory of this High Court. Therefore at least part of the cause of action arose within the High Court's territorial jurisdiction. The Court overruled the preliminary objection and held that it had jurisdiction to hear the writ petition.

On the merits, the Court examined the Union Government's executive order dated 9 July 1963 (produced during the hearing). The order:

Abolished seven permanent posts of Chief Research Officer (Rs. 1300‑60‑1600) and replaced them with seven permanent posts of Senior Research Officer in the Selection Grade (Rs. 1300‑60‑1600).
Provided that those seven selection‑grade posts would be filled by Senior Research Officers who held scientific and technical posts at the Institute (distinct from Forest Officers), subject to recruitment rules.
Designated two of those seven selection‑grade posts as Director of Forest Products Research and Director of Biological Research and provided an additional special pay of Rs. 100 per month to the holders of those designated posts.

The Court reasoned that in 1964, when respondent No. 2 was appointed Director of Biological Research, no recruitment rules had been framed by the President under the proviso to Article 309. Consequently, the appointment was governed by the Union Government's executive order (issued under Article 73). The Court emphasized the legal effect of the 9 July 1963 order: the posts of Director of Biological Research and Director of Forest Products Research were not separate promotional posts created from the cadre of Senior Research Officers; rather, they were designations among the seven Senior Research Officers in the Selection Grade, with the special pay attached to whoever holds the designated position.

Because the petitioner did not hold one of the seven Senior Research Officer selection‑grade posts at the Institute, he was not among the class of persons eligible under the 1963 order to be designated as Director of Biological Research or to receive the Rs. 100 special pay. The petitioner's claim was built on the incorrect assumption that the Director of Biological Research post was a promotional post from the Senior Research Officer cadre and that an equivalent post held by him at Bangalore entitled him to be considered. The Court found that assumption to be wrong.

Finally, the Court addressed the petitioner's prayer for a direction to the President to amend recruitment rules framed under Article 309. The Court held such a direction could not be issued to the President to amend rules framed by him in exercise of his powers under the proviso to Article 309, and in any event those rules were framed in 1966, long after the 1964 appointment challenged in the petition; therefore, consideration of those rules was not relevant to the impugned 1964 appointment.

Holding and Implications

Holding: The writ petition was dismissed. Petition dismissed.

Direct consequences for the parties:

The petitioner is not entitled to a direction that he be promoted to the post of Director of Biological Research effective from 15 July 1964.
The petitioner is not entitled to the special pay of Rs. 100 per month attached to the Director of Biological Research post because he did not hold one of the seven Senior Research Officer selection‑grade posts at the Institute to which that designation and special pay applied.
The Court will not direct the President to amend recruitment rules framed under the proviso to Article 309 in order to obtain the relief sought concerning the 1964 appointment.

The opinion does not discuss broader doctrinal implications beyond the resolution of this dispute; the decision applies its interpretation of the 9 July 1963 executive order and established principles governing jurisdiction under Article 226(1‑A) and the concept of a cause of action.

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Dr. P.S Rao, v. The Union Government And Others,

Malimath, J.:— Dr. P.S Rao the petitioner in this writ petition, holds the post of the Head of Utilisation Research. Forest Research Laboratory, Bangalore under the Union Government. Though differently worded, the prayer of the petitioner is for a direction to respondent No. 1 the Union Government to promote him to the post of Director of Biological Research with effect from 15-7-1964, the date from which Dr. A. Purushotham-respondent No. 2 was appointed to the post of Director of Biological Research in the Forest Research Institute and Colleges, Dehra Dun, if necessary, by amending the Forest Research Institute and Colleges (Class I and II non-tenure posts) Recruitment Rules 1966, framed by the President in exercise of his powers under the proviso to Article 309 of the Constitution of India.

2. The petitioner joined service as a Class II Officer in the Chemistry and Minor Forest Products Branch of the Forest Research Institute and Colleges. Dehra Dun (hereafter referred to as the Institute) in March 1945. It is not disputed that respondent No. 2 was appointed to a similar post earlier than the petitioner. In the year 1960, the petitioner and respondent No. 2 were holding the post of Senior Research Officers in the Selection Grade at the Institute at Dehra Dun. It is not disputed that respondent No. 2 was senior to the petitioner in the cadre of Senior Research Officer in the Selection Grade. In the year 1960, the post of Chief Research Officer at the Forest Laboratory. Bangalore was advertised for being filled up, through the Union Public Service Commission by direct recruitment. The petitioner was selected and appointed to the said post in the scale of Rs. 1000-1400 with effect from 30th November, 1960. The post of Chief Research Officer at the Forest Research Laboratory. Bangalore was redesignated as the post of the Head of Utilisation Research by the order of the Government of India dated 9th July, 1963. The scale of pay attached to the said post was also subsequently revised to the scale of Rs. 1300-60-1600. The petitioner continues to hold the said post till today.

4. On the 25th of July, 1961, respondent No. 2 was promoted to the post of Chief Research Officer at the Institute at Dehra Dun in the pay scale of Rs. 1300-60-1600. Respondent No. 3 was similarly promoted on 15th July, 1963. The Union Government, by its order dated 9th July, 1963, re-designated the 7 permanent posts of Chief Research Officer (Rs. 1300-60-1600) as Senior Research Officers in the Selection Grade in the Scale of Rs. 1300-60-1600. Thereafter, respondent No. 2 who was holding the post of Senior Researoh Officer in the Selection Grade at the Institute at Dehra Dun was appointed as Director of Biological Research in addition to his own duties, with effect from 15th July, 1964 by the order of the Union Government dated 7th September, 1964.

5. The principal grievance of the petitioner is that respondent No. 2 is junior to him and that therefore his “promotion” without considering the case of the petitioner, is violative of Article 16 of the Constitution of India.

6. Sri B. Ramachandra Rao, learned counsel appearing for the Union Government, raised a preliminary objection regarding maintainability of the writ petition in this Court. His contention is that this Court has no jurisdiction to entertain the writ petition for issuing any directions to the Union Government as the cause of action has not arisen wholly or in part within the territory in relation to which this High Court exercises jurisdiction. Clause (1-A) was added to Article 226 of the Constitution by the Constitution (Fifteenth Amendment) Act, 1963 with effect from 6th October, 1963. The object of the amendment is to confer jurisdiction on the High Courts within whose territory the cause of action arises wholly or in part to entertain petitions under Article 226 of the Constitution against the Union of India or any other body located outside its territorial jurisdiction. It is clear from clause (1-A) of Article 226 of the Constitution that if the cause of action wholly or in part arises within the territory in respect of which the High Court exercises jurisdiction, the said High Court can exercise powers conferred by clause (1) of Article 226 notwithstanding that the seat of the Government or authority or the residence of the person is not within the territory in respect of which the High Court exercises jurisdiction.

7. The only question for consideration therefore, is as to whether the cause of action has arisen wholly or in part within the territory in respect of which this High Court exercises jurisdiction.

8. The expression ‘cause of action’ has not been defined in the Constitution. The same expression occurs in clause (c) of Section 20 of the Code of Civil Procedure. Though the said expression has not been defined in the Code of Civil Procedure. The meaning to be given to the said expression is well settled by judicial pronouncements in the country. ‘Cause of action’ means a bundle of essential facts, which it is necessary for the party seeking relief to prove if traversed by the opposite party, in order to secure the relief prayed for. Therefore, if the petitioner is able to show that at least one of such essential facts required to be proved to secure an order in his favour has arisen within the territory of this Court, this Court will have jurisdiction to entertain the writ petition.

9. The case of the petitioner is that the Union Government was not competent to promote respondent No. 2 without considering the case of the petitioner who holds the post of Head of Utilisation Research at the Forest Research Laboratory. Bangalore. The very basis for claiming relief in the writ petition is that the petitioner is the holder of the aforesaid post in Bangalore. If this fact was controverted by the respondents, the petitioner would have been required to prove that fact in order to secure the relief prayed for. If the petitioner fails to establish the fact that at the relevant time he was holding the above mentioned post at Bangalore, he will not be entitled to any relief in this writ petition. It is therefore, clear that the holding of the post of Head of Utilisation Research at the Forest Research Laboratory, Bangalore is an essential fact, which the petitioner is required to prove in order to secure relief in the writ petition. It is clear that the cause of action has partly arisen within the territory in respect of which this High Court exercises jurisdiction. We, therefore, overrule the preliminary objection raised by Sri Ramchandra Rao and hold that this Court has jurisdiction to entertain this writ Petition.

10. As regards the merits of the case, the principal contention of Sri S.K Venkataranga Iyengar, learned counsel for the petitioner, is that the “promotion” of respondent No. 2 to the post of Director of Biological Research at the Institute of Dehra Dun is violative of Article 16 of the Constitution, on the ground that the case of the petitioner who is senior to respondent No. 2 was not considered by the Union Government on the footing that the holder of the post of Head of Utilisation Research at the Forest Research Laboratory, Bangalore is not entitled to be considered for promotion to the post of Director of Biological Research. It may be stated that the holder of the post of Director of Biological Research gets an additional amount of Rs. 100/- per month in addition to the pay in the scale of Rs. 1300-60-1600. As already mentioned, the scale of pay of the post held by the petitioner is also Rs. 1300-60-1600.

11. In the counter-affidavit filed on behalf of the Union Government, it is stated that the holder of the post of Head of Utilisation Research Forest Research Laboratory Bangalore, is not entitled to be considered for appointment to the post of Director of Biological Research at the Institute at Dehra Dun as the only persons who can be considered for appointment to the post of Director of Biological Reserch are those holding the 7 posts of Senior Research Officers in the Selection Grade at the Institute at Dehra Dun. As the petitioner was not holding the post of Senior Research Officer in the Selection Grade, it is stated that the petitioner was not considered for appointment to the post of Director of Ecological Research. As reliance was placed in the counter affidavit filed on behalf of the Union Government on an order passed by the Union Government dated 9th July, 1963 and as the said order was not produced along with the counter affidavit, we requested Sri Ramachandra Rao appearing for the Union Government to make available a copy of the said order.

12. The relevant portion of the order contained in the letter addressed by Sri V.D Gangal. Deputy Secretary to the Government of India to the President. Forest Research Institute and Colleges. Dehra Dun is extracted below.

“…… …… …… …… …As a result of further re-organisation, the President has been pleased to decide as follows:—

(i) The seven permanent posts of Chief Research Officer (Rs. 1300-60-1600) are abolished and replaced by an equal number of permanent posts of Senior Research Officer in the selection grade of Rs. 1300-60-1600.

(ii) The seven posts of Senior Research Officer in the selection grade sanctioned vide (i) above, will be filed, subject to the provisions of the recruitment rules prescribed for such appointments, by Senior Research Officers (in the Senior Class I Scale) who held scientific and technical posts at the Institute and distinct from Forest Officers.

(iii) Of the seven selection grade posts of Senior Research Officer, one will be designated as Director of Forest Products Research and one as Director of Biological Research. The Director of Forest Products Research and the Director of Biological Research will be granted special pay of Rs. 100/- p.m (Rupees One hundred only per month) over and above their grade pay with effect from the date of issue of this letter

… … … … … … … …

(x) The post of Chief Research Officer, Forest Research Laboratory, Bangalore will be redesignated as Head of Utilisation Research Forest Research Laboratory. Bangalore ……………”

13. It is not disputed that in the year 1964 when respondent No. 2 was promoted to the post of Director of Biological Research, no rules were framed by the President under the proviso to Article 309 of the Constitution, regulating the appointment to the post of Director of Biological Research. Therefore, the appointment to the post of Director of Biological Research was governed by the executive order made by the Union Government under Article 73 of the Constitution, the relevant portion of which has been extracted above. The effect of the order of the Union Government dated 9th July, 1963 is that 7 posts of Chief Research Officers in the grade of Rs. 1300-60-1600 were abolished and replaced by an equal number of permanent posts of Senior Research Officers in the Selection Grade of Rs. 1300-60-1600. Respondent No. 2 who was already holding one of the 7 permanent posts of Chief Research Officers in the grade of Rs. 1300-60-1600 was continued as Senior Research Officer in the Selection Grade of Rs. 1300-60-1600. It is also clear from the aforesaid order of the Union Government that of the 7 selection grade posts of Senior Research Officers, one is designated as Director of Forest Products Research and one as Director of Biological Research. Though the holders of all the 7 posts of Senior Research Officers in the Selection Grade continue in the pay scale of Rs. 1300-60-1600, the holders of the posts of Director of Forest Products Research and the Director of Biological Research only are granted an additional special pay of Rs. 100/- per month. Though in some correspondence and orders, the appointment to the post of Director of Biological Research is described as a promotion from the post of Senior Research Officer in the Selection Grade, the order of the Union Government referred to above makes it clear that the post of Director of Biological Research and the Director of Forest Products Research are not promotional posts from the cadre of Senior Research Officers. A special pay of Rs. 100/- per month is payable to any one of the 7 Senior Research Officers in the Selection Grade who is ordered to hold the post of Director of Forest Products or the post of Director of Biological Research. The legal effect of the order of the Union Government dated 9th July 1963 is not to constitute the post of Director of Biological Research as a promotional post. As the post of Director of Biological Research in the year 1964 when respondent No. 2 was appointed to the said post, was not a promotional vast, the question of the case of the petitioner not being considered for promotion to the said post does not arise. Besides, it is clear from the order of the Union Government dated 9th July, 1963 that the Special Pay of Rs. 100/- is available only to the Senior Research Officer at the Institute who holds the post of Director of Biological Research. As the petitioner is admittedly not the holder of any one of the 7 posts of Senior Research Officers in the Institute, he is not entitled to claim that he should be considered for the appointment to the post of Director of Biological Research and paid a special pay of Rs. 100/- per month. The entire case of the petitioner has been constructed on the assumption that the post of Director of Biological Research is a promotional post from the cadre of Senior Research Officers in the Selection Grade and that the petitioner being holder of a post equivalent to the post of Senior Research Officer, he is entitled to be considered for promotion to the post of Director of Biological Research. As the basic assaumption is proved to be wrong, the petitioner is not entitled to any relief. The petitioner's prayer for a direction to amend the Forest Research Institute and Colleges (Class I and Class II non-tenure posts) Recruitment Rules, 1966, is misconceived inasmuch as no such direction can be issued to the President to amend the rules framed by him in exercise of his powers under the proviso to Article 309 of the Constitution. The question of considering the effect of those rules also does not arise in this case, inasmuch as the impugned appointment of Respondent No. 2 was made in the year 1964, long prior to the framing of the aforesaid rules.

15. For the reasons stated above, this Writ Petition fails and the same is dismissed.

Petition dismissed.

Dr. P.S Rao, v. The Union Government And Others,

Judgment Summary — Extracted from the provided opinion (Malimath, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (as presented)

Union Government's Arguments (as presented)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Dr. P.S Rao, v. The Union Government And Others,

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