9911796707
TMI Blog1969 (5) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... r Singh, respectively, and the other seven appeals (LPA Nos. 374 to 380 of 1968) are directed against another judgment, dated March, 28, 1968, of the same learned Judge, by which he allowed writ-petitions 647, 1886, 136, 507, 506, 134 and 515 of 1967 made by Jagdish Singh, R.R. Bhanot, Surat Singh, Shamsher Singh, Bakhtawar Singh, Jodh Singh and Kartar Singh Kang, respectively, under Articles 226/227 of the Constitution. Letters Patent Appeal 340 of 1968 is directed against the judgment, dated March 21, 1968, and Letters Patent Appeals 502 and 511 of 1968 are directed against the orders, dated July, 26, 1968, of the same learned Single Judge, by which he allowed writ petitions 2574 of 1966, 1337 of 1967 and 878 of 1967, made by Sarmukh Singh, Gurcharan Singh Bhamra and Gurbux Singh Bhamra. 3. The respondents in the first bunch of appeals were promoted and appointed on officiating basis as Sub-Divisional Officers in the Punjab Public Works Department (Buildings and Roads Branch) on various dates from March 1, 1956 to January 9, 1963. Excepting the names and dates of their promotion, the other material facts in all these 13 appeals are identical. 4. Before his promotion, Dev Dutt r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the 1942 Rules. 7. The 1942 Rules were published on March 11, 1942, in the Punjab Government Gazette. They were framed by the Governor of Punjab in exercise of his powers under section 241 of the Government of India Act, 1935, for 'regulating recruitment to the Punjab Service of Engineers (Buildings and Roads Branch) and prescribing conditions of service of persons appointed thereto'. Rule 3 says:-- "In these rules unless there is anything repugnant in the subject or context,-- (a) "apprentice engineer" means a qualified person selected for practical training after consultation with the Commission; (b) "Assistant Executive Engineer" means all officers in the Service of rank lower than that of Executive Engineer; (c) "direct appointment" means an appointment made other-wise than by promotion in the Service or transfer of an official already in the service of the Crown; (d) "division" means a charge in the department extending over one or more civil districts normally held by an Executive Engineer; (e) "engineering subordinate" means a Sub-Engineer, Upper Subordinate or Overseer of the Subordinate En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination or such other test as the Commission may prescribe for appointment to the Service; and (e) ......". 10. Rule 6 deals with the method of appointment. It provides:-- "Subject to the provisions of Rules 4 and 5, appointment to the Service shall be made.....after consultation with the Commission, by any of the following methods:-- (1) by direct appointment in India in accordance with Rule 7; (2) from officers belonging to the old service and engineering subordinates, in accordance with Rule 8; (3) from apprentice engineers.....; (4) from temporary engineers.....; (5) ...... (6) ...... Provided that-- (a) no officer belonging to the old service, no engineering subordinate and no apprentice engineer or temporary engineer shall be appointed to the Service unless he has been declared by the Chief Engineer to be fit for such appointment; and (b) appointment to the Service of officers belonging to the old service, or of engineering subordinates or of apprentice engineers or temporary engineers shall be made by selection and no such officer, subordinate, apprentice engineer or temporary engineer shall be entitled to such appointment as of right.&q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post if recruited otherwise, or may extend his period of probation by such period as it may deem fit, and on the expiry of such extended period of probation may pass such orders as it could have passed on the expiry of the first period of probation, provided the total period of probation shall not exceed three years. (4) Government shall not be bound to assign any reason for terminating an officer's appointment under this rule." 14. Rule 14 says that no Assistant Executive Engineer shall be promoted to the substantive rank of Executive Engineer unless he is declared by the Government to be fit for the charge of a division, etc. 15. Rule 15(4) provides that members of the Service--other than those holding the posts of the Chief Engineer and Superintending Engineer, specified in sub-rules (1), (2) and (3)--shall be entitled to pay at the ordinary rates shown in Appendix D. There is a proviso to this rule, which says:-- "Provided that-- (a) pay on the junior scale shall be drawn by a member holding charge of less importance than a division; (b) except as provided in clause (e) below, an officer holding a charge of not less importance than a division shall draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es "Service" as 'Punjab Service of Engineers, Class I, P.W.D. (Buildings and Roads Branch)'. 21. Rule 3 describes the strength of the Service. Rule 3(2) defines a 'cadre post' as a permanent post in the Service. 22. Rule 5 provides that recruitment to the Service shall be made by any one or more of the following methods:-- (a) by direct appointment. (b) by transfer of an officer already in the service of a State Government, or of the Union; (c) by promotion from Class II Service. 23. Sub-rule (2) of Rule 5 lays down that recruitment to the Service shall be so regulated that the number of posts filled by promotion from Class II Service shall not exceed fifty per cent of the number of posts in the Service, excluding the posts of Assistant Executive Engineers. There is a proviso to this sub-rule, which says that till such time as an adequate number of Assistant Executive Engineers, who are eligible and considered fit for promotion, are available, the actual percentage of officers promoted from Class II Service may be larger than fifty per cent. 24. By a Notification, dated the 11th February, 1965, the Governor of Punjab, in exercise of his powers un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he list so prepared shall be forwarded to the Commission by the Government. The Commission may make changes in the list and forward the list it considers suitable, to the State Government. Appointment to the Service shall be made by Government from the list in the order in which names have been placed by the Commission. 29. The material part of Appendix 'G', referred to in Rule 3, reads-- "Appendix 'G' (See Rule 3). 1. On the date of commencement of these rules, the Service shall comprise of:-- (a) Officers who are holding the posts of Assistant Engineers in a substantive capacity in Class II Service, as it existed immediately before the commencement of these rules (hereinafter referred to as the existing Class II Service); (b) Officers who are not holding the posts of Assistant Engineers in a substantive capacity but who were selected by direct recruitment with the approval of the Commission for the post of Temporary Assistant Engineers; and (c) Officers who are not holding the posts of Assistant Engineers in a substantive capacity but who were selected, with the approval of the Commission, from the members of P.W.D. (B. & R.) Sectional Officers (En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents pleaded in his writ-petition that he was holding the rank of Assistant Executive Engineer in any capacity. The learned Single Judge has, however, held that the definition of 'Assistant Executive Engineer' given in Rule 3(b) of the 1942 Rules, apparently includes 'Sub-Divisional Engineers'. The learned counsel appearing for the appellant-State has assailed the correctness of that interpretation. It is emphasised that the learned Single Judge has overlooked the significance of the words 'in the Service' appearing in that definition. The correct meaning of these words, says the counsel, is to be found in Rule 4, which makes it clear that there is no rank or grade in the Service below that of an Assistant Executive Engineer. It is maintained that such Sub-Divisional Officers, who were not Assistant Executive Engineers, were not members of the Service to which the 1942 Rules applied. 32. There appears to be a good deal of force in the contention of the learned counsel for the appellant-State. The definition of 'Assistant Executive Engineer' given in Rule 3(b) will bear repetition. It reads:-- "'Assistant Executive Engineer' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese Rules. Again, the cadre of this superior service comprised 38 posts, in all. 35. There are two other circumstances which strengthen the conclusion that the 1942 Rules did not govern the case of the respondents. The first is that the junior-scale in the Service, as given in Appendix 'D' was ₹ 300--25--700, while the respondents were appointed officiating Sub-Divisional Officers in the scale of ₹ 250--25--750. The second is that the 1942 Rules were expressly repealed by Rule 24 of the 1960 Rules in toto. The re-enacted 1960 Rules apparently did not apply to the respondent-petitioners, who could not, by any reckoning, be called members of Class I Service. 1960 Rules gave a statutory definition of Class II Service. Though this definition is not very specific, there is a clear indication in it that Class II Service included Assistant Engineers, i.e., officers lower in rank than Assistant Executive Engineers. The language of Rule 24 of 1960 Rules, particularly its proviso, indicates that these Rules are at once repealing and re-enacting provisions, governing the recruitment and conditions of the same Service to which 1942 Rules were applicable. While the definiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certainly a hard one. However, for the purpose of the law point involved, that will not make any difference, because, as already held, the 1942 Rules did not govern the case of any of the respondents in any of the three categories. 40. The question is, whether, in such a situation, the respondents were entitled to the protection of Article 311(2) of the Constitution. This will further resolve itself into the issue: whether the reversion of the respondents to their substantive rank of Overseer/Draftsman amounts to a "reduction in rank" within the contemplation of Article 311(2) of the Constitution. It was pointed out by their Lordships of the Supreme Court in Parshotam Lal Dhingra v. Union of India, 1958 S.C.R. 828, that two tests should be invoked for determination of this issue. They are:-- (1) Whether the Government servant had a right to hold the post or the rank, and (2) whether he had been visited with evil consequences. If either of these tests is satisfied, it must be held that the Government servant has been punished and his reversion amounts to reduction in rank within the purview of Article 311 of the Constitution. 41. Applying the first test to the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge of a probationer or reversion of an officiating Government servant to his substantive rank merely on the ground of unsatisfactory work or unfitness for the higher post, in accordance with the terms and conditions of his service, never amounts to a punishment. It is emphasised that in the present cases, after the enforcement of Class II, 1965 Rules on February 19, 1965, applicable to the respondent-petitioners, the latter could be retained or absorbed permanently in Class II Service, only on the recommendation of the screening committee and the State Public Service Commission in accordance with Rule 9, read with paragraphs 1(d) and 2 of Appendix 'G'. It is added that, consequently, the Government consulted the State Public Service Commission, who advised that the respondent-petitioners were not suitable for absorption in Class II Service. The impugned order simply shows that the respondent-petitioners have been reverted in accordance with the contract of their service. Stress is laid on the fact that in the absence of any statutory rules to the contrary, the very employment of a person in an officiating capacity implies that he will be confirmed or retained only if, afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the argument of Mr. Sen that the order of reversion is punitive in character and that the procedure of Article 311(2) of the Constitution is applicable to this case. In the order of reversion, dated May 22, 1964, there is nothing to show that a stigma was attached to the respondent. No reference is made to the imputation on the integrity of the respondent and the only reason given is that the respondent was found unsuitable to hold the post of Income-tax Officer, Class II. It is well-established that a Government servant who is officiating in a post has no right to hold it for all time and the Government servant who is given an officiating post holds it on the implied term that he will have to be reverted if his work was found unsuitable. In a case of this description a reversion on the ground of unsuitability is an action in accordance with the terms on which the officiating post is held and not a reduction in rank by way of punishment to which Article 311 of the Constitution could be attracted....." 46. The principle enunciated by the Supreme Court in R.S. Dhaba's case 1969 Cur. L.J. 461 is fully applicable to the facts of the cases before us. The recital in the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officiating post was being held and is not a reduction in rank by way of punishment. It was further observed that the departmental enquiry held in that case did not prove that the respondent was reverted by way of punishment, because the Government had the right to consider the suitability of the respondent to the post, to which he had been appointed to officiate. 49. The facts of the instant cases are similar to that of R.S. Dhaba's case 1969 Cur. L.J. 461, In the present cases also, the respondent-petitioners were appointed to officiate as Sub-Divisional Officers on the understanding that if they were found unsuitable for the higher post, they would revert to their substantive rank. Though at the time of their promotion as officiating Sub-Divisional Officers, they were not governed by the 1942 Rules or any other statutory rules on the subject, yet on the coming into force of the Class II, 1965 Rules, the question at once arose of their permanent absorption in Class II Service, as constituted under those Rules. Obviously, thereupon, the Government, in accordance with paragraphs 1(d) and 2 of Appendix 'G', read with Rule 9 of Class II 1965 Rules, consulted the Public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondent no rule like Rule 55-B as in Ram Narayan Das's case A.I.R. 1961 S.C. 177 has any application. The letter written by the Labour Commissioner to the respondent asking him to explain his conduct was not pursuant to any such rule. It was withdrawn without any probe into the allegations made in it. Its effect was then reproduced in the order terminating the service of the respondent when it said that his work and conduct were not found satisfactory, thus justifying termination of his service. Now, anybody reading this order of termination of the service of the respondent would reach the immediate conclusion that the respondent is not a person who is entitled to employment, because not only his work but his conduct also was not found satisfactory. This attaches a stigma to him and casts an aspersion against his capacity for work as also against his conduct. This case would have come within the ratio of Ram Narayan Das's case A.I.R. 1961 S.C. 177, but for the fact that the latter case proceeded under rule 55-B of the Civil Service (Classification, Control and Appeal) Rules, and no such rule is applicable in the present case, a distinction which was drawn by their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngle Judge of this Court on the ground that the order of his reversion operated as a punishment and as it was passed without complying with the provisions of Article 311(2) of the Constitution, it could not be sustained. The State went in appeal. After discussing the case-law on the point, D.K. Mahajan, J., speaking for the Letters Patent Bench, laid down the law on the point as follows:-- "A person officiating in higher rank has no right to that post. He can be reverted from it without assigning any reason ......if the reversion is not by way of punishment but because the person reverted is not found suitable to hold the post, per se it will not amount to punishment though a stigma does attach by reason of the reversion that he was found unfit to hold a higher post. In each case, one has to look into the totality of circumstances leading to reversion in order to determine whether the order of reversion has been passed by way of punishment or otherwise." 53. I am in respectful agreement with the above observations. Indeed, we are bound by that decision. 54. From a conspectus of the cases cited at the bar or discussed above, it can safely be deduced that an order, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot;incorrigible", which will have the effect of permanently debarring him from employment or future promotion, it will be a punitive order. Such was the case in Jagdish Mitter v. Union of India A.I.R. 1964 S.C. 449. 57. It is not the respondents' case that the impugned order is a disciplinary action taken consequent upon any formal departmental enquiry into charges of corruption, misconduct, etc. It is a simple administrative order purporting to be in accord not only with the requirements of Class II 1965 Rules, but also with the implied term of their officiating employment, viz., that they would be reverted to their substantive rank in case they were found unsuitable for holding the higher post. Thus, the second test also goes against the respondent-petitioners and the conclusion is inescapable that their reversion to their original rank did not amount to reduction in rank and consequently Article 311(2) of the Constitution was not attracted. 58. It is further contended on behalf of the respondents that the requirements of Rule 9 of the Class II, 1965 Rules were not complied with inasmuch as no Committee contemplated by that rule to do preliminary screening and for pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the successor States. The question is: whether the impugned orders remained ineffective and still-born by reason of their not having been communicated to the respondents before 1st November, 1966. Though this point had not been raised before the learned Single Judge, yet, as it was purely a question of law apparent on the face of the record requiring no additional material for its determination, we allowed the learned counsel on both sides to address arguments on this point. 63. On the authority of a Division Bench judgment of this Court in The State of Punjab and another v. Resham Singh and others L.P.A. 198 of 1968 decided on 5th September, 1968, which, in turn, followed the decision of the Supreme Court in Bachhittar Singh v. State of Punjab and another A.I.R. 1963 S.C. 395, and State of Punjab v. Amar Singh Harike A.I.R. 1966 S.C. 1313, the learned counsel for the respondents has contended that the answer to this question must be in the affirmative. 64. Mr. B.S. Dhillon, the learned Advocate-General for the appellant-State contends that the answer to this question must be in the negative; that Resham Singh's case L.P.A. 198 of 1968 decided on 5th September, 1968 nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the appointed day in the existing State of Punjab in the territories of the successor States. Even if Section 88 of the 1966 Act were not there, all the laws prevailing before the appointed day in the former Punjab would continue to be in force in the territories of the successor State-, unless repealed by the competent Legislature. It is stressed that in any case, Section 24 of the General Clauses Act will not apply, because the laws which are alleged to have been repealed were not Central Laws or regulations but were mostly State Acts; that on parity of reasoning, Section 22 of the Punjab General Clauses Act, 1898; will not be applicable, because the repealing and re-enacting Act is a Central Act passed by Parliament and not a Punjab Act. 67. It is further canvassed on behalf of the respondents that Sections 89 and 90 cannot be invoked for the simple reason that the impugned orders were purely administrative orders and did not fall within the definition of 'law' given in 1966 Act. 68. Before dealing with the rival contentions, it will be useful to notice here briefly the relevant provisions of the 1966 Act. The material provisions of the 1966 Act are:-- "88 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith contained in any other law." 69. Section 96 gives the President the power to remove difficulties in giving effect to the provisions of that Act. 70. Section 97 gives the Central Government power to make rules to give effect to the provisions of that Act. 71. For determining whether the 1966 Act, particularly its Section 88, is a repealing and re-enacting provision within the meaning of Section 24 of the (Central) General Clauses Act (corresponding to Section 22 of the Punjab General Clauses Act), the test to be applied is, whether all the laws in force in the territories of the former State of Punjab immediately before the appointed day stood automatically repealed or abrogated but for the provision made in Section 83 of the 1966 Act. It appears to me that the result of this test would be in the negative. Section 88 appears to have been introduced as a matter of abundant caution. In my opinion, mere splitting up of the territories of Punjab into four successor States would not ipso facto result in the abrogation or repeal of the laws which were immediately in force before the appointed day in those territories. There is nothing in the 1966 Act, not even in Section 88, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1963 S.C. 222 may be noted. The new State of Pepsu came into existence on August 20, 1948, as provided under the Covenant. The Ruler of Patiala became its Raj Pramukh and on the same date he promulgated an Ordinance No. 1 of 2005 (Bk) which provided inter alia that "all Laws in force in the State of Patiala on that date shall apply mutatis mutandis to the territories of the said State and with effect from that date all laws in force in such Covenanting State immediately before that date shall be repealed". By force of this Ordinance, the impugned Act became the law of the Pepsu Union. Under Article X of the Covenant, this Ordinance would have expired on February 20, 1949, and so on February 15, 1949, the Raj Pramukh promulgated another Ordinance No. 16 of 2005 (Bk) in terms similar to the Ordinance No. 1 of 2005. 74. Article X of the Covenant provided that the Ordinances to be promulgated by the Raj Pramukh were to be in force for a period of only six months. It was expected that the Constituent Assembly would in the meantime be convened and a regular Constitution drawn up. But that did not materialise and so on April 9, 1949, all the Rulers met again and drew up a Supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to a right which arose independent of, and was affirmed in the Covenant, and, therefore, Article 363 had no application. That is not the position here. The liability of the appellants to pay to the Bank the amounts determined in accordance with the impugned Act is one which arises de hors the Covenant, and it is sought to be got rid of only by recourse to Article X. The dispute is, therefore, one arising directly on a provision in the Covenant, and Article 363, will apply. "But even if the appellants are right in their contention that Ordinances 1 and 16 of 2005 (Bk), ceased to be in operation after the expiry of six months from the date of their promulgation, they can derive no advantage from it, because what those Ordinances did was to extend the operation of all Patiala laws to the territories which had formed part of the other Covenanting States. So far as the territories of the erstwhile State of Patiala are concerned, its laws continued to be in force proprio vigore and not by force of Ordinances 1 or 16 of 2005 (Bk). Therefore, even if the Ordinances lapsed on August 20, 1949, as contended for the appellants, that would not affect their liability under the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibid, relied upon by the learned Advocate-General, is of no assistance. There, the draft of the proposed Prevention of Food Adulteration Rules was published by the State Government of Bombay when the city of Ahmedabad was also a part of the State of Bombay. After bifurcation of the State of Bombay into the two States of Maharashtra and Gujrat, the State Government of Gujrat made and published the Prevention of Food Adulteration Rules without changing the substance of the rules published in the draft by the then State Government to which the State Government of Gujrat was, in essence, the successor in relation to the territory comprised in that State. Chimanlal respondent in that case was prosecuted for an offence under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954. The City Magistrate acquitted him on the ground that the Gujrat Prevention of Food Adulteration Rules, 1961 were not valid as they were not previously published as required by Section 24 of the said Act, and that the publication of the draft rules by the former Government of Bombay before bifurcation could not be considered to be a compliance with the requirement of prior publication. In revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by the State of Punjab against that judgments, dated March 25, 1968 and March 21, 1968, respectively, of the learned Single Judge, by which he accepted Writ Petitions 66 of 1967 and 176 of 1967 filed by Bhagwan Singh Chawla and Sushil Kumar Khullar, respectively. The only factual difference between the cases of these respondents and the 13 respondents in the first bunch of appeals, is, that these two were directly appointed as temporary Assistant Engineers in the Public Works Department (Buildings and Roads Branch), Punjab, on terms and conditions contained in the communication, dated May, 12, 1960 (Annexure 'A' to Writ Petition 176 of 1967). Its material part reads as follows:-- "...... I am directed by the Governor of Punjab to offer you (the post of Temporary Assistant Engineer in the Punjab, P.W.D., B. & R., Branch), on the following terms/conditions:-- 1. Tenure of post:-- (i) The appointment will be temporary. (ii) The service will be terminable by one month's/three months' notice in writing by Government to you/you to Government. Should Government desire to terminate your services/you leave service, without notices, Government/you will have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een pressed before the learned Single Judge was, that in matters of appointment they were governed by the 1942 Rules, and on the completion of the maximum period of 3 years' probation fixed by Rule 12 of those Rules, they automatically became permanent members of Punjab Service of Engineers, B. & R. Accepting this contention, the learned Single Judge allowed the petitions and quashed the impugned orders. Hence these L.P. As by the State of Punjab. 85. The points canvassed before us in these appeals are also the same which have been discussed above in the first bunch of 13 appeals. The reasons given in the foregoing part of this judgment will, therefore, apply mutatis mutandis to the cases of these respondents, also, in these appeals. In these cases also, the impugned orders terminating the services of Sushil Kumar Khullar and Bhagwan Singh Chawla were passed on October 28, 1966, but were communicated to them on or after 1st November, 1966. Though we have reversed the finding of the learned Single Judge with regard to the applicability of the 1942 Rules to the cases of the respondents, yet on the ground, that the impugned orders not having been communicated before 1st November, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
