1963 (9) TMI 52 - SC - Indian Laws

Court Rules Lack of Vacancies Invalidates Tahsildars' Confirmations

The Court held that the respondents were never validly confirmed as Tahsildars due to the lack of substantive vacancies at the time of confirmation. The ... Notification made by the Government of Punjab on October 31, 1957 'de-confirming' the petitioners from permanent posts of Tahsildars and according to them the rank of officiating Tehsildars challenged Held that:- We have already held that the respondents could not be validly confirmed as Tahsildars by the Financial Commissioner of PEPSU. Therefore, even though upon their allocation to the State of Punjab as from November 1, 1956, they were shown as confirmed Tahsildars, they could not in law be regarded as holding that status. Legally their status was only that of officiating Tahsildars. The notification in question in effect recognises only this as their status and cannot be said to have the effect of reducing them in rank by reason merely of correcting an earlier error. Article 311(2) does not, therefore, come into the picture at all. As found in s. 116 of the States Re-organization Act, 1956, sub-section (1) thereof deals with the continuance of an officer in the same post. Sub-section (2), however, provides that nothing in the section shall be deemed to prevent a competent authority after the appointed day from passing in relation to any such person any order affecting his continuance in such post or office. This provision is thus wide enough to empower the successor Government, which would be the competent authority under the Act, to make the kind of notification with which we are concerned in this case. For all these reasons we hold that the high Court was in error in granting the writ petition to the respondents. Appeal allowed. Issues Involved:1. Validity of the confirmation of Tahsildars by the PEPSU Government.2. Applicability of Article 311(2) of the Constitution concerning reduction in rank.3. Competence of the Punjab Government to rectify the PEPSU Government's alleged mistake.Detailed Analysis:1. Validity of the Confirmation of Tahsildars by the PEPSU Government:The respondents were officiating Tahsildars in the erstwhile State of PEPSU and were confirmed as Tahsildars by the Financial Commissioner on October 23, 1956. However, no substantive vacancies were available at that time. Consequently, on October 24, 1956, the Rajpramukh of PEPSU created seven supernumerary posts to provide liens for the confirmed Tahsildars. The State of PEPSU merged with the State of Punjab on November 1, 1956. On October 31, 1957, the Government of Punjab issued a notification 'de-confirming' the Tahsildars, effectively canceling their confirmation.The respondents challenged this action on the grounds that it amounted to a reduction in rank without compliance with Article 311(2) of the Constitution and that their status as permanent Tahsildars in PEPSU could not be altered by the successor Government.The Court held that the respondents were never validly confirmed as Tahsildars because there were no substantive vacancies at the time of their confirmation. The Financial Commissioner lacked the authority to create posts, and the creation of supernumerary posts by the Rajpramukh the next day did not validate the initial confirmation. Therefore, the order of confirmation had no legal foundation, rendering the respondents' status as permanent Tahsildars invalid.2. Applicability of Article 311(2) of the Constitution Concerning Reduction in Rank:The respondents argued that the 'de-confirmation' amounted to a reduction in rank, which could not be done without complying with Article 311(2) of the Constitution. The Court, however, found that since the respondents were never validly confirmed, their status was always that of officiating Tahsildars. The notification merely corrected an earlier error and did not constitute a reduction in rank by way of punishment. Therefore, Article 311(2) was not applicable.Justice Subba Rao dissented, arguing that the respondents were lawfully confirmed and that their reduction in rank without compliance with Article 311(2) was invalid. He emphasized that Article 311(2) applies regardless of whether the reduction in rank is related to misconduct, as it aims to provide a reasonable opportunity to the affected government servant.3. Competence of the Punjab Government to Rectify the PEPSU Government's Alleged Mistake:The Punjab Government contended that it was within its rights to rectify the mistake made by the PEPSU Government. The Court agreed, citing Section 116 of the States Re-organization Act, 1956, which empowers the successor Government to pass orders affecting the continuance of any person in their post. This provision allowed the Punjab Government to issue the notification 'de-confirming' the Tahsildars.Justice Subba Rao, however, disagreed, stating that the respondents were duly confirmed by the PEPSU Government and that the Punjab Government could not reduce their rank without following the prescribed procedures and constitutional provisions.Conclusion:The majority judgment held that the respondents were never validly confirmed as Tahsildars, and the Punjab Government's notification correcting this error did not amount to a reduction in rank under Article 311(2). Consequently, the appeals were allowed, and the writ petitions were dismissed.Justice Subba Rao's dissenting opinion held that the respondents were lawfully confirmed and that their reduction in rank without compliance with Article 311(2) was invalid. He would have dismissed the appeals and upheld the High Court's decision granting the writ petitions.