TaxTMI 
TaxTMI 
1963 (9) TMI 52
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....peals preferred against his Judgment were dismissed summarily by a Division Bench of the Punjab High Court. The State of Punjab has come up before us by special leave against the decisions in all the four writ petitions and we have heard the appeals preferred by it together. This judgment will govern all these appeals. The respondents were officiating Tahsildars in the erstwhile State of PEPSU. By notification No. RD/Est. 74 dated October 23, 1956 made by the Financial Commissioner, seven officiating Tahsildars, including the four respondents before us, were confirmed as Tahsildars with immediate effect. No posts were, however, available at -that time in which the respondents could be confirmed. On October 24, 1956 the Rajpramukh of PEPSU sanctioned the creation of seven supernumerary posts of Tahsildars to provide liens for the Tahsildars who had been confirmed under the notification of October 23, 1956. While .sanctioning these posts Rajpramukh ordered that the supernumerary posts will be reduced as and when permanent vacancies arose and that no pay will be drawn .against these posts. On November 1, 1956 the State of PEPSU was merged with the State of Punjab by virtue of the oper....
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....e a notification "de-confirming" the seven Tahsildars who were confirmed by the Financial Commissioner, PEPSU on October 23, 1956. What the Government of Punjab evidently meant by "de-confirming" was that the order of confirmation be treated as cancelled The respondents challenged before the High Court the action taken by the Government of Punjab on two grounds. In the first place they said that the action of the Government amounted to a reduction in rank and, therefore, it could not be taken without compliance with the requirements of Art. 311(2) of the Constitution. The second ground was that by virtue of the States re-organization, the respondents who held the status of permanent Tahsildars in the State of PEPSU could not be deprived of it by the successor Government. Both the contentions were accepted by Mehr Singh J. The learned Advocate-General of Punjab challenges the view taken by the learned judge on both the points and further contends that it is always open to the Government to abolish posts and that if the Government abolished the supernumerary posts its action was not justiciable and could not be challenged in a petition under Art. 226. In view of our conclusi....
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....at for providing for lien for the seven Tahsildars who were confirmed by the Financial Commissioner on October 23, 1956 the Rajpramukh realised that new posts had to be created and, therefore, created seven supernumerary posts the very next day. Had there been any substantive vacancies, actual or anticipated, there would have been no occaSion to create supernumerary posts. In the circumstances, therefore, only on- conclusion must follow and that is that order of the Financial Commissioner had no legal foundation, there being no vacancies in which the confirmations could take place. The order of the Financial Commissioner dated October 3, 1956 confirming, the respondents as permanent Tahsildars must therefore, be held to be wholly valid. It was, however, argued before us that the order of the Rajpramukh dated October 24, 1956 and the order of the Financial Commissioner dated October 23, 1956 should be read as complementary to each other and that though the- confirmation of the respondents preceded the creation of supernumerary posts we should infer that the Government of PEPSU intended that the respondents should be confirmed in accordance with law. No such ground has been urged ....
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....t has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status. No doubt, the Government has used the expression "de-confirming" in its notification which may be susceptible of the meaning that it purported to undo an act which was therefore valid. We must, however, interpret the expression in the light of actual facts which led up to the notification. These. facts clearly show that the so-called confirmation by the Financial Commissioner of PEPSU was no confirmation at all and was thus invalid. In view of this, the notification of October 31, 1957 could be interpreted to mean that the Government did not accept the validity of the confirmation of the respondents and other persons who were confirmed as Tahsildars by the Financial Commissioner, PEPSU. It was next contended that the respondents were in fact confirmed Tahsildars of the State of Punjab on November 1, 1956, having lien on their posts and that by virtue of the Government notification de-....
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....for the reason that the reduction in rank contemplated by Art. 311(2) was one by way of punishment, which. in its turn implied some conduct on the part of the officer which led to the reduction. Prima facia this view appears to be correct and to accord with the effect of the decision of this Court in Dhingra's case ([1958] S.C.R. 828). However, in the present appeals we are not called upon to express a definite opinion on this aspect of the matter. It was contended on behalf of the respondents that the Punjab Government was incompetent to rectify a mistake made by the Government of PEPSU or the Financial Commissioner of PEPSU. The answer to this is to be 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 notific....
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....for the reason that the previous order was contrary to the rules. And (3) assuming that the earlier order was good it is always open to the Government to abolish the posts and such an action is not Justiciable under Art. 226 of the Constitution, as it does not violate any statutory provision. As I am holding in favour of the respondents on the first two points, it is not necessary to express my view on the third point. The first question turns upon the validity of the orders may by the Pepsu Government confirming the respondents -is Talisildars. As the argument turns upon the relevant orders, it would be convenient to read the material parts of the said orders: Notification No. RD/Est.-74 dated the 23rd October, 1956. The following officiating Tahsildars are confirmed with immediate effect: (The names of the respondents and others are given.) sd.................... Financial Commissioner. Letter from the Deputy Secretary to Government to the Commissioner Pepsu, Patiala, dated the 24th October, 1956. RD 18(193) E/56 To The Commissioner Pepsu, Patiala. Sir, I am directed to convey sanction of His Highness the Rajpramukh to the creation of seven supernumerar....
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....r, it would be impossible to contend that the order of confirmation made on October 23, 1956 was bad. But what prevents the Government in order to get over a technical difficulty to make an order creating supernumerary posts to take effect earlier than that on which the said order was made? Indeed the said order in express terms refers to the earlier order of the Commissioner. It says that the supernumerary posts were created to provide liens for the Tahsildars confirmed on October 23, 1956. This order, therefore, fills up the lacuna found in the earlier order and thus validates it. Assuming that the order passed by the Government on October 23, 1956, could not be given retrospective effect, the result could not be different. The order of the Commissioner would take effect from October 24, 1956. The Commissioner was admittedly the appointing authority. He confirmed the respondents, but his order could not take effect for want of permanent vacancies. The Government by creating supernumerary posts made the order effective. In one view the order would take effect from October 23, 1-956 and in another view, it would take effect from October 24, 1956 : in either view it was a valid o....
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....ich are not there. Conduct of a party is certainly relevant to punishment. Ordinarily parliament is meted out for misconduct. If there was no misconduct, there could not be a punishment. Punish- ment is, therefore, correlated to misconduct both in its positive and negative aspects; that is to say, punishment could be sustained if there was misconduct and could Dot be meted out if there was no misconduct. The reasonable opportunity given to a Government servant enables him to establish that lie does not deserve the punishment because lie has not been guilty of misconduct. It is no doubt open to the Government to establish that the reduction of rank is not a punishment because the said Government servant has no right to a substantive rank and no evil consequences have flown from the reduction. If those two facts were established, Art. 311 would not apply, not because the punishment was not related to the conduct of the Government servant, but because it was not a punishment. The only question relevant, therefore. under Art. 311(2) is whether reduction in rank in a particular case is punishment or not. If that is punishment, the Government, in my view, obviously cannot take advanta....
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....ction proposed to be taken in regard to him. The argument of the learned Advocate-General is untenable for three reasons. By accepting it, we would be adding a third test, (ii) we would be introdu- cting an anomaly viz., a servant guilty of misconduct gets a preferential treatment, and (iii) we would be confusing the reason for punishment with punishment itself. Strong reliance is placed upon the judgment of a Division Bench of the Madras High Court in Devasahayam v. The State of Madras (I.L.R. [1958] Mad. 158) in respect of the contention that unless a reduction of rank is connected with the misconduct of a Government servant, Art. 311 of the Constitution cannot be invoked. In that case, the appellant as well as certain others was appointed by the Government of Madras as Assistant Commandant, Special Armed Police, Madras, in 1948 during the Hyderabad Action. When normal conditions were restored,' the Government passed an order in and by which it appointed the appellant and others who had been serving in the Special Armed Police, Madras, in posts in the Madras Police Service. In that order the appellant was shown as first in the list. After a lapse of more than 5 years, the Gov....