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1969 (5) TMI 62
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....on by Dev Dutt, Dasaundhi Ram and Balbir 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 identi....
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....it will be useful to notice the material provisions 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 Subordi....
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....te for direct appointment on the advice of the Commission passed such competitive 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....
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....h member in his appointment, or if his work has, in the opinion of Government, not been satisfactory, Government may dispense with his services if recruited direct, or revert him to his former 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 ....
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....ass II Officer is not available'. Sub-rule (2) of Rule 2 says that "Assistant Executive Engineer" means 'a member of the Service in the junior-scale of pay'. 20. Rule 2(14) defines "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 availabl....
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....re a list of officials suitable for promotion to the Service. The selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority. Sub-rule (8) says that the 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 Ass....
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....heir Service and not by way of punishment. 31. A comparative study of the 1942 Rules, 1960 Rules and Class II 1965 Rules would show that officiating Sub-Divisional Officers, not being Assistant Executive Engineers, were not governed by the 1942 Rules. None of 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....
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....ch, members of the Service, is not true. When these Rules were promulgated in 1942, Punjab was a vast province. There were a large number of Sub-Divisions in this P.W.D. Department. Only 11 of such posts were included in the Punjab Service of Engineers governed by these 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 Rs. 300--25--700, while the respondents were appointed officiating Sub-Divisional Officers in the scale of Rs. 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 Engineer....
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.... Union. It has not been shown that in PEPSU there were any statutory rules governing their conditions of service and appointments as Sub-Divisional Officers. On the date of the impugned orders they had put in more than ten years service as officiating Sub-Divisional Officers. Their case is 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) ....
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....89, Jagdish Mitter v. The Union of India, A.I.R. 1964 S.C. 449, State of Punjab v. Darshan Singh, 1968 S.L.R. 734; and Shashi Bhushan Paul v. The State of Punjab, 1969 S.L.R. 221. 43. On the other hand, the learned Advocate-General appearing for the appellant State, contends that the discharge 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 res....
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.... largely influenced by the complaints against the respondent about his honesty, while coming to the conclusion that he was not suitable for the post of Income-tax Officer. This contention was repelled by their Lordships with these observations:-- "We are unable to accept 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 reducti....
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.... given an officiating post to test his suitability, to be made permanent later, holds it on the implied term that he would have to be reverted if he was found unsuitable. A reversion in such a case on the ground of unsuitability is an action in accordance with the terms on which the 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 ....
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....er discussing the effect of the Supreme Court decision in Ram Narayan Das's case A.I.R. 1961 S.C. 177, and Jagdish Mater's case A.I.R. 1964 S.C. 449, answered this question in the affirmative, in these terms: "It has been admitted on both sides in the present case that 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 w....
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.... was that the impugned order reverting Appar Apar Singh to his substantive rank was passed, because he was found unfit to hold the responsible post of the Principal of the College. Writ petition filed by Appar Apar Singh under Article 226 of the Constitution was allowed by a learned Single 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 o....
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....bid. 56. If the order of reversion of the officiating Government servant, overstepping the requirements of the terms and conditions of the employment, goes out of the way to indelibly brand or stigmatise the employee, using such epithets "undesirable", "dishonest", "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 ....
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....on which the former State of Punjab ceased to exist and four successor States of Punjab, Haryana, Union Territory of Chandigarh and the Transferred Territory came into being. With effect from 1st November, 1966, all the respondent-petitioners had been provisionally allocated 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 an....
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....consideration of this point by us. 66. In reply, it has been contended on behalf of the respondents that the 1956 Act cannot be said to be a repealing and re-enacting provision; that Section 88 of that Act simply ensures continuance of the laws which were in force immediately before 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 a....
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.... Court of Punjab in any law shall, unless the context otherwise requires, be construed, on and from the appointed day, as a reference to the High Court of Punjab and Haryana. 95. Effect of provisions of the Act inconsistent with other laws.--The provisions of this Act shall have effect notwithstanding anything inconsistent therewith 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 bee....
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....ention No. 1. which only is material for this discussion, was as follows:-- "The proceedings taken under the Act for determining the amount payable by the appellants and for recovering the same are illegal as the Act had ceased to be in force on the material dates." 73. A few more facts of Lachhman Dass's case A.I.R. 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 provide....
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....decision is to be found in the following observation: "There was no dispute arising out of the Covenant and what the Appellant was doing was merely to enforce his rights under the existing laws which continued in force until they were repealed by appropriate legislation." In other words the dispute related 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 t....
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....se L.P.A. 198 of 1968 decided on 5th September, 1968, ibid, have firmly established the rule that an administrative order takes effect from the date it is communicated to the person concerned or is otherwise publicised in the appropriate manner. 78. The decision in Manilal R. Pandya's case A.I.R. 1968 Gujrat 80, 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 F....
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....ondents or publicised in the appropriate manner before 1st November, 1966. On this short ground, the impugned orders stand annulled and the appeals fail. In view of the knotty law points involved, we would make no order as to costs. 81. The second bunch of appeals before us consists of L.P. As. 327 and 328 preferred 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/condit....