PETITIONER:
KRISHAN MURARI LAL SEHGAL
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT09/02/1977
BENCH:
GOSWAMI, P.K.
SHINGAL, P.N.
CITATION:
1977 AIR 1233 1977 SCR (2) 956
1977 SCC (2) 587
ACT
Constitution of India--Article 311(1), dismissal by a
person subordinate to appointing authority--States Reorgani-
sation Act, 1956--Sec. 115 (7), 116( 1 ) --Varying condi-
tions of service of an allocated Government servant to his
disadvantage--Effect of reorganisation--Different authority
in state before and after reorganisation--Patiala & East
Punjab States Union Civil Services (Punishment & Appeals)
Rules, 1953--Pepsu General Clauses Act--Sec. 2(41)--Meaning
of State Government--Punjab Financial Commissioner’s Office
(Slate Service Class III) Rules, 1957--Central Government
Circular dated 11-5-1957 issued under States Reorganisation
Act. 1956.
HEADNOTE
The appellant was appointed as a clerk in the Patiala
State in 1948. On the formation of the new State of Punjab
in 1956, the appellant was integrated in the service of the
new State of Punjab as permanent Assistant. The appellant
overstayed leave and. therefore, after holding an enquiry
the Financial Commissioner. Punjab dismissed him from serv-
ice in October, 1959. Appellant filed two suits, one for a
declaration that his dismissal order was void and illegal
second for arrears of salary on the basis that the dismissal
was illegal. The trial Court decreed both the suits. The
High Court in appeal reversed the decrees of the trial Court
and dismissed the suits.
In the appeals by certificate the appellant contended
that the appellant was confirmed in the State of Patiala by
the order of the Raj Pramukh. Before its integration he was
governed by the Patiala and East Punjab States Union Civil
Services (Punishment and Appeal) Rules 1953 which were made
in exercise of powers conferred by proviso to Art. 309 of
the Constitution. By a notification of the Punjab Govern-
ment dated 9-2-1957 the said 1953 Rules were made applicable
to the corresponding services from 1st November, 1956 on-
wards till further orders in the new State of Punjab. Under
the 1953 Rules, the State Government was the appropriate
authority for dismissing members of Class Iii and IV. Under
section 2(46) of the Pepsu General Clauses Act, 1953. State
Government means the Rat Pramukh. The appellant, therefore,
contended that he cannot be removed from service by any
authority subordinate to the Governor of Punjab and since
the Financial Commissioner is an authority subordinate to
the Governor. he was not competent to pass the order of
dismissal.
The respondent contended that the appointing authority
for the post held by the appellant in the State of Punjab is
the Financial Commissioner and, therefore. he is the appro-
priate authority under s. 116(1 ) of the States Reorganisa-
tion Act, 1956 to impose the penalty of dismissal. Second-
ly, in the present case the Punjab Financial Commissioner’s
Office (State Services Class III) Rules. 1957, apply.
Although the said rules are more disadvantageous to the
appellant since they have received the approval of the
Central Government by the General Circular dated 11-5-1957,
the appellant was rightly dismissed by the Financial Commis-
sioner.
Allowing the appeals.
HELD: 1. Section 116(1) merely provides that the appel-
lant shall continue to hold the same post in the new State
of Punjab and shall be deemed to have been duly appointed to
such post by the Government of Punjab. The fact that in the
new State .of Punjab the Financial Commissioner is the
appropriate authority for appointing Assistants is absolute-
ly irrelevant. Under s. 115(7) of the States Reorganisation
Act the conditions of service applicable to
957
a civil servant immediately before the appointed day cannot
be varied to his disadvantage except with the previous
approval of the Central Government. One of the condition of
service of the appellant on the appointed day was that since
he was appointed by the State Government of Pepsu he could
only be dismissed by the State Government of Pepsu if he had
continued there.
[961 H, 962 A]
2. The Memorandum of 11-5-1957 cannot be called in aid
as previous approval because the Punjab Financial Commis-
sioner’s Office Rules 1957 were promulgated on 28-2-1957
before the Circular dated 11-5-1957 was issued. No approval
of the Central Government has been produced. Therefore,
authority subordinate to the Governor of Punjab was not
competent to pass an order of dismissed of the appellant.
[962 D-E]
The Court set aside the judgment and decrees of the High
Court and restored those of the trial Court. [963 E]
Takhatray Shivdatray Mankad v. State of Gujarat [1970] (1)
SCR 244 and Bholanath J. Thaker v. The State of Saurashtra
AIR 1954 SC 680, followed.
N. Raghavendra Rao v. Deputy Commissioner, South Kamara,
Mangalore [1964] (7) SCR 549 and Mohammad Shujat Ali & Ors.
etc. v. Union of India & Ors. etc. [1975] (1) SCR 449,
distinguished.
Rajvi Amar Singh v. The State of Rajasthan, [1958] SCR 1013,
distinguished.
Mysore State and Road Transport Corporation etc. v.
Mirja Khasim Ali Beg & Anr. C. As. Nos. 1601-1609 and 2402-
2405 of 1968 dt. 1-12-1976 followed.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1298 and
1299 of 1969.
Appeal from the Judgment and Decree dated the 9th Au-
gust, 1966 of the Punjab and Haryana High Court in Regular
First Appeals Nos. 134 and 120 of 1963.
N.H. Hingorani for the Appellant.
O.P. Sharma for Respondent.
The Judgment of the Court was delivered
GOSWAMI, J.--These appeals are by certificate of the
High Court of Punjab and Haryana. Civil Appeal No. 1299 of
1969 is concerned with the appellant’s suit for declaration
of his dismissal order dated October 21, 1959, as void and
illegal. Civil Appeal No. 1298 of 1969 arises out of his
suit for arrears of salary. Both the matters were heard
together in the. High Court and the judgment out of which
Civil Appeal No. 1299 of 1969 arises is the principal judg-
ment following which a short order was passed by the High
Court dismissing the other suit of the appellant for arrears
of salary. The High Court granted certificates in both the
appeals. It will be sufficient to deal with Civil Appeal
No. 1299 of 1969 in this judgment as the decision therein
will govern the other appeal.
The facts may now be briefly stated:
The appellant who was the plaintiff in the court below
was appointed as a Clerk in the Patiala State some time in
July 1948. On the formation of the new State of Punjab on
November 1, 1956, with the
958
merger of the erstwhile Pepsu and Punjab States the appel-
lant was integrated in the service of the new State of
Punjab as permanent Assistant in the grade of Rs.
150--10---300/- and was actually getting Rs./70/- per month
on October 21, 1959, the date of his dismissal in the
office of the Financial Commissioner, Punjab.
The appellant instituted a suit in March 1962 challeng-
ing his order of dismissal dated October 21, 1959, as void
and unconstitutional praying for a declaration that he
continued to be in service of the Punjab State. In June
1962 he instituted a second suit as pauper claiming a
decree for about Rs. 8,689/- as arrears of his’ salary and
allowances and also a further decree for Rs. 278/12/- per
mensem from 5.6.1962 to 4.7.1962 and Rs. 290/- per mensem
from 5.7.1962 upto the date of the decree. Both the suits
were decreed by the trial court.
According to the plaint, the appellant, due to serious
illness of his mother, proceeded from Simla where he was
working to Patiala on casual leave on 8th July, 1958, with
the. sanction of the competent authority. He obtained
extension of leave on account of illness of his mother, wife
and daughter. Meanwhile the appellant himself became
seriously iII and prayed for leave from 1.11.1958 to
28.2.1959 0n the basis of a medical certificate granted by
Dr. Inder Singh Sodhi,, Retired Civil Surgeon, Pepsu, Patia-
la. The authorities declined to sanction the leave. The
appellant also. continued to be seriously ill and was unable
to attend his duties. When he. recovered he reported for
duty at Simla on March 2, 1959 and he was permitted to
resume his duty on furnishing. a certificate of fitness
granted by the aforesaid Retired Civil Surgeon.
On January 27, 1959, the appellant was served with a
chargesheet by the Financial Commissioner (Development)
Punjab asking him to show cause why he should not be
dismissed from Government service for his wilful absence
from duty after the expiry of the earned leave sanctioned to
him upto October 31, 1958, which was described as "misbeha-
viour". The chargesheet, inter alia, stated:
"(1) ...... You deliberately deed the
orders and again applied for extension of
leave upto the 31st December, 1958 reigning
yourself to be iII, and also threatened that
in case leave was not allowed, you might be
granted interview with the Revenue
Minister .... "
X X X
X
(2) That on the one hand you have been
applying for grant of extension of leave on
account of your own illness and on the other,
you have requested that you may be allowed
to appear in B.A. Examination to be held in
April, 1959. This, therefore, clearly shows
that you are not actually ill but are malin-
gering, and have knowingly defied Government
orders.
959
(3) That your wilful absence from duty
after the expiry of earned leave sanctioned
to you upto the 31st October, 1958, is a
misbehaviour".
The appellant submitted his explanation on March 11, 1959.
There was an enquiry by the Deputy Secretary (Development)
in May 1959. He was served with a second show cause notice
on August 14, 1959, enclosing the report of the Enquiry
Officer. The appellant submitted his representation to. the
said notice on October 6, 1959. On October 21, 1959, the
Financial Commissioner (Revenue) passed the order of dis-
missal. As already stated, two suits were filed by the
appellant in 1962. The Subordinate Judge, First Class,
Patiala, decreed both the suits on January 15, 1963. The
State Government appealed to the High Court and the same was
allowed on August 9, 1966 and both the suits were dismissed.
That is how these appeals came before us on certificates.
We are concerned in these appeals with only one point
which, if it is held in favour of the appellant, will con-
clude the matter and it will not be necessary to deal with
the other questions with reference to the illegalities in
the course of the departmental enquiry alleged by the appel-
lant.
It is submitted on behalf of the appellant that the
order of dismissal is invalid on account of violation of
Article 311(1) of the Constitution. The following facts
are relied upon by the appellant in order to sustain his
submission.
It is admitted by the respondent that the appellant
initially joined service in the State of Patiala in 1948 as
a Clerk and he was confirmed as an Assistant in the Pepsu
Civil Secretariat by an order dated October 31, 1956, of His
Highness the Rajpramukh, which is the previous day of the
’appointed day’ under the State Reorganisation Act, 1956.
Thus he was integrated in the new State of Punjab as a
confirmed Assistant. Before his integration in Punjab he
was governed by the Patiala and East Punjab States Union
Civil Services (Punishment and Appeal) Rules, 1953 (briefly
the Pepsu Rules) which were made in exercise of the powers
conferred by the proviso to Article 309 of the Constitution.
By a Notification of the Punjab Government No. 976GII-
87/2499, dated February 9, 1957, these Pepsu Rules continue
to apply as from 1st November, 1956, to the corresponding
services, posts and personnel of the new State of Punjab
till further orders. Rule 6 of the Pepsu Rules provides as
follows :--
"6. Authority to impose
punishment.--Subject to the provisions of
clause (1) of Article 311 of the Constitution
of India, the authorities competent to impose
any of the penalties specified in rule 4 upon
the persons to whom these rules apply, shall
be such as may be prescribed. by Government
in the rules regulating the appointment and
conditions of service of such persons".
Dismissal is one of the penalties provided under rule 4
(see rule 4 (vii). As provided under Rule 6 above men-
tioned, the Rajpramukh
960
under Article 309 of the Constitution by a notification in
the Pepsu Gazette of Juno 27, 1954, made appropriate rules
on 14th June, 1954, determining the authorities competent
to impose penalties on members of certain services and
holders of certain posts in connection with the affairs of
the State. Item No. 14 in the Schedule to these rules
mentions "Members of Class III and IV Services in Sectt."
and. the punishing authority for dismissal of such employees
is the State Government. It is, therefore, clear that
under the Pepsu Rules which governed his conditions of
service the State Government alone was competent to impose
the punishment of dismissal. Under the Pepsu General
Clauses Act, 1953, "State Government shall mean, in relation
to anything done or to be done after the commencement of the
Constitution, the Rajpramukh". (See section 2(46).
As noted earlier, factually, the appellant was con-
firmed and necessarily appointed by the Rajpramukh. Under
the Pepsu Rules the Rajpramukh alone was the appointing
authority. The appellant therefore, cannot be removed from
service by any authority subordinate to the Governor in
Punjab. The coordinate authority in Punjab is the State
Government. The Governor of Punjab alone, therefore, was
competent to pass the order of dismissal of the appellant.
The Financial Commissioner (Revenue) is an authority subor-
dinate to the Governor. He was, there, not competent to
pass the order of dismissal. The order of dismissal is
violative of Article 311 (1) of the Constitution and is,
therefore, invalid and is liable to be struck down.
Mr. Sharma, on behalf of the respondent, submits that
there is no violation of Article 311 (1) of the Constitu-
tion. The appointing authority for a post held by the
appellant in the State of Punjab is the Financial Commis-
sioner (Revenue). He submits that the appointing authority
of the appellant before his integration into the State of
Punjab does not come into the picture. He adds that this
submission of his is in consonance with the provisions of
section 116 of the States Reorganisation Act, 1956 (brief-
ly the Act). We may, therefore, read section 116 of the
Act:
"116(1) Every person who immediately
before the appointed day is holding or
discharging the duties of any post or office
in connection with the affairs of the Union or
of an existing State in any area which on that
day falls within another existing State or a
new Part A State or a Part C State shall,
except where by virtue or in consequence of
the provisions of this Act such post or office
ceases to exist on that day, continue to hold
the same post or office in the other existing
State or new Part A State or Part C State in
which such area is included on that day, and
shall be deemed as from that day to have been
duly appointed to such post or office by the
Government of, or other appropriate authority
in, such State, or by the Central Government
or other appropriate authority in such Part C
State, as the case may be
961
(2) Nothing in this 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".
Mr. Sharma submits, relying upon the provisions of section
116(1), that since the appointing authority for an Assistant
in the State of Punjab is the Financial Commissioner
(Revenue) it follows that he is the appropriate authority
under section 116(1) to impose the penalty of dismissal.
This submission follows from what the High Court accepted
in the impugned judgment in the following words:
"Our attention has not been drawn on
behalf of the learned counsel for the respond-
ent to any rule according to which the Gover-
nor of Punjab, as is contended, is the proper
authority for the appointment of Assistants.
Indeed, it is not disputed that if the plain-
tiff had been appointed as Assistant in the
State of Punjab, then the Financial Commis-
sioner (Revenue) would have been the appropri-
ate authority competent to enquire into the
petitioner’s conduct and impose the penalty of
dismissal; in other words, in that case, the
appointing authority could not have been
higher in rank than the Financial Commissioner
(Revenue). It is certainly not the plain-
tiffs-respondent’s case that appropriate
authority for appointing Assistants in the
State of Punjab is the Governor".
We are unable to appreciate the above line of reasoning
of the High Court. Section 116(1) is very clear. To
concretise the appellant’s case in terms of section 116(1),
it is sufficient to state that the appellant who, immediate-
ly before the appointed day, was holding the post of an
Assistant in the former State of Pepsu, shall continue to
hold the same post in the new State of Punjab and shall be
deemed as from that day to have beer/duly appointed to such
post by the Government of Punjab. We are not concerned in
the instant case about the appointment being deemed to be
made by "’other appropriate authority" in the State of
Punjab since the appellant had been appointed by the Rajpra-
mukh of Pepsu which is equivalent to the State Government of
Pepsu and the coordinate authority in the new State of
Punjab is the Governor of Punjab. The argument that in the
new State of Punjab the Financial Commissioner (Revenue)
is the appropriate authority for appointing Assistants is
absolutely irrelevant in the context of section 116(1) which
enables the status quo ante to continue except where the
post ceases to exist under the provisions of the Act. It is
also important to bear in mind the provisions of section
115(7) of the Act where under the proviso thereto "the
conditions of service applicable immediately before the
appointed day to the case of any person referred to in sub-
section (1) or sub-section (2) shall not be varied to his
disadvantage except with the previous approval of the Cen-
tral Government".
One of the conditions of service of the appellant was
that having been appointed by the State Government of Pepsu
he could be only dismissed by the State Government of Pepsu
if he had continued there.
962
Under section 116 when he is integrated in the new State
of Punjab he carries with him ’that condition of service
with regard to his termination of employment and it cannot
be. varied to his disadvantage, under section 115(7) of the
Act except with the previous approval of the Central Gov-
ernment. (See Takhatray Shivdatray Mankad v. State of
Gujarat(1)and Bholanath J. Thakar v. The State of
Saurashtra(2). No such approval of the Central Government
in the instant case is produced before us. It is, there-
fore, clear that an authority subordinate to the Governor
of Punjab was not competent to pass the order of dismissal
of the appellant.
Mr. Sharma submits that the Punjab Financial Commis-
sioner’s Office (State Service Class III) Rules, 1957, are
applicable in the instant case. Therefore, under rule 4
thereof the Financial Commissioner is the appointing author-
ity for Assistants, the category to: which the appellant
belongs. He adds that even though these Rules may be disad-
vantageous to the appellant he cannot complain on account
of the approval of these Rules by the Central Government
under section 115(7) of the Act. Mr. Sharma submits that
these Rules received the approval of the Central Government
as will appear from the general circular dated May 11,
1957, to all the State Governments. He further submits
that in N. Raghavendra Rao v. Deputy Commissioner,South
Kanara, Mangalore(a) and in a recent decision in Mohammad
Shujat Ali & Ors. etc. v. Union of India & Ors. etc.,(4)
this Court referred to that circular of May 11, 1957, and
held that that circular amounted to general approval under
the proviso to section 115(7) of the Act. We are, however,
unable to see how this memorandum of May 11, 1957 can be
called in aid as ’previous approval’ under section 115(7) of
the Act when the Punjab Financial Commissioner’s Office
(State Service. Class III). Rules, 1957 were already promul-
gated on February 28, 1957. Approval under section 115(7)
is previous approval and not subsequent ratification. The
above decisions, therefore, do not come to the aid of the
respondent.
Mr. Sharma also drew our attention to a decision of
this Court in Rajvi Amar Singh v. The State of Rajasthan(5)
which is clearly diStinguishable on facts. This Court was
not called upon in that case to consider the provisions of
the State Reorganisation Act.
Our attention has been drawn by the appellant to. an
unreported judgment of this Court in Mysore State and Road
Transport Corporation, etc. v. Mirja Khasim Beg & Anr.
etc.(6) pronounced on December 1, 1976. This Court had to
deal with a similar question although appertaining to:
the "competent authority" under section 116(2) of the Act
in the background of Article 311(1) of the Constitution.
The following passage from that decision will make the.
point clear:
(1) [1970] 1 S.C.R. 244.
(2) A.I.R. 1954 S.C. 680.
(3) [1964] 7 S.C.R. 549.
(4) [1975] 1 S.C.R. 449.
(5) [1958] S.C.R.1013.
(6) C.A.S. Nos. 1601--1609 & 2402--2405 of 1968 dated
1-12-1976.
963
"In the instant cases, the first re-
spondents were undeniably appointed by the
Superintendent of the Traffic Department of
the erstwhile State of Hyderabad who was the
head of the Road Transport Department of that
State. On the coming into force of the States
Reorganisation Act, 1956, on November 1, 1956,
they were to be deemed by virtue of sub-
section (1) of section 116 of the States
Reorganisation Act to. have been appointed
with effect from that date to the posts held
by them on that date by the appropriate au-
thority in the new State of Mysore which could
not in the context mean an authority other
than the one equivalent to or coordinate in
rank with the aforesaid authority in the
erstwhile State of Hyderabad. The authority
equivalent to or coordinate in rank with the
aforesaid authority on the relevant date being
the General Manager of the Mysore Government
Road Transport Department according to. the
appellants’ own admission as contained in
answer to the aforesaid interrogatories
served on them by the first respondents, he
alone could be considered to be the ’compe-
tent authority’ in terms of sub-section (2) of
section 116 of the States Reorganisation Act,
1956. The fact that there was no post of
Superintendent of the Traffic in the Mysore.
Government Road Transport Department in the
State of Mysore is of no consequence. Such
being the position, the first respondent could
not have been dismissed from service by an
authority lower or subordinate in rank to the
General Manager of the Transport Department
as it would tantamount to deprivation of the
guarantee enshrined in Article 311 of the
Constitution read with section 115(7) of
the States Reorganisation Act, 1956 ......
".
In the result both the judgments of the High Court are
set aside and the judgments and decrees of the Subordinate
Judge, First Class, Patiala, stand restored. The appeals
are allowed with costs. We are thankful to Mr. Hingorani
for his assistance as amicus curiae in these appeals.
P.H.P. Appeals
allowed.
964