State of Punjab & Ors Vs. Balbir
Singh [1975] INSC 242 (6 October 1975)
UNTWALIA, N.L.
UNTWALIA, N.L.
ALAGIRISWAMI, A.
GOSWAMI, P.K.
CITATION: 1977 AIR 629 1976 SCR (2) 115 1976
SCC (3) 242
CITATOR INFO:
D 1984 SC1271 (27)
ACT:
Art. 311(2) of The Constitution Civil
Service-Reversion to substantive posts not by way of punishment-Punjab Service
of Engineers (Class II) Rules 1965-Punjab Service of Engineers, Building &
Roads Branch (Recruitment and Conditions of Service) Rule 1942-Punjab Reorganisation
Act 1966-Secs. 2 2(5), 82, 83, 88-Continuance of laws and administrative orders
after reorganisation-Distinction between adjustment of territories by
reorganisation and change of sovereignty by succession, conquest, merger or
Integration-An administrative order becomes effective when made or when
communicated-Refund of remuneration received by a Govt. employee losing writ
petition Ultimately.
HEADNOTE:
The respondents in the above 13 appeals by
Special leave alongwith 2 others filed 15 Writ Petitions in the High Court of
Punjab and Haryana challenging. the order dated 28- 10-1966 made by the
Government of the erstwhile undivided State of Punjab reverting the respondents
to their substantive ranks. The respondents were promoted and appointed as
S.D.Os. on officiating basis in the Punjab Public Works Department on the
various dates between the 1st March, 1956 and 10th May, 1963. The erstwhile
State of Punjab was reorganised by the Punjab Reorganisation Act, 1966. On 1st
November, 1966 the former State of Punjab ceased to exist and the successor
States of Punjab, Haryana, Union territory of Chandigarh and the transferred territory
came into being. According to section 82 of the Punjab Reorganisation Act every
person who immediately before the appointed day was serving in connection with
the affairs of the existing State of Punjab would on and from that day
provisionally continue to serve in connection with the affairs of the State of
Punjab unless he is required by general or special order of the Central
Government to serve provisionally in connection with the affairs of any other
successor State. Section 83 provides that 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 existing State of Punjab in any area which
on that day falls within any of the successor State shall continue to hold the
same post or office in that successor State and shall be deemed on and from
that day to have been duly appointed to the post or office by the Government or
other appropriate authority in the successor State. Sec 88 provides that the
law applicable in the territory will continue to apply after reorganisation
unless otherwise provided by a competent legislature. Section 2(g) of the Act
defines law as including any enactment, ordinance, regulation, order, by-law,
rule, scheme, notification or other instrument, having the force of law.
The impugned orders of reversion were
communicated to the respondents after 1st November, 1966. The orders were
passed by the Government in consultation with the Punjab Public Service
Commission before 1st November, 1966. The Chief Engineer sent the said orders
on 30-10-1966. The orders were however received after 1st November, 1966.
Before the learned Single Judge of the High
Court. the respondents contended that they were governed by the Punjab Service
of Engineers, Buildings and Roads Branch (Recruitment and Conditions of
Service) Rules 1942, under which they became automatically confirmed as members
of the service and could not be reverted without complying with the provisions
of Article 311 of the Constitution. The learned Single Judge allowed the Writ
Petitions on that ground.
On an appeal before the Divisional Bench by the
appellants, the Division Bench divided the respondents into three categories.
(1) those who were promoted after 1942 Rules were repealed: (2) those who were
promoted within 3 years preceding the repeal of ]942 Rules: and (3) those who
were 116 promoted more than three years prior to such repeal. In the case of
first category, the High Court held that the 1942 Rules did not apply. In the
case of the second category the Division Bench held that they were not entitled
to get the benefits of 1942 Rules since they had not completed the period of 3
years probation to acquire the substantive post in accordance with the 1942
Rules. Regarding those respondents who fell in the third category, the Division
Bench held that they were promoted in the erstwhile Patiala and East Punjab
States where the similar rules did not exist and could not be given the
advantage of 1942 Rules. The Division Bench held that Punjab Service of
Engineers Class II 1965 Rules were applicable and therefore before the
respondents could be absorbed and admitted to Class II service approval of the
Public Service Commission was required. In the present case, since the
Commission did not find them suitable they had to he reverted to their
substantive ranks. On a consideration of large number of authorities the
Division Bench came to the conclusion that the reversion of the respondents was
not hit by Art. 311(2) of the Constitution since the reversion was not by way
of punishment. The Division Bench, however, held that the impugned orders were
communicated to the respondents after 1-11-1966 and hence they remained
ineffective and still born by reason of their not having been communicated to
the respondents before 1st November, 1966. The Division Bench, therefore,
dismissed the appeals filed by the appellants.
In appeals by Special leave, the appellants
contended that the decision of the Division Bench that the orders of reversion
remained ineffective and still born was erroneous.
HELD:
1. The Division Bench rightly held that the
orders of reversion were not hit by Art. 311(2) of the Constitution.
This aspect of the matter is now clearly
covered by the decision of this Court in the case of Shamsher Singh v. The
State of Punjab [1975] S.C.R. 814. This part of the judgment of the Division
Bench was not seriously disputed.
[120-E-F]
2. The impugned orders were not law within
the meaning of s. 2 (g) and were, therefore not saved by s. 88. S.88 was
introduced as a matter of abundant caution. The law which was in force before
the appointed day in the former State of Punjab were bound to continue until
competent Legislature or authority of the successor States effect any change in
those laws. If this could be the position in the continuance of the law in the
successor States on what principles one can say that the administrative orders
made by the erstwhile State of Punjab automatically lapsed and came to an end
on and from the appointed day on the coming into existence of the successor
States.
3. When there is no change of sovereignty and
it is merely an adjustment of territories by the reorganisation of a particular
State, the administrative orders made by the Government of the erstwhile State
continue to be in force and effective and binding on the successor States until
and unless they are modified changed or repudiated by the Governments of the
successor States. No other view is possible to be taken. The other view will
merely bring about chaos in the administration of the new States. The
principles laid down by this Court in following cases:
(1) Rajvi Amar Singh v The State of Rajasthan
[1958] S.C.R. 1013 and (2) Rajkumar Narsingh Pratap Singh Deo v State of Orissa
and Another [1964] 7 S.C.R. 112.
are not applicable to the present case as
this is not a case of absorption of one State in another by succession,
conquest, merger or integration. It would be chaotic if these principles were
to be applied to the case of reorganization of States in the same country.
[123H, 124A-D]
4. On the facts and circumstances of this
case the successor State far from repudiating or modifying the orders of
reversion adopted those orders as their own. The High Court was wrong in
holding that the orders were communicated on or after 1st November, 1966 when
they were actually received by the 117 officers concerned. Following the
judgment of this Court in the case of State of Punjab v. Khemi Ram, A.I.R. 1970
S.C. 214, it was held that the orders were communicated either on 29-10-1966 or
surely on 30-10-1966. The judgment of this Court in the case of Bachiter Singh
v. The State of Punjab, [1962] 3 Suppl. S.C.R. 713, distinguished. [125A-C]
5. It is one thing to say that in the case of
dismissal or the like the order becomes effective only after it is received by
the officer concerned and a different thing to say that an order has no effect
at all before it is communicated in the sense of receipt of the order by the
officer concerned. The orders in the present case became effective as soon as
they were sent out and for the purpose of section 83 of the Act the respondents
must be deemed to be holding the posts to which they were reverted on 1st
November, 1966. [125-G-H 126A] 6 . About 9 years have passed after the impugned
orders of reversion were passed. After the High Court judgment, all the
respondents were officiating in the higher posts.
After the reversion orders were passed and
before the High Court judgment was delivered the respondents were not working
in the higher posts. The appellant, therefore, claimed the difference of salary
paid to the respondents during this period when they were not working as
S.D.Os. The respondents contended that even during this period they were either
working as S.D.Os or had gone on leave while continuing in such posts. In the
circumstances justice requires that the Government should not claim any refund
of any part of the salary paid to the respondents up to date.
[126G-H, 127A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 518 to 530 of 1970.
Appeals by Special Leave from the Judgment
and order dated the 21st May, 1969 of the Punjab and Haryana High Court in
L.P.As. Nos. 286, 327, 340, 368, 374, 375, 376, 377, 378, 379, 380, 502 and 511
of 1968.
O.P. Sharma (In all appeals) V. C. Mahajan
(In C.A.
518) Kapil Sibal (In C.As. 529-530) and N. S.
Das Bahl (In C. A. 519-528 for the Appellants.
M. N. Phadke, Mrs. Archana Kumar, M. R.
Agnihotri and P. C. Bhartari for Respondents in C.A. 526.
K. P. Bhandari (In CA 521) M. R. Agnihotri
(In CA 522) K.J.John (in Cas. 524, 527 and 528), and P. C. Bhartari (In all
appeals) for the Respondents.
S. K. Mehta, K. R. Nagaraja, M. Qamaruddin,
P. N. Puri and K. L. Mehta for Respondents (In CA. 530).
The Judgment of the Court was delivered by
UNTWALIA, J. -In these 13 appeals by special leave the appellants are (1) the
State of Punjab, (2) Union of India.
Respondent no. 1 in Civil Appeal No. 519 of
1970 and the sole respondent in each of the remaining 12 appeals are the
concerned Government servants. The said 13 Government servants alongwith two
more filed 15 writ petitions to challenge order dated the October 28, 1966 made
by the Government of the erstwhile undivided State of Punjab. Their writ
applications were allowed by a learned single Judge of the High Court of Punjab
and Haryana at Chandigarh. 15 Letters Patent Appeals were filed by the appellants.
They have been dismissed by a 118 Division Bench of the High Court. 13 appeals
have been brought to this Court and not the other two. Since the Division Bench
of High Court has disposed of all the 15 Letters Patent appeals by a common
judgment, to avoid confusion in the statement of facts we think it better to
state in a chart form the number of the Civil Appeal the corresponding number
of the L.P.A. and the name of the Government servant concerned.
Civil Appeals of 1970 L. P. As of Names of
the Govt.
servants 1968 518 ................. 286
Balbir Singh 519 ..................327 Bhagwan Singh 520 ..................340
Surmukh Singh 521 ............... . 368 Dasaundi Ram 522 ..................374
Jagdish Singh 523 ..................375 R. R. Bhanot 524 ..................376
Surat Singh 525 ..................377 Shamsher Singh 526 ..................378
Bakhatawar Singh 527 ..................379 Jodh Singh 528...................380
Kartar Singh 529...................502 Gurcharan Singh 530 ..................511
Gurbux Singh nil ..................289 Devdutta nil ..................328
Sushil Kumar Khallar At the outset it may be stated that the respondent in
Civil Appeal No. 521 Dasaundi Ram is dead and that appeal has abated on that
account. Bhagwan Singh, respondent in Civil Appeal No. 519 does not seem to be
in service any longer and nobody has appeared in this Court on his behalf. Out
of the remaining 11 respondents, we were informed at the Bar, that the 7
respondents in Civil Appeals 522 to 527 and 529 have since retired from
service. Only 4 of the respondents in Civil Appeals 518, 520, 528 and 530 are
still in service.
Respondents Balbir Singh, Surmukh Singh,
Dasaundi Ram, Jagdish Singh, Surat Singh, Kartar Singh and Gurbux Singh were
promoted and appointed on officiating basis as Sub- Divisional Officers in the
Punjab Public Works Department (Buildings and Roads Branch) on various dates
between 30-7- 1960 to 10-5-1963. Respondents R. R. Bhanot, Jodh Singh and
Gurcharan Singh were so appointed between dates 17-12-1957 and 10-12-1959.
Respondents Shamsher Singh and Bhakhtawar Singh were promoted on 22-10-1956 and
1-3- 1956 respectively. Respondent Kartar Singh was working as planning
Assistant-cum-Draftsman while the other respondents were Overseers before they
were appointed as officiating Sub-Divisional Officers. By the impugned order
dated October 28, 1966 the then Government of the erstwhile Punjab State
reverted them to their original rank. The orders of their reversion were
challenged by the said respondents on the ground that they were governed by the
Punjab Service of Engineers, Buildings and Roads Branch (Recruitment and
Conditions of Service) Rules, 1942 (for brevity, the 1942 Rules). They claimed
that they 119 had become automatically confirmed as members of the service
under the said Rules and could not be reverted without complying with the
provisions of Article 311(2) of the Constitution of India and the other
statutory Rules relating to disciplinary matters. This was the only point which
succeeded before the learned single Judge and he allowed all the writ
applications, it appears, without fully appreciating, the distinction of facts
of the various cases for the acceptance of this ground.
Respondent Bhagwan Singh was appointed as
temporary Assistant Engineer on completion of his six months training period
with effect from December 3, 1960. His service was terminated by the then
Punjab Government by order dated October 28, 1966 on the ground of his having
been found unsuitable for appointment to P.S.E. Class II (B & R Branch).
Bhagwan Singh also relied upon 1942 Rules before the learned single Judge and
succeeded.
The Division Bench has very carefully and
elaborately considered the application of the 1942 Rules to the cases of the
respondents. It has disagreed with the single Judge's view. After copiously
quoting from the 1942 Rules, the High Court in appeal has referred to the
Punjab Service of Engineers Class I P.W.D. (Buildings and Roads Branch) Rules
1960 (for brevity, the 1960 Rules) regulating the recruitment and conditions of
service of persons appointed to the P.S.E. Class I service. The 1960 Rules came
into force on and from March 18, 1960. It had repealed the 1942 Rules by Rule
24 with a saving clause in the proviso appended thereto. The High Court then
referred to the Punjab Service of Engineers, Class II P.W.D. (Buildings and
Roads Branch) Rules, 1965 (for brevity, Class II 1965 Rules). The said Rules
came into force from February 19, 1965. The stand on behalf of the State of
Punjab in the High Court was :- (1) that the 1942 Rules did not govern the
cases of the respondents as the said Rules applied to class I service
consisting of Assistant Executive Engineers and officers of higher ranks only;
(2) that the respondents had to be taken in P.S.E. Class II service in
accordance with Rule 6(5) (b) of Class II 1965 Rules read with paragraph 1 (d)
of Appendix 'G' of the said Rules, in consultation with the Punjab Public
Service Commission; (3) that since the Commission did not find them suitable
for being admitted to that service, they were reverted to their substantive
rank in accordance with the terms and conditions of their service and not by
way of punishment.
The High Court made a comparative study of
1942 Rules, 1960 Rules and Class II 1965 Rules and came to the conclusion that
the officiating Sub-Divisional officers, as the respondents were, not being
Assistant Executive Engineers, were not governed by the 1942 Rules. None of
them had claimed that he was holding the rank of Assistant Executive Engineer
in any capacity. The view of the learned single Judge that the Sub-Divisional
Engineers were included in the category of Assistant Executive Engineers did
not find favour with the Bench. The Bench further pointed out that the
respondents should be divided into three categories: (a) those who were
promoted subsequently to the 9-L1276SCI/75 120 repeal of the 1942 Rules, (b)
those who were promoted with him three years preceding such repeal and (c)
those who were promoted more than three years prior to such repeal. The
respondents promoted on dates between 30.7.1960 and 10.5.1963 fell within the
first category. Obviously they could not claim the protection on the basis of
1942 Rules.
The three respondents who were appointed as
officiating Sub- Divisional officers between 17-12-1957 and 10-12-1959 fell
within the second category. The High Court rightly held that they had not
completed the maximum period of three years probation to acquire the
substantive posts of Sub-Divisional officers fixed under Rule 12(3) of 1942
Rules, even assuming that they could take advantage of the same. Respondents
Shamsher Singh and Bakhatawar Singh had been promoted in the year 1956 and fell
within the third category. The Division Bench pointed out that in their case
the difficulty in the application of the 1942 Rules was that they were promoted
in the erstwhile Patiala and East Punjab States Union. It could not be shown
that there were any statutory Rules governing their conditions of service and
appointments as Sub- Divisional Officers. Since on the date of the impugned
order dated 28.10.1966 they had put in more than 10 years of service as
officiating Sub-Divisional officers, their case was considered to be a hard
one. But for the purpose of the law they could not be given the advantage of
the 1942 Rules and obviously so.
It is plain that the case of none of the
respondents was covered by the 1942 Rules. All the respondents had to be
absorbed and admitted to P.S.E. Class II service in accordance with Class II
1965 Rules and that required the approval of the Public Service Commission.
Since Commission did not find them suitable, they had to be reverted to their
substantive ranks. On a consideration of a large number of authorities the High
Court has rightly come to the conclusion that their reversion was not hit. On
account of the non compliance with the provisions of Article 311(2) of the
Constitution or any Rules governing the disciplinary action. The reversion was
not by way of punishment. This aspect of the matter is now squarely covered by
the decision of this Court in Shamsher Singh & Anr. v. State of Punjab(1)
(vide page 837).
A few new points were urged on behalf of the
respondents in the Letters Patent appeals. They were not allowed to be raised
except the one which eventually succeeded and the Letters Patent appeals were
allowed on the basis of that point.
The decision of the High Court as respects
the application of the 1942 Rules to the cases of the respondents and the order
of reversion not being hit by the alleged non compliance with Article 311(2) of
the Constitution could not be seriously challenged before us. We agree with the
view expressed by the Division Bench. It is not necessary to repeat all that
has been said by the High Court in that regard. We now proceed to consider the
only substantial question which falls for determination in these appeals.
(1) [1975] 1 S. C. R. 814.
121 The erstwhile State of Punjab was
re-organized by the Punjab Re-organisation Act, 1966, Central Act XXXI of 1966,
hereinafter called the Act. On the appointed day i.e. On 1- 11-1966 the former
State of Punjab ceased to exist and the successor States of Punjab, Haryana,
Union Territory of Chandigarh and the Transferred Territory came into being.
All the respondents except respondent Bhagwan
Singh came to be allocated to the new State of Punjab. Bhagwan Singh was
allocated to Haryana and then to Himachal Pradesh. The High Court took the view
that the impugned orders were communicated to the respondents concerned on or
after 1.11.1966 and hence they "remained ineffective and still- born by
reason of their not having been communicated to the respondents before
1.11.1966." Though this point had been taken in the writ petitions, it
does not seem to have been pressed before the learned single Judge. The
Division Bench treating it as a pure question of law allowed it to be raised in
the Letters Patent appeals and ultimately dismissed the appeals by holding in
favour of the appellants that since the impugned orders were communicated to
them after coming into force of the new successor States they could not affect
their status and position which they held on 1.11.1966.
The factual position in relation to the point
at issue is like this. The erstwhile State of Punjab was under the President's
Rule before its re-organization. The order in the name of the President of
India . authenticated by Secretary to Government of Punjab, P.W.D. B&R/
P.H. Branches recited "The President of India, in consultation with the
Punjab Public Service Commission, does not consider the following officiating
Sub-Divisional officers of Punjab, P.W.D. B & R Branch, suitable for
appointment to P.S.E.
Class II (B & R Branch) and accordingly
they are reverted as indicated below with immediate effect." The list
contains the names of 20 officers including the 'names of 12 respondents other
than respondent Bhagwan Singh. An Issue Book was shown to us at the time of the
hearing of these appeals by the State counsel indicating that the Government
order aforesaid was forwarded to the Accountant General Punjab, Simla and to
the Chief Engineer Punjab P.W.D. & R Branch, Patiala, for information and
necessary action. The Chief Engineer as it appears from the statement in the
counters filed on behalf of the State communicated the order to the officers
concerned as per his Memo No. 8E/47/Re- org/11670 710 dated 30.10.1966. The
respondents, however, seem to have received the orders on or after 1.11.1966.
The question for consideration is whether the view of the High Court that the
orders being administrative in nature were not laws within the meaning of the
Act and hence were not saved by section 88 is correct and whether r' they
remained ineffective and inoperative because they not communicated to the
respondents before 1.11.1966.
Under the Act certain territories were carved
out from the appointed day from the then existing State of Punjab.
Under sections 3 and 4 were formed the State
of Haryana and the Union Territory of Chandigarh. The territories mentioned in
section 5 were added to the then Union territory of Himachal Pradesh. The
balance was to 122 remain in the State of Punjab under- section 6. Sections 3
to 6 occur in Part II of the Act. Part III deals with the representation in the
Legislatures and allocation of sitting members etc. Part IV concerns the making
of the existing High Court as the common High Court for Punjab, Haryana and
Chandigarh. Part V is headed "Authorisation of Expenditure and Distribution
of Revenue." Part VI deals with 'Apportionment of Assets and
Liabilities." Part VII makes provisions as to certain Corporations. Part
VIII relates to Bhakra Nangal and Beas Projects. We are concerned with some of
the sections of Part IX headed Provisions as to services and Part X making
Legal and miscellaneous provisions.
Section 81 in Part IX contains provisions
relating to All India Services. Section 82 (1) is important and reads as
follows:
"Every person who immediately before the
appointed day is serving in connection with the affairs of the existing State
of Punjab shall, on and from that day, provisionally continue to serve in
connection with the affairs of the State of Punjab unless he is required, by
general or special order of the Central Government, to serve provisionally in
connection with the affairs of any other successor State." According to
the provision aforesaid all the respondents provisionally continued to serve in
connection with the affairs of the State of Punjab and eventually also all of
them (except Bhagwan Singh) continued to serve with that State. We shall now
read section 83 on which great reliance was placed on behalf of the
respondents:
"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 existing State of Punjab ill any area which
on that day falls within any of the successor States shall continue to hold the
same post or office in that successor State and shall be deemed, on and from
that day, to have been duly appointed to the post or office by the Government
of, or other appropriate authority in, that successor State:
Provided that nothing in this section shall
be deemed to prevent a competent authority on or after the appointed day from
passing in relation to such person any order affecting his continuance in such
post or office." Section 88 occurring in Part X provides:
"The provisions of Part II shall not be
deemed to have effected any change in the territories to which any law in force
immediately before the appointed day extends or applies, and territorial
references in any such law to the State of Punjab shall, unless otherwise
provided by a competent Legislature or other competent authority, be construed
as meaning the territories within that State immediately before the appointed
day." 123 Law is defined in clause (g) of section 2 of the Act to say:
"law" includes any enactment,
ordinance, regulation, order, bye-law, rule, scheme, notification or other
instrument having, immediately before the appointed day, the force of law in
the Whole or in any part of the existing State of Punjab;
We agree with the High Court that the
impugned orders in question were not law within the meaning of section 2(g) and
hence were, in terms, not saved by section 88. We think the High Court is right
when it says:
"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 l even
in Section 88, which expressly or by necessary intendment repeals the law which
were in force immediately before the appointed day in the territories of the
former Punjab.
Those laws derived their force de hors the
1966 Act.
The first part of Section 88 is merely
clarificatory of any doubts which might arise as a result of the reorganisation
of Punjab, while the latter part of this section is merely an adaptative
provision, to the effect, that the territorial references in any such law to
the State of Punjab shall continue to mean the territories within that State
immediately before the appointed day. Thus, read as a whole Section 88 merly
dispels doubts as to the continuity of the laws which .
were in force before the appointed day in the
former State of Punjab, until the competent legislature or authority of the
successor States effects any change in those laws." If this could be the
position in the continuance of the law in the successor States, on what
principles one can say that the administrative order made by the erstwhile
State of Punjab automatically lapsed and came to an end on and from the
appointed day on the coming into existence of the successor States. Is it
possible to take the view that the Legislature when it made so many provisions
in the Act in its various parts in regard to the matters already referred to, did
not think it appropriate to make a provision for the continuance of the effect
of the administrative orders passed by the Government of the erstwhile State of
Punjab until the Governments of the successor States modified or changed it ?
or, is it? as a matter of law and propriety, reasonable to think that the
Legislature did not consider it necessary at all to make such an express
provision, as the continuance of the effect of such orders was to obvious even
without such a provision ? In our Judgment when there is no change of
sovereignty and it is merely an adjustment of territories by the reorganization
of a particular State, The administrative orders made by the Government of the
erstwhile 124 State continue to be in force and effective and binding on the
successor States until and unless they are modified, changed or repudiated by
the Governments of the successor States. No other view is possible to be taken.
The other view will merely bring about chaos ill the administration of the new
States. We find no principle in support of the stand that administrative orders
made by the Government r of the erstwhile State automatically lapsed and were
rendered ineffective on the coming into existence of the new successor States.
On behalf of the respondents reliance was
placed upon the decision of this Court in Rajvi Amar Singh v. The State of
Rajasthan(1) and' Rajkumar Narsingh Pratap Singh Deo v. State of Orissa and
another(2) Bose, J.. delivering the judgment of the Court in the former ease
had: said at page 1018:
"Now it is well established that when
one State if absorbed in another, whether by accession, conquest, merger or
integration, all contracts of service between the prior Government and its
servants automatically terminate and thereafter those who elect to serve in the
new State and are taken on by it, serve on such terms and conditions as the new
State may choose to impose. This is nothing more, (though on a more exalted
scale), than an application of the principle that underlines the law of Master and
Servant when there is a change of masters." The said principle is not
applicable to the case on hand as it is not a case of absorption of one State
in another by accession, conquest merger or integration. It would be chaotic in
this principle were to be applied to the case of re-organization of States in
the same country. In the case of Raj Kumar N. P. Singh Deo (supra) a question
arose as to whether the sanad granted by the ruler of Dhenkanal who was an
absolute monarch and which State after independence of India came to be merged
in the State of Orissa was a purely executive act or a law within the meaning
of Article 372 of the Constitutional. This Court decided that this was purely
an executive act. The Orissa Government had discontinued the payment of the
allowance under the sanad to the grantee. The action was upheld on the ground
that the executive act of the ruler of another sovereign State could not be
binding on the Orissa Government and that Government had full authority to
discontinue the payment of the allowance. Indirectly the said decision of this
Court supports the view which we have ex pressed above. We are, therefore, of
the opinion that the impugned orders passed by the Government of the erstwhile
State of Punjab continued to be the orders of the Governments of the concerned
successor States until and unless they were modified, changed or repudiated by
them Nothing of the kind was done by the new State of Punjab;
rather, by treating that order as valid and
adopting it as its own, the new State of Punjab resisted the writ applications
and pursued the matter in the Letters Patent appeals and up to this Court in
these appeals.
(1) [1958] S. C. R. 1013. (2) [1964] 7 S. C.
R. 112;
125 On the facts and in the circumstances of
these cases we do not agree with the High Court that the communication of the
orders was on or after 1-11-1966 when they were actually received by the
officers concerned. Following the ratio of the decision of a Bench of 4 Judges
of this Court, in the case of State of Punjab v. Khemi Ram(1) we hold that the
orders were communicated either on 29-10-1966 or surely on 30-10-1966. The
earlier decisions of this Court have been considered by Shelat, J. in the
decision aforesaid. In Bachillar Singh v. The State of Punjab(2) no formal
order of the Government had even been drawn up, much less communicated, and,
therefore, it was held that it was neither an order of the Government nor was
the order communicated. What is the meaning of communication of the order in a
given case did not fall for decision before this Court in the case of Bachittar
Singh.
In the case of State of Punjab v. Amar Singh
Harika(3) the order of dismissal passed on 3rd June, 1949 was actually
communicated to the officer concerned on 2/3rd January, 1953. But before the
said date the said officer had come to know on 28th May 1951 about the
dismissal order. This date was taken to be the date of communication. Shelat,
J. has considered the earlier cases of this Court including the one in S'.
Pratap Singh v. The State of Punjab(4) a paragraph 16 of the judgment the law
laid down is:
"lt will be seen that in all the
decisions cited before us it was the communication of the impugned order which
was held to be essential and not its actual receipt by the officer concerned and
such communication was held to be necessary because till the order is issued
and actually sent out to the person concerned the authority making such order
would be in a position to change its mind and modify it if it thought fit. But
once such an order is sent out, it goes out of the control of such an
authority, and therefore there would be no chance whatsoever of its changing
its mind or modifying it. In our view, once an order is issued and it is sent
out to the concerned government servant, it must be held to have been
communicated to him, no matter when he actually received it." Applying the
principle of law aforesaid we find in this case that the orders went out of the
control of the authority which had passed that order on 29-10-1966 when copies
of the orders were forwarded to the Accountant General and the Chief Engineer.
In any event, we think that the orders were despatched from the office of the
Chief Engineer on 3-10- 1966. It is one thing to say that in the case of
dismissal or the like the order becomes effective only after it is received by
the officer concerned and a different thing to say that an order has no effect
at all before it is communicated in the sense of receipt of the order by the
concerned officer. In the sense we have said above the (1) A. I. R. 1970 S. C.
214. (2) [1962] 3 Suppl. S. C. R.
713.
(3) A. I. R. 1966 S. C. 1313. (4) [1964] 4 S.
C. R. 733 126 orders were communicated to all the respondents before 1-11-
1966. They became effective as soon as they were sent out.
And for the purposes of section 83 of the Act
the respondents must be deemed to be holding the posts to which they were
reverted on 1-11-1966.
Reliance was placed on behalf of the
respondents upon the decision of a learned single Judge of the Punjab &
Haryana High Court in the case of Shil Saran Dass Sood v. The State of Punjab
and others(1) wherein it was held that there is no provision in the Act where
under the proceedings for disciplinary action against a public servant, who is
allotted to a State other than one in which the proceedings are pending, could
be continued by the Inquiry officer already appointed nor could such Inquiry
officer submit his report to the corresponding authority in the State to which
the public servant is allocated. We wish to point out that the proposition of
law enunciated in such a bald manner is not correct. The Inquiry officer may
not be competent to continue the enquiry and submit the report for different
reasons. But it is not correct to say that:
"the Inquiry officer appointed by the
Commissioner, Ambala Division, prior to the re- organisation of the State,
cannot be taken to be the Inquiry officer appointed by the Commissioner,
Jullundur Division, after November 1, 1966 as there is no provision in the Punjab
Re-organisation Act where under the proceedings for disciplinary action against
a public servant, who is allocated to a State other than the one in which the
proceedings are pending, could be continued by the Inquiry officer already
appointed nor could such Inquiry officer submit his report to the corresponding
authority in the State to which the public servant is allocated." Shorn of
the complications of other facts if the Inquiry officer was appointed by the
Commissioner of a Division which was a part of the undivided State and on
reorganisation becomes a part of the new State, the disciplinary proceeding
started earlier can undoubtedly be continued and concluded without a fresh
order of starting a disciplinary proceeding.
We therefore, hold that the view taken by the
High Court that the orders were still born and ineffective because They were
received by the respondents on or after 1- 11-1966 is not correct.
After careful consideration we have arrived
at the conclusion that. the impugned orders of reversion dated October 28, 1966
were valid. About 9 years have passed since then and some complications have
arisen during this period.
Admittedly, after the High Court judgment all
the respondents were officiating in the higher posts. At the time of the
hearing of these appeals, we were given to understand at the Bar that none of
the respondents was reverted pursuant to the impugned order We asked the
parties to ascertain the correct position and file their statements.
On behalf of the Government we have been
inform- (1) 72 Punjab Law Reporter 950.
127 ed that they will not claim any refund of
the salaries paid to the respondents for the period they have worked as
officiating Sub-Divisional officers in the Department. But they claimed that
the respondents were not working as such after the reversion order and before
the High Court Judgment and hence they are entitled to get back the difference.
Of salary paid to the respondents for the period they have not worked as
Sub-Divisional officers and had worked only as overseers and Draftsmen in their
substantive posts. The difference of salary for the intervening period between
the order of reversion and the High Court Judgment was paid to them subject to
the furnishing of the bank guarantee. On the other hand, it is claimed on
behalf of the respondents that even during those periods they were working as
S.D.O. or had gone on leave while continuing in such posts. In the
circumstances justice requires that the Government should not claim any refund
of any part of the salary paid to the respondents until today. Partly in view
of their understanding and partly because of the requirement of justice, we
direct the Government not to do so.
The final result of the appeals is as
follows:
Civil Appeal No. 521/1970 is dismissed as
abated on account of the death of the respondent. The respondent of Civil
Appeal No 519, it is admitted on all hands, is no longer in service. This
appeal is, therefore, dismissed as infructuous. The remaining 11 appeals are
allowed, the judgments and orders of the High Court both of the single Judge
and the Division Bench are set aside. But this is subject to the directions
given above in regard to the salary paid to the respondents so far. There will
be no order as to costs in any of the appeals.
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