Krishan Murari Lal Sehgal Vs. State of
Punjab  INSC 48 (9 February 1977)
CITATION: 1977 AIR 1233 1977 SCR (2) 956 1977
SCC (2) 587
CITATOR INFO :
D 1985 SC1272 (4)
Constitution of India--Article 311(1),
dismissal by a person subordinate to appointing authority--States Reorganisation
Act, 1956--Sec. 115 (7), 116( 1 ) --Varying conditions 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.
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 service 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
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 Government dated 9-2-1957 the
said 1953 Rules were made applicable to the corresponding services from 1st
November, 1956 onwards 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 appropriate authority under s.
116(1 ) of the States Reorganisation Act, 1956 to impose the penalty of
dismissal. Secondly, 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 Commissioner.
Allowing the appeals.
HELD: 1. Section 116(1) merely provides that
the appellant 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 absolutely
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
[961 H, 962 A]
2. The Memorandum of 11-5-1957 cannot be
called in aid as previous approval because the Punjab Financial Commissioner'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  (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  (7) SCR 549 and Mohammad Shujat Ali & Ors.
etc. v. Union of India & Ors. etc. 
(1) SCR 449, distinguished.
Rajvi Amar Singh v. The State of Rajasthan,
 SCR 1013, distinguished.
Mysore State and Road Transport Corporation
etc. v. Mirja Khasim Ali Beg & Anr. C. As. Nos. 1601-1609 and 24022405 of
1968 dt. 1-12-1976 followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 1298 and 1299 of 1969.
Appeal from the Judgment and Decree dated the
9th August, 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
judgment 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
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 sometime 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 appellant 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
challenging 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,
Patiala. 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
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 "misbehaviour". 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 malingering,
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 dismissal.
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
We are concerned in these appeals with only
one point which, if it is held in favour of the appellant, will conclude 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 appellant.
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. 976GII87/2499, 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
Dismissal is one of the penalties provided
under rule 4 (see rule 4 (vii). As provided under Rule 6 above mentioned, 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 confirmed 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 subordinate 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 Constitution. The
appointing authority for a post held by the appellant in the State of Punjab is
the Financial Commissioner (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 (briefly 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 respondent to any rule according to which
the Governor of Punjab, as is contended, is the proper authority for the
appointment of Assistants.
Indeed, it is not disputed that if the plaintiff
had been appointed as Assistant in the State of Punjab, then the Financial
Commissioner (Revenue) would have been the appropriate 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
plaintiffs-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, immediately 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 Rajpramukh 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 subsection (1) or sub-section (2)
shall not be varied to his disadvantage except with the previous approval of
the Central 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
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 Government. (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, therefore, 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
Commissioner'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 authority for Assistants, the category to: which the appellant
belongs. He adds that even though these Rules may be disadvantageous 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 promulgated 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
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
the "competent authority" under
section 116(2) of the Act in the background of Article 311(1) of the
The following passage from that decision will
(1)  1 S.C.R. 244.
(2) A.I.R. 1954 S.C. 680.
(3)  7 S.C.R. 549.
(4)  1 S.C.R. 449.
(5)  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 respondents
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 subsection
(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 authority 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 'competent 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,
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
P.H.P. Appeals allowed.