State of Punjab Vs. Gurdarshan Singh Grewal [1993] INSC 202 (8 April 1993)

Ramaswamy, K. Ramaswamy, K. Sahai, R.M. (J)

CITATION: 1993 AIR 2482 1994 SCC Supl. (2) 107

ACT:

HEAD NOTE:

ORDER

1.The respondent Mr Gurdarshan Singh Grewal, B.A., L.L.B., a practising advocate of Punjab & Haryana High Court was appointed by order of the Governor on March 26, 1968 as part-time Administrator General and Official Trustee-cum- Treasurer Charitable Endowments subject to his being paid a salary of Rs 300 as a part-time Administrator General and Official Trustee and Rs 450 as part-time Treasurer Charitable Endowments. The office of the Administrator General-Official Trustee and Treasurer Charitable Endowments has been set up under Administrator General's Act, 1963, Official Trustees' Act, 1913 and Charitable Endowments Act, 1890. It is stated in the Pay Commission's Report of 1967- 68 of the State of Punjab that the official being appointed from time to time on contract basis, the Commission declined to prescribe any pay scales to that office. However, for the staff of that office pay scales have been prescribed.

When the petitioner's appointment was terminated, he challenged by way of a writ petition and the learned Single Judge in Writ Petition No. 6991 of 1975 dated February 9, 1983 held that the respondent was a government servant and his termination violates Article 311 of the Constitution and accordingly allowed the writ petition. On an appeal, it was confirmed thus this appeal by special leave under Article 136.

2.It is contended by the State that the respondent being an advocate he cannot be considered to be a government servant, Article 311 of the Constitution is not attracted to a part-time appointment to the office of Administrator General etc. We find force in the contention. So long as the respondent continues to be an advocate he is entitled not only to practising the profession of the law but he can seek part-time appointment subject to permission by the State Bar Council. The exceptions are law officers of the State or Central or Corporate Sector as they are officers of the Court and are responsible to the Court. If one opts for full-time Government service he/she should intimate to the Bar Council suspending practice. It is not the 108 respondent's case that he suspended his practice. The Pay Commission's Report clearly indicates that the appointment from time to time is only on contract basis. In fact the order of appointment clearly shows that it is terminable with one month's notice. There is no pay scale prescribed for the post. The statement as salary is misnomer and it would be an honorarium for the duty discharged of the duties of those offices. Obviously, the other rules relating to the government servants are not attracted to the person holding the part-time post of Administrator General etc. It is true that there may be permanent part-time Government office or post. That is not relevant to the facts. The character of the post and a person who holds the post are relevant. The contention that the respondent's failure to suspend practice may expose him to disciplinary conduct by the Bar Council too is not relevant. In these circumstances, the High Court is clearly illegal in holding that the respondent is a government servant and entitled to the protection of Article 311 of the Constitution. The appeal is accordingly allowed, the writ petition stands dismissed but in the circumstances without costs.

K.S. VISWAM IYER v. STATEWAKF BOARD ORDER

1.NOIDA Entrepreneurs Association, (the Association), the appellant, is a representative body of various entrepreneurs who have obtained term-loans from the Uttar Pradesh Financial Corporation (the Corporation). The term loans are refinanced by the Industrial Development Bank of India (IDBI). The loan agreements specifically provide for the rate of interest and the penal interest in the event of default.

2.The Association filed a writ petition before the Allahabad High Court seeking a direction to the Corporation to adhere to the guidelines laid down by the IDBI in respect of interest and the penal interest. The High Court dismissed the writ petition. This appeal by the Association is against the judgment of the High Court.

3.According to the Association the Corporation is charging from them the interest at higher rate than the ceiling provided under the guidelines issued by the IDBI.

It is further alleged that the penal interest in the event of default in 109 repayment, provided in the agreement was also over and above the norms laid down by the IDBI.

4.We have heard learned counsel for the appellant. He has taken us through the judgment of the High Court and the other material on record. The High Court declined to exercise its jurisdiction under Article 226 of the Constitution of India on the short ground that the appellant-petitioner was disputing the contractual obligations entered into by the parties under the ordinary law of contract. While dismissing the writ petition the High Court observed as under:

"We feel on the facts and circumstances of this case that since only the petitioner has come before us, the proper remedy for the petitioner even otherwise is to go to the civil court and get the matter adjudicated in the suit. This is, however, without prejudice to the right of the petitioner to approach the IDBI by means of representation if they really have power to take action they can take necessary action if it is so desirable under that power against respondent 1."

5. We see no ground to interfere with the High Court judgment.

6. We, therefore, dismiss the civil appeal. No costs.

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