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TMI Blog1963 (9) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... med 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. This provision is thus wide enough to empower the successor Government, which would be the competent authority under the Act, to make the kind of notification with which we are concerned in this case. For all these reasons we hold that the high Court was in error in granting the writ petition to the respondents. Appeal allowed. - Civil Appeal Nos. 290 to 293 of 1962 - - - Dated:- 19-9-1963 - GAJENDRAGADKAR, P.B. SUBBARAO, K, WANCHOO, K.N. AND AYYANGAR, N. RAJAGOPALA AND MUDHOLKAR, J.R., JJ. S.M. Sikri Advocate-General for the State of Punjab, Gopal Singh and R. N. Sachthey, for the appellants. S.P. Sinha, Sukhdev Singh Sodhi, S. K. Mehta, Shahzadi Mohiuddin, and K. L. Metha, for the respondents JUDGMENT The judgment of P. B. Gajendragadkar, K. N. Wanchoo, N. Rajagopala Ayyangar and J. R. Mudholkar, JJ. was delivered by Mudholkar J. K. Subba Rao, J. delivered a dissenting opinion. MUDHOLKAR, J.- These four appeals arise out of four writ petitions preferred by four persons under Art. 226 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dar Singh, (2) Balwant Singh, (3) Gur- dhiana Singh, (4) Jagdip Singh, (5) Rajwant Singh, (6) Avtar Krishna Bhalla, and (7) Ram Singh as Tehsildars As there were no permanent regular vacancies available in the cadre of Tehsildar at the time of issuance of the above notification, seven supernumerary posts of Tehsildars were created by a subsequent order vide letter No. RD/18/(193)-E-56 dated the 24th October, 1956 of the erstwhile Pepsu State Government. The position has been examined in the Revenue Department of the new State Government. Since the availability of permanent posts should always precede confirmation and not follow it, and since supernumerary posts are not, as a rule, created to confirm officiating hands, the procedure adopted by the late Pepsu Government in confirming the above named seven Tehsildars was wholly wrong. In the circumstances, the Governor of Punjab is pleased to order the cancellation of Notification No. RD/Est.-74, dated the 23rd October, 1956 regarding confirmation of 7 Tehsildars and letter No. RD-18(193)E/56, dated the 24th October, 1956 regarding creation of 7 supernumerary posts of Tehsildars. The aforementioned seven Tehsildars will consequently s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct appointment; (3) transfer' from among officials employed as Superintendents of Deputy Commissioners' office or head vernacular clerks of a Commissioner's or Deputy Commissioner's office or district kanungos of not less than five years' standing. Rule 7(2) provides that when a substantive vacancy occurs or is about to occur in the post of Tahsildar it shall be filled from among the classes men- tioned in r. 6(a) in such proportions or rotation as the Government shall by general or special order direct. This rule thus empowers the Financial Commissioner to make an appointment of a person to the post of Tahsildar only when a substantive vacancy occurs or is about to occur in the post of Tahsildar. Rule 8 deals with the method of filling officiating vacancies and r. 9 (teals with appointments against suspended lien. The present case is not governed by either of these two rules, and the only rule which could possibly be invoked for supporting the action of the Financial Commissioner is r. 7. Before, however, advantage could be taken of that rule, there had to be an actual or an anticipated substantive vacancy. Moreover, there is no rule which empowers the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd others. On the face of it, therefore, the creation of supernumerary posts appears to be an afterthought and is of no avail as a means of validating the original order of confirmation. The question then is as to the effect of a void order of confirmation. When an order is void on the ground that the authority which made it had in power to make it cannot give rise to any legal rights, and as suggested by the learned Advocate-General, any person could have challenged the status of the respondents as Talisildars by instituting proceeding for the issue of a writ of quo warranto under Art. 226 of the Constitution. Had such proceedings been taken it would not have been possible for the respondents to justify their status as permanent Tahsildars and the High Court would have issued a writ of quo warranto depriving the respondents of their status as permanent Tahsildars. Now, where the Government itself realizes that an order made by an authority under the Government it is void, is it powerless to do anything in the matter? Is it bound to give effect to a void order and treat as confirmed Tahsildars persons who have no legal right to be treated as confirmed Tahsildars? Is it not open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the State of Punjab as from November 1, 1956, they were shown as confirmed Tahsildars, they could not in law be regarded as holding that status. Legally their status was only that of officiating Tahsildars. The notification in question in effect recognises only this as their status and cannot be said to have the effect of reducing them in rank by reason merely of correcting an earlier error. Article 311(2) does not, therefore, come into the picture at all. The learned Advocate-General of Punjab contended that for the application of Art. 311(2) not only should the reduction in rank be by way of punishment but also that the action taken by the Government should be on a ground personal to the officer concerned. In other words, the submission was that the punishment must be for misconduct. In support of this view, he has relied upon the decision of a single judge of the Madras High Court in N. Devasahayam v. The State of Madras (I.L.R. [1958] Mad. 158) which was affirmed by the Division Bench of that Court in appeal under Letters Patent. That decision is reported in the same volume at p. 968. In that case the question was whether loss of seniority which results from readjustment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State of Punjab took place on November 1, 1956. From that date, under the provisions of the States Re-organization Act, 1956, the respondents became the servants of- the Punjab State. In November 1957 the respondents were informed that they were de-confirmed and reverted to their original status as officiating Tahsildars. The respondents filed petitions under Art. 226 of the Constitution in the High Court of Punjab and Chandigarh, for quashing the said order at-id notification reverting them to the rank of officiating Tahsildars. The High Court held that the order of the Pepsu Government confirming the respondents as permanent Tahsildars was binding on the Government of the State of Punjab and that it had no power to reduce their rank without complying with the provisions of Art. 311(2) of the Constitution. In that view, the High Court issued writs of certiorari for the relief prayed for. Hence the appeals. The learned Advocate-General of Punjab raises before us the following three contentions : (1) The order made by the Pepsu Government confirming the. respondents was in total disregard of the Punjab Tahsildari Rules, and therefore, the successor Government was well within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d up in the case of Tahsildars, inter alia, by promotion of naib- Tahsildars. I am assuming that similar rules were in vogue in the Pepsu State. It is contended that on October 23, 1956, when the Financial Commissioner confirmed the officiating Tahsildars there were no corresponding substantive vacancies in the posts of Tahsildars and, therefore, the appointments were void. The subsequent creation of supernumerary posts by the Government, the argument proceeds, did not have retrospective effect and that, as the Finance Commissioner did not purport to make a fresh order of confirmation after the creation of the said supernumerary posts, the respondents did not get any title to their posts. This argument, if I may say so, runs in the teeth of the clear intention of the appropriate authorities that made the said orders, and asks us to construe the said orders as provisions of a statue instead of putting a reasonable construction on the said orders to effecuate the real intention of the makers of the orders. It cannot be denied that a State can create supernumerary posts if the exigencies of administration require. It is in substance creation of posts to meet a given situation. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order they become officiating Tahsildars with liens on their substantive posts of naib-tahsildars. Their future prospects for promotion were affected, for other officers in the State Punjab, who would have been juniors to them, must now, after the said order, have taken precedence over them. A plain reading of the Article certainly entitles the respondents to have a reasonable opportunity of showing cause before being reduced in rank. But the learned Advocate-General contends that for the application of the said clause of the Article the punishment of reduction in rank should be in the context of the Government servant's conduct and where, as in the present case, an order is made dehors his conduct and only for correcting an alleged error committed by the previous Government, the said clause has no application. I find it difficult to accept this argument. If these arguments were correct, it would lead to an extraordinary result, namely, that a Government servant who had been guilty of misconduct would be entitled to reasonable opportunity whereas an honest Government servant could be reduced in rank contrary to the provisions of the statutory service rules without giving him su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 828) whether the servant had a right to the post or the rank or (2) whether lie has been visited with consequences or the kind their in before referred to.If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant. This decision, in my view, is a clear authority on the interpretation of Art. 311(2) of the Constitution The question that falls to be considered under that Article is whether the Government servant was dismissed or removed or reduced in rank as punishment. It would be punishment if either of the said two tests was satisfied, namely, if lie had a right to the' post or if be had been visited with evil consequences of the kind mentioned in the abovementioned judgment. If either of the said two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment without any reference to his misconduct. Indeed, on the facts of that case the High Court proceeded on the basis that refixation of seniority was legally permissible. The decisions referred to in that judgment were also related to valid orders made by the Government dehors misconduct of the Government servants concerned. In all those decisions no punishment was inflicted upon the Government servant, for he did not satisfy either of the two tests laid down in Parshotam Lal Dhingra's Case ([1958] S.C.R. 828). But in the present case I have held that the Government has no power to de-confirm the respondents who were lawfully appointed as permanent Tahsildars. If that be so, their reduction in rank was punishment inflicted on them. They were punished, though they were not -guilty of any, misconduct. The said judgment and the decisions referred to therein have therefore no application to the present case. I, therefore hold that the respondents had a right to occupy a substantive rank in the posts of Tahsildars and their reduction as officiating Tahsildars was certainly reduction in rank as punishment. In this view, it is not necessary to express my view whether, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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