9911796707
TMI Blog1953 (5) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Commissioner, Kamrup. The order was to the following effect: As nominated by Sjt. Prafulla Chandra Barua, 'Mouzadar', you are appointed to officiate as 'Mouzadar of Upper Borbhag 'Mouza during the period of leave granted to him. You will act in his place on his security and responsibility and collect the revenue of 1355 B. Section only. 3. The 'Mouzadar' got his leave extended from 11-4-1950 to 10-2-1951 and again for one more year with effect from 11-2-1951. The last extension of leave for one year was allowed as a matter of grace on the distinct understanding that no further extension of leave shall be granted. When this leave was allowed it was ordered that the Petitioner shall continue to act as 'Mouzadar' on the security and responsibility of the permanent 'Mouzadar'. This order was conveyed to the Petitioner. Before however the last period of leave expired, the 'Mouzadar' tendered his resignation on 4-10-1951 to the Deputy Commissioner, Kamrup, who accepted this resignation on 6-10-1951. It is averred in the petition that when accepting the resignation the Deputy Commissioner asked the Petitioner to continue as ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed that when the resignation of Prafulla Chandra Barua was accepted, the Government by its order dated 27-11-1951 directed the Deputy Commissioner, Kamrup to take necessary action to fill the vacancy after inviting applications for the same. The Government further directed that the Petitioner be allowed to continue till the new 'Mouzadar' was appointed. Under this order of the Govt., the Petitioner was permitted to continue on the work temporarily on the distinct understanding that on the appointment of the permanent 'Mouzadar', the Petitioner's service would terminate. In support of this statement reference is made to the order dated 27-11-1951 addressed to the Deputy Commissioner, Kamrup. The order was to the effect that the vacancy be filled after inviting applications for the same and that the Petitioner be permitted to continue till the new 'Mouzadar' was appointed. The allegations contained in para 8 of the petition were expressly denied. One of these allegations was that a 'Kabuliyat' had been executed by the Petitioner. This allegation was repudiated. 8. At the trial the main contention raised was that the Petitioner was the holder o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as stated above, to the effect that pending the appointment of the permanent incumbent, the Petitioner shall be allowed to continue as 'Mouzadar'. Mr. Ghose has urged that the order of the Provincial Government addressed to the Deputy Commissioner was not conveyed to the Petitioner. He was not informed that he shall continue to act till the permanent appointment was made. There is no allegation that a written order was sent to the Petitioner or that a copy of the order of 27-11-1951 was sent to him. But the Petitioner himself admits that he was asked to continue as a 'Mouzadar'. It was a case of continuance. On his own showing it was a continuance, though for an indefinite period, of an officiating arrangement. Assuming that the order of the Provincial Government was not formally communicated to him, it is clear that the Petitioner could not conceivably be unaware of the situation in which he was. The Deputy Commissioner did invite applications for the permanent appointment. The Petitioner knew it and applied for the appointment. He could see that his appointment could continue only till the permanent appointment was made unless he was himself selected for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r', unless there are orders to the contrary dispensing with, it. It is not alleged that he was asked to furnish security or that there was, any order dispensing with the requirements of Rule 119. There can thus be no manner of doubt that the Petitioner was allowed to continue to collect revenue for the Government till the appointment of a permanent incumbent. 12. The legal presumption would also be that the Deputy Commissioner acted in accordance with the order that he received from the Government and allowed the Petitioner to continue on the conditions contained in that order. The Communication of the order to the Petitioner would take place in. the usual course of official business. The legal presumption that may justifiably be made in regard to the informal communication of the Provincial Government's order to the Petitioner has abundant circumstantial support. 13. The conclusion that one is irresistibly led to in these circumstances is that the Petitioner was allowed to continue to collect revenue as 'Mouzadar' till the appointment of a permanent incumbent. 14. The appointment of a permanent incumbent in these circumstances would not amount to or inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; AIR 1952 Pepsu 148(B) it was held that every civil servant of the Union or the State, whether he holds a permanent or a temporary post, is entitled to the protection afforded by Article 311. AIR 1951 All 793(A) was relied on in support of this proposition. It was further held that: When a person is appointed for a fixed period or when there is an express condition under which he is appointed that his services are terminable by so much notice, his case does not fall within the ambit of Article 311 of the Constitution and no notice under that Article need be given to him, because his services terminate automatically after the expiry of the period for which he was employed or of the notice, as the case may be. But if the term of appointment is extended after the expiry of the period so fixed, and no further period of appointment is fixed, it cannot be said that the appointment is for a fixed period and to such temporary appointment the Article would become applicable. The learned C.J. also expressed the view that dismissal under Article 311 was not confined to cases of misconduct only. It implied generally that: the person dismissed was blameworthy i.e., either he has done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of dismissal for misconduct only. With great respect to the learned C.J. of the Pepsu High Court I have not been able to read into the Allahabad decision the dictum which he could not approve. 19. In--AIR 1951 All 793(A)', the Expressions 'dismissed' or 'removed' were described as technical words. Teja Singh C.J. in 'AIR 1952. Pepsu 148(B)', expressed the opinion that the terms 'dismissal' and 'removal' had been used in Art 311 in their ordinary sense. These terms have not been defined. But it is clear that both dismissal and removal have been placed on the same level for purposes of Article 311. In both the cases it is necessary that the termination of' service should be against the will of the incumbent whether permanent or temporary and that such termination should occur before the expiry of the normal period of service. It is a premature termination of' service against the will of the incumbent that attracts the application of Article 311. It is only in such cases that it is necessary to give the persons sought to be dismissed or removed an opportunity to show cause against the action proposed to be taken against him. Whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Assam. I therefore refrain from expressing any opinion on that question. 22. The learned Counsel for the Petitioner has also argued that the order by which Respondent 5 was appointed a permanent 'Mouzadar', was made 'mala fide'. He has drawn our attention to the observations of the Deputy Commissioner in his order dated 5-12-1951, to the effect that Respondent 5 had been highly certified by the President, A.P.C.C. and M. L.A.'s Sjts. 1 Barua and G. Talukdar, and that he had produced a recommendation from Mr. S.K. Datta, I.C.S. In the petition no 'mala fides' were attributed to the Deputy Commissioner. No such allegation was made. The contention raises a question of fact. It is not supported by any statement or affidavit of the Petitioner. The Opposite Party had no notice to state the case on facts so far as this contention is concerned. On this ground alone the contention may not be permitted to be raised. The learned Counsel however has argued it. Mr. Lahiri the learned Counsel for Respondent 5 in reply has pointed out that the candidates for the appointment of 'Mouzadar' have to satisfy the Deputy Commissioner that they are persons who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/53 the order of the Deputy Commissioner has been challenged only on facts. The decision of the Deputy Commissioner is challenged as erroneous. As held above, this Court when acting under Article 226 cannot permit itself to be converted into a Court of appeal. The decision of the Deputy Commissioner is not appealable. His order appointing a 'Mouzadar' is final. Article 226, in spite of the plentitude of power which it confers on the High Courts would not justify interference with the exercise of discretion by the Deputy Commissioner when passing an administrative order under executive instructions. He acted admittedly within his jurisdiction and in making the appointment he did not contravene any rule of law or procedure. There Is no infringement of any legal right and therefore even in this case the petition must fail. 26. For reasons given above the petitions are dismissed with costs. Rules are discharged. Hearing fee two gold Mohors in each case. Sarjoo Prasad, C.J. 27. I agree. 28. In spite of the elaborate arguments at the Bar I see no reason to depart from the view which I took sitting with Ramaswami J. in--'Ajit Kumar Mukherji v. Chief Operating Supd ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
