H. Mehrotra, J.
1. This petition under Article 226 of the Constitution raises the question of the validity of the order, dated 26 December 1959, passed by the Joint Secretary to the Government of Assam, opposite party 4, and another order, dated 3 March 1960, passed by the Chief Secretary to the Government of Assam, opposite party 2, in the following circumstances.
2. The petitioner was appointed as a lower division assistant in the Assam Secretariat on 10 February 1949. After passing the competitive examination conducted by the Assam Public Service Commission in the year 1950 the petitioner was confirmed on 19 May 1951, in the said post. On 21 September 1953 he was promoted as upper division assistant in the Assam Secretariat and was confirmed in the said post on 13 October 1958.
3. The petitioner is still holding the post of upper divison assistant in the Excise Department of the Assam Secretariat and is drawing a salary of Rs. 300 per month in the scale of pay of Rs. 200-325. After a long time the Governor of Assam fixed, the seniority inter se of the assistants in the amalgamated lower division and upper division cadres of the Assam Secretariat by his order, dated 27 January 1959, in accordance with the principles laid down by the Government of Assam and in conformity with the provisions of the service rules.
4. By an order, dated 21 March 1958, issued by the Chief Secretary to the Government of Assam it was pointed out that all officiating promotions to the post of assistant superintendents would be subject to reversal on final determination of seniority and the seniority lists prepared would be treated as provisional until the final determination of seniority inter se of the assistants in the amalgamated establishment of the Secretariat.
5. Under the provisions of the Assam Secretariat subordinate Service Rules, 1954, which came into, force with effect from 1 January 1954 under a notification, dated 8 October 1955, a gradation committee consisting of three officers was appointed. After the seniority inter se of the assistants in the amalgamated cadres had been finally fixed by the order, dated 27 January 1959, the cases of a number of confirmed upper division assistants were put up before the gradation committee to consider their eligibility to promotion to the posts of superintendents and assistant superintendents.
6. Sometime in December 1959, according to the petitioner, the gradation committee submitted its recommendations to the appointing authority under the service rules of 1954. By order dated 23 December 1959; the Chief Secretary to the Government of Assam, the appointing authority under the service rules, allowed the upper division assistants including the petitioner mentioned in the said order to officiate as assistant superintendents with effect from 28 December 1959.
7. The petitioner was appointed with effect from that date in the Revenue Department as assistant superintendent. By another order dated 26 December 1959, issued under the signature of opposite party 4, the Joint Secretary to the Government of Assam in the Secretariat Administration Department, the operation of the earlier order dated 23 December 1959 was stayed until further orders and the postings of the upper division assistants as assistant superintendents were also stayed till further orders.
8. By a subsequent order dated 3 March 1960, passed by the Chief Secretary to the Government of Assam, opposite party 2, the order of 23 December 1959 was vacated and the upper division assistants named in the order of 3 March 1960 were allowed to officiate as assistant superintendents in the Assam Secretariat with immediate effect. The petitioner who was allowed under the earlier order of 23 December 1959 to officiate as assistant superintendent was dropped in the subsequent order dated 3 March 1960.
9. By an order of the same date twelve permanent upper division assistants including respondents 8 to 15 to this petition who were reverted by order dated 23 December 1959 to the post of upper division assistants were allowed to officiate as superintendents with immediate effect. By the same order the names of. respondents 16 to 18 and respondent 22 who reverted to the post of upper division assistants by order dated 23 December 1959 were included in the list of the promoted candidates and the names of eighteen persons including the name of the petitioner were omitted from the new list though by the earlier order dated 23 December 1959 they were promoted to the posts of the assistant superintendents and were permitted to officiate as such. It is this order which is impugned by the present petition.
10. The petitioner filed an appeal against this order to the Governor of Assam in pursuance of Section 28. of the Assam Secretariat Subordinate Service Rules, 1954(hereinafter called 'the service rules'). In the present petition it was alleged that in spite of repeated reminders, the appeal had not been disposed of and a relief of mandamus was claimed directing the opposite parties to dispose of the appeal at an early date. From the counter-affidavit, however, it appears that since then the appeal has been disposed of, by an order dated 18 June 1960. The appellate order has therefore been also impugned on the same grounds on which the validity of the order of 3 March 1960 is challenged.
11. The petitioner has made three submissions before us. It is firstly contended that as he was appointed to officiate as assistant superintendent by an order of the Chief Secretary dated 23 December 1959, the subsequent order which omitted the name of the petitioner from the list of the upper division assistants promoted to the post of the assistant superintendents amounts to his reduction in rank and the order was passed without giving him an opportunity to explain his position, the order was in contravention of the provisions of Article 311 of the Constitution.
12. In this connexion it is also urged that the respondent 4 had no right to stay the operation of the order dated 23 December 1959 by the Chief Secretary. Secondly, it is urged that in making the appointments under the order of 3 March 1960, the provisions of Sections 5(i)(a). 18 and 20 of the service rules have been violated. It is urged in this connexion that the service rules were passed in. the exercise of powers conferred under Article 309 of the Constitution. It lays down the procedure for recruitment to various posts and provides for the constitution of the gradation committee.
13. In the present case the gradation committee, in order of preference, has recommended the name of the petitioner and the Government had no authority to ignore the recommendation of the committee and make appointments of persona of its own choice. Lastly, it was urged that the petitioner has Buffered by the omission of his name from the second list and he should have been given an opportunity to substantiate his case and further that the order dated 3 March 1960 is arbitrary and discriminatory.
14. It is now settled law that it is only in cases where the Government intends to inflict three forms of punishments, namely, dismissal, removal and reduction in rank, that the Government servant has to be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. If determination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Article 311(2) of the Constitution.
15. The question, however, still remains when can a termination of service be effected by way of punishment and when not. If a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post under the roles until he attains the age of superannuation or is compulsorily retired. The termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's rights. The following observations in the case of Parshotam Lal Dhingra v. Union of India 1958-I L.L.J. 544 at 560-561 are apposite :-
Shortly put, the principle is that when servant has a right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold the post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary, either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the temporary service rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post.
In the present case the petitioner could claim no right either under the terms of employment or under the service rules to be promoted to the post of the assistant superintendent. If, therefore, by the subsequent order of 3 March 1960 he was not promoted to the post of the assistant superintendent or he was not appointed to the post, he cannot say that he was reduced in rank or his services as assistant superintendent were terminated by way of punishment so as to attract Article 311(2) of the Constitution. Mr. Ghose, who appears for the petitioner, realizing the weakness of the argument, has contended that although the petitioner may not have had any right to be promoted to the post of the assistant superintendent by virtue of the order of 23 December 1959, by which he was appointed to act as assistant superintendent with effect from 28 December 1959, he acquired a right to hold the post of the assistant superintendent and the subsequent order thus affected his right to hold the said post.
16. There are two objections in accepting the contention of the petitioner. Firstly, by the order of 26 December, the operation of the order dated 23 December 1959, was stayed. The order of 23 December 1959 was to take effect from 28 December, and before that the operation of the order was stayed. Thus, the order of 23 December never came in force and was never given effect to. The petitioner thus never bold the post of the assistant superintendent and before the order of 23 December could take effect, it was revoked by the subsequent order of 3 March 19S0. At no stage the petitioner held the post of the assistant superintendent and thus had no right to hold the post of assistant superintendent under any subsisting order. The appointing authority is the Chief Secretary and the order of appointment is an administrative order.
17. It is therefore always open to the appointing authority to withdraw such an order. The Chief Secretary, by his order dated 3 March 1960, withdrew the earlier order and unless it can be said-which cannot be said in the present case-that the order, of the Chief Secretary revoking the earlier order of 23 December 1959, was without jurisdiction, the petitioner never acquired any right to hold the post of the assistant superintendent. Article 311 of the Constitution thus is not attracted in his case and the question of giving him an opportunity to show cause does not arise.
18. It was then contended by the petitioner that there has been a violation of the provisions of the service rules and the petitioner is entitled to a mandamus directing the opposite parties to carry out the terms of the said service rules in case they have been violated. Two points arise in this connexion, first, whether the breach of any of these rules can give a right to the petitioner to move this Court under Article 226 of the Constitution, apart from the breach of the provisions of Article 311 of the Constitution, and secondly if the petitioner who has no right to the post of the assistant superintendent, can ask for any relief under Article 226 of the Constitution.
19. It was also contended in this connexion by the counsel for the State that there has been no violation of the provisions of the service rules and further the provisions said to have been violated are not mandatory but only directory. The first question is put in the following way by the Advocate-General. He urges that Article 310 of the Constitution provides that, except as expressly provided by the Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.
20. The tenure of the office of a civil servant is thus at the pleasure of the Governor. The pleasure of the Governor under Article 310 of the Constitution is only
subject to the express provision of the Constitution. The express provision of the Constitution is embodied in Article 311 of the Constitution. Thus the pleasure of the Governor under Article 310 of the Constitution is not subject to any other restriction except the express restrictions embodied in Article 311.
21. The exercise of pleasure, therefore, is not examinable in Courts except where it violates the provisions of Article 311 of the Constitution. Any other violation cannot be enforced in a Court of law. Mr. Ghose, who appears for the petitioner, contends that any law made under Article 309 of the Constitution will be regarded as an express provision of the Constitution. The express provision of the Constitution is not limited to the articles of, the Constitution but also the rules made under the provisions of the Constitution.
22. He secondly contends that Article 309 of the Constitution provides that by rules the Governor can regulate the recruitment and conditions of service of persons appointed to public services and posts in connexion with the affairs of any State and such rules will have statutory force. If such rules have statutory force, any breach of the provisions of these rules* is amenable to a writ of mandamus by this Court under Article 226 of the Constitution.
23. In my opinion, for the disposal of the present case it was enough to point out that the petitioner having no right to hold the post of the assistant superintendent, no relief can be granted to him under Article 226 of the Constitution. The foundation for relief under Article 226 of the Constitution is the existence of a right which is sought to be enforced by a direction or a writ under Article 226 of the Constitution. But if the petitioner has no right, the question of enforcing any right would not arise.
24. But as the point is of some importance, I would like to express my views on the arguments advanced on the other contentions raised by the parties. In my opinion, the pleasure of the Governor, so far as the tenure of the office is concerned, is subject only to the express provision of the Constitution embodied in Article 311 of the Constitution and the breach of the service rules, apart from the violation of Article 311 of the Constitution, will thus not be enforceable under Article 226 of the Constitution.
25. The rules framed under Article 309 of the Constitution, even though they are statutory rules, cannot be regarded as express provisions of the Constitution so as to affect the pleasure of the Governor under Article 310 of the Constitution. In the case of N. Deva shayam v. State of Madras : AIR1959Mad1 a Bench of Madras High Court held that once a civil servant is unable to invoke the provisions of Article 311(1) or (2) of the Constitution in his aid there is no other provision under which he can challenge the, validity of the order of the Government which might adversely affect his official career. In this case the petitioner along with others was appointed by Government of Madras as Assistant Commandant, Special Armed Police. Their services were utilized during the ' Hyderabad action.' When the normal conditions were restored, the Government of Madras issued an order by which they appointed certain persons including the petitioner who had been serving in Special Armed Police, Madras, to posts in the Madras Police Service. The appointments were made on the results of selection made by the Madras Public Service Commission and their seniority was mentioned in the order.
26. The petitioner in that case was assigned first place in the list in accordance with the notification. After the lapse of more than five years, the Government of Madras passed another order by which the order of seniority was changed and it was this order which was challenged by means or a writ petition. It was held in these circumstances that the petitioner could not claim as of right any particular rank in his substantive cadre and least of all he could seek to enforce such a right. At Para. 21 of the report it was observed as follows:
There is no rule that whenever the Government wanted to change the rules as to seniority or whenever they propose to refix seniority with reference to a particular service on a basis different from what was adopted before, persons in service likely to be affected should be given an opportunity of being heard. The Government in passing such orders are not in any sense exercising judicial functions and hence failure to give notice to the officers concerned and to hear them does not amount to violation of principles of natural justice.
Similar view was taken in the cases of K.P. Shankerlingam v. Union of India A.I.R. 1960 Bom. 431, S. Framji v. Union of India 1959-I L.L.J. 107 and Jagdish Dajiba V. Accountant-General of Bombay 1959-I L.L.J. 117. Reliance is placed on the following observations in the case of Lachman Prasad v. Superintendent, Government Harness and Saddlery Factory, Kanpur : AIR1958All345 :
Rules made by the Governor-General in the exercise of his powers under Section 241, Government of India Act, 1935, regulating the conditions of service of persons appointed to public services have statutory force and if any of these rules are not observed, it is open to the person affected by such a non-observation to approach the High Court for relief under Article 226 of the Constitution and a writ of mandamus can be issued directing the opposite party to enforce those rules.
In this case no relief was granted to the petitioners and moreover it was held in that case that all that Article 310 of the Constitution deals with is that every civil servant holds his post during the pleasure of the President, in the exercise of that pleasure it may be open to the President to terminate the service of all the employees, but the fixation of scales cannot be considered as exercise of the pleasure under Article 310 of the Constitution.
27. A distinction has been drawn in this case between rules under Article 309 of the Constitution regulating the recruitment and conditions of service of persons mentioned and the exercise of pleasure under Article 310 of the Constitution. The fixation of grade was regarded as a condition of service and not the exercise of pleasure. As I have already indicated, the petitioner having no right to be recruited to the post of the assistant superintendent, he cannot ask this Court for any relief under Article 226 of the Constitution even if there has been any violation of the rules framed for the recruitment to the post.
28. On the assumption that he was by order of 23 December 1959 appointed to the post of the assistant superintendent and thus the subsequent order amounts to reduction in rank-and this is an exercise of pleasure-the petitioner would have been entitled to relief only on the ground that Article 311 of the Constitution was violated. But I have already held in this case that it does not amount to reduction in rank and thus Article 311 of the Constitution was not violated at all.
29. In order to appreciate the question whether there has been a violation of the provisions of the service rules and whether the provisions are mandatory, it will be necessary to refer to some of the provision's of the service rules. As per Section 3 of the service rules, 'appointing authority' means the Chief Secretary and 'committee' means the gradation committee consisting of three officers as was be appointed and notified by the appointing authority from time to time. The committee will have powers to co-opt members if necessary for accurate assessment of relative merit of candidates.
30. The relevant portion of Section 5 which occurs in part III relating to recruitment, reads as follows:
5. The recruitment to the staff shall be made as follows:
(1) Superior-(a) Assistant superintendents.-By selection strictly on merit from upper division assistants appointed substantively.
Procedure for selection. The appointing authority will inform the committee, from time to time, the approximate number of vacancies likely to be filled up within next twelve months. The committee will, for this purpose, meet once or twice a year and examine the character rolls of eligible candidates and their personal file if any and may also interview any of the candidates, if necessary. The committee will then prepare a panel of names in order of preference and recommend it to the appointing authority. The panel of names should contain at least double the number of vacancies likely to occur in the next twelve months.
Section 11 lays down that, the appointing authority will decide and inform the Commission or the committee as the case may be, the approximate number of long continuous chain of vacancies in the cadres of assistant superintendents, upper division assistants, lower division assistants and typists as the case may be. Section 15(ii) provides that the committee, on the other hand, shall prepare a list of the candidates for recruitment or promotion strictly in order of merit under Rules 5(1)(a) and 5(2)(b) and submit it to the appointing authority.
31. Section 18 lays down that the lists of candidates forwarded by the Commission and the committee under Rule 15, shall be treated as waiting lists. The waiting lists shall be treated as valid for a period of twelve months from the date of receipt of these lists. Section 20 provides that the appointing authority shall make appointment to the respective posts on the occurrence of long continuous chain of vacancies in order of position of candidates in the waiting list mentioned in Rule 18 above, subject to the provision under Rule 6 in case of direct recruitment.
32. The petitioner's contention is that the petitioner was appointed to the post of the assistant superintendent in accordance with the recommendation made by the gradation committee and the appointing authority had no power under Rule 20 of the service roles to alter the position of the candidates given in the waiting list. In Para. 4 of the counter-affidavit filed by the Chief Secretary it is stated as follows:
The gradation committee recommended assistants for promotion in two categories, one set of assistants as ' very good' and the other set as' good' and the orders of promotion dated 23 December 1959 were passed on recommendation of the gradation committee giving preference to ' very good' over the 'good.' These orders were to take effect from 23 December 1959. Before these orders were given effect to, large number of representations from assistants affected adversely by those orders were received by the State Government. The recommendation of the gradation committee, which formed the basis of the orders of promotion dated 23 December 1959 were made solely on the annual confidential reports on the assistants.' On examination of these reports it was found that the system of writing these reports did not follow a uniform pattern. The remarks differed from officer to officer and they were often sketchy. A uniform and rationalized pattern for making annual reports was not in vogue and it has been introduced now only. Therefore it was decided that in the absence of standardized system of recording annual reports it would not be Just and fair to all concerned to categorize the assistants as ' very good' and ' good' and make a sharp distinction among them for purposes of promotion on the basis of these reports. So in the interest of justice the assistants categorized as' very good ' and 'good' for the purpose of promotion and having due regard to seniority, the final order dated 3 March 1960 in the matter of promotion was passed by the State Government.
After a careful reading of these rules, it will be clear that the function of the committee is only recommendatory.' It has to submit the panel of names, containing at least double the number of vacancies likely to occur. Under Rule 15(11) the committee has to submit the list to the appointing authority. The committee functions as an advisory board and makes recommendation to the appointing authority.
33. The final power of appointment rests with the appointing authority and It cannot be said that the recommendation of the advisory committee is mandatory. Moreover, the fact that the committee has to send a list of double the number of likely vacancies also suggests that the appointing authority has been given power to select from amongst the candidates mentioned in the list. It cannot, therefore, be said that the Chief Secretary in not accepting the recommendation of the committee in all cases has violated any mandatory provision of the service rules.
34. As will appear from the counter-affidavit, the committee gave various names, in different categories, and placed the names of various candidates according to their seniority in different categories. if the appointing authority thought that there was no Justification for various categories and in fact' very good ' and ' good ' formed one category, the obvious result would be that the position of the candidates who were mentioned in these two categories separately, will have to be readjusted on the basis that there is one category and the position after readjustment will be occupied by each candidate according to his respective seniority.
35. In that view of the matter it cannot be said that the Chief Secretary did not make appointments in order of position of candidates in the waiting list. The order of preference was done by the committee in accordance with the seniority and the same principle has been accepted by the appointing authority, in making the appointment. The only change which the appointing authority has done is that it has not recognized the categorization made by the committee. There was thus no violation of the service rules. In any view of the matter, in our opinion, the petition has no force and it is rejected with costs, hearing fee fixed at Rs. 100.
K. Deka, J.
36. I agree.