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State of Bombay Vs. N.T. Advani - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberAppeal No. 192 of 1959
Judge
Reported inAIR1963Bom13; (1962)64BOMLR446; ILR1962Bom532; (1963)IILLJ563Bom
ActsConstitution of India - Articles 299, 309, 311 and 320; Bombay Civil Services Conduct, Discipline and Appeal Rules - Rule 33; Code of Civil Procedure (CPC), 1908 - Sections 80; Government of India Act, 1919 - Schedule - Article 96-A; Bombay Civil Services Rules - Rules 3, 29, 38, 46 and 49; Government of India Act, 1915 - Sections 30
AppellantState of Bombay
RespondentN.T. Advani
Appellant AdvocateR.B. Kotwal, Govt. Pleader
Respondent AdvocateA.G. Kriplani, Adv.
Excerpt:
.....to the government by the order and in the name of the governor and was also published in the bombay government gazette and communicated to the employee, and he worked in obedience to it, it becomes a contract of employment and the employment must he held to have been employed for the period between two dates - the fact, that while making the appointment, the procedure of referring the matter to public service commission was not followed, does not make it an invalid order, not is it subjected to its sanction ;b) it was held that section 80 of the civil procedure code, 1908, shows that the notice is not required to be addressed to the government and the fact that the notice under section 80, is not addressed to the government, but to the secreatery does not make it invalid - indian..........are as follows: the plaintiff entered the service of the state in 1933 as an assistant director of public health, and was in due course confirmed as a permanent holder of the office. he was due to retire at the age of 55 on the 18th of october 1953. he says in the plaint that in the ordinary course, he would have been promoted to the post of the director of public health in about february 1953 but as he was due to retire within about seven months, he agreed to work as a junior malariologist in the same department and he was assured by his superior officers that even after superannuation he would be continued in service from 18th october 1953 to 13th march 1955. on 14th october, 1953, before due date of his retirement, government issued an order as follows: 'shri n. t. advani, junior.....
Judgment:

1. This is an appeal by the State against the decree passed by the City Civil Court, for a sum of Rs. 8062-2-0 made against it in favour of the plaintiff.

2. The short facts in the case are as follows: The plaintiff entered the service of the State in 1933 as an Assistant Director of Public Health, and was in due course confirmed as a permanent holder of the office. He was due to retire at the age of 55 on the 18th of October 1953. He says in the plaint that in the ordinary course, he would have been promoted to the post of the Director of Public Health in about February 1953 but as he was due to retire within about seven months, he agreed to work as a Junior Malariologist in the same Department and he was assured by his superior officers that even after superannuation he would be continued in service from 18th October 1953 to 13th March 1955. On 14th October, 1953, before due date of his retirement, Government issued an order as follows:

'Shri N. T. Advani, Junior Malariologist, Malaria Organisation, Government of Bombay, Local Self-Government and Public Health Department. Resolution No. HDO 1853. Bombay Castle, 14th October 1953. Letter from the Director of Public Health for the Government of Bombay No. Section 2(M)-A, dated 7th July 1953.

Resolution:- Government is pleased to direct that Shri N. T. Advani, Assistant Director of Public Health, now working as Junior Malariologist, Malaria Organisation should be re-employed for a period from 18th October 1953, the date of his superannuation to 13th March 1955, the date on which the sanction for the post of Junior Malariologist will expire.

2. The requisite notification should be published in the Bombay Government Gazette.

By order and in the name of the Governor of Bombay.

G. B. Deshmukh, Deputy Secretary to Government'.

3. The Notification in respect of the same was published in the Government Gazette and this order or direction was communicated, to the plaintiff, the Assistant Director of Public Health, Malaria, at Poona and also to the Accountant General, Bombay, as required by law. In pursuance to this order, which he accepted, he continued to work as a Junior Malariologist, when on 8th of May 1954 he was informed by the Director of Public Health that his services would be terminated. He made representations to the Government for continuance of his service but ultimately on 2nd of June 1954, he was relieved of his office and another gentleman was appointed to lake charge from him. In answer to his representation, the Government wrote to him that he was re-employed as a Junior Malariologist on a purely temporary basis and though the order of his re-employment specified that he was to be in service up to 13th March 1955, it was open to the Government to determine his appointment before the expiry of the said period. The plaintiff alleged that he was relieved from service without proper authority, that there was no order or notification by the Government terminating his service, that he could only be discharged from service by an authority competent to appoint him and that the termination of his service was in violation of the Service Rules and Article 311 of the Constitution and was ultra vires, wrongful and void. In the result, he claimed damages amounting to Rs. 8062-2-0. The plaintiff also contended that in any event, the order made by the Director of Public Health on the 8th of May 1954 and another dated 21st June 1954 did not amount to termination of his service and therefore he was entitled to the balance of his pay, for the period in dispute.

4. The State contested the suit. It admitted the order dated the 14th of October 1953 but contended that since the appointment of the plaintiff was for a period exceeding one year, if was subject to the consultation of the Public Service Commission and inasmuch as the Public Service Commission did not confirm the re-employment, his services were properly terminated by the Government by its letter dated 8th May 1954. The State also contended that the order dated 14th October 1953 did not amount to a contract of service and that the notice given by the plaintiff was not in accordance with law. Assuming that it were a contract the State denied that it was valid for the whole period and binding upon it. The State denied its liability for the sum of Rs. 8062-2-0 asked for by the plaintiff.

5. The learned Judge held that the notice wasvalid, that the Resolution and/or order dated 14thOctober 1953 taking along with the communicationdated 16th October 1953 amounted to a contractof service as alleged, that it was valid and that thecontract of service was not validly terminated by thedefendant. The learned Judge awarded damages asclaimed by the plaintiff. It is this judgment thatis sought to be challenged in this appeal.

6. It is clear that up to the date on which the order dated 14-10-53 exhausted itself i.e. 13-3-1955, the plaintiff continued to be in service, since there is no order which in terms terminates his service. The State relies on the orders made by the Director of Public Health dated 8th May 1954 and 21st of June 1954 for the contention that the plaintiff was validly discharged from the service. The order dated 8th May J954 is as follows: 'Confidential.

No. S-S-A.Poona, 8th May 1954. TO,Shri N. T. Advani, Junior Matariologist, Malaria Organisation,Poona. Subject: Malaria Organisation Appointment of Junior Malariologist. 'Government has directed me to inform you that your appointment will be terminated. Please take note of the same,

Sd/-

Director of Public Health. Copy (W. C.) to

The Assistant Director of Public Health (Malaria), Poona'.

7. Now clearly this order indicates that the services of the plaintiff were liable to be terminated by a future date. It does not say that the services of the plaintiff were in fact terminated from a particular date. It is merely a notice informing him that his services would be terminated but is wholly inadequate, to terminate the services of the plaintiff. The order dated 21st June 1954 is as follows:

District Health Officer, Appointment of-GOVERNMENT OF BOMBAY Local Self-Government and Public Health Dept. Resolution No. HDO 1853, Bombay Castle, 21st June 1954.

Letter from the Director of Public Health for the Government of Bombay No. S-2-496A dated 2nd June 1954.

Resolution: Government is pleased to appoint Shri B. K. Mahajan, M. B. B. S., Plague Control Officer Plague Organisation to officiate as District Health Officer, Kolaba, vice Shri P. D. Paranjpay, purely on a temporary basis, pending further orders.

2. Government is further pleased to appoint Shri P. N. Ranga Rao, Bacteriological and Entomological Assistant to hold additional charge of the post of Plague Control Officer vice Shri Mahajan.

3. The requisite notification should be published in the Bombay Government Gazette.

4. During the period Shri Ranga Rao holds the additional charge, he should be allowed a specialpay to 1/10th of the presumptive pay of the post of Plague Control Officer and half the permanent Travelling allowance attached to the post of Plague Control Officer plus permissible temporary increase. The extra expenditure should be met from the sanctioned grants under '39 Public Health' during the current financial year.

By order and in the name of the Governor of Bombay.

Sd/- G. B. Deshmukh.Dy. Secretary to Government Public Health Department :No. S-2-597-A of 1954. Poona, 1, 24th June 1954.Copy (w. cs.) to : Shri N. T. Advani, Junior Malario-logist,Shri P. D. Paranjpay, District Health Officer, Baramati (Poona).Shri B. K. Mahajan, Plague Control Officer, Baramati (Poona).Shri P. N. Ranga Eao, Bacteriological and Entomological Asstt., Plague Organisation, Plague Laboratory, Satara.Sim Mahajan on relief by Shri P. N. Ranga should relieve Shri P. D, Paranjpay, as District Health Officer, Kolaba, at Pen.On relief by Shri Mahajan, Shri P. D. Paranjpay should relieve Shri N. T. Advani as Junior Malariologist, Malaria Organisation,'Sd/-

For Director, Public Health.' Reliance is being placed only on the last para which I have underlined (here into ' ')

It must be noted that in the resolution of the Government there is no direction that plaintiff's service is terminated. Even here, assuming that the Director of Public Health may validly pass an order of terminating his service, in fact there is no order terminating his service from a particular date. It is only a direction to P. D. Paranjpay to relieve N. T. Advani, the plaintiff. That portion of the order is very inadequate to terminate the service of the plaintiff. The result is that after the order of the 14th October 1953, which made the appointment of the plaintiff from 18th October 1953 to 13th March 1955, there is no order which has terminated the service of the plaintiff. He must, therefore, be deemed to be in service until the force of the order dated 14th October 1953 is completely exhausted. Under these circumstances, really speaking, the contentions raised in the Court below and fought hard by the State do not really arise since the suit of the plaintiff in simple language would be one for recovery of the arrears of pay during which he was in actual service. If the Government did not take work from him it cannot be regarded as the fault of the plaintiff. As there is no other defence to this cause of action he is entitled to succeed. Since, however, the questions agitated in the Court below have been argued in this Court, I will deal with them.

8. It is contended by the learned Government Pleader that the order dated the 14th October, 1953 does not amount to a contract of service in respectof which the plaintiff is entitled to sue. He relies, for the purposes of his argument on Article 299 of the Constitution of India and also the decisions of the Calcutta High Court in Subodh Ranjan v. N. A. O'Callaghan : AIR1953Cal319 and Lakshmi Narain v. A. N. Puri : AIR1954Cal335 . The decisions referred to by him no doubt support his, contention. It is desirable, however, to examine the question apart from authorities in the present case. Article 299 of the Constitution provides by sub-Clause (1) as follows:

'All Contracts made in the exercise of the executive power of the Union or of a State shall bo expressly to be made by the President, or by the-Governor........ of the State, as the casemay be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor.....by such persons and in such manner as. he may direct or authorise.'

First part of this Article is simple and says that all contracts shall be expressly made either by thee President or by the Governor of the State, as the case may be; the second part and the more important part says that all such contracts, which means, contracts referred to in the first part of the paragraph and all assurances of property etc. shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise. It is clear from the second, part of Article 299 that what is required is that all contracts which the President or the Governor may make must be executed in the manner and by the authority prescribed by the President or the Governor. If rules prescribing the mode of executing such contracts have been made then whether or not the requirements of Article 299 are satisfied, will depend upon the nature of the contract in question. Under the second part of the Article, on the-date on which the Constitution came into force, the Government of Bombay has made provision for the execution of certain kinds of contracts in the specified manner, by a Notification No. G.R.,H,D. No. 1758/6, dated 26th January 1950 (amended by G.R.,H.D., No. 1758/6, dated 24th July 1950). Under this Notification all contracts relating to assurances in respect of properties, conveyances of properties or for purchases and other specified matters are required to be entered into on behalf of the Government, as directed there. But the rules do not require that contracts of employment to the services must be executed in a particular manner. One may in this respect refer with advantage to the Fundamental Rules framed by the Secretary of State under Article 96-A Government of India Act 1919 and still in force, as also the Bombay Civil Services Rules. C. S. (C.C.A.) Rule 3 makes the Rules applicable to every person in the whole time Civil employment of a Government in India. As to Central Services in Class I, Rule 29 directs that all first appointments shall be made by Secretary of State. Other rules provide for all first appointments by other authority thus named. In respect of Provincial Services, Rule 38 provides that all first appointments shall be made by the Local Government or an authority empowered by the Local authority in that behalf. It is clear that normally so far as appointment to the services is concernedit is intended to be by, an order of appointment by an appropriate authority and not by contract. Rule 46 which is an enabling rule enables the controlling authority to enter into an agreement whenthe circumstances require that special conditions should be prescribed for a particular post or postsconsistent with the rules. Even then it directs that every agreement should include a provision that wherever the agreement is silent in respect of anymatter, then the rules shall apply. We have similar provisions in the B. C. S. Rules which are supplementary and are made under the powers delegated to the Local Government under the FundamentalRules.

9. It is clear, therefore, that if the proper authority issues an order appointing a person to a post and that person accepts it and joins his duties then he is a person employed and is governed by all the rules and contract of service must be regarded as having been made out.

10. In the present case, the order which I have reproduced at the beginning of the judgment, clearly indicates that the order was communicated by the Deputy Secretary to Government by and in the name of the Governor of Bombay. Not only that it was published in the Bombay Government Gazette and communicated to the employee and he worked in obedience to it. In my view, therefore, it becomes a contract of employment. He must therefore be held to be employed from the 18th of October 1953 to the 13th of March 1955.

11. The learned Government Pleader, however, contended that the resolution of the Government cannot be regarded as a contract. He has invited my attention to the decision in J. K. Gas Plant Mfg. Co. v. Emperor, AIR 1947 FC 38 which has really no application where the question was one of construction of Section 40 of Government of India Act. There reliance was placed on the construction placed on S. 30 of the Act in Secretary of State v. Bhagwandas Goverdhandas, 40 Bom LR 19: AIR 1938 Bom 168. But Spence, C. J. of the Federal Court explained that in that case the initial correspondence which it was contended contained the contract was not made in the name of the Secretary of State and when Government passed a resolution accepting the transaction it became one sided move. The other side refused to accept the transaction when in pursuance to the resolution contract form was submitted. The decision in 40 Bom LR 19: AIR 1938 Bom 168 is against Mr. Kotwal since it holds that section 30 of the Government of India Act, 1915, does not require a formal document in the nature of an indenture or a deed in the case of a contract. In the present case the order of appointment was addressed by the appropriate authority in the name of the Governor to the plaintiff, who accepted it and continued in office thereafter until he was relieved of the charge after 21st June 1954.

12. It is undoubtedly true as held by the Supreme Court that where a contract is required to be in a particular form to be executed by a particular authority, then the requirements must necessarily be complied with. But then the first thing that must be established on behalf of the State is that the contract of service is required to be executed as contended for by the State. Since that has not been established, it is impossible tohold that there was in fact no contract of service. In the cases cited by Mr. Kotwal viz. : AIR1953Cal319 and : AIR1954Cal335 , attention of the learned Judge does not seem to have been invited to any of the rules referred to by me. It was assumed in these cases that appointment to the services must be a contract executed as required by Art. 299 of the Constitution. Its ratio would produce the astounding result that neither the service rules nor Art. 311 of the Constitution will apply to about ninety nine per cent of the Civil servants. In view of what I have stated above, with respect, it is not possible to accept the view expressed by Mr. Justice Bose in those cases.

12a. In Parshotam Lal Dhingra v. Union of India, : (1958)ILLJ544SC , S. R. Das, C. J. says at p. 42 col. 2.

'An appointment to a temporary post for a certain specific period also gives the servant so appointed a right to hold the post for the entire period, of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service.'

In the same case it is held that the protection of the Services Rules and Article 311 is available to such temporary servants.

13. Now in the present case, if it is assumed that the services of the plaintiff were terminated before 13th March 1955, by letters dated 8-5-1954 and 21-6-1954 the termination of his service is contrary to Rule 49 of the Fundamental Rules, Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules and Article 311 of the Constitution. He is in that case clearly entitled to claim damages.

14. It has been very seriously argued by Mr. Kotwal that since while making his appointment the procedure of referring the matter to the Public Service Commission was not followed, the appointment was invalid. He relies on Article 320 of the Constitution, para (3) (b). It has been held by the Supreme Court in State of U. P. v. Manbodhan Lal : (1958)IILLJ273SC , that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and that they do not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation does not afford him a cause of action in a Court of law. There is no reason why the ratio in that case should not apply to para (b), language of which is the same as that of para (c). I am not, therefore, prepared to hold that on this ground the order dated 14th October 1953, was an invalid order and therefore inoperative.

15. It is also contended that the order having been made without reference to the Public Service Commission the order of appointment is subject to the sanction being accorded by the Public Service Commission thereafter. In the first place, the order itself does not make its operation subject to the sanction of the Public Service Commission. It is impossible to read into the words of the order something which is not there as it would amount to rewriting of the order. This argument must, therefore, fail.

16. It is then contended that the notice given by the plaintiff is invalid since it is not addressedto the Government but is addressed to the Secretary to the Government. A reference to Section 80 of the Code of Civil Procedure shows that it is notrequired to be addressed to the Government. Section 80 requires that the notice should contain the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims and that it must be left with the Secretary to the Government. These requirements are complied with. Even otherwise notices must be read in a rational and sensible manner. It is not the function of the Court to prick holes in the notice in order to invalidate it. If all the requirements of the notice are substantially complied with, then it is impossible to hold that the notice is invalid. Though the notice is addressed to the Secretary to the Government, it has reached the proper quarters and there cannot be the least doubt that in substance the requirements of the section have been complied with. This contention musts therefore, fail.

17. In the result, the decree passed by the Court below must be confirmed and the appeal must be dismissed with costs. The defendant to pay the amount to the plaintiff forthwith.

18. Appeal dismissed.


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