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Pirthwinath Chowdhry Vs. State of Uttar Pradesh - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 204 of 1958
Judge
Reported inAIR1959All169
ActsConstitution of India - Articles 309, 311 and 311(2); Uttar Pradesh State Law Officers Rules, 1942 - Rules 2, 7 and 14; Code of Civil Procedure (CPC) , 1908; Uttar Pradesh General Clauses Act - Sections 6
AppellantPirthwinath Chowdhry
RespondentState of Uttar Pradesh
Appellant AdvocateIqbal Ahmad, ;B.K. Dhaon, ;S.D. Misra, ;Bishun Singh, ;Kesri Bir Prasad and ;K.S. Verma, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
constitution - superannuation - articles 311(2) and 309 of constitution of india and rule 7 and 14 of u. p. state law officers rules, 1942 - service of petitioner appointed for three years as additional government advocate was terminated before expiry of said three years - termination made due to substitution of new rule 7 - new rule not applicable - order of termination amounts to removal of petitioner - held, removal not made in accordance to rule 14 and article 311 (2) and is illegal. - - except to the limited extent to which he had agreed to appear for the government in criminal cases he was a free man with complete liberty to accept professional engagements and to appear for whichever party he liked. this distinction between public office and public employment is well.....jagdish sahai, j. 1. the facts giving rise to this petition have been fully given by my brother gurtu and it is not necessary to narrate them again in this judgment. the questions for determination in this case are as follows :1. whether or not the petitioner sri prithwi nath chowdhry was a member of the civil service of the state of uttar pradesh or held a civil post under the said state within the meaning of articles 310 and 311 of the constitution of india? 2. whether the termination of the petitioner's services amounts to an order of removal so as to attract the provisions of article 311 of the constitution of india? 3. whether the new rule 7 of the u. p. state law officers' rules 1942, is prospective or retrospective in its application and whether the petitioner could be retired from.....
Judgment:

Jagdish Sahai, J.

1. The facts giving rise to this petition have been fully given by my brother Gurtu and it is not necessary to narrate them again in this judgment. The questions for determination in this case are as follows :

1. Whether or not the petitioner Sri Prithwi Nath Chowdhry was a member of the civil service of the State of Uttar Pradesh or held a civil post under the said State within the meaning of Articles 310 and 311 of the Constitution of India?

2. Whether the termination of the petitioner's services amounts to an order of removal so as to attract the provisions of Article 311 of the Constitution of India?

3. Whether the new Rule 7 of the U. P. State Law Officers' Rules 1942, is prospective or retrospective in its application and whether the petitioner could be retired from service before completing full three years of service after his reappointment?

4. Whether a writ can be issued in the circumstances of the present case?

2. Admittedly the petitioner was appointed as a law officer under the United Provinces Crown Law Officers' Rules, 1942, (hereinafter called the Rules). Rule 2 of the said Rules runs as follows :

'2. The posts dealt with by these rules are tenure posts and are classed as specialist. They carry with them part time civil employment under the Crown.'

The petitioner was thus in the part time civil employment of the State of Uttar Pradesh and was holding a tenure post, classed as specialist. 'Tenure Post' has been defined in the U. P. Fundamental Rules as follows :

'Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period.'

The petitioner in this case was appointed on 16-4-1957 to hold the office of Additional Government Advocate for a period of three years from that date. It is not the petitioner's case, and it cannot be his case, that he belonged to the civil service of the Union. In order to decide whether he belonged to the civil service of this State it will be necessary to determine as to what does the expression 'member of ....... a civil serviceof a State' mean. The expression 'civil service' has not been defined in the Constitution or anywhere else. In the Oxford Dictionary its meaning has been given as follows :

'1785 orig. That part of the service of the East India Company carried on by the covenanted servants who did not belong to the Army or Navy (cf. SERVICE); now, all the non-warlike departments of the public administrative service of the State, also the body of servants of the State employed in this service.'

3. In England administrative Government is carried out mainly by departments e.g., the Treasury, the Foreign Office, the Home Office, the Commonwealth Relations Office, the Colonial Office, the War Office, the Law Officers' Department, the Post Office, the Ministry of Labour and National Service, the Ministry of Transport, etc. The departments are staffed by administrative, professional, technical, executive and clerical officers who constitute the civil service. There are various grades in the civil service in England.

Thus in England the members of the administrative grade, the professional, scientific and technical officers, the members of the executive grade, the clerks, the typists, the workers in the post office, the service departments and the Ministry of Supply are considered to be members of the civil service. In fact practically all the employees of the Government except those employed in the armed forces are considered to be members of the civil service. In my opinion the dictionary meaning or what in England constitutes the civil service cannot be of much help to us because we have to go by the provisions of our Constitution in deciding that matter.

4. Articles 308 to 314 find place in Chapter I of Part XIV of the Constitution of India. The head-note to Part XIV is 'Services under the Union and the States.' The head-note to Chapter I is 'Services.' Article 309 gives the appropriate Legislature the power to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State. The said article runs as follows :

'309. Subject to the provision of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State.

5. It would be noticed that the words 'civil service of the Union' or 'civil service of a State' or 'civil post' which occur in Article 311 do not find any place in Article 309 of the Constitution. In Article 311 the words used are: 'member of a civil service,.. . . ..or holds a civil post.' In Article 310 three expressions have been used, namely, 'member of a defence service', 'member of a civil service' and 'holds any post connected with defence or any civil post under the Union or ........ a State.' It appears to me, reading Articles 309, 310 and 311 of the Constitution, that before a person can be a member of the civil service he must be a member of the public service.

The words 'public service' or 'public services' have also not been defined anywhere. Rule 14 of the Civil Services (Classification, Control and Appeal) Rules classifies public services on the civil side of the administration. It runs as follows:

'14. The public services in India shall be classified as follows :

(1) the All India Services.

(2) the Central Services, Class I,

(3) the Central Services, Class II,

(4) the Provincial Services,

(5) the Specialist Services,

(6) the Subordinate Services.'

Admittedly the petitioner does not belong either to classes 1 to 4 or class 6. In my opinion he cannot belong to class 5 also. Even after his appointment as Additional Government Advocate the petitioner continued to carry on the profession of law.

He was free to carry on his private practice in all cases except criminal and quasi-criminal cases. Even in respect of criminal or quasi-criminal cases he could appear outside the State of U. P. in cases in which the State of U. P. was not a party. In doing the part time job which he was doing as Additional Government Advocate he was actually carrying on the profession of law and it is clear that he never gave up his profession nor exchanged it for any service. Except to the limited extent to which he had agreed to appear for the Government in criminal cases he was a free man with complete liberty to accept professional engagements and to appear for whichever party he liked.

He was not required under the law to take the permission of the High Court before accepting the post of Additional Government Advocate which thelaw would have required him to do had the acceptance of that post amounted to the entering into a service by the petitioner. A person cannot carry on an independent profession and yet be in the regular public service. No doubt the emoluments which are paid to the petitioner are described as pay or salary. To my mind they are in the nature of fees for professional service rendered, and the relation between the Government and the petitioner is that of a client and a professional man.

It is open to a client either to pay his counsel casewise or a consolidated sum every month for all the work that he does for him during the month. A Senior or a Junior Standing Counsel is also appointed by the Government under the Rules. Exactly the same rules apply to the two classes of Government Counsel, i.e., the Government Advocate and the Additional Government Advocate who deal with criminal case, and the Senior and the Junior Standing Counsel who deal with civil cases of the Government. The Senior and the Junior Standing Counsel are paid fees either for every case or on daily basis and not a fixed sum at the end of the month by way of pay or salary.

If their emoluments cannot be described as salary but only as fees it is difficult to see how the emoluments of an Additional Government Advocate can be held to be salary. Under these circumstances it is difficult to hold that the petitioner belongs to the regular services of the State or is a member of the public service of this State, whether of class 5 of Rule 14, i.e. specialist service or of any other class. To my mind the words 'member of a civil service of a State' in Article 311 of the Constitution mean member of a public service on the civil side of the administration and not being a member of the defence service.

In my opinion the relationship of master and, servant exists between the State Government and the petitioner in a very limited sense. The relations between them were of a client and a professional man. Just as it is open to a private litigant to retain the services of an advocate for a fixed period of time on a fixed amount every month it was open to the Government to employ the services of the petitioner as Additional Government Advocate. The work that he was required to do was to appear on behalf of the Government in cases in which the Government was a party.

In other words the services he rendered in the Government were in the nature of professional services rendered by a lawyer to a client. When the Government is a party to a proceeding in a Court it is not exercising any of its governmental or sovereign functions and its position is the same as that of any other litigant. I am therefore of the opinion that the petitioner cannot be deemed to be a member of any public service. It is true that in Rule 2 of the Rules law officers have been described to be in part-time civil employment of the State.

The word 'employment' does not necessarily mean employment in the sense of being a servant. Even professional men e.g. a lawyer or a doctor can be employed. Even if it be assured that the expression 'part-time civil employment' means some sort of service and the emoluments paid to the petitioner as salary that would not in any way make the petitioner a member of any service. It is admitted that the petitioner was employed only for three years.

It is also admitted that his employment was part-time. In the case of Commr. of Income-tax, Bombay City v. Mrs. Durga Khote : AIR1952Bom241 , Chief Justice Chagla observed as follows :

'Mr. Joshi's contention is that if you look at the terms of the contracts, it is clear that a relationship of master and servant is established between the film companies and the assessee, and according to him if that relationship is established, then the assessee is a salaried servant of the film companies and the income she received was in the nature of her salaries. Now, the mere establishment of relationship of master and servant is not sufficient when we are dealing with a person who is practising a profession, because in the course of the practice of that profession it may become necessary for the person to get himself or herself engaged to a particular master temporarily. But even while he or she is so engaged, he or she is really practising his or her profession and the service is merely incidental to that profession. The position is different when a professional person permanently accepts an employment and exchanges his profession for service.

It is clear on the facts of this case that Mrs. Durga Khote was not giving up her profession and was not exchanging her profession for any service. It is in order to carry out her profession of a film actress that she entered into various contracts with the film companies. Her employment was temporary and incidental to her profession and she had no intention permanently to engage herself with any company.

She was completely fancy free after her contracts with the film companies were carried out to lend her services to any other company she desired. It is difficult to see how on the facts of this case it can ever be stated that she exchanged her profession for service and ceased to practise her profession and became a, salaried servant of the various film companies, with whom she was working, in order to practise her profession.'

6. I respectfully agree with the observations mentioned above, and hold that even while the petitioner took up a part-time employment with the State of U. P. to prosecute its cases for a Period of three years he continued to practise his profession and never gave it up for any service. For these reasons I am of the opinion that the petitioner cannot be deemed to be a member of the civil service of the State of U. P.

7. It has next to be considered whether the petitioner is holding a civil post under the State of U. P. within the meaning of Article 311 of the Constitution of India. It would be noticed that Article 309 of the Constitution contemplates appointments to public service as also appointments to posts in connection with the affairs of the Union or of a State. Article 310 of the Constitution mentions three things: membership of a defence service, membership of a civil service and the holding of any post connected with defence or any civil post. The holding of a post therefore is quite distinct from being a member of a civil service.

Even in Section 240 of the Government of India Act, 1935, there was a clear distinction between a member of a civil service and the holder of a civil post. In my opinion the expression 'holds a civil post', means holds a post on the civil side of the administration under a State which partakes the nature of service either wholly or partly in the sense that it is an office and carries emoluments with it. I have already mentioned in an earlier part of this judgment that Part XIV of the Constitution is headed as 'Services under the Union and the States,' and Chapter I of that part as 'Services.'

The provisions, of Articles 309 to 311 fall under Chapter I of Part XIV of the Constitution. Taking the head-note into consideration it must be held that Article 311 will apply not to the holders of all civil posts in the Union or a State but to the holders of those posts which are in the nature ofservices. The post of a Mukhia appointed under Section 45 of the Code of Criminal Procedure must be held to be a civil post but it cannot be a civil post within the meaning of Article 311 of the Constitution because it is not in the nature of a service. The words 'civil post' have also not been defined anywhere. In the case of Lachmi v. Military Secy. to the Governor of Bihar : AIR1956Pat398 , Chief Justice Das observed as follows :

'I think that the expression 'civil post under a State' means that the post is under the control of the State; that is, the State can abolish the post if it so desires, or the State can regulate the conditions subject to which the post is or will be held. The real test, therefore, is the immediate or ultimate control which is exercised by the State with regard to the post in question.'

On the basis of the case mentioned above with which I fully agree, if the post of the Additional Government Advocate is a post, it would be a civil post within the meaning of Article 311 of the Constitution of India, but the question is whether it can be called a post or an employment. The question as to what is a post arose in the case of Sukhnandan Thakur v. 'State of Bihar AIR 1957 Pat 617 and Ramaswami, J., observed as follows :

'Article 16 expressly makes a distinction between 'appointment' and 'employment.' These two words occur not only in Article 16(1) but also in Article 16(3), Article 16(2) uses the expressions 'employment' and 'office under the State.' Article 16(4) refers to 'appointment' or 'posts' and to 'the services under the State.' In my opinion, the words 'employment' and 'appointment' connote two different conceptions. 'Appointment' obviously refers to appointment to an office. The term 'appointment' therefore implies the conception of tenure, duration, emolument and duties and obligations fixed by law or by some rule having the force of law. It is obvious that these elements are absent in the case of public employment which is a contract for a temporary purpose.

''For example, labourers or experts engaged by Government for special professional tasks under bilateral contracts would belong to the category of persons in public employment. On the contrary, persons appointed to any Government post or service are not usually employed under bilateral contracts that simply work under conditions standardised by laws and regulations. This distinction between public office and public employment is well recognised in American Law : See James Hall v. State of Wisconsin, (1880) 103 US 5 : 26 Law Ed. 302 and United States v., Hartwell, (1868) 73 US 830. I think the same distinction has been imported into Article 16 by our Constitution-makers.'

In the case of (1880) 26 Law Ed. 302, it was observed as follows :

'The question to be considered was before us in (1868) 6 Wall. 385 : 73 US 830. It was there said that 'An office is a public station or employment conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument and duties....' A government office is different from a government contract. The latter is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.

In U. S. v. Maurice, 2 Brock. 96. Chief Justice Marshall said : 'Although an office is an employment, it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to perform a service without becoming an officer. There is an officeof the Government-Advocate for what used to be the old Allahabad High Court and another for the erstwhile Chief Court of Oudh. After the amalgamation of the two Courts the Government Advocate at Lucknow is known as the Additional Gov-ernment Advocate.

It cannot therefore be denied that there is an office of the Additional Government Advocate. That office has been described under the Rules which have been framed under Section 241 of the Government of India Act 1935, which deals with services, as a tenure post and classed as specialist. Rule 15 of the Rules provides that 'except as provided by these rules, the pay, allowances, leave and other conditions of service of a person appointed :as a Law Officer shall be regulated by the general rules made by the Governor under Clause (b) of Sub-section (2) of Section 241 of the Government of India Act, 1935, and pending the issue of such rules, by the rules continued in force by Section 276 of the said Act and by and in, accordance with the provisions of paragraph 15 (2) of the Government of India (Commencement and Transitory Provisions) Order, 1936.'

8. This rule clearly shows that for certain purposes the law officer is considered to be a government servant. Though he is not a member of any one of the regular services so as to be included in the expression 'member of a civil service' to some extent, though to a limited one, he would be deemed to be in the service of the Government. Inasmuch as the post of an Additional Government Advocate is an office in the nature of service (though not one of the regular public services) it must be held to be an appointment or a post. The State has got full control over the appointment to this post. I am, therefore of the opinion that it is a civil post within the meaaning of Article 311 of the Constitution of India.

9. The next question is whether the petitioner has been removed or dismissed from service. It does not appear that originally the government passed any order terminating the services of the petitioner. According, to his affidavit the revised Rule 7 was notified in the State Gazette on 20-12 1957. In July, 1958, the petitioner heard a rumour that the State Government had requested the High Court to recommend the names of suitable persons for appointment as Additional Government Advocate at Lucknow.

Acting on that rumour the petitioner interviewed the Minister of Justice and represented to him that the new rule could have no application to his case, and then submitted ,a written representation. A copy of the representations that he submitted has been filed along with the affidavit and marked as annexure IV. On 24-9-1958 the petitioner's representation was rejected and he was sent a letter which runs as follows :

'Sir,

In continuation of Government Order No. 2905/VII-372, dated 10-9-1958, I am directed to say that the Governor has rejected your representation for being allowed to work till 15-4-1960, It has further been decided to appoint Sri Debi Prasad Uniyal, Deputy Governmetnt Advocate High Court, Allahabad in your place with effect from 1-10-1958. The charge of the post may please be handed over to him.

Yours faithfully,

Sd. H. K. Sinha

Sanyukta Sachiva.'

The actual order by which his services have been terminated has not been filed in the present case. It is not possible to say without seeing that orderwhether it can at all amount to an order of removal or dismissal within, the meaning of Article 311 of the Constitution of India. From the facts which have been proved in the present case all that appears is that the petitioner casually came to know that the names of some persons were asked for appointment as Additional Government Advocate whereupon he made a representation saying, that he was fit to discharge the duties of the Additional Government Advocate and that the new Rude 7 did not apply to his case.

There was therefore some difficulty in the way of the petitioner in establishing that he was actually dismissed or removed, but in the counter affidavit as also during the arguments the learned Standing Counsel has admitted the position that the petitioner's services have befen terminated be-cause according to the Government the new Rule 7 applied to his case and he became 60 years of age on 25-8-1958. Their Lordships of the Supreme Court in the case of P. L. Dhingra v. Union of India : (1958)ILLJ544SC observed as follows :

'The foregoing conclusion, however, does not solve the entire problem, for it has yet to be ascertained :as to when an, order for the termination of service is inflicted as and by way of punishment and when it is not. It has already been said that where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Article 311(2).

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 and brings about a premature end of his employment. Again where a person is appointed to a temporary post for a fixed term of say five: years his service cannot in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Article 311(2).

The premature termination of the service; of a servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Article 311(2). .... Shortly put, the principle is that when a 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 that 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 Temorary 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 ofpunishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311.

In other words and broadly speaking, Article 311(2) will apply to those cases where the government servant had he been, employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the government has, by contract, express or implied or, under the rules, the right to terminate the employment at any time, than such termination in the manner provided by the contract. or the rules is, prima facie and per se, not a punishment and does not attract the provisions of Article 311.'

10. There is no rule except Rule 14 of the Rules under which the services of the petitioner could be terminated during the period for which he was appointed. Rule 14 authorises the Governor to remove or suspend any law officer at, any time during his term of office for misconduct or dereliction of duty subject to the provision that no law officer shall be so removed unless he had a reasonable opportunity of being heard in his defence. The learned Standing Counsel has conceded that the petitioner has not been removed under this rule. In fact that is not the case of the State even in the counter affidavit. They have purported to act only under the new Rule 7.

The petitioner therefore normally had a right to remain as an additional Government Advocate for the period of full three years for which he had been appointed. It cannot also be denied that his services have been terminated before the expiry of the three years for which he had been appointed, it would therefore appear that if the new Rule 7 does not apply to his case, prima facie, the petitioner's removal before the expiry of the period of three years for which he had been appointed would amount to a punishment and would be a removal within the meaning of Article 311(2) of the Constitution of India.

It has been conceded by the learned Standing Counsel that before the services of the petitioner were terminated the opportunity contemplated by Article 311 of the Constitution of India was not given to him for showing cause against the proposed order of removal. Therefore what we have to see is as to whether the new Rule 7 applies to the petitioner's case, which brings us to the consideration of the third question i.e., whether or not that rule is retrospective. It is well established law that a new provision, except a provision relating to procedure, does not apply retrospectively unless the provision itself makes it retrospective.

11. It is also well established that a statute should not be so construed as to take away or extinguish the right of any person unless it appears by express words or by plain implication that it was the intention of the Legislature. Clear terms ought to be used if it is intended to divest a vested right. The new Rule 7 runs as follows :

'7 Age : A Law Officer shall be appointed or reappointed with due regard to his physical fitness, but shall not be ordinarily retained in service after attaining the age of sixty years : Provided that the Governor may in any case retain a Law Officer after he has attained the age of sixty years.'

To my mind there is nothing in the language of this rule to hold that the rule making authority meant to apply this rule retrospectively.

Before this rule was notified, the petitioned had a clear right to continue as an Additional Government Advocate for a period of 3 years from 16-4-57, and inasmuch as there is nothing in the language of this rule which makes it retrospective in its application I am of the view that the rights of the petitioner are not affected by this rule and he had a right to continue as an Additional Government Advocate for a period of three years from 16-4-1957. I however also make it absolutely clear that I should not be meant to be laying down that the Government had no power to make a rule which may be retrospective in its application and deprive the petitioner of his right of holding the post of Additional Government Advocate.

I have only interpreted the rule as it stands and have held on a reading of the rule that it does not affect the rights of the petitioner. The result therefore is that the petitioner had a right to continue as Additional Government Advocate and therefore the termination of his appointment would amount to removal within the meaning of Article 311 of the Constitution of India.

12. The last question that arises for consideration is whether it is possible to issue a writ of certiorari in the circumstances of the present case. Ordinarily in a case of this nature the proper remedy for a person like the petitioner is to file a regular suit. It was held in the case of Union of India v. T. R., Varma : (1958)IILLJ259SC as follows :

'At the very outset, we have to observe that a writ petition under Article 226 is not the appropriate proceeding for adjudication of disputes like the present. Under the law, a person whose services have been wrongfully terminated is entitled to institute an action to vindicate his rights and in such an; action, the Court will be competent to award all the reliefs to which he may be entitled, including some which would not be admissible in a writ petition.

It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmad v. Municipal Board Kairana : [1950]1SCR566 , 'the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs' : Vide also K. S. Rashid and Son v. The Income-tax Investigation Commr. : [1954]25ITR167(SC) .

And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor. None such appears in the present case. On the other hand, the point for determination' in this petition whether the respondent was denied a reasonable opportunity to present his case, turns mainly on the question whether he was prevented from cross-examining the witnesses, who gave evidence in support of the charge,

'That is a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence. It is not the practice of Courts to decide questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if thelearned Judges had referred the respondent to a suit'

13. In the present case however there is no dispute about facts and it has been admitted that before the services of the petitioner were terminated he was not given an opportunity of showing cause; as contemplated by Article 311(2) of the Constitution of India. That being so I am of the opinion that this is a fit case in which the petitioner should not be asked to file a regular suit and the matter should be decided in these Proceedings. The question however arises as to what order should be passed on this writ petition. Inasmuch as the order terminating the petitioner's services is not on the record and it is not even definitely proved that a formal order terminating his services has actually been passed, no writ of certiorari can be issued quashing such an order even if there be one.

The order dated 24-9-1958 (Annexure VI) has also been acted upon and has exhausted itself and the petitioner has already handed over charge of the office of Additional Government Advocate to Sri D. P. Uniyal. Therefore the mere quashing of the order dated 24-9-1958 will be of no help to the petitioner unless a writ of mandamus is also issued commanding the respondent to treat the petitioner as an Additional Government Advocate. However, I am of the opinion that an order which has exhausted itself and has served the purpose for which it was issued and does not formally terminate the petitioner's services should not be quashed.

I am of the opinion that considering the nature and the circumstances of the case the proper order would be to issue a direction or writ in the nature of mandamus. It appears to me that the effect of Article 311 of the Constitution of India, is 'that the Government have a statutory obligation not to remove a person who is holding a civil post without giving him a reasonable opportunity of showing cause. The petitioner had acquired a right to continue in service for a period of 3 years.

Inasmuch as the termination of the petitioner's services has not been brought about in a mannerrequired by Article 311 of the Constitution, the respondent has an obligation in law to treat the petitioner as continuing as an Additional Government Advocate. I would therefore allow the petition with costs and issue a writ of mandamus commanding the respondent to treat the petitioner as an Additional Government Advocate.

R.N. Gurtu, J.

14. This is a writ petition by Prithwi Nath Chowdhry. The petitioner even prior to 16-4-1957 was Additional Government Advocate in the HighCourt of Judicature Allahabad, Lucknow Bench, Lucknow and by a notification No. 727 (a) VIII-372/57 dated 18-4-1957, he was reappointed Additional Government Advocate, Lucknow Bench, for a period of three years with effect from 16-4-1957. At the time of the original appointment and/or re-appointment of the petitioner as Additional Government Advocate there was no age limit prescribed by the U. P. Law Officers Rules, 1942, which wereand are the rules applicable to the petitioner.

By notification No. 6449/VII-889 of 1957 dated 20-12-1957. Rule 7 of the U. P. State Law Officers Rules was substituted by a new Rule 7. That new rule provided for super-annuation at the age of 60. Thei petitioner who was to attain the age of 60 years on 25-8-1958. and in July, 1958, hearda rumour that the State Government had asked the High Court to recommend names of advocates for appointment as Additional Government Advocatefor the Luckow Bench of the Allahabad High Court.

The petitioner then had an interview with the Hon'ble Minister of Justice U. P. and submitted to him that the new Rule 7 would have no application to the petitioner and in pursuance of the interview also submitted a writen representation to the Hon'ble Minister of Justice U., P. on 20-7-1958. Thereafter the petitioner received a communication dated 10-9-1958, from the Opposite Party to the effect that his term of appointment as Additional Government Advocate had expired on 25-8-1958, on his attaining the age of 60 years, but that the Governor was pleased to allow him to work till a final decision was taken on his representation.

Later on 24-9-1958, a further communication was received from the opposite party stating that the petitioner's representation for being allowed to work till 15-4-1960, had been rejected and that it had been decided to appoint Sri Debi Prasad Uniyal, the then Deputy Government Advocate, High Court, in his place with effect from 1-10-1958, and that the petitioner should make over charge to him.

15. Upon these allegations the petitioner has come to this Court and he prays for a writ in the nature of certiorari or any other suitable writ, direction or order to be issued quashing the order dated 24-9-1958, above referred to.

16. The facts sworn to by the petitioner, as stated hereinbefore, were not disputed in the counter affidavit, which was filed on behalf of the State of Uttar Pradesh by one A. B. Buck, Assistant Secretary to Government, U. P. Judicial Department, Lucknow.

17. The petitioner's case) is that the re-appointment of the petitioner being to a tenure post for a fixed term of three years, the petitioner had an absolute right to hold the post of Additional Government Advocate till 16-4-1960, and that he was subject to removal only in accordance with the U. P. State Law Officers Rules, 1942, as they existed at the time of his said re-appointment.

The petitioner contends that his said re-appointment in April, 1957, having been made at a time; when no age limits were prescribed for retirement from the posts of law officers the petitioner could not be removed from the said post before the expiry of three years from 16-4-1957, except in accordance with Rule 14 of the Rules. The petitioner contends that the new superannuation Rule) 7 which was substituted for the old Rule 7 did not and could not in terms apply to the petitioner and that the order of his removal from his post of Additional Government Advocate with effect from the 1-10-1958, is without jurisdiction.

He contends that the new Rule 7 cannot be given retrospective effect and is only a prospective rule. Further he contends that inasmuch as there was no power in the Governor to terminate his services on the ground of superannuation, therefore, the said termination could not but operate as his removal from service. He Contends that such removal has taken place without complying with Rule 14 of the U. P. State Law Officers Rules, 1942, which provides for a reasonable opportunity of being heard and also without complying with the provisions of Article 311(2) of the Constitution of India.

18. As there was no clear averment in the affidavit filed along with the petition that the petitioner had not been given any opportunity of showing cause against the action proposed to be taken by the opposite-party Government, nor was there any clear averment that no notice of any kindwas given to him, we thought it necessary that he should be asked to file an affidavit to that effect which affidavit was filed. Thereupon we asked the learned Counsel for the State to intimate whether he wanted time to file any counter-affidavit by way of refutation of the statement made in the additional affidavit filed by the petitioner at our instance. The learned Counsel said that no time was necessary.

19. It was we may state conceded by both sides that the appointment and re-appointment of the petitioner as Additional Government Advocate was made under the U. P. State Law Officers Rules 1942. These rules are reproduced in Annenure II attached to the affidavit and it is from, this annexure that the rules were read during the course of arguments. We will now consider what are the petitioner's rights.

20. The first question which arises is whether the petitioner is an employee of the State holding a Civil Post. It was not seriously disputed that he was an employee of the State, nor could it be disputed because Rule 2 of the U. P. State Law Officers Rules 1942 makes it absolutely clear that the post of Additional Government Advocate carries with it part time civil employment under the State (I have substituted the word 'State' for the word 'Crown,' which appears an the rule). The post under Rule 2 is described as a tenure post land is to be classed as a 'specialist post.' Rule 10 provides that the Governor is to be the appointing authority. Rule 13 provides for the filling up of the temporary vacancies.

Rule 15 provides that

''except as provided by these rules, the pay, allowances, leave and other conditions of service of a person appointed as a law officer shall be regulated by the general rules made by the Governor under Clause (b) of Sub-section (2) of Section 241 of the Government of India Act 1935 ...... and by andin accordance with the; provisions of paragraph 15 (2) of the Government of India (Commencement and Transitory Provisions Order, 1936.'

There can, therefore, not be the slightest doubt, and this has been virtually conceded, that the petitioner is a State servant holding a civil post.

21. The next question is, to what class of State servants the petitioner belongs., We have already indicated that the rule itself classifies the petitioner as a specialist holding a tenure post. He was admittedly reappointed for a term of three years. The petitioner does not hold his post in a temporary or officiating capacity or on probation. He holds the post for a fixed term of three years, i.e.. he holds the post permanently for that fixed period.

22. Under Rule 14 of the U. P. State Law Officers Rules the Governor has as already indicated reserved to himself the right to remove or suspend any law officer at any time during the term of his office for misconduct or dereliction of duty subject to the provision that no law officer shall be so removed unless he has had a reasonable opportunity of being heard in his defence. Except, therefore, in a case where the petitioner is liable to removal under Rule 14 and in accordance therewith, he has an absolute right to continue in the post of Additional Government Advocate for three years.

23. When he was re-appointed to the post, Rule 7 to which reference has been made ran as follows :

'No age limits are prescribed for appointments to the posts of Law Officers, but appointments shall be made with due regard to the physical fitness of the candidates.'

Therefore, on that date there was no rule of superannuation and no age limit was fixed on the reaching of which the services of the petitioner could be terminated. It is clear therefore that inasmuch as the petitioner is a State servant who has been appointed under the U. P. State Law Officers Rules, if old Rule 7 be not deemed to have been replaced by the new Rule 7, his services could not be terminated on any other ground, except that mentioned in Rule 14.

24. The question is whether by virtue of the substitution of the old Rule 7 by the new Rule 7 this position has altered. The new Rule 7 was made by virtue of a notification issued on 20-12-1957, which ran as follows :

'In exercise of the powers conferred by Article 309 of the Constitution of India, the Governor of Uttar Pradesh is pleased to make the following amendments in the U. P., State Law Officers' Rule 1942. :

'Substitute the following ;

'For the existing Rule 7 of the U. P. State Law Officers Rules, 1942 substitute the following; '7. Age : A Law Officer shall be appointed or re-appointed with due regard to his physical fitness, but shall not be ordinarily retained in service alter attaining the age of sixty years. Provided that the Governor may in any case retain a Law Officer after he has attained the age of sixty years.'

It will be observed that even this substituted rule does not fix any age limit for appointment of a law officer and provided that he is physically fit and otherwise qualified a law officer may be aP-pointed up to within one day of his attaining the age of sixty years. Further after he has been so appointed, his services are not ordinarily to be retained after his attaining the age of sixty years but may still be retained if in any case the Governor so wishes.

If this rule has retrospective effect and if it can be deemed to have been in existence by virtue of retroactive operation even on the date when the petitioner was re-appointed, then no doubt the petitioner having reached the age of sixty years was liable to have his services terminated because of his super-annuation. He could not claim to be retained because it would be for the Governor to decide whether he having attained the age of sixty should or should not be retained, and inasmuch as in such a case he could not be said to have been removed neither Rule 14 of the rules of his service nor Article 311(2) of the Constitution could be of help to him.

25. The crux of the matter, therefore, is whether this rule has retrospective effect. In Corpus Juris (Vol. 59 at pp. 1158-1159) it is stated as follows :

'Literally defined, a retrospective law is a law that looks backward or on things that are past; and a retroactive law is one that acts on things that are past. In common use, as applied to statutes, the two words are synonymous, and in this connection may be broadly defined as having reference to state of things existing before the Act in question. A retroactive or retrospective law, in the legal sense, is one that takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty or attaches a new disability in respect to transactions or considerations already past.''

Inasmuch as the effect of giving retrospective or, retroactive effect to the present substituted super-animation Rule 7 would be to deprive the petitioner of a vested right, we have to see whether upon the language of the substituted rule, reading it fairly, the rule can be said to have retrospective operation.

26. It is well settled that the- Legislature is presumed to enact prospectively and not retrospectively. But equally there can be no presumption that an Act is not intended to interfere with existing rights. Equally it is well settled that where two interpretations are possible, a prospective construction ought to be given.

27. It, therefore, becomes necessary to carefully examine the language of substitute Rule 7. I have already quoted it hereinabove. The substitute rule does not in terms indicate that it has to be given retrospective effect. It uses the words 'shall be appointed or re-appointed.......' These wordsclearly suggest appointment or re-appointment at a date subsequent to the enactment of the substitute rule. The words clearly imply not only an obligation but futurity as well.

If it had been intended by this rule that it would apply to the present incumbents of posts, the rule, would undoubtedly have been drafted differently in order to indicate that the rule was to be applicable not only to future appointees but to existing appointees also. In my view the substituted Rule 7, while it may be capable of the interpretation that it covers the case of law officers who have already been appointed is also capable of the interpretation that the substituted rule concerns it-self with such law officers as are to be appointed after the rule has been framed. I am, therefore, free to give to this rule such an interpretation as will make the rule prospective and thus protect existing rights.

28. I have regard to the fact that it would have been quite a simple matter for draftsmanship to incorporate such words as would have clearly put the interpretation beyond doubt and would have made the rule in terms retrospective. Therefore, it is reasonable to assume that if it had been intended to give retrospective effect to this rule, that would have been done in clear terms. The omission to make the rule retrospective by incorporating the necessary words seems to suggest that it was not intended by the rule that a person for example who had been appointed for three years only six months previously should be caught within the mischief of this rule.

Unless this substitute Rule 7 is given retrospective effect the repeal of the earlier Rule 7 by this rule would not destroy the accrued rights of the petitioner in view of Section 8(c) of the U. P. General Clauses Act, which is as follows:

'Where any Uttar Pradesh Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(c) after any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.........'

In my view, therefore, the substituted Rule 7 which has been made under the powers conferred by Article 309 of the Constitution of India, Inasmuch as it is not of retrospective effect, does not destroy the right of the petitioner under the rules of his service to hold the tenure post of Additional Government Advocate for the full period of three years ending April 15, 1960, and there is no power in the Governor to terminate his services on the mere ground of superannuation.

29. As there is no power to terminate the petitioner's services for reasons of superannuation, the termination in this case can only have the effect of petitioner's removal from the post of Additional Government Advocate. It is true that the Governor did not purport to remove the petitioner but only purported to terminate his services on the ground of superannuation, but whatever may have been his intention the effect of the letter dated the 24th September, 1958, undoubtedly is that the petitioner cannot continue to discharge his duties as Additional Government Advocate for the remaining period of his three year term and he has to hand over charge to Sri Debi Prasad Uniyal, Depu-ty Government Advocate and to remove himself.

30. No doubt State Officials hold their office during the pleasure of the Governor, but the Governor may place upon his own powers limitations in regard to terminating their services and under the U. P. State Law Officers Rules 1942 as they were in 1957, and which admittedly are applicable to the petitioner, the Governor has placed a limitation on his power of terminating the petitioner's services. Therefore even according to the special term of the petitioner's appointment be would be entitled to the protection afforded by Rule 14 in that he could not be removed unless he had had a reasonable opportunity of being heard in his defence.

But apart from the protection of Rule 14, inasmuch as the petitioner is undoubtedly a person who held his office not in an officiating or temporary or probationary capacity but held it permanently for the duration of his 3 years tenure, he was in my view entitled to the protection afforded by Article 311(2) of the Constitution of India. This I think clearly flows from the categorisation made in : (1958)ILLJ544SC in regard to those kinds of posts the removal from which involves a punishment per se and those in the case of which removal does not operate as punishment per se and does not straightaway afford the protection given by Article 311(2) of the Constitution of India.

The appointment of the petitioner to this tenure-post for a definite period of three years made the petitioner the permanent holder for the duration-of three years of a substantive post or in the alternative it made him the holder of a temporary post for a definite specified period. Qua the petitioner the post of Additional Government Advocate could not be said to be occupying the post either in an officiating or a temporary or a probationary capacity. This I think clearly flows from : (1958)ILLJ544SC .

31. As admittedly the petitioner has not had either the benefit or a show cause notice under Rule 14 of the U. P. State Law Officers Rules or under Article 311(2) of the Constitution of India and in the absence of any power to terminate the petitioner's services for superannuation, the communication dated the 24th September, 1958, has the result of removing the petitioner from the office, the said removal is therefore beyond the power of the Governor. Relief will, therefore, have to be given to the petitioner.

32.) A half hearted submission was made on the strength of the letter dated 10-9-50 that the petitioner having worked after the receipt thereof was estopped from challenging the superannuation rule. The petitioner has never accepted the position that he is touched by that rule and no question of estoppel can arise.

33. I might add, that although no clear contention was raised on behalf of the petitioner, that the Governor could not make retrospective changes in his service Rules under Article 309 of the Constitution, nonetheless it was urged that the Substitute rule even though it may have been intended to be retrospective could not affect the petitioner's lights Reliance was placed on the case of the Union of India v. Askaran . The passage which has been relied upon is from the judgment of Wanchoo, C. J. and runs as follows:

'All that is required in order that the President or the Governor may exercise his pleasure under Article 310 is that there should be rules in force laying down the manner in which the pleasure would be exercised. This means that generally speaking the protection to a public servant is only this that his services would not be terminated unless it is done under some rule or law framed under Article 309, and that the rule to be applied to him should be in existence before he joins the service.

The existence of the rule at the time a public servant joins service may be inferred from the decision of the Supreme Court in Shyam Lal v. State of Uttar Pradesh : (1954)IILLJ139SC . As such, if a para like 148 of the Code is in force when a public servant joins railway service, his services are liable to be terminated in the terms of that rule without in any way, violating the so-called spirit of the Constitution.'

It is contended that this passage clearly indicated that the rule had to be in existence before a person joined the service. In making this submission it is overlooked that the precise effect of making a rule retroactive or retrospective is that it is deemed to have always been in existence. I do not think, therefore, that this passage implies that even a subsequent retrospective rule framed under Article 309 of the Constitution of India would not be effective to alter pre-existing rights.

34. Because of the reasons hereinbefore set out, I am of the view that a mandamus should issue in this case.

35. It is needless to add that it would be open to the Governor to create another post of Additional Government Advocate and to appoint Mr. D. P. Uniyal to the same, if he so wishes.

36. BY THE COURT. We allow this petitionwith costs and issue a writ of mandamus commandingthe respondent to treat the petitioner as an Additional Government Advocate.


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