Skip to content


Omprakash Mukhtyarsingh Vs. State of Madhya Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 372 of 1964
Judge
Reported inAIR1965MP208; (1968)ILLJ649MP
ActsConstitution of India - Articles 226, 311 and 311(2);
AppellantOmprakash Mukhtyarsingh
RespondentState of Madhya Pradesh and anr.
Appellant AdvocateR.S. Dabir, Adv.
Respondent AdvocateR.J. Bhave, Govt. Adv.
DispositionPetition allowed
Cases ReferredAbdul Hafeez Khan v. Government of M.P.
Excerpt:
- .....him as a temporary sub-inspector; and that the action of the opponents in putting an end to the applicant's services amounted to his removal from service without complying with the requirements of article 311(2) of the constitution.6. shri bhave, learned government advocate, submitted that the applicant's confirmation by the gazette order no. 319/64 dated 16th march 1964 was legally ineffective for the reasons that before that date the inspector general of police had already passed an order on 7th march 1964 to the effect that a notice be served on the petitioner terminating his service on the expiry of one month from the date of service of the notice on him, no order of confirmation was ever intimated to the applicant, and his name was not included in the list of confirmed.....
Judgment:

Dixit, C.J.

1. The petitioner in this case prays for the issue of a writ of certiorari for quashing an order passed by the Inspector General of Police terminating his services from the Police Department.

2. The applicant was appointed as a temporary Sub-Inspector of Police from 1st January 1959, in further orders. The order of appointment mentioned that his services were liable to be terminated at any time on one month's notice. On 16th March 1964 a Gazette Order, No. 319/64, was issued by the office of the Inspector General of Police under the signature of the Deputy Inspector General of Police confirming as many as 209 probationary/temporary Sub-Inspectors with effect from the dates shown against their names. The petitioner's name was included in this list of Sub-Inspectors, and he was shown to have been confirmed with effect from 1st January 1961. In the meantime, on 7th March 1964 the Inspector General of Police passed an order for serving the petitioner with a notice for the termination of his services on the expiry of one month from the date of service of the notice on him. Accordingly a notice was served on the petitioner on 7th April 1964. On 14th May 1964, the inspector General of Police made another order saying that the petitioner's services 'stand terminated from the Police Department with effect from 7-3-84 FN on the expiry of the period of one month's notice of termination which was served on him on 7-4-64.' In that order the applicant was described as 'Temporary Sub-Inspector'. On 30th March 1964 a corrigendum was issued by the office of the Inspector General of Police, under the signature of the Deputy Inspector General of Police, deleting the name of the petitioner from the list of Sub-Inspectors confirmed by the Gazette Order No. 319/64 dated the 16th March 1964. The order and the list of the Sub-Inspectors confirmed, which did not contain the name of the applicant, were published in the Madhya Pradesh Police Gazette of 1st April 1964.

3. The petitioner's contention is that the Inspector-General of Police having confirmed him as Sub-Inspector on 16th March 1984 with effect from 1st January 1961 could not thereafter treat him as a temporary employee and discharge him from service after giving one month's notice; that he had no power to cancel the confirmation and relegate him to the position of a temporary Sub-Inspector; and that the termination of his services after giving one month's notice amounted to his removal from service in violation of Article 311(2) of the Constitution,

4. In the return filed on behalf of the respondents, it has been admitted that the applicant's name was first included in the list of the Sub-Inspectors confirmed by the Gazette Order No. 319/64 dated 16th March 1964. But it has been added that the inclusion of the petitioner's name in the aforesaid list was in ignorance of the notice of discharge that had already been signed by the Inspector General of Police on 7th March 1964 and issued by the office for being served on the applicant; that when this mistake was noticed, a corrigendum was issued deleting the name of the applicant from the list of confirmed Sub-Inspectors issued on 16th March 1964; and that the list of confirmed Sub-Inspectors which was actually published in the M. P. Police Gazette dated 1st April 1964 did not contain the name of the applicant. It has further been averred in the return that the notice for the termination of the petitioner's services could not be served on him till 7th April 1964 as he remained absent unauthorisedly from duty and it was served only when the applicant returned to the Police Lines; that no order confirming the applicant was ever communicated to him; that in the above circumstances the applicant, who was never confirmed, all along remained a temporary Sub-Inspector whose services could validly be terminated on giving one month's notice; and that consequently he was not entitled to any protection under Article 311(2) of the Constitution.

5. It was argued by Shri Dabir, learned counsel for the petitioner, that the applicant was admittedly in service on 16th March 1064; that on that date even the notice terminating his services said to have been signed by the Inspector General of Police on 7th March 1964 had not been served on him; that the applicant being in service could validly be confirmed on 16th March 1964; and that the order of the petitioner's confirmation, passed on 16th March 1964, even if it was passed in ignorance of the fact that a notice for terminating the petitioner's services had already been signed by the inspector General of Police, was a valid order, and under that order the petitioner's confirmation became legally affective from 1st January 1961. Learned counsel proceeded to say that the Inspector General of Police had no power whatsoever to 'de-confirm' the petitioner and to serve on him a notice on 7th April 1964 for the termination of his services treating him as a temporary Sub-Inspector; and that the action of the opponents in putting an end to the applicant's services amounted to his removal from service without complying with the requirements of Article 311(2) of the Constitution.

6. Shri Bhave, learned Government Advocate, submitted that the applicant's confirmation by the Gazette Order No. 319/64 dated 16th March 1964 was legally ineffective for the reasons that before that date the Inspector General of Police had already passed an order on 7th March 1964 to the effect that a notice be served on the petitioner terminating his service on the expiry of one month from the date of service of the notice on him, no order of confirmation was ever intimated to the applicant, and his name was not included in the list of confirmed Sub-Inspectors, which was published in the Police Gazette dated 1st April 1964, It was said that the petitioner's confirmation, done in ignorance of the notice issued by the Inspector General of Police for termination of his services, was of no validity and the applicant continued to remain a temporary Sub-Inspector; and that under the terms of his appointment the petitioner's services could validly be terminated on giving one month's notice. Learned Government Advocate referred us to the decision of a Division Bench of this Court in B. P. Pandey v. State of M. P., M. P. No. 366 of 1964 dated 19-9-1964 (M. P.) to support his contention that the order of confirmation passed through mistake or ignorance of the issue of the notice for termination of petitioner's services could be cancelled.

7. In our judgment, this application must be granted. There can be no doubt that if the petitioner is taken as having been validly and legally confirmed as Sub-Inspector by the Gazette Order No. 319/64 dated the 16th March 1964, then he acquired a right to the post of Sub-Inspector from 1st January 1961, and consequently, as laid down by the Supreme Court in Parshotamlal Dhingra v. Union of India, 1958 SCR 828: (AIR 1958 SC 36) the termination of his services would prima facie and per se be a punishment attracting the provisions of Article 311 of the Constitution. Them is no dispute that the applicant was first confirmed on 16th March 1964 and his name was included in the list of confirmed Sub-Inspectors appended to the Gazette Order No. 419/64 dated the 16th March 1964, On this date he was still in service, he had not been discharged from service, and even the notice which the Inspector General of Police signed on 7th March 1964 terminating the applicant's services on the expiry of one month from the receipt of that notice by him had not been served on him. The controversy in the present case centres round the question whether when the Inspector General of Police signed the notice that he did on 7th March 1964 his power to confirm the applicant as Sub-Inspector after that date could validly be exercised, and if it could be, whether the order made on 16th March 1964 confirming the applicant is rendered void as it was made through mistake and in ignorance of the fact that a notice for discharge of the petitioner from service had already been issued.

8. The petitioner was appointed as a temporary Sub-Inspector on 1st January 1959. As his appointment was after 1st November 1956 in the new State of Madhya Pradesh, he is not governed by the C. P. and Berar Police Regulations or the Madhya Bharat Police Regulations as those Regulations are applicable to the members drawn from the former States of Madhya Pradesh and Madhya Bharat So also, the Civil Services (Classification, Control and Appeal) Rules, which are applicable to the personnel drawn from the former States of Madhya Pradesh and Madhya Bharat, were also not applicable to the applicant. The applicant's condition of service was regulated by the Madhya Pradesh Civil Services (General Conditions of Service) Rules, 1961. Those rules do not contain any provision saying that a person appointed to a service or post temporarily or placed on probation shall not be confirmed in the appointment after the issue of a notice by the appointing authority for the termination of his services on the expiry of one calendar month from the receipt of the notice by the probationer, or that a notice for termination of the services of a temporary servant or a probationer once issued shall not be rescinded or cancelled. On the other hand, the Note to Rule 8(2) of the 1961 Rules, when it says that a probationer, who has neither been confirmed nor discharged from service at the end of the period of probation, shall be deemed to have been continued in service subject to the condition of his service being terminable on the expiry of one month's notice, contemplates that so long as a person is not actually discharged from service he can be confirmed in the service or the post to which he had been appointed. To hold that once the appointing authority decides to issue a notice to a probationer for terminating his services, that authority cannot thereafter confirm him is in effect to say that the appointing authority has no power to cancel or rescind a notice for termination of service issued by it. The appointing authority, who has the power to issue a notice of termination of a probationer's services, has also the power to amend, vary, suspend or rescind the notice. The Rules of 1961 do not contain any provision prohibiting the appointing authority from doing this. If a notice issued for the discharge from service of a probationer can be cancelled, then it follows that the issue of a mere notice for terminating a probationer's services can be no bar to the exercise of the power of confirming the probationer, if the appointing authority subsequently thinks that the probationer should be confirmed and not discharged from service. Cases may occur where on receipt of a notice a civil servant may represent to the appointing authority and persuade it to think that he deserves to be confirmed in service and not discharged therefrom. The contention, therefore, of the learned Government Advocate that after 7th March 1964, when the Inspector General of Police signed the notice for terminating the applicant's services, the applicant could not in law be confirmed, cannot be accepted. Even if the notice was signed on 7th March 1964, the order of confirmation made on 16th March 1964 would still be valid and not void.

9. It may be that when the order of the petitioner's confirmation was passed on 16th March 1964, the fact that on the material before him the Inspector General of Police had already come to the conclusion that the applicant should be discharged from service and a notice for that purpose should be given to him and that a notice was actually signed by the Inspector General of Police on 7th March 1964 was overlooked, and if ft had been kept in mind, the order of confirmation would not have been passed. But this mistake does not make the order of confirmation ab intio void or ultra vires any relevant rule. The order of confirmation was no doubt inconsistent with the earlier act of the Inspector General of Police in signing the notice which he did on 7th March 1964. But it was none the less legal and valid, and had the result of giving to the petitioner a right to the post held by him so as to prevent the termination of his services as a temporary servant by giving one month's notice. As the order of confirmation was legal and valid and not ab initio void, it could not be cancelled as a mere formality and by the issue of a corrigendum on the supposition that there was no valid subsisting order of confirmation at all. The issue of the corrigendum was really an inept method of cancelling the order of confirmation. It is not the case of the opponents that in the original order, which was passed on 16th March 1964, the petitioner's name was not at all included in the list of Sub-Inspectors confirmed by that order, but that a mistake crept in the printed or typed copy of the order and, therefore, it became necessary to correct the copy. The mistake, if any, lay in the making of the original order itself confirming the petitioner when a notice for the discharge of the petitioner from service had already been signed by the Inspector General of Police on 7th March 1964. As we have said earlier, that mistake does not render the order of the petitioner's confirmation passed on 16th March 1964 ab initio void. It became legally effective from that date, while the petitioner was still in service and long before the notice dated 7th March 1904 was even served on him. The operativeness of the said order did not depend either on the date of its publication in the Gazette or on the fact whether it was or was not communicated to the applicant. It may be added that copies of the Gazette Order No. 319/64, dated 16th March 1964, were sent to all the Senior Superintendents of Police, all Superintendents of Police, A. I. G. of Police, SB PHQ, Bhopal, A. I. G. of Police C. I. D., Principal of the Police College, Sagar, Superintendents, PTSs, Madhya Pradesh, and all the Deputy Inspectors General of Police. So also, the copies of the corrigendum issued on 30th March 1964 were also sent to these authorities. A valid order of confirmation cannot be rescinded or cancelled. If the contention, advanced by the learned Government Advocate that in the present case the petitioner's confirmation order was void and could be cancelled were to be accepted, the result would be to give to the competent authority the power to cancel a valid order of confirmation made in conformity with the relevant rules on the ground that the authority had made a mistake at the time of confirming the civil servant as he was not at that time in possession of the full record of the probationer or the temporary servant. The exercise of such a power of reviewing the order of confirmation and placing the employee concerned in a position of never having been confirmed would be utterly contrary to the provisions of Article 311(2) of the Constitution and to the several pronouncements of the Supreme Court on the meaning, effect and scope of that provision.

10. The decision in B. P. Pandey's case M.P. No. 366 of 1964 D/-19-9-1964 (M.P.) (supra), cited by the learned Government Advocate, is not in point. in that case, a Forest Ranger was appointed to officiate as Assistant Conservator of Forest in ignorance of the fact that a departmental enquiry on certain charges was already pending against him. When this mistake was discovered, the Government reverted him to his substantive post of Forest Ranger. It was held by this Court that as the Forest Ranger was appointed only to officiate in a higher post, he had no right to continue in that post or to derive the benefits arising therefrom, and if he was reverted to his substantive post, there was no reduction in rank. It was also held that if the Government promoted the Forest Ranger to a post in an officiating capacity in ignorance of the fact that a departmental enquiry was pending against him, that could not be taken as meaning that the Government had waived or condoned the Forest Ranger's lapses in regard to which the enquiry was being held against him. In B. P. Pandey's case M. P No. 366 of 1964 D/-19-9-1964 (MP) (supra) no question of the validity or voidness of the order promoting the Forest Ranger to officiate as Assistant Conservator of Forest either arose or was considered. His reversion from the officiating post of Assistant Conservator of Forest to his substantive post of Forest Ranger was upheld on the principle laid down by the Supreme Court in many cases that a person appointed to a post in an officiating capacity has no right to the post and can under the terms of his appointment be reverted. This Court did not hold in B. P. Pandey's case MP No. 366 of 1964 D/-19-9-1964 (MP) (supra) that the promotion of the Forest Ranger in an officiating capacity was itself invalid because it was made in ignorance of the fact that a departmental enquiry was pending against him

11. It is only when the order of confirmation is void ab initio and ultra vires the relevant rules that the order can be cancelled, and when this is done Article 311(2) of the Constitution is not attracted. In such cases, there is no valid subsisting order of confirmation at all. The point is fully illustrated by the decision of the Supreme Court in State of Punjab v. Jagdip Singh AIR 1964 SC 521, where certain officiating Tehsildars were confirmed in the erstwhile State of Pepsu even when no posts were available at the time of their confirmation. Later on when the State of Pepsu merged in the State of Punjab, the Government of Punjab made a notification 'de-confirming' the Tehsildars. It was urged before the Supreme Court that the action of the Punjab Government amounted to reduction in rank of the Tehsildars and, therefore, it could not be taken without compliance with the requirements of Article 311(2) of the Constitution. The Supreme Court rejected this contention holding that the order of the Pepsu Government confirming the Tehsildars had no legal foundation as there being no vacancies in which the confirmation could take place, the order confirming the Tehsildars was wholly void; and that consequently the notification of 'de-confirmation' could not be said to be one reducing the Tehsildars in rank by reason merely of correcting an earlier error, and therefore Article 311(2) did not come into the picture. So also, in Gopal v. State of M.P. 1961 MP LJ 579 an order confirming a civil servant in a post was held to be invalid on the ground that if proceeded on a misconception that the post in which he was confirmed was vacant, and it was held that in such a case the reversion of the civil sen-ant to his substantive post did not attract Article 311(2) of the Constitution. Likewise, the decision of the Supreme Court in K. S. Srinivasan v. Union of India, AIR 1958 SC 419, 1958 SCR 1295 and of this Court in Abdul Hafeez Khan v. Government of M.P. 1964 MP LJ 447: (AIR 1965 Madh Pra 48), lay down the rule that if a man's appointment to a post is invalid and void, the termination of such appointment on discovery of mistake in the appointment cannot be said to be an act of punishment In the present case, the order dated 16th March 1964 confirming the petitioner as Sub-Inspector of Police was legal and valid and not void. That being so, it could not be cancelled and the petitioner's services could not be terminated as a probationer by giving him one month's notice.

12. For these reasons, this petition isallowed and the orders dated 7th March 1964and 14th May 1964 of the Inspector General ofPolice terminating the applicant's services arequashed. The petitioner shall have costs of thisapplication. Counsel's fee is fixed, at Rs. 100/-.The outstanding amount of security depositshall be refunded to the petitioner.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //