V.R. Newaskar, J.
1. This petition under Article 226 of the Constitution is submitted on 28-12-1956 by the petitioner K. P. Joshi, an Ex-Sub-Inspector of Excise against the State of Madhya Pradesh for the issue of a writ of mandamus, certiorari or any other kind of writ or direction for quashing the order of the Commissioner, Customs and Excise, dated 25-2-1955 directing the retrenchment of the petitioner on the ground that he belonged to the staff of the customs department which was being wound up due to abolition of custom duty in the State of Madhya Bharat, and for direction that the petitioner ought to be treated as being in service in the same condition in which he was on 31-3-1955.
2. The petitioner's case in brief is that the petitioner, who had been employed as Excise Sub-Inspector in the erstwhile Holkar State prior to its merger in the State of Madhya Bharat, had received special training at Nagpur for the job; that after merger he continued to work in that capacity in Madhya Bharat; that however for administrative reasons the departments of Customs and Excise were brought under a single head of the department; that by virtue of the order No. 2914 dated 8-3-1952 there was separation of cadre and the making of postings of the personnel in different departments which had been brought under a single department head; that in this separation of cadre and postings the petitioner was put in his own department or section and was posted as Sub-Inspector, Excise; that later in January 1955 he was made an Excise-Inspector and was posted at Shivapuri, but a short while later the petitioner was served with a notice in pursuance of the order of the Commissioner dated 25-2-1955 for his retrenchment in terms of Rule No. 72 of the Pension Manual.
3. The petitioner's case is that he had always from the beginning of his service career, belonged to and worked as an excise officer and had never belonged to the department or section of Customs and he could not have been retrenched under Rule 72 of Pension Manual on the ground that the department of customs was to be wound up from 1-4-1955. The petitioner states that on receipt of the notice aforesaid he relinquished the charge under protest and thereafter made several representations. After exhausting all his departmental remedies without any success he made a demand for justice through his pleader by means of a letter dated 22-9-1956 and later sent a telegraphic reminder both of which remained unanswered.
The grievance of the petitioner on these facts is that although he had belonged to the department or section of excise he was retrenched on the assumption that he belonged to customs section which was to be abolished and that too after changing certain named officers from the customs section to that of excise particularly when they were senior in age and service to the petitioner. This action of the authority, according to the petitioner was neither bona fide nor just and the application of Rule 72 of the Pension Manual to his case was contrary to theletter and spirit of the said rate and invloved circumvention of Art, 311 of the Constitution. On these grounds he claimed reliefs as aforesaid.
4. In the return submitted on behalf of the respondent the position taken was that, after the administrative amalgamation of customs and excise sections there was a single cadre of Sub-Inspector of excise and customs and to this cadre the petitioner belonged at the material time. Consequent upon the abolition of the customs section the officers of the general cadre had to be proportionately reduced. A departmental decision was consequently taken that the persons below 3 years service and those above 25 years service might be retrenched. The petitioner was one who fell into that category and had been rightly retrenched. The appointment of the petitioner to the post of Excise Inspector was temporary and was due to vacancy created by the suspension of one Bishanlal Singal.
The decision of the Government therefore to abolish the entire section of the staff working under the Commissioner of Excise and Customs could not be made a subject matter of petition under Article 226 of the Constitution as the action was purely administrative and was within the administrative competence of the authority and no right of the petitioner under Article 311 of the Constitution was infringed. As regards the suggestion that there was unjust picking and choosing it was stated that out of the persons liable to be retrenched in view of the principles laid down it was quite open to select such of them for continuance as the Government thought proper and this administrative decision of it could not be questioned or assailed in this petition.
5. The learned Government Advocate besides the aforesaid grounds contended that the petitioner had been retrenched by an order passed as far back as on 25-2-1955. He continued to take advantage of the leave and other benefits to which he was entitled till December 1956 and it was only on 28-12-1956 that the present petition was filed. The delay in submitting the petition is not explained. Mr. Daji counsel for the petitioner sought to explain the delay by suggesting that the petitioner had been pursuing departmental remedies and after exhausting a notice demanding justice had been given by him through his lawyer on 22-9-1956 which remained unreplied till the filing of the petition.
6. Now as regards the merits of the contention it does appear that the petitioner had been appointed in the excise department as Excise Sub-Inspector in the erstwhile Holkar State and after the merger of that State he was continued in the State of Madhya Bharat as Sub-Inspector of Excise and was posted at Sendhawa on 10-3-1952 although even before that date since the time of Holkar State regime the departments of customs and excise had been amalgamated and the designation of the Sub-Inspector in that Department was single namely Sub-Inspector, customs and excise. Subsequently to 10-3-1952 the petitioner continued to work in the excise section right up to date of his retrenchment. However, by an order of Commissioner of customs and excise appendix 'C' to the return, his Hen on the post of customs sub-inspector customs post, Rajghat, rendered vacant by the retirement of one Fulsingh, was kept.
Earlier by an order dated 10-1-1955 the petitioner was temporarily appointel to work as Excise Inspector at Shivapuri on which post he continued to work till 3rd of March 1955. It was by a letter of District Excise Officer of this date that he was informed about his retrenchment. It also appears by reference to appendix 'B' to the return that the petitioner was working as excise Sub-Inspector atIndore up to 12-2-1955 and he was relieved of his charge on that day and in his place Mr, Malgaokar was posted.
7. Thus it appears that, although the petitioner was technically a sub-inspector of customs and excise, throughout his career from the year 1927 he worked in the excise section first as a clerk and later on from the year 1933 as an excise sub-inspector right up to the date of service of notice upon him dated 10-3-1955 regarding his retrenchment. Till that date he was in the excise section and was actually working as excise inspector. There was no doubt a departmental order keeping his lien on the post of customs sub-inspector Rajghat. But the actual order bears no date.
The copy directed to be forwarded to the petitioner is dated 25-2-1955. It appears from appendix 'CII' to the petition that the order directing the retrenchment of the petitioner is dated 25-2-1955. It therefore seems that this order regarding keeping of his lien on the post of customs sub-inspector rendered vacant by the retirement of Fulsingh was passed on 25-2-1955 with a view to effect his retrenchment on the ground that he belonged to that section. It further appears from the copy of the Government order dated 7-1-1955, that according to Federal Financial Integration Agreement Inter State Transit Duties were decided upon to be abolished from 1-4-1955. The Government therefore gave information and issued instructions to the Commissioner of Customs, Excise and Sales tax in the following terms:
'As you are aware, according to Federal Financial Integration Agreement Inter State Transit Duties (both Import and Export) have to be abolished with effect from 1-4-1955. Consequently a large number of the staff of customs department will have to be rendered surplus and therefore, the posts retrenched. I am therefore desired to request you kindly to issue notices to all such surplus staff of the customs department that they are liable to be retrenched or retired with effect from 1-4-1955.'
8. It is thus clear from the aforesaid order that although the Department of Customs, Excise and Sales-Tax were under one Departmental Head each of these sections were treated separately. Section of Customs was separate and its staff also was taken to be separate from the staff in the Excise section. The Government ordered and authorised the Commissioner to direct retrenchment of the staff of customs section. On 7-1-1955 when the government issued the order the petitioner was admittedly in the Excise section.
Not only this, he was actually promoted in thatsection to a temporary post of Inspector of excise by an order passed in January 1955 and on 12-2-1955 he was relieved of his post as sub-inspector of excise and sent to Shivapuri as Excise inspector a post which he continued to occupy till 12-3-1955 when he was retrenched. Presumably in order to straighten out his otherwise unauthorised retrenchment that technically his lien was placed on the post of sub-inspector of customs Rajghat. That action of the commissioner also indicated that the staff in the two sections was treated separate and distinct, and in order to justify petitioner's removal this last-minute formality was resorted to and a notice for his retrenchment was at once issued.
9. The learned Government advocate contended that after all as Departmental Head it was quite open for the commissioner whom to keep and whom to retrench having regard to the consideration of departmental efficiency. That would no doubt have been open to him if the government as also thecommissioner had not treated the staff in the two sections as separate and distinct and further had the Government not required the commissioner to retrench the staff of customs section only.
10. In Parshottam Lal Dhingra v. Union of India, AIR 1958 SC 36, the Supreme Court has elaborately considered the question as to when the termination of the service of a government employee amounts to his removal within the meaning of Article 311 of the Constitution, Das, C. J. who delivered the leading judgment observed:
'The appointment of a government servant to a permanent post may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a 'lien' on the post. This 'lien' is defined in Fundamental Rules Section III, Chapter II Rule 9 (13) as the title of a Government servant to hold substantively a permanent post, including a tenure post, to which he has been appointed substantively. The Government cannot terminate his service unless it is entitled to do so (1) by virtue of a special term of the contract of employment, e. g., by giving the requisite notice provided by the contract or (2) by the rules governing the conditions of his service, e.g., on attainment of the age of superannuation prescribed by the rules or, on the fulfilment of the conditions for compulsory retirement or, subject to certain safegaurds, on the abolition of the post or on being found guilty, after a proper enquiry on notice to him, of misconduct, negligence, inefficiency or any other disqualification.'
The learned Judge further observed :
'The position may, therefore, be summarised as follows: In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him.'
11. In this case it appears clear that the petitioner held a substantive post as Sub-inspector in the Excise section at the material time; this post he actually held was not abolished, the posts in the Customs section were abolished. The petitioner from the beginning of his career never worked in the latter section. The direction of the Government was to retrench the staff of customs section only. There was no authorisation to put the members of the staff of excise or sales tax into customs section for the purpose of justifying their retrenchment on administrative grounds. That would be tantamount to circumventing the constitutional guarantee.
Such circumvention would be looked upon by the courts with disfavour. Even if we assume that it was competent for the Commissioner, Customs, Excise and Sales Tax to transfer any person belonging to the personnel of sub-inspector of customs and excise from one section to another that should have been an accomplished fact at the date of the Government order dated 7-1-1955. Moreover even this transfer is not there. An order which bears no date says that the petitioner's lien is kept on the post of Customs Inspector Rajghat rendered vacant by the retirement of Fulsingh. It is difficult to say whether the said order was passed prior to 25-2-1955 or on 25-2-1955 or even subsequentto that date. On 25-2-1955 the order for the petitioner's retrenchment was passed.
It has further to be noted that both before and subsequent to that, the petitioner continued to work in the Excise section right up to 10-3-1955 when ha was served with a notice for his retirement, (sic. retrenchment). Thus the action of the authority concerned in directing retrenchment on the ground of his being of the Customs section clearly amounted to punishment as the retrenchment on administrative grounds was unauthorised and but for this unauthorised act he had under the Service Rules right to continue in that post till he reached the age of superannuation. The action thus contravened Article 311 of the Constitution as held in Parshottam Lal Dhingra's case, AIR 1958 SC 36.
12. The learned government advocate next urged that this court should not exercise its discretionary power under Article 226 of the Constitution as the petitioner was guilty of latches. No such contention was raised in the return and it seems that, had any such contention been raised, it could have been successfully met. The petitioner in para (6) of the petition referred to his application Ex. 'D' dated 31-3-1955. After the said application, according to him. He had recourse to departmental remedies and finally on 22-9-1956 he made a demand for justice. As there was no reply he telegraphically sent a reminder on 12-10-1956 and submitted the present petition on 28-12-1956 after waiting for a reasonable time for a favourable action. The petition demanding justice dated 22-9-1956 referred the Memo No. 776 dated 9-7-1956 of the office of the Minister in charge referring the petitioner to the commissioner and to the Memo-No. 27330 dated 5-9-1956 from the commissioner's office referring him to the Minister's office.
13. In the absence of specific contention in the return regarding delay or latches on the part of the petitioner and in view of the aforesaid facts I am not pursuaded to accede to the oral contention raised before me without any support that the petition ought to be dismissed on the ground of latches.
14. For these reasons the petition deserves tosucceed. Order passed by the Commissioner directing the retrenchment of the petitioner dated 25-2-1955 and consequent notice are held to amount toremoval of the petitioner contrary to Article 311of the Constitution and are hereby quashed. Thepetitioner is entitled to costs of this petition. Counsel's fees shall be taxed at Rs. 50/- only.