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Union of India (Uoi) Vs. D.S. Bajaj - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 80-D of 1953
Judge
Reported inAIR1955P& H122
ActsSpecific Relief Act, 1877 - Sections 55 and 56
AppellantUnion of India (Uoi)
RespondentD.S. Bajaj
Appellant Advocate Bishambar Dayal, Standing Counsel
Respondent Advocate S.C. Isaacs and; R.S. Narula, Advs.
Cases ReferredVenkata Rao v. Secretary of State
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........by the ministry of works mines and power addressed to the chief engineer, central p. w. d., that a central engineering service class ii was to be constituted and 'to authorise you to appoint all existing persons holding posts of 8. d. os. * * * in the central p. w. d. to these services and to notify their appointments in part ii of the gazette of india. the appointments should be made on a temporary basis and until further orders and this should be stated in the notification. the question of filling some of the posts on a permanent basis will be taken up later in consultation with the federal public service commission.' 4. in clause 3 of this letter certain classes of existing s. d. os. were stated to be ineligible for appointment to class ii services, but the chief engineer was.....
Judgment:

Kapur, J.

1. This is a defendant's appeal against an appellate decree of the Senior Subordinate Judge dated 30-7-19S3 reversing the decree of the trial Court and thus decreeing the plaintiff's suit for declaration that the plaintiff is a qualified Subordinate and qualified Engineer and for a mandatory injunction against the Union of India, for 'entering the plaintiff's name in the list of temporary qualified subordinates and temporary engineers'.

2. The plaintiff Joined the Crystal Palace School of Practical Engineering, London, in 1932 and obtained a diploma from there in 1934. On 2-1-1942 he was appointed as a Subordinate in the Central P. W. D. On 21-4-1947 the Government of India issued a memorandum which is marked as Exhibit P.5. In this document the following categories of persons were regarded as qualified subordinates:

'(1) Those who have passed out of engineering institutions which have been recognised by the Chief Engineer, Central Public Works Department;

(2) Those who have passed out of Engineering institutions which have been recognised by Provincial Governments in India;

(3) Those who have passed out of Engineering Institutions, which are at present recognised by Provincial Governments, but were not so recognised, at the time the Subordinates who are now in Service passed out of them.'

and temporary subordinates who did not fall under any of the three categories were to be regarded as 'unqualified subordinates'.

Some of them were to be retained In the depart-ment and confirmed as subordinates but were not to be eligible for promotion to higher posts and with regard to others their retention in the department was subject to their passing a departmental examination to be conducted by a Committee, and there was a third class of persons who had to be discharged in accordance with the procedure given in that document. The Union admits that the plaintiff was a qualified Engineer within this document, Ex. P.5.

3. The plaintiff was suspended on 3-5-1948 and he was subsequently reinstated as a Section Officer on 22-5-1951. Meanwhile on 23-9-1948 a letter, Ex. D.13, was issued by the Ministry of Works Mines and Power addressed to the Chief Engineer, Central P. W. D., that a Central Engineering Service Class II was to be constituted and

'to authorise you to appoint all existing persons holding posts of 8. D. Os. * * * in the Central P. W. D. to these services and to notify their appointments in Part II of the Gazette of India. The appointments should be made on a temporary basis and until further orders and this should be stated in the Notification. The question of filling some of the posts on a permanent basis will be taken up later in consultation with the Federal Public Service Commission.'

4. In Clause 3 of this letter certain classes of existing S. D. Os. were stated to be ineligible for appointment to Class II Services, but the Chief Engineer was authorised to appoint the S. D. Os. falling in these categories to officiate in Class II Services until further orders.

5. On 17-1-1948 the Superintending Engineer,' Central Circle, New Delhi, was informed that the question of treating the qualifications of the present plaintiff as being equivalent to those recognised by the Government was under consideration. This is Ex. P. 8. On 26-11-1948 the plaintiff was informed that his technical qualifications were not considered equivalent to those of qualified officers on diploma holders. This fs Ex. P. 9, but on 17-1-1949 a copy of the Jetter, Ex. P. 8, was sent to the plaintiff in which it was stated that the Government was considering whether the qualifications of the plaintiff were equivalent to those of qualified Overseer.

6. On 19-12-1950 the plaintiff brought a suit for declaration and mandatory injunction for being placed on the list of temporary qualified Subordinates and temporary qualified Engineers falling within Ex. D. 13. In the written statement he was not admitted to be a qualified Engineer and it was pleaded that no suit lay.

Several issues were framed. It was held that the plaintiff could bring a suit and that he was a diploma holder from the Crystal Palace School of Engineering which was not sufficient to bring him within the term 'qualified Engineer' as contemplated in the letter, Ex. D. 13, and the suit was therefore dismissed. I may here note that the plaintiff was recognised by the defendant as a qualified Overseer.

On appeal being taken to the Senior Subordinate Judge it was held that the qualifications of the Crystal Palace School of Engineering had been accepted in the case of other officers and it fell within the meaning of Ex. P. 5. The learned Judgewas also of the opinion that the case of the plaintiff falls under Clause 3(i) of Ex. D. 13, that the word 'degree' used there is equivalent to a diploma andthe plaintiff was therefore entitled to be included in that list and that Exs. P. 5 and D. 13 created certain rights in favour of the plaintiff and he was therefore entitled to get a decree. I may mention here that the plaintiff was convicted for an offence & on appeal succeeding his period of suspension was treated as on duty without break in service.

7. The question for decision in the present case is rather an important one. Taking the facts to be that the plaintiff had a diploma from the Crystal Palace School of Practical Engineering, London, which is one of the qualifications entitling him for promotion to Class II and if the plaintiff is qualified to get promotion as a matter of right, can the Courts interfere in the method of administration of the Government.

8. Their Lordships of the Privy Council In -- 'R Venkata Rao v. Secretary of State', AIR 1937 P.C. 31 (A), held that the dismissal of a civil servant in utter disregard of the procedure prescribed by the rules framed under the section will not give a right of action for wrongful dismissal. There, there was a transgression of the rules which had been made under Section 96(b), Government of India Act, 1919. Counsel in that case had contended that a suit would lie for any breach of these rules, as for example 'of the rules as to leave and pensions and very many other matters.

Lord Roche delivering the Judgment of theBoard said at p. 34 -

' * * *it can hardly be doubted that the suggested procedure of control by the Courts over Government in the most detailed work of managing its services would cause hot merely inconvenience but confusion.'

Continuing Lord Roche said at p. 34

'But while thus holding on the clear facts of this case, as they now appear from the evidence, aa they similarly held in Rangachari's case, their Lordships are unable as a matter of law to hold that redreas is obtainable from the Courts by action.'

9. It may be that the Qualifications which the plaintiff possesses are equivalent to those which must be possessed by a qualified Subordinate and that has been admitted by the defendant, but the question is whether this Court can issue a mandatory injunction enjoining on the defendant to place the plaintiff in the list of temporary qualified Sub-ordinates as contemplated by Ex. D. 13 whereby the Chief Engineer of the Central P. W. D., was authorised to promote certain people, and by giving that injunction this Court will virtually be taking upon itself the 'control over Governmnet in the most detailed work of managing its services.' Elaborate rules have been framed and careful provision has been made for redress by administrative processes of wrongs such as the plaintiff is com-plaining of and it would indeed be causing confusion if the Courts undertake to do which is the function of the executive.

10. I am therefore of opinion that the learned Senior Subordinate Judge was in error in giving the injunction and I would therefore allow thisappeal, set aside the decree of the trial Court and dismiss the plaintiff's suit with costs throughout.

11. I grant leave to appeal under Clause 10, LettersPatent.


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