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Fateh Singh Chugha Vs. State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 1440 of 1969
Judge
Reported inAIR1970P& H315
ActsConstitution of India - Articles 226, 300, 309, 310 and 311; Punjab Civil Services Rules - Rule 317
AppellantFateh Singh Chugha
RespondentState of Punjab and ors.
Appellant Advocate H.S. Wasu,; B.S. Wasu and; L.S. Wasu, Advs.
Respondent Advocate M.R. Sharma, Deputy Adv. General and; M.R. Agihotri, Adv.
DispositionPetition dismissed
Cases ReferredDr. Bool Chand v. Chancellor Kurukshetra University
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.....orderbal raj tuli, j.1. fateh singh chugha petitioner was working as a permanent superintendent in the punjab civil secretariat when in 1963, due to the phenomenal development of the activities of the industries department, he was appointed to the post of assistant director (administration) by an order of the governor of punjab for a period of six months. the petitioner took charge of this post with effect from january 1, 1964. the period of six months was later on, with the approval of the punjab public service commission, extended to four years ending on january 1, 1968. the petitioner has alleged that he was selected for the post of assistant director (administration) in the industries department because of the fact that it was felt that a person from outside should be appointed who.....
Judgment:
ORDER

Bal Raj Tuli, J.

1. Fateh Singh Chugha petitioner was working as a permanent Superintendent in the Punjab Civil Secretariat when in 1963, due to the phenomenal development of the activities of the Industries Department, he was appointed to the post of Assistant Director (Administration) by an order of the Governor of Punjab for a period of six months. The petitioner took charge of this post with effect from January 1, 1964. The period of six months was later on, with the approval of the Punjab Public Service Commission, extended to four years ending on January 1, 1968. The petitioner has alleged that he was selected for the post of Assistant Director (Administration) in the Industries Department because of the fact that it was felt that a person from outside should be appointed who should be above departmental pressure, intrigues and faction, at the same time having special knack of setting the things in order and who should also be well conversant with the offiicial procedure and 'know-how.' Applications for the post were invited from the Superintendents of the Punjab Civil Secretariat and the petitioner was then selected.

2. During the period from 1964 to 1966, the petitioner earned very good remarks in the Industries Department some of which are as under:--

1. Since his taking over as Assistant Director, a great improvement has come about in the administration Wing of the Directorate of Industries.

2. That he is also discharging duties of a Vigilance Officer, has conducted a number of enquiries which resulted in adequate punishment to those found guilty.

3. He has, in fact, proved an asset to this Department and there is a hope of bringing the administration Wing to a stable keel if he is allowed to continue his efforts with zeal and fervour he has already exhibited.

4. It is, therefore, in the interest of the Department as well as in public interest that services of Shri Fateh Singh Chugha be continued to be availed of in this Department for few years more.

These remarks were conveyed to the Public Service Commission in February, 1966 when a reference was made to it for the appointment of the petitioner to the said post. His suitability for the said post was approved by the Public Service Commission on May 30, 1966. He was not permanently appointed to this post but his appointment was extended for a further period of four years with effect fromJanuary 2, 1968, by the order of the Governor of Punjab, a copy of which is Annexure 'A' to the writ petition. This order is dated November 13, 1967 and reads as under:--

'The Governor of Punjab Is pleased to accord sanction to the continued appointment of Shri Fateh Singh Chugha as Assistant Director (Administration) in the Directorate of Industries, Punjab, in terms of Note (I) below Rule (9) of the Punjab Industries Service (State Service Class II) Rules, 19(36, for a further period of four years with effect from the 2nd January,1968 in the grade of Rs. 350-25-500/30-650, plus a special pay of Rs. 50 p. m.'

A copy of this order was forwarded to the Secretary, Punjab Public Service Commission for information and it was mentioned in the endorsement that 'the suitability of Shri Fateh Singh Chugha for the post of Assistant Director (Admn.) stands approved by Punjab Public Service Commission vide their letter No. TRA.22/ 63/21927, dated 30-5-1966.' In pursuance of this order of the Governor, the petitioner continued to work on the post of Assistant Director (Administration) till an order was passed on June 13, 1969 reverting him to his substantive post of Superintendent in the Punjab Civil Secretariat and appointing respondent 3, Shri I. S. Tewari, in his place. It is alleged that this order was not served on the petitioner but Shri Tewari took over charge on June 16, 1969, on which day the petitioner was on casual leave. He applied for two days' more leave by telegram on June 17, 1969 and filed the writ petition in this Court on June 16, 1969 along with an application for staying the operation of the order reverting him to his parent substantive post in the Secretariat. The stay matter came up before Narula, J. when notice was given for June 24, 1969, and status quo was ordered to be maintained meanwhile. The said application was heard by Narula, J. on June 24, 1969, in the presence of the Deputy Advocate General appearing for respondents 1 and 2, and Shri M. R. Agnihotri, Advocate for respondent 3. Affidavits were filed by respondents 2 and 3 to the effect that respondent 3 had already taken charge of the post on June 16, 1969. The learned Judge, however, after hearing the parties, ordered that the petitioner should not be reverted from the post to which he was appointed by the order of Governor of Punjab (copy Annexure 'A' to the writ petition) till the hearing of the writ petition by the Motion Bench as the order of reversion had not been communicated to him before that date, that is June 24, 1969. The writ petition was ordered to be fixed for Motion hearing on July 14, 1969. It came up for hearing before the Motion Bench on July 16, 1969 when it was admitted and was ordered to be heard as No. 1 on July 22, 1969.

3. Separate written statements to the writ petition have been filed by all the respondents. It has been admitted by respondent 1 in its return that the petitioner had done good work and he was therefore, given extension for a further period of four years with effect from January 2, 1968 but it is emphasised that there was no contract between him and the Government and that he 'was transferred from the post of Superintendent in the Secretariat to the post of Assistant Director (Admn.) in the Directorate of Industries in a temporary capacity and his lien had been kept in the Secretariat. On the post of Assistant Director (Admn.) he had to deal with the establishment matters. The purpose of sending an outsider to the Industries Department was that the officer should handle the establishment cases free from departmental intrigues and factions. Too long a stay on the administrative seat is not a healthy thing and, therefore, Government took a decision on the administrative grounds that Shri Fateh Singh Chugha should be reverted to the Punjab Civil Secretariat and Shri I. S. Tewari, formerly P. A. to the Advocate General Punjab, was appointed in his place.'

It is also averred that the reversion of the petitioner to his substantive post of Superintendent in the Punjab Civil Secretariat from the post of Assistant Director (Admn.) which he was holding on officiating basis, did not entail any penal consequences. The orders passed by the Government were just and proper and there was no obligation on the part of the Government to retain the petitioner as Assistant Director (Admn.) for any particular period. He could be reverted on administrative grounds at any time. The Government is said to have passed the impugned order with full knowledge of all the circumstances of the case. No injustice has been done to the petitioner by his reversion to the post against which he is holding his lien and no provision of the Constitution has been violated.

4. The petitioner had challenged the order of his reversion on various grounds, the first of which is that the petitioner's appointment to the post being for a specified period to end on January 1, 1972 in terms of the order of the Governor (Annexure 'A' to the writ petition) it was not within the competence of the Government to terminate the same before the expiry of the contractual period. The plea of the petitioner is that the Governor had extended the period of his appointment by another four years with effect from January 2, 1968 and accepting that order the petitioner had continued in the post ofAssistant Director (Administration) In the Industries Department and thus a contract came about between the Government and himself. Under that contract the Government had no right to send him back before the expiry of the stipulated period of four years. The reply to this plea is that for the enforcement of a right flowing from a contract the remedy by way of writ petition under Article 226 of the Constitution is not available and the petitioner can file a suit for damages or specific performance of the contract against the Government. Reliance has been placed on a judgment of Sinha, J. of the Calcutta High Court, in Pallikoiloth Syama Prasad v. Chief Commr. Andaman & Nicobar Islands, 1969 Lab IC 721 (Cal). The learned Judge relied upon the decision of the Supreme Court, in Satish Chandra v. Union of India, AIR 1953 SC 250 and observed:--

'Whether or not the petitioner's service on deputation was liable to be terminated before the expiry of the stipulated period relates at best to a contractual power. So if there was breach of such a contract the petitioner might have other remedies either in specific performance of contract or of damages. For, it is well settled that no writ will lie to compel performance or enforcement of the contract.'

I am respectfully in agreement with the view expressed by the learned Judge and hold that the petitioner has no right to maintain this writ petition to compel the Government to retain him in the post of Assistant Director (Administration) in the Industries Department in accordance with the order of the Governor dated November 13, 1967, a copy of which is Annexure 'A' to the writ petition. The petitioner can seek his remedy by way of a suit for specific performance of the contract or for damages against the Government.

5. The matter can, however, be dealt with from another point of view. Their Lordships of the Supreme Court have held In Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889 with regard to the position of a Government servant as under:

'It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned.'

Even if the order of the Governor dated November 13, 1967 amounts to a contract between the Government and the petitioner remains subject to the Punjab Civil Services Rules. It is to be noted that the petitioner had been transferred from the Punjab Civil Secretariat to the Industries Department under the power contained in Note (I) below Rule (9) of the Punjab Industries Service (State Service Class II) Rules, 1966, which authorises the Government to fill any vacancy in the Industries Department by transfer or deputation from Civil Service of the Punjab Government or other State Governments or of the Government of India. The Government has also the power to transfer a Government servant from one post to another under Rule 3.17 of the Punjab Civil Services Rules, Volume I, and to re-transfer him to the post on which he holds a lien. The petitioner is admittedly subject to these rules and it cannot, therefore, be said that the Government had no power to revert the petitioner to his substantive post before the expiry of the period of four years stipulated in the order, copy of which is Annexure 'A' to the writ petition.

6. The learned counsel for the petitioner then argued that the reversion of the petitioner from the post of Assistant Director (Administration) to his substantive post in the Punjab Civil Secretariat amounts to his removal from service by way of punishment as it entails penal consequences, for the petitioner would lose the benefit of higher pay and higher status of the post. The petitioner was getting Rs. 50 as special pay in addition to the pay of his grade as Superintendent while holding the post of Assistant Director (Administration) of which he would be deprived on his reversion for the period upto January 1. 1972. In myopinion, the argument is not sound. The petitioner has not been removed from service of the Punjab Government but has only been reverted to his substantive post from which he was transferred. Article 311 of the Constitution speaks of removal from the service of the State Government or the Government of India and not from any post held by the Government servant in any department The reversion in the case of the petitioner does not, therefore, amount to his removal from service within the meaning of Article 311 of the Constitution.

7. As regards penal consequences by way of loss of higher emoluments, they are bound to occur when a Government servant is reverted from a higher officiating post to his substantive post. But the loss of emoluments can be considered being by way of punishment only if the reversion amounts to reduction in rank. The question now to be determined is whether the reversion of the petitioner in the instant case amounts to reduction in rank within the meaning of Article 311 of the Constitution.

8. The learned counsel for the petitioner has strongly relied upon the judgment of their Lordships of the Supreme Court in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36, wherein S. R. Das, C. J., observed as under:--

'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).'

This observation does not apply to the instant case as it is not a case of removal from service before the expiry of the fixed period but only reversion to the original substantive post and even according to the exception made by the learned Chief Justice it is permissible if there is a service rule permitting the same. I have already referred to Rule 3.17 whereunder the Government has the right to transfer any Government servant from one post to the other. The reduction in rank takes place only if the Government servant has the right to hold the higher post from which he is reverted to a lower post. If he has no right to hold the higher post there will be no reduction in rank in case he is reverted to his substantive post from this officiating post, even before the expiry of the fixed period for which he was ap-pointed to officiate. The reason is that such a Government servant has no right to hold the officiating post for all times to come and under the service rules applicable to him, he is always liable to bereverted to his substantive post in accordance with those rules. In the instant case, the petitioner was holding the post of Assistant Director (Administration) in the Industries Department on an officiating basis by transfer from the Punjab Civil Secretariat and had no right to hold that post for ever. At best under the order of the Governor dated November 13, 1967 he could have held it only upto January 1, 1972. That does not mean that the petitioner has the right to hold that post so that his reversion from that post to his substantive post amounts to reduction in rank. It was held by P. D. Sharma, J., in Bhagwan Dass v. Punjab State. 1967 Serv LR 240 (Punj), as under:

'The case of reversion of a deputationist to the parent Department did not attract the provisions of Article 311 of the Constitution of India because he cannot claim the post he held in the Department where he had gone on deputation as of right. The petitioner's lien on the post which he held in his parent Department remained intact during the period he was on deputation to the Rehabilitation Department. On his reversion he was entitled to get his due place in his parent Department. The order of his reversion thus cannot be assailed on any valid ground.'

Their Lordships of the Supreme Court held in Hartwell Prescott Singh v. Uttar Pradesh Govt., AIR 1957 SC 886, that 'a reversion from a temporary post held by a person does not per se amount to reduction in rank because the temporary post held by him is not his substantive rank,' Again, it was held by their Lordships of the Supreme Court, in the State of Bombay v. F. A. Abraham, AIR 19G2 SC 794 that-

'a person officiating in a post has no right to hold it for all times. He may have been given the officiating post because the permanent incumbent was not available, having gone on leave or being away for some other reasons. When the permanent incumbent comes back the person officiating is naturally reverted to his original post. This is no reduction in rank for it was the very term on which he had been given the officiating post' A Full Bench of the Allahabad High Court in Jai Shanker Haiela, v. State of Uttar Pradesh, AIR 1958 All 741 (FB), held that'reversion from a temporary or officiating higher grade to the substantive post in the lower grade is not 'reduction in rank' within the meaning of Article 311 even though the reversion is ordered on account of unsatisfactory work or conduct of the civil servant, provided it is ordered by the State in exercise of its power of reverting him under the contract, express or implied, or under the rules of service.'

A Division Bench of the Andhra Pradesh High Court, in Collector of Central ExciseHyderabad v. N. Venkata Rao, AIR 1966 Andh Pra 116, held as under:--

'A civil servant officiating on higher post until further orders cannot be said to be holding a substantive post in that higher office. The office he holds is of a transitory character and he does not acquire any right thereto. The appointing Officer is under no duty to assign reasons of his reversion to his substantive post. If the reversion does not partake the character of a punishment, then the provisions of Article 311(2) are not attracted and therefore, the procedure indicated therein need not be followed.

The consequences that flow from the reversion cannot be described as penal. The concept of penal consequences has no place in a case of reversion of an officer officiating on a temporary basis and that is appropriate only when the reversion is by way of punishment. It cannot be argued that whatever might be the reason or the cause of the reversion, it should be regarded as a punishment, since it affects certain rights of the officer. The real test for determination whether the reduction in such cases is not by way of punishment is to find out if the order for reduction also visits the servant with any penal consequences and if that order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his further chances of promotion, then that circumstance would indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty.'

Following these judgments I had held in Gurbux Singh Dorka v. State of Punjab, C. W. No. 1430 of 1967, decided on 20-2-1969 (Punj), that-

'the reversion of the petitioner to his parent department by order dated 12th May, 1966 was in order and did not attract the provisions of Article 311 of the Constitution. This order neither reduced the petitioner from a higher rank to a lower rank nor did it entail any penal consequences by way of punishment. The reversion to the parent department could be made under the service rules applicable to the petitioner of which the petitioner was aware when he got the appointment in the Civil Defence/Home Guards Department in 1958.'

In that case Gurbux Singh petitioner was serving in the Co-operative Department of the Punjab Government when on August 5, 1958 he applied, through proper channel for the post of a clerk in the office of Director, Civil Defence, Punjab Chandigarh, for which post he was select-ed and which he joined on November 22, 1958. While in the Civil Defence Department, he got rapid promotions and reached the post of Accountant. On September 20, 1965 he was serving as Head Assistant in the Department of Civil Defence/Home Guards when he received a letter informing him that he was being relieved of his duties as Head Assistant with effect from September 21, 1965 and he should report for absorption to the Registrar, Co-operative Societies. The letter reverting him to his parent department did not give any reasons for his reversion nor did it cast any stigma on him. On those facts I had held that it did not amount to reduction in rank within the meaning of Article 311 of the Constitution and did not entail any penal consequences,

9. The learned counsel for the petitioner has relied upon a Division Bench judgment of this Court (Mehar Singh, C. J. and D. K. Mahajan, J.) in Gurdit Singh Aulakh v. State of Punjab, 1967 Serv LR 96 (Punj), in which it was held:

'Even if the appellant is treated as a temporary Government servant holding the civil post of the member of the Tribunal, which itself is a temporary Tribunal in the sense in which it has already been explained, there is no contract or rules under which the services of the appellant could be terminated before the expiry of the term of the Tribunal itself whether for want of work or by dissolution. The only power of removal in subsection (5) of Section 12 of the Act has not been exercised. Now, assuming for a moment that Sub-section (5) of S. 12 of the Act is no longer in existence and applicable to the case, then the position is this, that there is neither any contract nor any rule under which the services of the appellant could be terminated by the respondent except at the time of the expiry of the life of the Tribunal itself.'

In that case Shri Gurdit Singh Aulakh had been appointed a member of the Sikh Gurdwara Tribunal constituted under Section 12 of the Sikh Gurdwaras Act, 1925 on March 26, 1962. The notification merely said that he was appointed a member of the Tribunal and nothing was said with regard to the nature of his tenure. On September 10, 1965 he was removed from the membership of the Tribunal. He filed a writ petition in this Court praying that the order of his removal should be quashed and a writ in the nature of mandamus be issued directing the respondent to treat him as continuing in his post as a member of the Tribunal. This writ petition was dismissed by Narula, J. against which order Shri Gurdit Singh Aulakh filed a Letters Patent Appeal. Th. learned Judges hearing the Letters Pater Appeal came to the conclusion that to removal could be made only in terms Sub-section (5) of S. 12 of the Sikh Gurdwaras Act and not on any other ground. Since there were no service rules nor any contract, his appointment should be considered to be co-existent with the life of the Tribunal which in itself was temporary and, therefore, he had the right to hold the office of a member of the Tribunal till the Tribunal came to an end by dissolution or otherwise or he was removed under Sub-section (5) of Section 12 of the Sikh Gurdwaras Act. On that analogy the learned counsel for the petitioner in the instant case submits that the petitioner acquired the right to hold the post of Assistant Director (Administration) in the Industries Department till January 1, 1972 under the orders of the Governor (Annoxure 'A') and therefore, his reversion from that post to his substantive post amounted to reduction in rank. The facts of the case of Shri Gurdit Singh Aulakh were entirely different and it was the case of removal from service and not of reduction in rank. It was found that there were no service rules concerning the appointment of Shri Gurdit Singh Aulakh. The same cannot be said in the instant case where the petitioner is bound by the rules contained in the Punjab Civil Services Rules, Volume I. under which he is liable to be transferred from one post to the other including re-transfer to the original post. Even if he was appointed for a fixed period of four years, he cannot be said to have acquired an indefeasible right to hold that post for that period. I am, therefore, of the opinion that his reversion from the officiating post of Assistant Director (Administration) to that of his substantive post of Superintendent in the Punjab Civil Secretariat did not amount to reduction in rank within the meaning of Article 311 of the Constitution.

10. The loss of special pay of Rs. 50 per mensem as a result of the reversion cannot be said to be a penal consequence of reversion because the reversion was not by way of punishment. The reversion from a higher post to a lower post necessarily involves reduction in emoluments and that alone cannot be termed as a penal consequence. No other consequence is alleged to have occurred to the petitioner in the instant case. It is not alleged that he has lost his seniority or chances of promotion in his substantive rank or that any part of his pay in the substantive rank was going to be forfeited. The argument of the learned counsel that the reversion amounted to reduction in rank and involved penal consequences is, in my opinion, without any substance.

11. The learned counsel has mainly relied on the order of the Governor of Punjab dated November 13, 1967 giving him a right to hold the post of AssistantDirector (Administration) for another period of four years from January 2, 1963 and he has termed it as a contract between him and the Government because he accepted this offer of the Government. This contract, according to the petitioner, gave him the right to hold that post irrespective of the rules contained in the Punjab Civil Services Rules. The petitioner thus bases his claim entirely on the said contract which, according to him, overrides the service rules. If that contention is to be accepted, the petitioner is not entitled to any relief in a petition under Article 22G of the Constitution as this Court does not enforce contractual rights in such petitions. It was held by their Lordships of the Supreme Court in Dr. Bool Chand v. Chancellor Kurukshetra University, 1963 Ser LR 119 as under:--

'If the appointment of the Vice-Chancellor gave rise to the relation of master and servant governed by the terms of appointment, in the absence of special circumstances, the High Court would relegate a party complaining of wrongful termination of the contract to a suit for compensation, and would not exercise its jurisdiction to issue a high prerogative writ compelling the University to retain the services of the Vice-Chancellor whom the University does not wish to retain in service.'

Following this judgment, I hold that the petitioner is not entitled to enforce the order of the Governor dated November 13, 1967 in a petition under Article 226 of the Constitution and this petition is thus not maintainable.

12. The order of reversion passed by the Government in the instant case is purely an administrative order and unless it affects any legal or fundamental right of the petitioner or his right under Article 311 of the Constitution, he has no right to ask this Court to quash it under Article 226 of the Constitution. I have come to the conclusion that no legal or constitutional right of the petitioner under Article 311 of the Constitution has been! infringed by the impugned order. It has not been shown nor argued that any fundamental right of his has been infringed. I am, therefore, constrained to hold, for the reason given above, that the present petition is misconceived. It is accordingly dismissed but without any order as to costs.


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