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Harbans Singh and ors. Vs. State of Punjab and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 93 of 1959
Judge
Reported inAIR1960P& H65
ActsGovernment of India Act, 1935 - Sections 241; Punjab Civil Services Rules
AppellantHarbans Singh and ors.
RespondentState of Punjab and anr.
Cases ReferredPt. Sunder Lal Vasudeva v. The State of Punjab
Excerpt:
.....authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - 1 in all departments like p. in the end, an objection is raised that the petitioners could have represented their, case to the government against the orders of the chief engineer as permissible under the rules and having failed to do so they have not exhausted all administrative remedies before filing the present writ petition. for such a measure obviously the departmental heads are the best judges......observations, however, have been made on the facts of that particular case. there the punjab civil services rules contained conditions of service which were held to be part of the terms of the contract between the government and the employee with the result that no other term could be held to be enforceable and binding unless it was known to and accepted by both parties, which could only be done by framing it in the way required by law and by publishing it in the usual manner.the reported case is thus of no guidance in the decision of the present controversy. the counsel tried to develop the point by submitting that the rules framed by the governor under s. 241 of the government of india act could only be varied by the governor and not by the chief engineer. in the first instance this.....
Judgment:
ORDER

(1). These are four connected writ petitions praying for a writ of certiorari, mandamus or any other appropriate writ, order or direction quashing the order dated 13-1-1959 issued by the Chief Engineer, Punjab P.W. D. (Irrigation Branch), Chandigarh. The allegations on which this prayer is made are that the four petitioner who are Head Draftsmen have risen from Tracers and Draftsmen after passing papers 'A' and 'B' as required under the rules framed by the respondents. Respondent No. 1 is the State of Punjab and respondent No. 2 is the Chief Engineer. When the petitioners joined service the respondents had framed rules placing Draftsmen in three categories.

Category (a) consisted of those persons who had passed the examination at Government recognised institution, Rasul, which was later started at Gurdaspur and then shifted to Chhachrauli and then to Nilokheri. They were taken as Draftsmen and promoted as Head Draftsmen at all levels without passing any test. Category (b) consisted of those persons who had joined service as tracers and before they could be promoted as Draftsmen they had to pass papers 'A' and 'B'. Third category (c) consisted of those candidates who had passed from Technical Training Center (under Ministry of Labour) and they could be taken as Draftsmen but they could be promoted as Head Draftsmen after passing paper 'B'.

These rules have been in operation and governing all Draftsmen in the service of respondent No. 1 in all departments like P.W. D. (B and R) and (B. B.). On 13-1-1959, the Chief Engineer, Punjab P.W. D. (Irrigation Brach), respondent No. 2, issued an order attached to the writ petition as annexure 'A' to the effect that Draftsmen in categories (a) and (b) who had been promoted as officiating Head Draftsmen on 29-6-1956 or thereafter would have to pass papers I and II, Divisional Head Draftsmen Selection Examination, within three months failing which they would be reverted and never considered for Head Draftsmen till they passed this examination.

Respondent No. 2 issued orders of revision of 11 persons including the petitioners as per another order dated 13-1-1959 (annexure 'B' attached to the petition). This order is assailed, in the present writ petition, on the grounds of being discriminatory and violative of the petitioners' right to remain in service subject to the same rules which were in force at the time of their appointment.

(2) In the reply filed by respondent No. 2, it is pleaded that the petitioners were appointed on temporary posts of Draftsmen and were later on promoted on temporary posts of Divisional Head Draftsmen in officiating capacity. It is admitted that they were so promoted after passing papers 'A' and 'B' as required under Departmental Rules then existing. It is denied that there were any rules classifying Draftsmen in three categories as alleged by the petitioners. The temporary Draftsmen promoted from the rank of Tracers were considered to be qualified and at par with the temporary Draftsmen qualified from Government School of Engineering, Rasul/Nilokheri etc., and other recognised institutions after passing departmental test papers 'A' and 'B'.

Similarly temporary Draftsmen from the unrecognised and temporarily recognised institutions were considered qualified after passing these tests. It is also pleaded that these departmental instructions were meant for the Draftsmen employed in the Irrigation Department only and were not applicable to the Draftsmen employed in any other Branch of P.W. D. It is also stated that the petitioners were found to be junior to other Draftsmen qualified from recognised institutions and that they were reverted not by way of any punishment or penalty but as an administrative measure. It is also explained that all promotions ordered upto 28-6-1956 were in accordance with Government instructions then in force.

It was decided by the Government to accord recognition to certain other institutions on 29-6-1956 and according to the Government decision taken on 13-8-1958 and 1-12-1958, promotions made after 29-6-1956 were to be governed on seniority-cum-merit basis and employees from all recognised institutions were to be considered equally for promotion. As there were other senior employees who had qualified from recognised institutions and had been ignored previously, the employees mentioned in the petition had to revert and since they were only officiating there was no prohibition or obstacle in giving effect to the above decision of the Government.

It is asserted that the Government is fully competent to accord recognition to certain institutions for purposes of recruitment to State Services from any particular date. The petitioners, it is averred, can avail of equal change of promotion by acquiring minimum qualification prescribed by Government for such promotions and in accordance with their seniority amongst the qualified personnel eligible. In the end, an objection is raised that the petitioners could have represented their, case to the Government against the orders of the Chief Engineer as permissible under the rules and having failed to do so they have not exhausted all administrative remedies before filing the present writ petition.

The petitioners have filed a replication to the reply in which they have merely reiterated their allegations in the petition. In para 4 of the replication a new point has been sought to be raised by pleading that the Chief Engineer as such has got no power in law to make any rule which adversely effects the tenure of service of the existing public servants. In this connection reference has in this reply been made to Art. 309 of the Constitution and to S. 241 of the Government of India Act, 1935. It is admitted that the whole service of Draftsmen at present is temporary including the petitioners but it is contended that their conditions of service have been worsened and this is not permissible under the law.

(3) Shri Mulk Raj Mahajan has very frankly admitted that the petitioners being in temporary service have no vested right to insist on remaining in service for any specified period. It is open to the Government at any time to terminate their services by giving the required notice. It is also conceded that there are no statutory rules, framed under S. 241 of the Government of India Act, which have been violated in the present case. His only submission is that the departmental rules under which the petitioners were appointed and which were in force when they were promoted should not be varied by the Department to their prejudice.

Reference has been made by the counsel to Pt. Sunder Lal Vasudeva v. The State of Punjab, 1957 Pun LR 240: (AIR 1957 Punj 140), where G. D. Khosla J. observed that the taking of decision by the Government to frame a rule cannot be equated with the rule itself and if a rule or condition of service goes no further than a decision of Government which is not expressly communicated to the employee, then it cannot bind him. These observations, however, have been made on the facts of that particular case. There the Punjab Civil Services Rules contained conditions of service which were held to be part of the terms of the contract between the Government and the employee with the result that no other term could be held to be enforceable and binding unless it was known to and accepted by both parties, which could only be done by framing it in the way required by law and by publishing it in the usual manner.

The reported case is thus of no guidance in the decision of the present controversy. The counsel tried to develop the point by submitting that the rules framed by the Governor under S. 241 of the Government of India Act could only be varied by the Governor and not by the Chief Engineer. In the first instance this precise point is not taken in the petition and therefore cannot be permitted to be raised. Secondly, it has been conceded by the counsel that there is no precise rule framed by the Governor which has been violated by the order issued by respondent No. 2 on 13-1-1959. The rules relied upon are purely departmental rules and they neither form the terms of the contract of service nor do they provide any vested right in the petitioners.

The question raised by the counsel, strictly speaking, raises a point as to internal administration and management of public service. If the order dated 13-1-1959 is not violative of any vested right in the petitioners I do not see how this Court can investigate into its desirability or propriety. Admittedly no penalty or punishment has been imposed on the petitioners and their reversion to their substantive post is, as asserted by the respondent, effected as an administrative measure. For such a measure obviously the Departmental Heads are the best Judges. But this apart, if this reversion has been effected in pursuance of a regulated policy controlling the promotion of Draftsmen and is inspired by the test of seniority-cum-merit. I do not think this Court should in its discretion interfere with such an order.

The decision of the Government, as it appears to me, is calculated to promote efficiency amongst Draftsmen which is evidently in the interest of the general administration. The petitioners may still make a proper representation to the higher authorities and, if they have any grievance, I have no doubt that the departmental authorities would in performance of their duty, go into the matter and deal with the representation in a fair and just manner.

(4) For the reasons given above, this petition fails and is hereby dismissed. In the circumstances, however, there will be no order as to costs.

JC/V.B.B.

(5) Petition dismissed.


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