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State of Haryana Vs. Shri Des Raj Sangar and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal No. 1942 of 1974
Judge
Reported inAIR1976SC1199; 1976LabIC849; (1976)ILLJ301SC; (1976)2SCC844; [1976]2SCR1034
ActsPunjab Civil Services Rules - Rule 3.14; Constitution of India - Article 311
AppellantState of Haryana;rajendra Sareen (intervener)
RespondentShri Des Raj Sangar and anr.;
Appellant Advocate L.N. Sinha, Adv.P.P. Rao, Adv
Respondent Advocate Kapil Sibal and ; P.R. Ramasesh, Advs.
Cases ReferredT. R. Sharma v. Prithvi Singh Civil Appeals Nos.
Prior historyAppeal by Special Leave from the Judgment and Order dated May 20, 1974 of the Punjab and Haryana High Court at Chandigarh in Civil Writ No. 2169 of 1972
Excerpt:
.....- appeal against order of high court allowing petition against abolishing post of panchayat raj election officer and termination of service of respondent - abolition of post was an executive policy decision - abolition does not confer on person holding abolished post any right to hold post - termination of post in good faith and consequent termination of services of incumbent of that post would not attract article 311 - order of government does not suffer from any infirmity and not liable to be quashed - order passed by high court liable to be quashed - appeal allowed. - indian evidence act, 1872 section 32: [dr.arijit pasayat & asok kumar ganguly,jj] multiple dying declarations reliability -last declaration not in conformity with f.i.r. and declaration made to police as regards..........bailpur, secretary to the government of haryana, filed affidavit. according to that affidavit, the post of panchayati raj election officer was created simply for the conduct of elections of the panchayati raj bodies. the other duties which were performed by the respondent were only as a measure of temporary arrangement. in order to streamline the department the government felt that the department should be reorganised and as a result of reorganisation those duties which had nothing to do with the job of the panchayati raj election officer were withdrawn and given to separate deputy directors of panchayats. the duties pertaining to legal matters and complaints against panchas, sarpanches and the members of the panchayat samitis were of such nature that the same required a legal background.....
Judgment:
ORDER

1. The Governor of Haryana is pleased to order that in view of the extreme financial stringency the permanent post of the Panchayati Rai Election Officer in the Panchayat Department, Haryana, in the scale of Rs. 400-40-1000/50-1100 should be abolished with immediate effect.

2. Consequent upon the abolition of the post of the Panchayati Rat Election Officer the Governor of Haryana is further pleased to order that the services of Shri Des Raj Sangar who is holding the post of the Panchayati Raj Election Officer in a substantive permanent capacity should be dispensed with with immediate effect. He should relinquish the charge of his post immediately. He is allowed three months' emoluments i.e. pay and allowances as gratuity in lieu of three months' notice in accordance with the provisions of Rule 5.9 of the Civil Services Rules, Volume II. He shall be entitled to pension/gratuity in accordance with the rules in Chapter VI of the Civil Services Rules, Volume II, as amend ed from time to time, but the pension shall not be payable for the period in respect of which he has been allowed gratuity in lieu of three months' notice.

J. S. Sarohia Secretary to Govt. Chandigarh Haryana, Develop Dated: 13th ment & Panchayat July, 1972 Department.

3. The respondent in his petition while assailing the impugned order leveled allegations of mala fide against Shri Shyam Chand, then Minister for Development and Panchayats, Haryana but the said allegations were not pressed at the time of arguments. Following two contentions were advanced on behalf of the respondent:

(1) The impugned order dated July 13, 1972 abolishing the post of Planning-cum-Panchayati Raj Election Officer held by the respondent and the consequent termination of his services was arbitrary and had no reasonable nexus with the object sought to be achieved, namely, meeting the financial stringency. The impugned order was stated to be violative of Articles 14 and 16 of the Constitution inasmuch as the respondent who was at all times selected for higher posts and got promotions from the lower posts in the cadre was being thrown out of the job on the pretext of the abolition of the post permanently held by him, whereas persons junior to him in rank and less meritorious were retained in service.

(2) In view of the provisions of Rule 3.14 and other relevant rules of Punjab Civil Services Rules, the moment the post held by the respondent was abolished his lien got revived on the post of Head Assistant which he had held substantively before his promotion to the ex-cadre post and therefore his services could not be terminated, and he was in any case entitled to the admittedly existing post of Head Assistant.

4. As against the above, it was urged on behalf of the State of Haryana that the Government was well within its rights to decide as to which post should be abolished to effect economy to meet the financial stringency and that the court could not go into the matter and decide whether the abolition of the post was justified or not. It was also stated that the respondent could not be reverted to the post of Head Assistant as his lien on that post had. been terminated when he was con firmed against the permanent post of Planning-cum-Panchayati Raj Election Officer.

5. The learned Judges of the High Court held that the impugned order was arbitrary, unreasonable and violative of Articles 14 and 16 of the Constitution. The order as such was quashed. In view of the above finding, the learned Judges did not go into the second contention advanced on behalf of the respondent on the basis of Rule 3.14 of the Punjab Civil Services Rules,

6. In appeal before us learned Solicitor General on behalf of the appellant-State has urged that it is for the State Government to decide as to which post should be abolished and in case the State Government so decides for administrative reasons, its order in this respect should not have been quashed by the High Court. As against, that, Mr. Sibal on behalf of the respondent has canvassed for the correctness of the view taken by the High Court. There is in our opinion, considerable force in the contention advanced on be half of the appellant in this respect.

7. Whether a post should be retained or abolished is essentially a matter for the Government to decide. As long as such decision of the Government is taken in good faith, the same cannot be set aside by the court. It is not open to the court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. The decision to abolish the post should, however, as already mentioned, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post. In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside. The termination of a post in good faith and the consequent termination of the services of the incumbent of that post would not attract Article 311. In Ramanatha Pillai v. State of Kerala : (1973)IILLJ409SC . Ray C.J. speaking for the Constitution Bench of this Court observed:

A post may be abolished in good faith. The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of Article 311(2).

It was further observed:

The abolition of post may have the consequence of termination of service of a government servant Such termination is not dismissal on removal within the meaning of Article 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post. The abolition of post is not a personal penalty against the government servant. The abolition of post is an executive policy decision. Whether after abolition of the post, the Government servant who was holding the post would or could be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post.

According to the impugned order, the post of the Panchayati Raj Election Officer was abolished in view of the extreme financial stringency. In support of the above order, Shri G. L. Bailpur, Secretary to the Government of Haryana, filed affidavit. According to that affidavit, the post of Panchayati Raj Election Officer was created simply for the conduct of elections of the Panchayati Raj Bodies. The other duties which were performed by the respondent were only as a measure of temporary arrangement. In order to streamline the Department the Government felt that the Department should be reorganised and as a result of reorganisation those duties which had nothing to do with the job of the Panchayati Raj Election Officer were withdrawn and given to separate Deputy Directors of Panchayats. The duties pertaining to legal matters and complaints against Panchas, Sarpanches and the members of the Panchayat Samitis were of such nature that the same required a legal background and field experience by the officer handling the subject Those duties were, therefore, given to Deputy Director of Panchayat (legal) who was a law graduate and had a long field experience as Block Development and Panchayats Officer. After the reorganisation of the Department the only work left with the Panchayati Raj Election Office was that of conducting elections of Panchayati Raj Bodies. As this work was of a periodical nature, the Government thought it fit to abolish it. It was also stated in another affidavit filed on behalf of the appellant-State that the post of Panchayati Raj Election Officer and the seven posts of field Deputy Directors were abolished as an economy measure to meet financial stringency. We see no cogent ground to question the averments made in the above affidavits. The averments show that the decision to abolish the post of Panchayati Raj Election Officer was taken because of administrative reasons. The question as to whether greater economy could have been brought about by adopting some other course is not for the court to go into, for the court cannot sit as a court of appeal in such matters. It may be that some of the functions which were being previously performed by the respondent are now being performed by Deputy Directors whose posts have not been abolished, this fact would not show that the decision to abolish the post held by the respondent was not taken in good faith. After the posts of Deputy Directors had been created and had been in existence along with the post of Panchayati Raj Election Officer for a number of months, the Government, it would appear, decided to abolish some of the posts to meet the financial stringency. In taking the decision as to which post to abolish and which not to abolish, the Government it seems, took into account the relative usefulness of each post and decided to abolish the seven posts of field Deputy Directors and the one post of Panchayati Raj Election Officer. This was a matter well within the administrative discretion of the Government and as the decision in this respect appears to have been taken in good faith, the same cannot be quashed by the court. The fact that the post to be abolished is held by a person who is confirmed in that post and the post which is not abolished is held by a person who is not permanent would not affect the legality of the decision to abolish the former post as long as the decision to abolish the post is taken in Rood faith. We would therefore, hold that the High Court was in error in quashing the order of the Government whereby the post of Panchayati Raj Election Officer had been abolished.

8. There appears to be however, considerable force in the second contention advanced on be half of the respondent that on the abolition of the post of Panchayati Raj Election Officer, his services should not have been terminated. According to Clause (a)(2) of Rule 3.14 of Punjab Civil Services Rules Vol. I Part I as applicable to Haryana State, a competent authority shall suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. According to Clause (e) of that rule, a Government servant's lien which has been suspended under Clause (a) of that rule shall revive as soon as he ceases to hold a lien on the post of the nature specified in Sub-clauses (1), (2) or (3) of that clause. The above provisions were considered by us in the case of T. R. Sharma v. Prithvi Singh Civil Appeals Nos. 354 and 355 of 1971 decided on 17-11-1975 : reported in : [1976]2SCR716 and it was held that in the absence of a written request by the employee concerned, the lien on the post permanently held by him cannot be terminated. It is nobody's case that any written request was made by the respondent for terminating his lien on the post of Head Assistant. As such, the lien of the respondent on the post of Head Assistant should be held to have immediately revived as soon as the post of Panchayati Raj Election Officer was abolished.

9. It has been pointed out by Mr. Sibal that officials who were junior to the respondent have in the meanwhile been promoted to higher posts. It would be for the authorities concerned to take such consequential steps as may be necessary in accordance with the rules because of the revival of the lien of the respondent on the post of Head Assistant.

11. We accordingly accept the appeal and set aside the judgment of the High Court. We hold that the order of the Government abolishing the post of Panchayati Raj Election Officer does not suffer from any infirmity and as such is not liable to be quashed. We further hold that on the abolition of that post, the lien of the respondent on the post of Head Assistant stood revived. The parties in the circumstances shall bear their own costs throughout.


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