Appeal Nos 1298 and 1299 of 1969
Appeal from the Judgment and Decree dated the 9th Au gust 1966 of the Punjab and Haryana High Court in Regular First Appeals Nos 134 and 120 of 1963
NH Hingorani for the Appellant
OP Sharma for Respondent
The Judgment of the Court was delivered GOSWAMI J
These appeals are by certificate of the High Court of Punjab and Haryana
Civil Appeal No 1299 of 1969 is concerned with the appellant s suit for declaration of his dismissal order dated October 21 1959 as void and illegal
Civil Appeal No 1298 of 1969 arises out of his suit for arrears of salary
Both the matters were heard together in the
High Court and the judgment out of which Civil Appeal No 1299 of 1969 arises is the principal judg ment following which a short order was passed by the High Court dismissing the other suit of the appellant for arrears of salary
The High Court granted certificates in both the appeals
It will be sufficient to deal with Civil Appeal No 1299 of 1969 in this judgment as the decision therein will govern the other appeal
The facts may now be briefly stated The appellant who was the plaintiff in the court below was appointed as a Clerk in the Patiala State some time in July 1948
On the formation of the new State of Punjab on November 1 1956 with the 958 merger of the erstwhile Pepsu and Punjab States the appel lant was integrated in the service of the new State of Punjab as permanent Assistant in the grade of Rs 150 10 300 and was actually getting Rs70 per month on October 21 1959 the date of his dismissal in the office of the Financial Commissioner Punjab
The appellant instituted a suit in March 1962 challeng ing his order of dismissal dated October 21 1959 as void and unconstitutional praying for a declaration that he continued to be in service of the Punjab State
In June 1962 he instituted a second suit as pauper claiming a decree for about Rs 8689 as arrears of his  salary and allowances and also a further decree for Rs 27812 per mensem from 561962 to 471962 and Rs 290 per mensem from 571962 upto the date of the decree
Both the suits were decreed by the trial court
According to the plaint the appellant due to serious illness of his mother proceeded from Simla where he was working to Patiala on casual leave on 8th July 1958 with the
sanction of the competent authority
He obtained extension of leave on account of illness of his mother wife and daughter
Meanwhile the appellant himself became seriously iII and prayed for leave from 1111958 to 2821959 0n the basis of a medical certificate granted by Dr Inder Singh Sodhi Retired Civil Surgeon Pepsu Patia la
The authorities declined to sanction the leave
The appellant also
continued to be seriously ill and was unable to attend his duties
When he
recovered he reported for duty at Simla on March 2 1959 and he was permitted to resume his duty on furnishing
a certificate of fitness granted by the aforesaid Retired Civil Surgeon
On January 27 1959 the appellant was served with a chargesheet by the Financial Commissioner Development Punjab asking him to show cause why he should not be dismissed from Government service for his wilful absence from duty after the expiry of the earned leave sanctioned to him upto October 31 1958 which was described as misbeha viour
The chargesheet inter alia stated 1 
You deliberately deed the orders and again applied for extension of leave upto the 31st December 1958 reigning yourself to be iII and also threatened that in case leave was not allowed you might be granted interview with the Revenue Minister   X X X X 2 That on the one hand you have been applying for grant of extension of leave on account of your own illness and on the other you have requested that you may be allowed to appear in BA Examination to be held in April 1959
This therefore clearly shows that you are not actually ill but are malin gering and have knowingly defied Government orders
959 3 That your wilful absence from duty after the expiry of earned leave sanctioned to you upto the 31st October 1958 is a misbehaviour
The appellant submitted his explanation on March 11 1959
There was an enquiry by the Deputy Secretary Development in May 1959
He was served with a second show cause notice on August 14 1959 enclosing the report of the Enquiry Officer
The appellant submitted his representation to
the said notice on October 6 1959
On October 21 1959 the Financial Commissioner Revenue passed the order of dis missal
As already stated two suits were filed by the appellant in 1962
The Subordinate Judge First Class Patiala decreed both the suits on January 15 1963
The State Government appealed to the High Court and the same was allowed on August 9 1966 and both the suits were dismissed
That is how these appeals came before us on certificates
We are concerned in these appeals with only one point which if it is held in favour of the appellant will con clude the matter and it will not be necessary to deal with the other questions with reference to the illegalities in the course of the departmental enquiry alleged by the appel lant
It is submitted on behalf of the appellant that the order of dismissal is invalid on account of violation of Article 3111 of the Constitution
The following facts are relied upon by the appellant in order to sustain his submission
It is admitted by the respondent that the appellant initially joined service in the State of Patiala in 1948 as a Clerk and he was confirmed as an Assistant in the Pepsu Civil Secretariat by an order dated October 31 1956 of His Highness the Rajpramukh which is the previous day of the appointed day  under the State Reorganisation Act 1956
Thus he was integrated in the new State of Punjab as a confirmed Assistant
Before his integration in Punjab he was governed by the Patiala and East Punjab States Union Civil Services Punishment and Appeal Rules 1953 briefly the Pepsu Rules which were made in exercise of the powers conferred by the proviso to Article 309 of the Constitution
By a Notification of the Punjab Government No 976GII 872499 dated February 9 1957 these Pepsu Rules continue to apply as from 1st November 1956 to the corresponding services posts and personnel of the new State of Punjab till further orders
Rule 6 of the Pepsu Rules provides as follows  6
Authority to impose punishment
Subject to the provisions of clause 1 of Article 311 of the Constitution of India the authorities competent to impose any of the penalties specified in rule 4 upon the persons to whom these rules apply shall be such as may be prescribed
by Government in the rules regulating the appointment and conditions of service of such persons
Dismissal is one of the penalties provided under rule 4 see rule 4 vii
As provided under Rule 6 above men tioned the Rajpramukh 960 under Article 309 of the Constitution by a notification in the Pepsu Gazette of Juno 27 1954 made appropriate rules on 14th June 1954 determining the authorities competent to impose penalties on members of certain services and holders of certain posts in connection with the affairs of the State
Item No 14 in the Schedule to these rules mentions Members of Class III and IV Services in Sectt and
the punishing authority for dismissal of such employees is the State Government
It is therefore clear that under the Pepsu Rules which governed his conditions of service the State Government alone was competent to impose the punishment of dismissal
Under the Pepsu General Clauses Act 1953 State Government shall mean in relation to anything done or to be done after the commencement of the Constitution the Rajpramukh
See section 246
As noted earlier factually the appellant was con firmed and necessarily appointed by the Rajpramukh
Under the Pepsu Rules the Rajpramukh alone was the appointing authority
The appellant therefore cannot be removed from service by any authority subordinate to the Governor in Punjab
The coordinate authority in Punjab is the State Government
The Governor of Punjab alone therefore was competent to pass the order of dismissal of the appellant
The Financial Commissioner Revenue is an authority subor dinate to the Governor
He was there not competent to pass the order of dismissal
The order of dismissal is violative of Article 311 1 of the Constitution and is therefore invalid and is liable to be struck down
Mr Sharma on behalf of the respondent submits that there is no violation of Article 311 1 of the Constitu tion
The appointing authority for a post held by the appellant in the State of Punjab is the Financial Commis sioner Revenue
He submits that the appointing authority of the appellant before his integration into the State of Punjab does not come into the picture
He adds that this submission of his is in consonance with the provisions of section 116 of the brief ly the Act
We may therefore read section 116 of the Act 1161 Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the Union or of an existing State in any area which on that day falls within another existing State or a new Part A State or a Part C State shall except where by virtue or in consequence of the provisions of this Act such post or office ceases to exist on that day continue to hold the same post or office in the other existing State or new Part A State or Part C State in which such area is included on that day and shall be deemed as from that day to have been duly appointed to such post or office by the Government of or other appropriate authority in such State or by the Central Government or other appropriate authority in such Part C State as the case may be 961 2 Nothing in this section shall be deemed to prevent a competent authority after the appointed day from passing in relation to any such person any order affecting his continuance in such post or office
Mr Sharma submits relying upon the provisions of section 1161 that since the appointing authority for an Assistant in the State of Punjab is the Financial Commissioner Revenue it follows that he is the appropriate authority under section 1161 to impose the penalty of dismissal
This submission follows from what the High Court accepted in the impugned judgment in the following words Our attention has not been drawn on behalf of the learned counsel for the respond ent to any rule according to which the Gover nor of Punjab as is contended is the proper authority for the appointment of Assistants
Indeed it is not disputed that if the plain tiff had been appointed as Assistant in the State of Punjab then the Financial Commis sioner Revenue would have been the appropri ate authority competent to enquire into the petitioner s conduct and impose the penalty of dismissal in other words in that case the appointing authority could not have been higher in rank than the Financial Commissioner Revenue
It is certainly not the plain tiffs respondent s case that appropriate authority for appointing Assistants in the State of Punjab is the Governor
We are unable to appreciate the above line of reasoning of the High Court
Section 1161 is very clear
To concretise the appellant s case in terms of section 1161 it is sufficient to state that the appellant who immediate ly before the appointed day was holding the post of an Assistant in the former State of Pepsu shall continue to hold the same post in the new State of Punjab and shall be deemed as from that day to have beerduly appointed to such post by the Government of Punjab
We are not concerned in the instant case about the appointment being deemed to be made by  other appropriate authority in the State of Punjab since the appellant had been appointed by the Rajpra mukh of Pepsu which is equivalent to the State Government of Pepsu and the coordinate authority in the new State of Punjab is the Governor of Punjab
The argument that in the new State of Punjab the Financial Commissioner Revenue is the appropriate authority for appointing Assistants is absolutely irrelevant in the context of section 1161 which enables the status quo ante to continue except where the post ceases to exist under the provisions of the Act
It is also important to bear in mind the provisions of section 1157 of the Act where under the proviso thereto the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section 1 or sub section 2 shall not be varied to his disadvantage except with the previous approval of the Cen tral Government
One of the conditions of service of the appellant was that having been appointed by the State Government of Pepsu he could be only dismissed by the State Government of Pepsu if he had continued there
962 Under section 116 when he is integrated in the new State of Punjab he carries with him that condition of service with regard to his termination of employment and it cannot be
varied to his disadvantage under section 1157 of the Act except with the previous approval of the Central Gov ernment
See Takhatray Shivdatray Mankad vs State of Gujarat1and Bholanath J Thakar vs The State of Saurashtra2
No such approval of the Central Government in the instant case is produced before us
It is there fore clear that an authority subordinate to the Governor of Punjab was not competent to pass the order of dismissal of the appellant
Mr Sharma submits that the Punjab Financial Commis sioner s Office State Service Class III Rules 1957 are applicable in the instant case
Therefore under rule 4 thereof the Financial Commissioner is the appointing author ity for Assistants the category to which the appellant belongs
He adds that even though these Rules may be disad vantageous to the appellant he cannot complain on account of the approval of these Rules by the Central Government under section 1157 of the Act
Mr Sharma submits that these Rules received the approval of the Central Government as will appear from the general circular dated May 11 1957 to all the State Governments
He further submits that in N Raghavendra Rao vs Deputy CommissionerSouth Kanara Mangalorea and in a recent decision in Mohammad Shujat Ali  Ors
vs Union of India  Ors etc
4 this Court referred to that circular of May 11 1957 and held that that circular amounted to general approval under the proviso to section 1157 of the Act
We are however unable to see how this memorandum of May 11 1957 can be called in aid as previous approval  under section 1157 of the Act when the Punjab Financial Commissioner s Office State Service
Class III
Rules 1957 were already promul gated on February 28 1957
Approval under section 1157 is previous approval and not subsequent ratification
The above decisions therefore do not come to the aid of the respondent
Mr Sharma also drew our attention to a decision of this Court in Rajvi Amar Singh vs The State of Rajasthan5 which is clearly diStinguishable on facts
This Court was not called upon in that case to consider the provisions of the State Reorganisation Act
Our attention has been drawn by the appellant to
an unreported judgment of this Court in Mysore State and Road Transport Corporation etc
vs Mirja Khasim Beg  Anr
etc6 pronounced on December 1 1976
This Court had to deal with a similar question although appertaining to the competent authority under section 1162 of the Act in the background of Article 3111 of the Constitution
The following passage from that decision will make the point clear 1  2 AIR 1954 SC 680
3  4  5 1958 SCR1013
6 CAS Nos
1601 1609  2402 2405 of 1968 dated 1 12 1976
963 In the instant cases the first re spondents were undeniably appointed by the Superintendent of the Traffic Department of the erstwhile State of Hyderabad who was the head of the Road Transport Department of that State
On the coming into force of the  on November 1 1956 they were to be deemed by virtue of sub section 1 of section 116 of the to
have been appointed with effect from that date to the posts held by them on that date by the appropriate au thority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or coordinate in rank with the aforesaid authority in the erstwhile State of Hyderabad
The authority equivalent to or coordinate in rank with the aforesaid authority on the relevant date being the General Manager of the Mysore Government Road Transport Department according to
the appellants  own admission as contained in answer to the aforesaid interrogatories served on them by the first respondents he alone could be considered to be the compe tent authority  in terms of sub section 2 of section 116 of the 
The fact that there was no post of Superintendent of the Traffic in the Mysore
Government Road Transport Department in the State of Mysore is of no consequence
Such being the position the first respondent could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee enshrined in Article 311 of the Constitution read with section 1157 of the  
In the result both the judgments of the High Court are set aside and the judgments and decrees of the Subordinate Judge First Class Patiala stand restored
The appeals are allowed with costs
We are thankful to Mr Hingorani for his assistance as amicus curiae in these appeals
PHP Appeals allowed


Summary:
The appellant was appointed as a clerk in the Patiala State in 1948
On the formation of the new State of Punjab in 1956 the appellant was integrated in the service of the new State of Punjab as permanent Assistant
The appellant overstayed leave and
therefore after holding an enquiry the Financial Commissioner
Punjab dismissed him from serv ice in October 1959
Appellant filed two suits one for a declaration that his dismissal order was void and illegal second for arrears of salary on the basis that the dismissal was illegal
The trial Court decreed both the suits
The High Court in appeal reversed the decrees of the trial Court and dismissed the suits
In the appeals by certificate the appellant contended that the appellant was confirmed in the State of Patiala by the order of the Raj Pramukh
Before its integration he was governed by the Patiala and East Punjab States Union Civil Services Punishment and Appeal Rules 1953 which were made in exercise of powers conferred by proviso to article 309 of the Constitution
By a notification of the Punjab Govern ment dated 9 2 1957 the said 1953 Rules were made applicable to the corresponding services from 1st November 1956 on wards till further orders in the new State of Punjab
Under the 1953 Rules the State Government was the appropriate authority for dismissing members of Class Iii and IV
Under section 246 of the Pepsu General Clauses Act 1953
State Government means the Rat Pramukh
The appellant therefore contended that he cannot be removed from service by any authority subordinate to the Governor of Punjab and since the Financial Commissioner is an authority subordinate to the Governor
he was not competent to pass the order of dismissal
The respondent contended that the appointing authority for the post held by the appellant in the State of Punjab is the Financial Commissioner and therefore
he is the appro priate authority under section 1161  of the States Reorganisa tion Act 1956 to impose the penalty of dismissal
Second ly in the present case the Punjab Financial Commissioner s Office State Services Class III Rules
1957 apply
Although the said rules are more disadvantageous to the appellant since they have received the approval of the Central Government by the General Circular dated 11 5 1957 the appellant was rightly dismissed by the Financial Commis sioner
Allowing the appeals
HELD 1
Section 1161 merely provides that the appel lant shall continue to hold the same post in the new State of Punjab and shall be deemed to have been duly appointed to such post by the Government of Punjab
The fact that in the new State of
Punjab the Financial Commissioner is the appropriate authority for appointing Assistants is absolute ly irrelevant
Under section 1157 of the States Reorganisation Act the conditions of service applicable to 957 a civil servant immediately before the appointed day cannot be varied to his disadvantage except with the previous approval of the Central Government
One of the condition of service of the appellant on the appointed day was that since he was appointed by the State Government of Pepsu he could only be dismissed by the State Government of Pepsu if he had continued there
961 H 962 A 2
The Memorandum of 11 5 1957 cannot be called in aid as previous approval because the Punjab Financial Commis sioner s Office Rules 1957 were promulgated on 28 2 1957 before the Circular dated 11 5 1957 was issued
No approval of the Central Government has been produced
Therefore authority subordinate to the Governor of Punjab was not competent to pass an order of dismissed of the appellant
962 D E The Court set aside the judgment and decrees of the High Court and restored those of the trial Court
963 E Takhatray Shivdatray Mankad vs State of Gujarat  and Bholanath J Thaker vs The State of Saurashtra AIR 1954 SC 680 followed
N Raghavendra Rao vs Deputy Commissioner South Kamara Mangalore  and Mohammad Shujat Ali  Ors etc
vs Union of India  Ors etc
  distinguished
Rajvi Amar Singh vs The State of Rajasthan  distinguished
Mysore State and Road Transport Corporation etc
vs Mirja Khasim Ali Beg  Anr
C As
1601 1609 and 2402 2405 of 1968 dt 1 12 1976 followed