establishment of the Judge of Small Causes Court Delhi the name of Respondent No 1 appears at Serial No 9 whereas that of the appellant appears at Serial No 19
Both of hem satisfy the test of integrity
The only claim the appellant can have 135 is on the principle of rotation as he is a graduate
As that principle does apply to an appointment by promotion to the post in question the claim of the appellant cannot be upheld
140F G  CIVIL APPELLATE JURISDICTION Civil Appeal No 592 of 1982
From the Judgment and Order dated 78198 1 of the Delhi High Court in Civil Writ Petition No 1003 of 1974
Prithvi Raj and TC Sharma for the Appellant
Dr Arun Kumar and VB Saharya for the Respondents
The Judgment of the Court was delivered by KANIA J
On the retirement of one Jagan Nath Kohli who was holding the post of Clerk of Court Upper Division Clerk in the grade of Rs 130 300 old Scale Rs75 5 125 one post of Upper Division Clerk UDCEnglish Clerk fell vacant in the office of the Judge Small Causes Court Delhi
Five officials of that court namely the appellant and respondents nos
1 5 6  7 asserted their claim to the said post
The appellant Chander Bhan made his claim on the footing that he was a graduate and on the basis of the rule of rotation as embodied in Rule VI in Chapter XVIII A of the High Court Rules and Orders Volume I referred to more particularly hereinafter
Respondent No 1 Hotilal Gupta claimed the said post on the basis of his seniority
We are not concerned with the claims of the other claimants because the contest before us is between the claims of the appellant and respondent No 1
The Judge Small Causes Court in his order dated August 10 1971 took the view that the appellant who is a graduate and has got 2 12 years office experience as Lower Division Clerk LDC was an honest and efficient worker and was entitled to promotion in preference to respondent No 1 because of the rule of rota tion
The aggrieved parties filed an Administrative Appeal before the District  Sessions Judge Delhi who passed his order dated July 17 1973 and held that the rule of rotation did not apply to the establishment of the Judge Small Causes Court
He held that respondent No 1 being the senior most official as Lower Division Clerk was entitled to the post of Upper Division Clerk and accordingly appointed respondent No 1 as Upper Division Clerk against the said vacancy
Being aggrieved the appellant filed a departmental appeal against the said order to the High Court of Delhi which was heard by a learned 136 Judge on the Administrative Side of that Court who by his order dated August 7 1974
accepted the appeal of the appellant and set aside the appointment of respondent No 1
He took the view that promotion in the office of the Judge Small Causes Court Delhi could only be made by the District and Sessions Judge Delhi and that the vacancy should be filled in accordance with rule VI of the Rules framed by the erstwhile Punjab High Court under section 353 of the punjab Courts Act 1918 for subordinate services attached to Civil Courts other than the High Court hereinafter referred to as the said rules 
Respondent No 1 Hotilal Gupta challenged the correct ness of the view taken by the learned Judge on the Adminis trative side by filing a writ petition being CW No 1003 of 1974 in the Delhi High Court
By an order dated 7th August 198 1 the Division Bench of the Delhi High Court allowed the said writ petition quashed the order dated 7th August 1974 passed by the learned Single Judge and upheld the order of the District and Sessions Judge Delhi appoint ing respondent No 1 to the said post
The Division Bench took the view that not only the initial appointments but also the appointments by promotion to the post of Upper Division Clerk in the office of the Judge Small Causes Court were to be made by the Judge Small Causes Court and not by the District and Sessions Judge and held that the rule of rotation on the basis of which the appellant had been appointed to the said post by the order of the Single Judge on the Administrative Side was not applicable to the said appointment
It is submitted by learned counsel for the appellant that the Division Bench of the High Court was in error in coming to the said conclusion
It was submitted by him that although the first appointment to the post of Upper Division Clerk in the office of the Judge Small Causes Court Delhi is to be made by a Judge of Small Causes Court promotion to that post could only be made by the District  Sessions Judge and the rule of rotation contained in the first proviso to Rule VI of the said Rules was applicable to the appointment by promotion
order to consider the merit of the submission of learned counsel for the appellant it is necessary to bear in mind the relevant provisions of law
The relevant portion of section 35 of the Punjab Courts Act
191S reads as follows 1 The ministerial officers of the District Courts and 137 Courts of Small Causes shall be appointed and may be sus pended or removed by the Judges of those Courts respective ly
2 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 3 Every appointment under this section shall be subject to such rules as the High Court may prescribed in this behalf and in dealing with any matter under this section a Judge of a Court of Small Causes shall act subject to the control of the District Court
 The rules for subordinate services attached to Civil Courts other than the High Court were framed by the erst while Punjab High Court under section 354 of the Punjab Courts Act
A perusal of Rule II of the said Rules dealing with classification shows inter alia that Clerks of Court to Senior Subordinate Judges and Judges of Courts of Small Causes and English and Vernacular Clerks form a joint cadre
Subrule b of Rule II of the said Rules inter alia provides that there shall be a separate cadre for each Revenue Dis trict and a separate cadre for each Court of Small Causes
Rule III deals with qualifications and sub rule 2 of that Rule provides that no person shall be appointed to or accepted as a candidate for any clerical ministerial post unless he has passed the Matriculation Examination of the Punjab University or an equivalent examination
The material part of Rule IV runs as follows IV
First appointments
First appointment shall be made as follows 1 By the District Judge a Ministerial officers in his own court and in all courts controlled by the District Court other than Courts of Small Causes 
b x x x 2 x x x 3 By the Judge of a Court of Small Causes Ministerial Officers and menials in his own Court  138 Rule V deals with appointment and sub rule 1 of that Rule thereof runs as follows 1 Appointment to ministerial posts shall ordi narily be made either by open competition or by selection from a list of qualified candidates or apprentices accept ed by the District Judge
Judge of a Small Causes Court
or Sub Judge to whom powers of appointment have been delegat ed as the case may be
Any departure from either of these methods should be reported to the High Court for confirma tion Rule VI which is of central importance in this appeal runs as follows VI
Promotion 1 Appointments to the higher grades of the ministerial establishment should ordinarily be made by seniority from lower grades provided that the official who would thus receive promotion possesses the prescribed educational qualifications and is otherwise fit to perform the duties to which he will be promoted for which purpose tests may be imposed
This rule does not apply to such posts as that of stenographer for which special qualifications are needed but preference should be given to officers with such qualifications who are already working in the lower grades Provided that permanent vacancies in the 75 5 125 grade shall be filled by the District and Sessions Judges in the following rotation i By selection on merit out of graduates who have at least two years  experience in the work of the office if there is no suitable graduate who fulfils this condition an outsider  graduate may be appointed but he must be one who normally resides within the jurisdiction of the District and Sessions Judge
ii  iii By normal promotion in the office ie the appointment of the next senior man whether graduate or non graduate subject to his fitness Provided further that the rotation may be modified in 139 very exceptional cases when the direct appointment of a graduate would mean the ousting of a man who had been officiating quasi permanently in the post concerned for an appreciable period
What is an appreciable period will depend on the circumstances of each case
After such a modification
the rotation should be restored as soon as possible
2 In making promotions preference may invariably be shown to officials who are known to be strictly honest
No promotion should be given and no recommendation for promotion made in the case of an official who does not possess and maintain a reputation for strict integrity
Effi ciency without honesty is not to be regarded as constitut ing a claim to promotion  A Notification dated October 28 1953 was issued in exercise of the powers conferred by the proviso to Article 309 of the Constitution and in supersession of the Notifica tion issued earlier on February 17 1941
The said Notifica tion sets out that subject to such general rules as may be made by the Hon ble Judges of the Punjab High Court in that behalf appointments to the posts on the establishment of the Civil Courts at Delhi specified in Column 1 of the Sched ule thereto shall be made by the Authority specified in the corresponding entry in Column 2 of the said Schedule
A perusal of the Schedule shows that appointments to the posts on establishments other than process serving and menial establishments in the Small Causes Court at Delhi are  to be made by the Judge Small Causes Court Delhi
It has been pointed out in the impugned judgment that the establishment of the District and Sessions Court and that of the Court of the Small Causes constitute separate cadres
This is not disputed before us
Hence whenever a specific mention is made regarding a particular officer of an estab lishment in a rule that particular rule would normally apply to that establishment alone and the powers conferred by that rule would be conferred on the officer mentioned in the rule
Rule VI1 speaks of appointments to the higher grades of the ministerial establishments and states that these appointments should ordinarily be made by seniority from lower grades provided that the official to be promoted possess the qualifications prescribed
The first proviso to that rule goes on to say that the permanent vacancies in the original grade of Rs75 5 125 shall be filled in by the District and Sessions Court by rotation as set out in the said sub rule 1 of Rule VI
The first part of Rule VI deals with appointments by promotion to the higher grade of ministerial establishment
Generally it must be 140 held applicable to the establishment of the District and Sessions Court as well as that of the Judge of the Small Causes Court
This rule however does not deal specifically with the question as to who is the officer competent to promote
In view of this the proviso can only be construed as laying down that where the power of appointment by promotion is vested in the District and Sessions Judge in making appointments by promotion to fill inthe permanent vacancies in the said original grade of Rs75 5 124 rule of rotation set out in the first proviso to clause 1 of Rule VI should ordinarily be followed
It is not disputed that there is a separate Cadre for the Court of Small Causes
Rule IV3 shows that the first appointment of the ministe rial officers in the Court of Small Cause is to be made by the Judge of the Small Causes Court
The notification dated October 28 1953 referred to earlier provides that the appointments to the posts on establishment other than proc ess serving and menial in the Court of Small Causes are to be made by the Judge SmaLl Causes Court Delhi
A reading of sub section 1 of the Punjab Courts Act and the rules and Notification discussed earlier makes it clear that appointments by promotion to the posts in the entire ministerial cadre other than in the process serving and menial establishments in the Court of Small Causes have to be made by the Judge Court of Small Causes and the first proviso to Rule VI1 prescribing the rule of rotation has no application to such appointments
Moreover it would be unreasonable to apply the principle of rotation to the Court of Small Causes where there is only one UDC
The principle of rotation can be made applicable to the District  Ses sions Court because there are a number of posts of Upper Division Clerks
It would be irrational to apply that prin ciple of rotation to the Court of Small Causes in which there is only one Upper Division ClerkEnglish Clerk
In the seniority list of the establishment of the Judge of Small Causes Court Delhi the name of respondent No 1 appears at Serial No 9 whereas that of the appellant ap pears at Serial No 19
Both of them satisfy the test of integrity
The only claim the appellant can have is on the principle of rotation as he is a graduate
As that principle does not apply to an appointment by promotion to the post in question the claim of the appellant cannot be upheld
As we have already observed none of the other respondents have pressed their claims in the High Court or here
In the result the appeal fails and is dismissed
Looking to the facts and circumstances of the case there will be no order as to costs


Summary:
The respondent a bank employee was chargesheeted for claiming LFC on the basis of fake travel receipts
The Bank appointed one of its officers as Enquiry Officer as well as Disciplinary Authority who conducted the departmen tal enquiry against the respondent
However during the pendency of the enquiry the Enquiry Officer retired from service
Notwithstanding his retirement from service he proceeded with the enquiry and concluded the same against the respondent
The respondent participated in the enquiry without raising any objection against the continuance of the said Enquiry by the said Enquiry Officer
After giving an opportunity to the respondent to be heard on the question of punishment the Enquiry OfficerDisciplinary Authority im posed the punishment of discharge
The respondent fried a departmental appeal which was dismissed
Thereafter the respondent filed a writ petition in the High Court challeng ing the order of discharge on the ground that the order passed by the Enquiry Officer was without jurisdiction
A single judge of the High Court allowed the Writ Peti tion quashed the order of punishment with all consequential benefits to the respondent on the ground that after retire ment the Enquiry Officer was nobody in the hierarchy of authorities to impose punishment on the delinquent employee and hence his order imposing punishment was incompetent and without jurisdiction
Against the order of the single judge the Bank preferred a Letter Patent Appeal before a Division Bench of the High Court which was dismissed
197 In appeal to this Court it was contended on behalf of the appellant Bank i that the decision of the Enquiry Officer could be saved on the basis of de facto doctrine because a his initial appointment being valid his actions and decisions could not be invalidated by his subsequent retirement since he continued to function as a de facto Enquiry Officer b even otherwise the Bank could have appointed a non official as Enquiry Officer ii that since the High Court quashed the punishment not on merits but on a mere technicality it erred in directing payment of all consequential benefits to the respondent and iii since the respondent submitted to the jurisdiction of the Enquiry Officer and there was no prejudice caused to him he was estopped from raising the contention as to the competence or jurisdiction of the Enquiry Officer for the first time in the Writ Petition
Allowing the appeal in part this Court HELD 1
The de facto doctrine has to requisites name ly i the possession of the office and the performance of the duties attached thereto and ii colour of title that is apparent right to the office and acquiescence in the possession thereof by the public
According to this doctrine the acts of officers de facto performed within the sphere of their assumed official authority in the interest of the public or third parties and not for their own interest are generally held valid and binding as if they were performed by de jure officers
This doctrine can be invoked in cases where there is an appointment to office which is defective but notwithstanding the defect to the title of the office the decisions made by such a de facto officer clothed with the powers and functions of the office would be as effica cious as those made by a de jure officer
The same would however not be true of a total intruder or usurper of office
The doctrine envisages that acts performed de facto by officers within the scope of their assumed official authority are to be regarded
as binding as if they were performed by officers de jure
While the de facto doctrine saves official acts done by an officer whose appointment is found to be defective the private parties to a litigation are precluded from challenging the appointment in any col lateral proceedings
But the doctrine does not come to the rescue of an intruder or usurper or a total stranger to the office
Obviously the doctrine can have no application to the case of a person who is not the holder of an office but is merely a bank employee for that matter an ex employee
202E F 203BF G 204A C 11 In the instant case the Enquiry Officer can hardly be described as a person occupying or being in possession of an office to which certain duties affecting the members of the general public can be 198 said to be attached
Therefore in the facts and circum stances of this case the de facto doctrine can have no application
203H 204A 201G Pulin Behari Das vs King Emperor 1911 12 16 Cal
Weekly Notes 1105 Immedisetti Ramkrishnaiah Sons vs State of Andhra Pradesh AIR 1976 AP 193 Jai Kumar vs State 1968 All
LJ 877 Gokaraju Rangaraju vs State of AP   referred to
Abbe de Fountaine decided in 143 1 cited
12 An Enquiry Officer need not be an officer of the bank even a third party can be appointed an Enquiry Officer to enquire into the conduct of an employee
But there can be no doubt that a non official cannot act as a Disciplinary Authority and pass an order of punishment against the delin quent employee
Therefore where punishment is imposed by a person who has no authority to do so the very foundation on which the edifice is built collapses and with and it fails the entire edifice
It is a case more or less akin to a case tried by court lacking in inherent jurisdiction
Absence of bias prejudice or mala fides is of no consequence so far as the question of competence of the Enquiry Officer is concerned
202B 204D E Saran Motors P Ltd vs Vishwanath  Anr  referred to
Delhi Cloth and General Mills Co Ltd vs Labour Court Tis Hazari  Ors  Held inapplicable
In the instant case the impugned order of punishment was quashed not because the merits of the case so demanded but because the technical plea of incompetence succeeded
Therefore the High Court was right in quashing the impugned order of punishment but having regard to the special facts and circumstances of the case it should not have ordered payment of all consequential benefits  flowing from the declaration that the impugned order was bad in law
The order of the High Court is modified to the extent that the respondent will be paid 50 of the consequential benefits and not all the consequential benefits
Except for this modification the rest of the order of the High Court will stand
205E G