Case: State Of Punjab Vs. Jagdip Singh &amp; Ors

an order of the Government amounts to punishment or not, Das. C. J., speaking for the Court summarized his conclusions therein. The learned Chief Justice dealing in particular with a case of reduction in rank observed, at p. 863 (of SCR) : (at p. 49 of AIR):"A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank.22. Finally, he proceeded to observe, at p. 863 (of SCR): (at pp. 49-50 of AIR):"In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind herein-before referred to. If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which given protection to Government servant have not been complied with. The termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.This decision, in my view, is a clear authority on the interpretation of Art. 311 (2) of the Constitution. The question that falls to be considered under that Article is whether the Government servant was dismissed or removed or reduced in rank as punishment. It would be punishment if either of the said two tests was satisfied, namely, if he had a right to the post or if he had been visited with evil consequences of the kind mentioned in the abovementioned judgment. If either of the said two tests was satisfied, he was punished; and if so, he should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The argument of the learned Advocate-General is untenable for three reasons. By accepting it, (i) we would be adding a third test, (ii) we would be introducing an anomaly viz., a servant guilty of misconduct gets a preferential treatment, and (iii) we would be confusing the reason for punishment with punishment itself.23. Strong reliance is placed upon the judgment of a Division Bench of the Madras High Court in ILR (1958) Mad 158 : (AIR 1958 Mad 53 ) in respect of the contention that unless a reduction of rank is connected with the misconduct of a Government servant, Art. 311 of the Constitution cannot be invoked. In that case, the appellant as well as certain others, was appointed by the Government of Madras as Assistant Commandant, Special Armed Police, Madras in 1948 during the Hyderabad Action. When normal conditions were restored, the Government passed an order in and by which it appointed the appellant and others who had been serving in the Special Armed Police, Madras, in posts in the Madras Police Service. In that order the appellant was shown as first in the list. After a lapse of more than 5 years, the Government of Madras passed another order fixing the seniority of the Deputy Superintendent of Police in a different way. The question raised in that case was whether the changes made in the seniority list affecting the appellant adversely was reduction of rank within the meaning of Art. 311 (2) of the Constitution and whether, as no reasonable opportunity was given to the affected parties within the meaning of that Articles, the said second order was bad. The Court found that the refixation of seniority on what the Government considered to be just and equitable grounds was a matter of policy and was well within its powers. On that finding, the question arose whether Art. 311 (2) of the Constitution would apply to that case. The learned Judges, after considering the decisions of this Court, held that Art. 311 (2) of the Constitution would be attracted only if a Government servant was punished on any ground personal to the servant concerned. This decision would have relevance only if a Government servant was dealt with in a legally permissible manner by the Government without any reference to his misconduct. Indeed, on the facts of that case the High Court proceeded on the basis that refixation of seniority was legally permissible. The decisions referred to in that judgment were also related to valid orders made by the Government dehors misconduct of the Government servants concerned. In all those decisions no punishment was inflicted upon the Government servant, for he did not satisfy either of the two tests laid down in Parshotam Lal Dhingras case, 1958 SCR 828 : (AIR 1958 SC 36 ). But, in the present case I have held that the Government has no power to "de-confirm" the respondents who were lawfully appointed as permanent Tahsildars. If that be so, their reduction in rank was punishment inflicted on them. They were punished though they were not guilty of any misconduct. The said judgment and the decisions referred to therein have, therefore, no application to the present case.24. I, therefore, hold that the respondents had a right to occupy a substantive rank in the posts of Tahsildars and their reduction as officiating Tahsildars was certainly reduction in rank as punishment.25. In this view, it is not necessary to express my view whether, if the reduction in rank of the respondents was not punishment, the High Court could have interfered under Art. 226 of the Constitution on the ground that the Government acted in derogation of the statutory rules.26. In the result, the appeals fail and are dismissed with costs.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The present case is not governed by either of these two rules, and the only rule which could possibly by invoked for supporting the action of the Financial Commissioner is R. 7. Before, however, advantage could be taken of that rule, there had to be an actual or an anticipated substantive vacancy. Moreover, there is no rule which empowered the Financial Commissioner to create a post of Tehsildar. It is admitted before us that there was neither a substantive vacancy nor an anticipated vacancy in the cadre of permanent Tahsildars on October 23, 1956.Indeed, this is clear from the fact that for providing for a lien for the seven Tahsildars who were confirmed by the Financial Commissioner on October 23, 1956, the Rajpramukh realised that new posts had to be created and therefore created seven supernumerary posts the very next day. Had there been any substantive vacancies, actual or anticipated, there would have been no occasion to create supernumerary posts. In the circumstances, therefore, only one conclusion must follow and that is that the order of the Financial Commissioner had no legal foundation, there being no vacancies in which the confirmations could take place. The order of the Financial Commissioner dated October 23, 1956 confirming the respondents as permanent Tahsildars must, therefore be held to be whollymust be borne in mind that the power to create posts rests in the State. The Tahsildari Rules have not delegated to the Financial Commissioner, the appointing authority, the power to create the posts of Tahsildars. Nor again, can we read the order of the Rajpramukh of October 24, 1956 as appointing the respondents as permanent Tahsildars, as that order does not purport to do any such thing. In fact it clearly mentions the fact of the confirmation of the respondents and others. On the face of it, therefore, the creation of supernumerary posts appears, to be an after-brought and is of on avail as a means of validating the original order ofour opinion where a Government servant has no right to a post or to a particular status, though an authority under the government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status. No doubt, the Government has used the expression "de-confirming in its notification which may be susceptible of the meaning that it purported to undo an act which was therefore valid. We must, however, interpret the expression in the light of actual facts which led up to the notification. These facts clearly show that the so-called confirmation by the Financial Commissioner of Pepsu was no confirmation at all and was thus invalid. In view of this, the notification of October 31, 1957 could be interpreted to mean that the Government did not accept the validity of the confirmation of the respondents and other persons who were confirmed as Tahsildars by the Financial Commissioner,answer to this is to be found in S. 116 of the States Re-organisation Act, 1956. Sub-section (1) thereof deals with the continuance of an officer in the same post. Sub-section (2), however, provides that nothing in the section shall be deemed to prevent a competent authority after the appointed day from passing in relations to any such person any order affecting his continuance in such post or office.This provision is thus wide enough to empower the successor Government, which would be the competent authority under the Act, to make the kind of notification with which we are concerned in thisthat case the question was whether loss of seniority which results from re-adjustment and re-fixing of seniority inter se between certain officers in the service would amount to a reduction in rank so as to attract the application of Art. 311 (2). This contention was rejected both by the learned single Judge and the Division Bench for the reason that the reduction in rank contemplated by Art. 311 (2) was one by way of punishment, which in its turn implied some conduct on the part of the officer which led to the reduction. Prima facie this view appears to be correct and to accord with the effect of the decision of this Court in Dhingras case, 1958 SCR 828   : (AIR 1958 SC 36  ). However, in the present appeals we are not called upon to express a definite opinion on the aspect of thehave already held that the respondents could not be validly confirmed as Tahsildars by the Financial Commissioner of Pepsu. Therefore, even though upon their allocation to the State of Punjab as from November 1, 1956, they were shown as confirmed Tahsildars, they could not in law be regarded as holding that status. Legally their status was only that of officiating Tahsildars. The notification in question in effect recognises only this as their status and cannot be said to have the effect of reducing them in rank by reason merely of correcting an earlier error. Article 311 (2) does not, therefore, come into the picture at all.