Case: Union Of India Vs. Gurbaksh Singh &amp; Another

the post of Assistant Settlement Commissioner, unless such power was conferred upon it by virtue of a direction given by the Central Government under Section 34, but admittedly there was no such direction in the present case. In fact, the Central Government, by its letter dated 18th April, 1955 requested the State Government to intimate "the names of officers appointed as Assistant Settlement Commissioner" for issue of necessary notification under the Act. The Central Government did empower the State Government to nominate the person to be appointed to the post of Assistant Settlement Commissioner but the appointment of the person so nominated could only be made and was in fact made by the Central Government by its order dated 3rd September, 1955. Once the appointment of the first respondent as Assistant Settlement Commissioner was made by the Central Government by its order dated 3rd September, 1955, there was no question thereafter of the State Government once again appointing him to the same post. The State Government, no doubt, by its order dated 1st December, 1955 purported to appoint the first respondent as Assistant Settlement Commissioner, but that was merely a formal "appointment letter" persuant to the suggestion contained in the letter of the Central Government dated 21st September, 1955.It was an ineffectual and futile exercise which had no legal consequence since by that the first respondent was already appointed to the post of Assistant Settlement Commissioner by the Central Government legally competent so to appoint and he was already functioning as such Assistant Settlement Commissioner. Moreover, the post of Assistant Settlement Commissioner, to which the first respondent was so appointed, was a post sanctioned by the President of India and created by the Central Government and the whole of the expenditure in connection with that post was to be borne out of the funds allocated by the Central Government, vice the letter of the Central Government dated 23rd July, 1955.It is true that the State Government also, by its order dated 30th November, 1955, purported to accord sanction to the creation of one post of Assistant Settlement Commissioner, but that was obviously for the purpose of regularising its own accounts procedure because the amount of Rs. 6.50 lacs for meeting the expenditure in connection with the staff for this work was made available by the Central Government to the State Government and it was the State Government which was to disburse the expenditure out of that amount. The post of Assistant Settlement Commissioner having already been created by the Central Govt. by the sanction of the President of India as conveyed under the letter dated 23rd July, 1955, did not need validation from the order of the Government of Punjab dated 30th November, 1955.In fact, when the question arose in regard to issue of pay slip in favour of the first respondent for the period subsequent to 29th February, 1956, when the original sanction of the President of India for the post of Assistant Settlement Commissioner expired, the Accountant General, Punjab pointed out in his letter dated 21st April, 1956 that the sanction to the continuance of the post by the Punjab Government was meaningless and ineffective and it could not be acted upon until receipt of sanction to the continuance of the post from the Central Government since "the post was created by them."It would, therefore, be seen that the post of Assistant Settlement Commissioner was created by the Central Government and the expenditure in connection with it was to be met out of the funds provided by the Central Government and it was the Central Government alone which was competent to make appointment to the post and in fact, the first respondent was appointed to the post by the Central Government by its order dated 3rd September, 1955. If this be the correct position, as it undeniably is, there can be no doubt that the Central Government alone could terminate the service of the first respondent. It is now a well-settled rule of interpretation that a power to appoint ordinarily implies a power to determine the employment. That was pointed out by this Court in S. R. Tiwari v. District Board, Agra, (1964) 3 SCR 55 = (AIR 1964 SC 1680 ):"Power to appoint ordinarily carries with it the power to determine appointment, and a power to terminate may in the absence of restrictions express or implied be exercised, subject to the conditions prescribed in that behalf, by the authority competent to appoint."This rule is also found incorporated in Section 16 of the General Clauses Act, 1897. It is, therefore, clear that the Central Government, which is given the power to make a appointment to the post of Assistant Settlement Commissioner under Section 3, would also have the power to determine the appointment. The Central Government would also be entitled to terminate the appointment, since the post of Assistant Settlement Commissioner is a post under the Union of India and the person appointed to it would hold it during the pleasure of the President. There is no provision under which the Government of Punjab could have the power to determine the appointment as Assistant Settlement Commissioner made by the Central Government under Section 3. The Central Government alone could terminate the appointment, both as the appointing authority as also under Article 310 (1) of the Constitution. The High Court was therefore, right in taking the view that the order of the Punjab Government dated 17th April, 1956 was ineffectual and invalid and the service of the first respondent as Assistant Settlement Commissioner was validly terminated only on 10th February, 1959 when the Central Government, by its memorandum dated 10th January, 1959, gave notice terminating the service of the first respondent. There was no dispute before us that if the service of the first respondent came to an end on 10th February, 1959, and not earlier on 17th April, 1956, the first respondent would be entitled to a sum of Rupees 22,927.34 p. as decreed by the High Court.

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

Explanation:
0[ds]9. Now, if we look at the provisions of the Act, it is clear that it is the Central Government which is constituted the ultimate authority responsible for the administration of the provisions of thepost of Assistant Settlement Commissioner - that being the post with which we are concerned in this appeal - is, therefore, clearly a post under the Union of India to which appointment is to be made by the Central Government. It was in exercise of this power conferred by Section 3, sub-section (1) that the Central Government appointed the first respondent to the post of Assistant Settlement Commissioner, by its order dated 3rd September 1955. The Government of Punjab had no power to make appointment to the post of Assistant Settlement Commissioner, unless such power was conferred upon it by virtue of a direction given by the Central Government under Section 34, but admittedly there was no such direction in the present case. In fact, the Central Government, by its letter dated 18th April, 1955 requested the State Government to intimate "the names of officers appointed as Assistant Settlement Commissioner" for issue of necessary notification under the Act. The Central Government did empower the State Government to nominate the person to be appointed to the post of Assistant Settlement Commissioner but the appointment of the person so nominated could only be made and was in fact made by the Central Government by its order dated 3rd September, 1955. Once the appointment of the first respondent as Assistant Settlement Commissioner was made by the Central Government by its order dated 3rd September, 1955, there was no question thereafter of the State Government once again appointing him to the same post. The State Government, no doubt, by its order dated 1st December, 1955 purported to appoint the first respondent as Assistant Settlement Commissioner, but that was merely a formal "appointment letter" persuant to the suggestion contained in the letter of the Central Government dated 21st September, 1955.It was an ineffectual and futile exercise which had no legal consequence since by that the first respondent was already appointed to the post of Assistant Settlement Commissioner by the Central Government legally competent so to appoint and he was already functioning as such Assistant Settlement Commissioner. Moreover, the post of Assistant Settlement Commissioner, to which the first respondent was so appointed, was a post sanctioned by the President of India and created by the Central Government and the whole of the expenditure in connection with that post was to be borne out of the funds allocated by the Central Government, vice the letter of the Central Government dated 23rd July, 1955.It is true that the State Government also, by its order dated 30th November, 1955, purported to accord sanction to the creation of one post of Assistant Settlement Commissioner, but that was obviously for the purpose of regularising its own accounts procedure because the amount of Rs. 6.50 lacs for meeting the expenditure in connection with the staff for this work was made available by the Central Government to the State Government and it was the State Government which was to disburse the expenditure out of that amount. The post of Assistant Settlement Commissioner having already been created by the Central Govt. by the sanction of the President of India as conveyed under the letter dated 23rd July, 1955, did not need validation from the order of the Government of Punjab dated 30th November, 1955.In fact, when the question arose in regard to issue of pay slip in favour of the first respondent for the period subsequent to 29th February, 1956, when the original sanction of the President of India for the post of Assistant Settlement Commissioner expired, the Accountant General, Punjab pointed out in his letter dated 21st April, 1956 that the sanction to the continuance of the post by the Punjab Government was meaningless and ineffective and it could not be acted upon until receipt of sanction to the continuance of the post from the Central Government since "the post was created by them."It would, therefore, be seen that the post of Assistant Settlement Commissioner was created by the Central Government and the expenditure in connection with it was to be met out of the funds provided by the Central Government and it was the Central Government alone which was competent to make appointment to the post and in fact, the first respondent was appointed to the post by the Central Government by its order dated 3rd September, 1955. If this be the correct position, as it undeniably is, there can be no doubt that the Central Government alone could terminate the service of the firstrule is also found incorporated in Section 16 ofthe General Clauses Act, 1897. It is, therefore, clear that the Central Government, which is given the power to make a appointment to the post of Assistant Settlement Commissioner under Section 3, would also have the power to determine the appointment. The Central Government would also be entitled to terminate the appointment, since the post of Assistant Settlement Commissioner is a post under the Union of India and the person appointed to it would hold it during the pleasure of the President. There is no provision under which the Government of Punjab could have the power to determine the appointment as Assistant Settlement Commissioner made by the Central Government under Section 3. The Central Government alone could terminate the appointment, both as the appointing authority as also under Article 310 (1) of the Constitution. The High Court was therefore, right in taking the view that the order of the Punjab Government dated 17th April, 1956 was ineffectual and invalid and the service of the first respondent as Assistant Settlement Commissioner was validly terminated only on 10th February, 1959 when the Central Government, by its memorandum dated 10th January, 1959, gave notice terminating the service of the first respondent. There was no dispute before us that if the service of the first respondent came to an end on 10th February, 1959, and not earlier on 17th April, 1956, the first respondent would be entitled to a sum of Rupees 22,927.34 p. as decreed by the High Court.