Case: Krishan Murari Lal Sehgal Vs. State Of Punjab

hold the same post in the new State of Punjab and shall be deemed as from that day to have been duly 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 Rajpramukh 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 Assistant is absolutely irrelevant in the context of S. 116(1) which enables them status quo ante to continue except where the post cases to exist under the provisions of the Act. It is also important to bear in mind the provisions of S.115(7) 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-s. (1) or sub-s. (2) shall not be varied to his disadvantage except with the previous approval of the Central Government."13. 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. Under S. 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 S.115(7) of the Act except with the previous approval of the Central Government, (Takhatray Shivdatray Manked v. State of Gujarat, (1970) I S.C.R. 244 and Bholanath J. Thaker v. The State of Saurashtra.) A.I.R. 1954 S.C. 680. No such approval of the Central Government in the instant case is produced before us. It is, therefore, clear that an authority sub-ordinate to the Governor of Punjab was not competent to pass the order of dismissal of the appellant.14. Mr. Sharma submits that the Punjab Financial Commissioners Office (State Service Class III) Rules, 1957, are applicable in the instant case. Therefore, under Rule 4 thereof the Financial Commissioner is the appointing authority for Assistant, the category to which the appellant belongs. He adds that even though these Rules may be disadvantageous to the appellant he cannot complain on account of the approval of these Rules by the Central Government under S.115(7) 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 v. Deputy Commissioner, South Kerala Mangalore (1964) 7 S.C.R. 549 and in a recent decision in Mohammad Shujat Ali v. Union of India (1975) I S.C.R. 440, this Court referred to that circular of May 11, 1957, and held that circular amounted to general approval under the proviso to S.115(7) 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 S.115(7) of the Act when the Punjab Financial Commissioners Office (State Service Class III) Rules, 1957 were already promulgated on February 8, 1957. Approval under S. 115(7) is previous approval and not subsequent notification. The above decisions, therefore, do not come to the aid of the respondent.15. Mr. Sharma also drew our attention to a decision of this Court in Rajvi Amar Singh v. The State of Rajasthan (1958) S.C.R. 1013, which is clearly distinguishable on facts. This Court was not called upon in that case to consider the provisions of the States Reorganisation Act.16. Our attention has been drawn by the appellant to an unreported judgment of this Court in Mysore State Road Transport Corporation etc. v. Mirja Khasim Ali Beg and another etc. C.A. Nos. 1601 - 1609 and 2402 - 2405 of 1968 dated 1-12-1976, [1977-I L.L.J. 262] pronounced on December 1, 1976. This Court had to deal with a similar question although appertaining to the "competent authority" under S.116(2) of the Act in the background of Art. 311(1) of the Constitution. The following passage from that decision will make the point clear :"In the instant cases, the first respondents 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 State Reorganisation Act, 1956, on November 1, 1956, they were to be deemed by virtue of sub-s.(1) of S.116 of the States Reorganisation Act to have been appointed with effect from that date to the posts held by them on that date by the appropriate authority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or co-ordinate in rank with the aforesaid authority in the erstwhile State of Hyderabad. The authority equivalent to or co-ordinate 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 competent authority in terms of sub-s.(1) of S.116 of the States reorganisation Act, 1956. 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 petition, the first respondents 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 Art. 311 of the Constitution read with S.115(7) of the States Reorganisation Act, 1956.."

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

Explanation:
1[ds]10. As noted earlier, factually, the appellant was confirmed 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 subordinate to the Governor. He was, therefore, not competent to pass the order of dismissal. The order of dismissal is violative of Art. 311(1) of the Constitution and is, therefore, invalid and is liable to be struck down.We are unable to appreciate the above line of reasoning of the High Court. Section 116(1) is very clear. To concretise the appellants case in terms of S. 116(1). It is sufficient to state that the appellant who, immediately 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 been duly 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 Rajpramukh 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 Assistant is absolutely irrelevant in the context of S. 116(1) which enables them status quo ante to continue except where the post cases to exist under the provisions of the Act. It is also important to bear in mind the provisions of S.115(7) 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-s. (1) or sub-s. (2) shall not be varied to his disadvantage except with the previous approval of the Central Government."13. 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. Under S. 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 S.115(7) of the Act except with the previous approval of the Central Government, (Takhatray Shivdatray Manked v. State of Gujarat, (1970) I S.C.R. 244 and Bholanath J. Thaker v. The State of Saurashtra.) A.I.R. 1954 S.C. 680. No such approval of the Central Government in the instant case is produced before us. It is, therefore, clear that an authority sub-ordinate to the Governor of Punjab was not competent to pass the order of dismissal of theunder Rule 4 thereof the Financial Commissioner is the appointing authority for Assistant, the category to which the appellant belongs. He adds that even though these Rules may be disadvantageous to the appellant he cannot complain on account of the approval of these Rules by the Central Government under S.115(7) of thesuch approval of the Central Government in the instant case is produced before us. It is, therefore, clear that an authority sub-ordinate to the Governor of Punjab was not competent to pass the order of dismissal of theare, however, unable to see how this memorandum of May 11, 1957, can be called in aid as "previous approval" under S.115(7) of the Act when the Punjab Financial Commissioners Office (State Service Class III) Rules, 1957 were already promulgated on February 8,1957. Approval under S. 115(7) is previous approval and not subsequent notification. The above decisions, therefore, do not come to the aid of the respondent.