Case: L.G. Chaudhari Vs. Secretary, L. S. G. Department, Government of Bihar and Others

and that he was to be treated as a permanent Government servant. The Government wanted to know why the Accountant General was withholding the appellants increment. In the face of these two letters it appears to us be futile for the Government to contended that the appellant had not been confirmed and that he continued as a probationer till September 1967. Even the controversial letter dated November 28, 1956, contains two significant undisputed statements : "...... Shri Chaudhari has been appointed on permanent, substantive basis with effect from August 5, 1955, with probation for one year" and "in the circumstances Shri Chaudhari may be treated as a permanent Government servant with effect from August 5, 1955". The draft of the letter dated November 28, 1956 with the words "is being" and "will be" substituted for the words "has been" was sought to be put forward as a correct copy of the original on the basis of the extract from the Audit Register. On that basis it was claimed that there was no order confirming the service of the appellant. We may mentioned here that the original letter received by the Accountant General was not produced on the ground that it was not traceable. We are unable to place any reliance on the extract from the Audit Register for the reason that in the counter-affidavit fild on behalf of the Accountant General it was stated that the entry in the Audit Registers was attested in September, 1958, while in the letter dated September 15, 1958, it was clearly stated that the original letter was not available. If so, how could the entry in the Audit Register have been attested in September, 1958 ? We do not desire to further probe into the loss of the original letters, the alleged interpolations in the draft etc., as we are clearly satisfied on the basis of the letters dated August 20, 1956 and March 18, 1967, that the appellant was confirmed in his post as Town Planner as claimed by him. To say the least the stand taken by the Government that the appellant continued as a probationer till September 15, 1967 is ludicrous. On more than one occasion the Government asked the Accountant General why the appellants increments had been withheld despite the appellant having been appointed on a permanent and substantive basis. The stand of the Government before the High Court and before us is in capable of being justified in any way. It is clear that some mischief was afoot in the Bihar Secretariat and official records had either disappeared or had been tampered with. The appellant was not to blame for it. The mischief makers who were trying to make out that the appellant had not been confirmed were apparently responsible. We think the less said about these matters the better. 3. The learned Attorney-General who appeared for the State of Bihar argued that there was no formal order of confirmation in terms of Article 166 of the Constitution and that under the provisions of Article 163(3) the proceeding of the Cabinet could not be looked into. He urged that the question whether the appellant had been confirmed in the post of Town Planner was a disputed question of fact and therefore, the High Court was right in not venturing to decide the question. We do not agree with the learned Attorney General. In the absence of a formal order drawn up in terms of Article 166 of the Constitution it was certainly open to the appellant to prove by evidence aliunde that he had been appointed on permanent and substantive basis. In R. Chitralekha v. State of Mysore ((1964) 6 SCR 368 : AIR 1964 SC 1823 ), it was pointed out that the provision of Article 166 of the Constitution were only directory and not mandatory and, if they were not complied with it could be established as a question of fact that the order was issued by the State Government. The learned Attorney-General urged that the order, if any, was never communicated to the appellant and, therefore, was of no effect. He relied on Bachhitar Singh v. State of Punjab (1962 Supp 3 SCR 713 : AIR 1963 SC 39). We may at once say that no such plea was ever raised before the High Court and the appellant cannot at this stage be non-suited on the ground that the order of confirmation was never communicated to him. We do not consider it necessary to express any opinion on the question whether Article 163(3) of the Constitution bars the court from looking into the proceeding of the Cabinet. It is one thing to say "the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court", and altogether a different thing to say that the proceedings of the Council of Minister cannot be looked into even if produced without objection and without any claim of privilege. We do not desire to say anything more on this aspect of the case, since there is enough of other material in the case. 4. We are also unable to find any force in the submission of the learned Attorney-General that the High Court was quite right in refusing to decide the question whether the appellant had been confirmed or whether he continued as a Probationer till September 15, 1967 on the ground that it was a disputed question of fact. As already observed by us the communications addressed by the Government to the Accountant General are clear on the point and the stand taken by the Government for the first time in 1967 that the appellant was continuing on probation till then was ludicrous. To refuse to decide the question when the entire material was before the court - it is not suggested that there was any other material - and to direct the appellant to go to a Civil Court would only be to shirk our responsibility.

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

Explanation:
1[ds]We agree with him. The letter dated August 29, 1956 from the Government to the Accountant General contains a clear recital that the post of Town planner had been made permanent and pensionable with effect from August 5, 1955, the date on which Shri Chaudhari had joined the post and that Shri Chaudhari was therefore, to be treated as an ordinary permanent gazetted Government servant. In his letter dated September 28, 1956, the Accountant General did not raise any query whether the appellant had been confirmed but raised the limited query as to the date from which he was to be treated as a permanent Government servant. Again in the letter dated March 18, 1967, the Government reiterated the position that the appellant had been appointed against a permanent and pensionable post and that he was to be treated as a permanent Government servant. The Government wanted to know why the Accountant General was withholding the appellants incrementThe appellant was not to blame for it. The mischief makers who were trying to make out that the appellant had not been confirmed were apparently responsible. We think the less said about these matters the better. We do notagree with the learned Attorney General. In the absence of a formal order drawn up in terms of Article 166 of the Constitution it was certainly open to the appellant to prove by evidence aliunde that he had been appointed on permanent and substantive basis. In R. Chitralekha v. State of Mysore ((1964) 6 SCR 368   : AIR 1964 SC 1823  ), it was pointed out that the provision of Article 166 of the Constitution were only directory and not mandatory and, if they were not complied with it could be established as a question of fact that the order was issued by the State Government. The learnedl urged that the order, if any, was never communicated to the appellant and, therefore, was of no effect. He relied on Bachhitar Singh v. State of Punjab (1962 Supp 3 SCR 713 : AIR 1963 SC 39). We may at once say that no such plea was ever raised before the High Court and the appellant cannot at this stage bed on the ground that the order of confirmation was never communicated tohim.We do notconsider it necessary to express any opinion on the question whether Article 163(3) of the Constitution bars the court from looking into the proceeding of the Cabinet. It is one thing to say "the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court", and altogether a different thing to say that the proceedings of the Council of Minister cannot be looked into even if produced without objection and without any claim of. Wedo notdesire to say anything more on this aspect of the case, since there is enough of other material in the caseare also unable to find any force in the submission of the learnedl that the High Court was quite right in refusing to decide the question whether the appellant had been confirmed or whether he continued as a Probationer till September 15, 1967 on the ground that it was a disputed question of fact. As already observed by us the communications addressed by the Government to the Accountant General are clear on the point and the stand taken by the Government for the first time in 1967 that the appellant was continuing on probation till then was ludicrous. To refuse to decide the question when the entire material was before the courtit is not suggested that there was any other materialand to direct the appellant to go to a Civil Court would only be to shirk our responsibility.