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

2. The respondents were officiating Tahsildars in the erstwhile State of Pepsu. By notification No. RD/Est. 74 dated October 23, 1956 made by the Financial Commissioner, seven officiating Tahsildars, including the four respondents before us, were confirmed as Tahsildars with immediate effect. No posts were, however, available at that time in which the respondents could be confirmed. On October 24, 1956 the Rajpramukh of Pepsu sanctioned the creation of seven supernumerary posts of Tahsildars to provide liens for the Tahsildars who had been confirmed under the notification of October 23, 1956. While sanctioning these posts the Rajpramukh ordered that supernumerary posts will be reduced as and when permanent vacancies arose and that no pay will be drawn against these posts. November 1, 1956 the State of Pepsu was merged with the State of Punjab by virtue of the operation of the States Reorganization Act, 1956. On November 12, 1956 the Deputy Accountant General, Punjab wrote to the Financial Commissioner to the Government of Punjab, bringing to his notice the fact that seven Tahsildars were confirmed by the Financial Commissioner of Pepsu before the creation of supernumerary posts and suggested reconsideration of the action taken by the Government of Pepsu. On October 12, 1957 the Deputy Secretary to the Government of Punjab, Revenue Department, addressed the following memorandum to the Commissioner, Patiala DivisionNo. 4665-E(V)-57/3587 dates Simla 2, the 12th October, 1957.Subject: Absorption of Tehsildars of erstwhile Pepsu State. By notification No. RD/ Estt-74, dated the 23rd October, 1956 the erstwhile Pepsu State Government in the Revenue Department confirmed Sarvshri (1) Malvindar Singh, (2) Balwant Singh. (3) Gurdhiana Singh, (4) Jagdip Singh, (5) Rajwant Singh, (6) Avatar Krishna Bhalla, and (7) Ram Singh, as Tehsildars. As there were no permanent regular vacancies available in the cadre of Tehsildars at the time of issuance of the above notification, seven supernumerary posts of Tehsildars were created by a subsequent orders vide letter No. RD/18/(193)E/56 dated the 24th October, 1956 of erstwhile Pepsu State Government. The position has been examined in the revenue Department of the new State Government. Since the availability of permanent posts should always precede confirmation and not follow it, and since supernumerary posts are not, as a rule, created to confirm officiating hands, the procedure adopted by the late Pepsu Government in confirming the above named seven Tehsildars was wholly wrong. In the circumstances, the Governor of Punjab is pleased to order the cancellation of Notification No. RD/- Est-74, dated the 23rd October, 1956 regarding confirmation of 7 Tehsildars and letter No. RD-18(193)E/56, dated the 24th October, 1956 regarding creation of 7 supernumerary posts of Tehsildars. The aforementioned seven Tehsildars will consequently stand deconfirmed reverting to their original status as officiating Tehsildars.2. The Tehsildars concerned may please be informed accordingly.Sd/- V. P. GautamaDeputy Secretary,October 31, 1957 the Government of Punjab made a notification "de-confirming the seven Tehsildars who were confirmed by the Financial Commissioner, Pepsu on October 23, 1956. What the Government of Punjab evidently meant by "de-confirming was that the order of confirmation be treated as cancelled.3. The respondents challenged before the High Court the action taken by the Government of Punjab on two grounds. In the first place they said that the action of the Government amounted to a reduction in rank and, therefore, it could not be taken without compliance with the requirements of Art. 311 (2) of the Constitution. The second ground was that by virtue of the states re-organization, the respondents who held the status of permanent Tehsildars in the State of Pepsu could not be deprived of it by the successor Government. Both the contentions were accepted by Meher Singh J.These four appeals arise out of four writ petitions preferred by four persons under Art. 226 of the Constitution challenging a notification made by the Government of Punjab on October 31, 1957 "de-confirming the petitioners from permanent posts of Tahsildars and according to them the rank of officiating Tahsildars. The petitions were heard together and were disposed of by a common judgment by Mehr Singh J. Appeals preferred against his judgment were dismissed summarily by a Division Bench of the Punjab High Court. The State of Punjab has come up before us by special leave against the decisions in all the four writ petitions and we have heard the appeals preferred by it together. This judgment will govern all these appeals.

Reasoning:
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.