Case: State of Punjab and Others Vs. Balbir Singh Etc

Respondents Balbir Singh, Surmukh Singh, Dasaundi Ram, Jagdish Singh, Surat Singh, Kartar Singh and Gurbux Singh were promoted and appointed on officiating basis as Sub-Divisional Officers in the Punjab Public Works Department (Buildings and Roads Branch) on various dates between 30-7-1960 to 10-5-1963. Respondents R. R. Bhanot, Jodh Singh and Gurcharan Singh were so appointed between dates 17-12-1957 and 10-12-1959. Respondents Shamsher Singh and Bhakhtawar Singh were promoted on 22-10-1956 and 1-3-1956 respectively. Respondent Kartar Singh was working as planning Assistant-cum-Draftsman while the other respondents were Overseers before they were appointed as officiating Sub-Divisional Officers. By the impugned order dated October 28, 1966 the then Government of the erstwhile Punjab State reverted them to their original rank. The orders of their reversion were challenged by the said respondents on the ground that they were governed by the Punjab Ser vice of Engineers, Buildings and Roads Branch (Recruitment and Conditions of Service) Rules, 1942 (for brevity, the 1942 Rules). They claimed that they had become automatically confirmed as members of the service under the said Rules and could not be reverted without complying with the provisions of Article 311(2) of the Constitution of India and the other statutory Rules relating to disciplinary matters. This was the only point which succeeded before the learned single Judge and he allowed all the writ applications, it appears, without fully appreciating, the distinction of facts of the various cases for the acceptance of this ground.Respondent Bhagwan Singh was appointed as temporary Assistant Engineer on completion of his six months training period with effect from December 3, 1960. His service was terminated by the then Punjab Government by order dated October 28, 1966 on the ground of his having been found unsuitable for appointment t o P.S.E. Class II (B &R Branch). Bhagwan Singh also relied upon 1942 Rules before the learned single Judge andDivision Bench has very carefully and elaborately considered the application of the 1942 Rules to the cases of the respondents. It has disagreed with the single Judges view. After copiously quoting from the 1942 Rules, the High Court in appeal has referred to the Punjab Service of Engineers Class I P.W.D. (Buildings and Roads Branch) Rules 1960 (for brevity, the 1960 Rules) regulating the recruitment and conditions of service of persons appointed to the P.S.E. Class I service. The 1960 Rules came into force on and from March 18, 1960. It had repealed the 1942 Rules by Rule 24 with a saving clause in the proviso appended thereto. The High Court then referred to the Punjab Service of Engineers, Class II P.W.D. (Buildings and Roads Branch) Rules, 1965 (for brevity, Class II 1965 Rules). The said Rules came into force from February 19, 1965. The stand on behalf of the State of Punjab in the High Court was:-(1) that the 1942 Rules did not govern the cases of the respondents as the said Rules applied to class I service consisting of Assistant Executive Engineers and officers of higher ranks only; (2) that the respondents had to be taken in P.S.E. Class II service in accordance with Rule 6(5) (b) of Class II 1965 Rules read with paragraph 1 (d) of Appendix G of the said Rules, in consultation with the Punjab Public Service Commission; (3) that since the Commission did not find them suitable for being admitted to that service, they were reverted to their substantive rank in accordance with the terms and conditions of their service and not by way of punishment.The High Court made a comparative study of 1942 Rules, 1960 Rules and Class II 1965 Rules and came to the conclusion that the officiating Sub-Divisional officers, as the respondents were, not being Assistant Executive Engineers, were not governed by the 1942 Rules. None of them had claimed that he was holding the rank of Assistant Executive Engineer in any capacity. The view of the learned single Judge that the Sub-Divisional Engineers were included in the category o f Assistant Executive Engineers did not find favour with the Bench. The Bench further pointed out that the respondents should be divided into three categories: (a) those who were promoted subsequently to the repeal of the 1942 Rules, (b) those who were promoted with him three years preceding such repeal and (c) those who were promoted more than three years prior to such repeal. The respondents promoted on dates between 30.7.1960 and 10.5.1963 fell within the first category. Obviously they could not claim the protection on the basis of 1942 Rules. The three respondents who were appointed as officiating Sub- Divisional officers between 17-12-1957 and 10-12-1959 fell within the second category. The High Court rightly held that they had not completed the maximum period of three years probation to acquire the substantive posts of Sub-Divisional officers fixed under Rule 12(3) of 1942 Rules, even assuming that they could take advantage of the same. Respondents Shamsher Singh and Bakhatawar Singh had been promoted in the year 1956 and fell within the third category. The Division Bench pointed out that in their case the difficulty in the application of the 1942 Rules was that they were promoted in the erstwhile Patiala and East Punjab States Union. It could not be shown that there were any statutory Rules governing their conditions of service and appointments as Sub- Divisional Officers. Since on the date of the impugned order dated 28.10. 1966 they had put in more than 10 years of service as officiating Sub-Divisional officers, their case was considered to be a hard one. But for the purpose of the law they could not be given the advantage of the 1942 Rules and obviously so.It is plain that the case of none of the respondents was covered by the 1942 Rules. All the respondents had to be absorbed and admitted to P.S.E. Class II service in accordance with Class II 1965 Rules and that required the approval of the Public Service Commission. Since Commission did not find them suitable, they had to be reverted to their substantive ranks. On a consideration of a large number of authorities the High Court has rightly come to the conclusion that their reversion was not hit. On account of the non compliance with the provisions of Article 311(2) of the Constitution or any Rules governing the disciplinary action. The reversion was not by way of punishment. This aspect of the matter is now squarely cover ed by the decision of this Court in Shamsher Singh &Anr. v. State of Punjab ([1975] 1 S. C. R. 814.) (vide pagefew new points were urged on behalf of the respondents in the Letters Patent appeals. They were not allowed to be raised except the one which eventually succeeded and the Letters Patent appeals were allowed on the basis of thatdecision of the High Court as respects the application of the 1942 Rules to the cases of the respondents and the order o f reversion not being hit by the alleged non compliance with Article 311(2) of the Constitution could not be seriously challenged before us.

Reasoning:
We agree with the view expressed by the Division Bench. It is not necessary to repeat all that has been said by the High Court in thatthe Act certain territories we re carved out from the appoint ed day from the then existing State ofto the provision aforesaid all the respondents provisionally continued to serve in connection with the affairs of the State of Punjab and eventually also all of them (except Bhagwan Singh) continued to serve with thatagree with the High Court that the impugned orders in question were not law within the meaning of section 2(g) and hence were, in terms, not saved by sectionIn our Judgment when there is no change of sovereignty and it is merely an adjustment of territories by the reorganization of a particular State, The administrative orders made by the Government of the erstwhile State continue to be in force and effective and binding on the successor States until and unless they are modified, changed or repudiated by the Governments of the successor States. No other view is possible to be taken. The other view will merely bring about chaos ill the administration of the new States. We find no principle in support of the stand that administrative orders made by the Government of the erstwhile State automatically lapsed and were rendered ineffective on the coming into existence of the new successorsaid principle is not applicable to the case on hand as it is not a case of absorption of one State in another by accession, conquest merger or integration. It would be chaotic in this principle were to be applied to the case of re-organization of States in the samethe said decision of this Court supports the view which we have ex pressed above. We are, therefore, of the opinion that the impugned orders passed by the Government of the erstwhile State of Punjab continued to be the orders of the Governments of the concerned successor States until and unless they were modified, changed or repudiated by them Nothing of the kind was done by the new State of Punjab; rather, by treating that order as valid and adopting it as its own, the new State of Punjab resisted the writ applications and pursued the matter in the Letters Patent appeals and up to this Court in these appeals.On the facts and in the circumstances of these cases we do not agree with the High Court that the communication of the orders was on or after 1-11-1966 when they were actually received by the officersthe ratio of the decision of a Bench of 4 Judges of this Court, in the case of State of Punjab v. Khemi Ram(A. I. R. 1970 S. C. 214.) we hold that the orders were communicated either on 29-10-1966 or surely onthe principle of law aforesaid we find in this case that the orders went out of the control of the authority which had passed that order on 29-10-1966 when copies of the orders were forwarded to the Accountant General and the Chief Engineer. In any event, we think that the orders were despatched from the office of the Chief Engineer on 3-10-1966. It is one thing to say that in the case of dismissal or the like the order becomes effective only after it is received by the officer concerned and a different thing to say that an order has no effect at all before it is communicated in the sense of receipt of the order by the concerned officer. In the sense we have said above the orders were communicated to all the respondents before 1-11-1966. They became effective as soon as they were sent out. And for the purposes of section 83 of the Act the respondents must be deemed to be holding the posts to which they were reverted onwish to point out that the proposition of law enunciated in such a bald manner is not correct. The Inquiry officer may not be competent to continue the enquiry and submit the report for differentcareful consideration we have arrived at the conclusion that the impugned orders of reversion dated October 28, 1966 were valid. About 9 years have passed since then and some complications have arisen during this period. Admittedly, after the High Court judgment all the respondents were officiating in the higher posts. At the time of the hearing of these appeals, we were given to understand at the Bar that none of the respondents was reverted pursuant to the impugned order We asked the parties to ascertain the correct position and file their statements. On behalf of the Government we have been informed that they will not claim any refund of the salaries paid to the respondent s for the period they have worked as officiating Sub-Divisional officers in the Department. But they claimed that the respondents were not working as such after the reversion order and before the High Court Judgment and hence they are entitled to get back the difference. Of salary paid to the respondents for the period they have not worked as Sub-Divisional officers and had worked only as overseers and Draftsmen in their substantive posts. The difference of salary for the intervening period between the order of reversion and the High Court Judgment was paid to them subject to the furnishing of the bank guarantee. On the other hand, it is claimed on behalf of the respondents that even during those periods they were working as S.D.O. or had gone on leave while continuing in such posts. In the circumstances justice requires that the Government should not claim any refund of any part of the salary paid to the respondents until today.